Chapter 14 - Police Practices

Searches and seizures

Special powers of search and seizure have long been part of drug law enforcement practices. For example, before they were eliminated in 1985, writs of assistance generally gave peace officers the power to search without first having to obtain a warrant. Such powers were found in previous versions of the Customs Act, the Excise Act, the Food and Drugs Act and the Narcotic Control Act.  Before its repeal in 1985, section 10(1) of the Narcotic Control Act allowed peace officers acting under “the authority of a writ of assistance or a warrant” to enter and search a dwelling-house “at any time,” so long as the peace officer had a reasonable belief that there was a narcotic in the house “by means of or in respect of which” an offence under the Act had been committed. Section 8 of the Charter eventually put an end to writs of assistance.

Today, the CDSA establishes a comprehensive search and seizure scheme for drug-related offences. Although these provisions are similar to the search and seizure provisions of the Criminal Code, police have some additional powers under the illicit drug legislation. Section 11(1) allows a justice to issue a search warrant if he or she is satisfied by information on oath that there are reasonable grounds to believe that specific items are in a place. These items are:

 

v     A controlled substance or precursor in respect of which the CDSA has been contravened;

v     Anything in which a controlled substance or precursor referred to in the previous paragraph is contained or concealed;

v     Offence-related property; or

v     Anything that will afford evidence in respect of an offence under the CDSA.

 

A warrant may be obtained even though there is no reason to believe that there are illicit drugs in the place being searched, so long as there are grounds respecting the presence of one of the other three types of items.  

The CDSA authorizes a search “at any time.” Thus, there is no requirement to obtain authorization to search at night, as in the case of a search under the Criminal Code.

Another special power is found in subsection 11(5), which allows the police to conduct searches of the person in certain circumstances. This power is not found in the Criminal Code, although the police do have power of search incidental to arrest under common law. The CDSA gives the police, in the process of executing a search warrant, the power to search a person for a controlled substance or other specified items. This can be done only if the officer has reasonable grounds to believe that the person found in the place set out in the warrant has in his or her possession a controlled substance or other specified items set out in the warrant. Thus, this provision authorizes the police to conduct a search of the person even if no arrest is made, but only for specified items and only if the police have reasonable belief of certain facts.

Subsection (7) allows the police to conduct a search described in subsections (1), (5) or (6) without a warrant “if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impractical to obtain a warrant.” As will be discussed later, warrantless searches are presumed to be unreasonable, but the courts have allowed for exceptions. The rules have been summarized as follows:

 

A warrantless search has been justified where, based on the circumstances of the search, it was not feasible to obtain the warrant; for example, where a vehicle, airplane or other conveyance having the ability to change location is the subject of the search. The onus in such cases is on the Crown to establish that the obtaining of a warrant in the circumstances of the specific case would impede the effectiveness of the enforcement of the law.

 

Where there is no common law search power regarding searches in “exigent circumstances”, the courts have held that it is necessary for the enabling legislation to specifically refer to a warrantless search power in certain circumstances, for example, exigent circumstances. Such legislative provisions should narrowly define the type of investigation which would permit the use of a warrantless search. [1][22]

 

Although exigent circumstances may be created by the presence of drugs in a vehicle, whether a warrantless search of a person’s home in exigent circumstances will be found to be constitutional is still in doubt.[2][23] The courts will require some public interest sufficiently compelling to override the privacy interests attaching to the home. One example of such a compelling interest is the preservation of human life or safety.[3][24]  

The legislation also allows: a police officer to seize things not specified in the warrant if the officer believes on reasonable grounds that they are items mentioned in subsection (1);[4][25] and the power to seize anything that the officer believes on reasonable grounds has been obtained by or used in the commission of an offence (not limited to drug offences) or will afford evidence in respect of an offence.[5][26]

The CDSA also deals with the use of force. Section 12 allows a police officer who is executing a warrant to “enlist such assistance as the officer deems necessary” and “use as much force as is necessary in the circumstances.” It should be noted that the search provisions in the Criminal Code do not specify that force may be used, although this is set out in other sections of the Criminal Code.

Things seized under the CDSA can be classified as either offence-related property (for example, money and automobiles) or controlled substances (“drugs”), with specific rules regarding detention and forfeiture for each category. The legislation also provides for the search, seizure, detention and forfeiture of proceeds of crime in relation to drug-related offences by incorporating the proceeds of crime provisions of the Criminal Code.

 

Section 8 of the Charter–warrantless searches

Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. Court decisions have dealt with the question of whether searches are reasonable in various situations and with the ancillary question of whether evidence obtained during the searches can be adduced at trial. A search will generally be reasonable if it is authorized by law, the law itself is reasonable, and the search is carried out in a reasonable manner.  

