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Law 12 Policing and Arrest Ms. Ripley
SEARCH LAWS (Learning About Law, Buckingham, pp-175-179)
The general measure of whether a search is lawful or not depends on the reasonableness of the search as determined by the courts. Under section 8 of the Charter, everyone is secure from unreasonable search or seizure. A search is considered reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable.
There are many types of search laws in Canada. The most frequently discussed types are searches of people, homes, and businesses. Several methods can be used to conduct searches. In this section, we will explain and review the general principles of lawful searches, explore some of the methods that are used for searching, and review the possible actions a person might take if he or she is unlawfully searched.
SEARCHING WITH A WARRANT
In investigating criminal activities, police must sometimes search places that are normally considered private- A search warrant is a court order that gives police the lawful right to search places like buildings, including private homes, offices, and storage rooms. Such a warrant is also necessary if police are searching receptacles or containers like security deposit boxes and safes at banks. Sometimes search warrants are necessary to search outside locations as well - for example, the private property surrounding a house.
Search warrants are obtained from a judge or a justice of the peace. A police officer must first swear an information. The officer must name the place to be searched, the hours when it is lawful to search, and the item(s) for which the officer is searching. Searches are generally limited to daylight hours unless the judge or justice of the peace authorizes a night search.
Another method of obtaining a search warrant is by the police communicating the necessary information under oath to a judge or justice of the peace by telephone. This form of search warrant is called a telewarrant. It requires the judge or justice of the peace to record all of the information given over the phone and file it with the court. This form of search warrant must also include the reason the officer cannot personally appear before the judge or justice of the peace and may only be obtained during an investigation of an indictable offence. The officer who has requested the telewarrant must prepare a facsimile warrant, which he or she is required to produce at the scene of the search.
SEARCHING WITHOUT A WARRANT
When a person is being arrested, the police do not need a warrant to search him or her. In addition, any building or vehicle in the arrested person's control may also be searched without warrant. The main reason for allowing police to search individuals at the time of arrest is to ensure that the people being arrested will not be a danger to the officers or to themselves. These searches also serve to discover any evidence on the person before it can be hidden or destroyed.
There are situations in which police may search places without warrant using certain federal and provincial statutes. The Narcotic Control Act, for example, allows police to search any place (except a dwelling) if they have reason to believe that narcotics may be on the premises. The people who are on the premises may also be searched without warrant.
ELECTRONIC SURVEILLANCE
One of the most common methods currently used to monitor criminal activities and to acquire information and evidence involves electronic surveillance equipment. Electronic surveillance equipment includes wiretap and bugging (eavesdropping) devices. Wiretap evidence is usually collected by intercepting telephone conversations. Bugging evidence is collected by hiding a transmitter capable of relaying conversations that occur in one place or with a particular person to a tape recorder.
Generally, police must have a judge's authorization to intercept a suspect's conversations and use this evidence for prosecution. Wiretaps and bugging devices are also lawful if a person involved in the conversation consents to them.
Judges authorize electronic surveillance when other types of surveillance have been tried and have failed, when other procedures would be unlikely to succeed, or when there is an urgency about the investigation that makes it impractical to use alternative methods.
R v. Wong (1990), 60 C.C.C. (3d) 460 (S.C.C.)
Police suspected a large-scale illegal gambling operation was taking. place in a hotel room contracted to Wong. They placed video surveillance equipment in the room for the purpose of collecting evidence, without a judge's authorization. The room was videotaped with 30 to 35 people engaging in illegal gambling activities over the course of several nights. Some of the individuals invited into the room to gamble were strangers to Wong.
The main question in this case was whether Wong and the people he had invited into the hotel room had a reasonable expectation of privacy when they were in the hotel room. The fact that they were carrying on the illegal activity of gambling could not have a bearing on this fundamental issue of an expectation of privacy. The Supreme Court of Canada found that Wong's privacy was protected by section 8 of the Charter and that the electronic surveillance had therefore been a violation of his rights. He was acquitted.
1. Section 8 of the Charter guarantees Canadians the right to be secure against unreasonable search or seizure. This means that, in most cases, the use of video surveillance is not allowed in homes. Should a hotel or motel room be categorized with homes in this respect? Explain.
2. Does the fact that 30 to 35 people were present in the hotel room mean that the hotel room had become a public place and that these people should not have had a reasonable expectation of privacy? Explain.