Section 8 protects the public’s reasonable expectation of privacy from state intrusions. Thus, where there is no reasonable expectation of privacy, section 8 does not apply. In addition, a diminished expectation of privacy (for example, in prisons or at border crossings) will lower the standard of reasonableness (for example, excusing the absence of a warrant or reducing the standard required for justifying the search). A person’s home is where there would be the greatest expectation of privacy and thus a greater degree of constitutional protection.

Although the Charter does not specifically require that police obtain a search warrant to conduct a search, the Supreme Court of Canada in Hunter v. Southam Inc. has established a presumption that a warrantless search is unreasonable.[6][27] The general rule for a valid search is that the police will require prior authorization to conduct the search (for example, by obtaining a search warrant) and reasonable and probable grounds to justify it. This is to provide a safeguard against unjustified state intrusion.  

This is the general rule; however, there are exceptions. It is recognized that a prior authorization is not always feasible. With respect to these exceptions, the courts require some authority, in statute or at common law, to conduct warrantless searches. The existence of such authority is not enough, however, because the courts will also review this authority to ensure that it is reasonable. In defining what is reasonable, the courts have established that warrantless searches should generally be limited “to situations in which exigent circumstances render obtaining a warrant impracticable.”[7][28] In R. v. Grant, the Court stated:

 

To sum up on this point, s. 10 may validly authorize a search or seizure without warrant in exigent circumstances which render it impracticable to obtain a warrant. Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. While the fact that the evidence sought is believed to be present on a motor vehicle, water vessel, aircraft or other fast moving vehicle will often create exigent circumstances, no blanket exception exists for such conveyances. [8][29]

 

While every case will be reviewed on its merits, the greater the degree of urgency the police can demonstrate in the circumstances, the more inclined a court will be to find the warrantless search reasonable.

 

Searches of the person

Apart from a few specific provisions, such as the one found in the CDSA, federal criminal law does not provide authorization for a search of the person. The common law does, however, allow a search of the person incidental to a lawful arrest. This common law power is an exception to the general rule that a search requires prior authorization to be reasonable. This is a very important exception, because most searches of the person are done pursuant to this power. As explained earlier, the CDSA does allow a police officer who is executing a search warrant under that Act to search people who are present, under certain conditions.  

A person may be searched under the common law power only for the purpose of locating further evidence relating to the charge upon which he or she has been arrested or to locate a weapon or some article that may assist him or her to escape or commit violence. Although the power to search incidental to an arrest is fairly broad, there is no automatic unrestricted right to search incidental to an arrest.

 

Manner in which search conducted

Courts have shown a willingness to scrutinize the manner in which a search of the person is conducted. For example, in Collins, a British Columbia case, the accused was sitting in a bar that was said to be frequented by heroin users and traffickers. The accused was seized by two police officers; while one of them used a choke-hold that rendered her semi-conscious, the other forced open her mouth. While this was happening, three caps of heroin dropped out of the accused’s right hand. The Court held that the officers in this case had not had reasonable and probable grounds to believe that narcotics were in the accused’s mouth and that therefore the search was unlawful. The Court went further and determined that to admit the evidence would bring the administration of justice into disrepute, for it would condone and allow the continuation of unacceptable conduct by the police. This decision was affirmed on appeal by the Supreme Court of Canada. This does not mean that a choke-hold will always be considered unreasonable. The following was stated in R. v. Garcia-Guiterrez.[9][30]  “a choke-hold was used to prevent the evidence from being swallowed and a punch to the solar plexus to force the suspect to cough it up. Subject to a strongly worded dissenting opinion, the majority of the B.C. Court of Appeal held that the choke-hold to preserve evidence was acceptable in the circumstances.”[10][31]  

Searches of the person authorized by statute and the common law generally provide no indication as to the scope of the search that can be carried out. As discussed above, one of the requirements of a reasonable search is that it be executed in a reasonable manner. With respect to searches of the person, the level of intrusion may render the search unreasonable.

When discussing body searches in border areas, the Supreme Court of Canada distinguished between three categories of searches:

 

It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is the routine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel. The second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority. The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X-rays, to emetics, and to other highly invasive means. [11][32]

 

In the Simmons case, Dickson C.J.C. went on to add that the different types of searches raise different issues and entirely different constitutional issues “for it is obvious that the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection.”[12][33] This approach was confirmed in the 1999 Supreme Court of Canada decision in Monney (discussed below). In both cases, the constitutionality of the third category of searches was left open, while the first two categories were held to be reasonable under section 8 even if based only on suspicion. It should be noted that these cases were decided in the context of border searches.