3. If you were the judge hearing this case, would you allow the video evidence? Why or why not?
R. v. Davie (1980), 54 C.C.C. (2d) 216 (B.C.C.A.)
Davie was charged with arson. He was suspected of purposely setting forest fires. After being arrested, he was left unattended in an RCMP polygraph room. The room contained a concealed microphone and a video camera.
After being alone for some time, the accused slid out of his chair and fell to his knees. He put his hands in the air and said, "Oh God, let me get away with it just this once."
This recorded behaviour and statement were used in evidence against Davie at trial, and he was convicted. He appealed to the British Columbia Court of Appeal, but that court upheld his conviction.
1. No judicial authorization had been granted for this surveillance. Davie had not given permission to be videotaped and recorded. Under these circumstances, did the RCMP have the right to monitor his movements and conversations? Explain.
2. Davie alleged that the statement to God was a private conversation and that it should not have been taped. A private conversation has been defined by the courts as a verbal exchange between two or more people. In your opinion, was this a private conversation or a voluntary verbal confession? Explain.
3. If you were the judge hearing this case, would you allow the prosecution to use this surveillance evidence or not? Support your answer. (A private conversation can be lawfully taped if one party to the conversation gives police permission to tape it.)
ILLEGAL SEARCHES
People who are unlawfully searched can respond in various ways. They may attempt to have the search warrant declared invalid. If that is successful, whatever was found in the search cannot be used as evidence against the individual. If the search appears to be illegal, people may respond by attempting to resist the search. However, this response could lead to many difficulties, including criminal charges against the resisting person.
R. v. Kokesch (1990), 61 C.C.C. (3d) 207 (S.C.C.)
A police officer suspected that Kokesch was cultivating marijuana. He approached Kokesch's home and peered in the window, but saw nothing. He did, however, smell the odour of marijuana plants. On that basis, the officer applied for and obtained a search warrant. Marijuana plants were, seized in Kokesch's home. He was arrested Ind charged with possession and cultivation >f marijuana for the purpose of trafficking.
The trial judge refused to admit the evidence of the marijuana plants because there lad been no reasonable grounds based on section 8 of the Charter for the initial search )f the area around the accused's home. The Supreme Court of Canada agreed with the trial judge's decision when the case was 1eard on appeal. Mr. Justice Sopinka noted n the Supreme Court's decision, “Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally."
1. Does the manner of obtaining evidence in the Kokesch case seem unfair to you? Support your answer.
Cloutier v. Langlois, [1990] I S.C.R. 158
The accused persons in this case were two Montreal police officers. They stopped a vehicle that they had observed violating a municipal by-law. When one of the officers contacted the police station to determine whether there were outstanding arrest warrants against the driver, Cloutier, it was discovered that there was a warrant of committal issued against him for unpaid fines. In arresting Cloutier, he was very unpleasant, verbally abusive, and highly agitated. The officers carried out a frisk search before placing him into the police vehicle for transportation to the lock-up. the frisk search entailed having the driver place his hands on the hood of his car while standing with his legs apart. In this position, the officers patted down the outside of his clothing. The entire search lasted a matter of seconds.
After the incident, Cloutier filed a complaint that led to charges of assault against the two officers. He alleged that they did not have a lawful power of arrest or search in this incident.
The trial judge dismissed the complaint against the officers, as did a judge of the Superior Court on appeal. However, the Quebec Court of Appeal reversed the decision and found the officers guilty of assault. The majority's reasoning was that the arrest and the search were two separate procedures. The right to arrest, in their view, did not constitute the right to search as well. The search would have been lawful only if there had been reasonable and probable grounds to conduct it.
The Quebec Court of Appeal's decision was appealed to the Supreme Court of Canada. The Supreme Court of Canada decided that a frisk, or pat down, search is relatively nonintrusive. Since this search was carried out for lawful reasons, it was not an unwarranted intrusion on the driver's rights. The case against the two police officers was dismissed.
1. Suppose you are a judge of the Supreme Court of Canada. Consider each of the following questions, and then decide whether the officers were guilty of assault. Give reasons for your judgment.
a. Do police officers have a power to search in the normal course of their duties? Explain.
b. Was the search reasonable, based on section 8 of the Charter, under these circumstances?
c. Was there a proper balance between the right of police officers to search in order to protect society and the right of the individual to be free of unreasonable search? Explain.
d. Was this search a valid pursuit for an object that might have caused harm to the police, to the individual, or to members of the public, or that might have been used by the driver to escape? Explain.
e. Did the frisk search constitute an assault? Explain.