The Supreme Court of Canada indicated the following with respect to frisk searches in the context of a search incidental to arrest:

 

A “frisk” search incidental to a lawful arrest reconciles the public’s interest in the effective and safe enforcement of the law on the one hand, and on the other its interest in ensuring the freedom and dignity of individuals. The minimal intrusion involved in the search is necessary to ensure that criminal justice is properly administered. [13][34]

 

Thus, when a search of the person is justified, a frisk search will generally be held to be reasonable because it is the least intrusive means available to conduct one.

Strip searches were considered in R. v. Flintoff.[14][35] A police officer arrested the accused at the scene of an accident for impaired driving. The accused was strip-searched before the breath tests, pursuant to a general police policy requiring all police officers to strip-search every person brought into the station in custody, regardless of the circumstances of the case or the individual. The Court held that the search was unreasonable and in violation of section 8 of the Charter. The Court stated that the strip search was not justified in law and was not incidental to an arrest. It found the breach was “outrageous” and “flagrant” and that it would shock the public. According to the Court, strip-searching “is one of the most intrusive manners of searching” and “one of the most extreme exercises of police power.” Although the police can search incidental to an arrest, “the degree of intrusion must be reasonable and in pursuit of a valid objective such as safety.”  

The recent Supreme Court of Canada decision in R. v. Golden[15][36] reviews issues surrounding searches incidental to arrest and the manner in which such a search may be conducted. Mr. Golden was arrested following what police believed were drug transactions in a restaurant. He was taken to a stairwell where the police pulled down his pants and underwear and noticed a clear plastic wrap containing a white substance in the anal area. The police tried to retrieve it but the accused resisted. He was escorted back into the restaurant and patrons were told to leave. The accused was forced to lean over a table and his pants and underwear were lowered. He continued to resist police attempts to retrieve the plastic wrap and accidentally defecated–which did not dislodge the plastic wrap. The police retrieved a pair of rubber dishwashing gloves and removed the package while the accused was face-down on the floor. The accused was strip-searched again at the police station. The Supreme Court made the following statement regarding strip searches:

 

While the respondent and the interveners for the Crown sought to downplay the intrusiveness of strip searches, in our view it is unquestionable that they represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them. Clearly, the negative effects of a strip search can be minimized by the way in which they are carried out, but even the most sensitively conducted strip search is highly intrusive. Furthermore, we believe it is important to note the submissions of the ACLC and the ALST that African Canadians and Aboriginal people are overrepresented in the criminal justice system and are therefore likely to represent a disproportionate number of those who are arrested by police and subjected to personal searches, including strip searches... As a result, it is necessary to develop an appropriate framework governing strip searches in order to prevent unnecessary and unjustified strip searches before they occur. [16][37]

  

In Golden, the Supreme Court of Canada found that the Crown had failed to prove that the strip search of the appellant was carried out in a reasonable manner. It was of the view that the evidence fell far short of establishing that a situation of exigency existed so as to warrant a strip search outside of the police station, particularly with the station two minutes away. Thus, the Court concluded that this was not a case involving an urgent and necessary need to conduct a strip search “in the field” for the purpose of preserving evidence.  

The Supreme Court also cautioned against the use of force in conducting a search:

 

We particularly disagree with the suggestion that an arrested person's non-cooperation and resistance necessarily entitles police to engage in behaviour that disregards or compromises his or her physical and psychological integrity and safety. If the general approach articulated in this case is not followed, such that the search is unreasonable, there is no requirement that anyone cooperate with the violation of his or her Charter rights. Any application of force or violence must be both necessary and proportional in the specific circumstances. In this case, the appellant’s refusal to relinquish the evidence does not justify or mitigate the fact that he was strip searched in a public place, and in a manner that showed considerable disregard for his dignity and his physical integrity, despite the absence of reasonable and probable grounds or exigent circumstances. [17][38]

 

The importance of Golden is that the Supreme Court adopted a “framework for the police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter:” It set out the following questions:

 

1.                Can the strip search be conducted at the police station and, if not, why not?

2.               Will the strip search be conducted in a manner that ensures the health and safety of all involved?

3.               Will the strip search be authorized by a police officer acting in a supervisory capacity?

4.     Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?

5.     Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?

6.               What is the minimum of force necessary to conduct the strip search?

7.     Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?

8.     Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?

9.     Will the strip search involve only a visual inspection of the arrestee's genital and anal areas without any physical contact?

10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?

11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

 

Because of the nature of drug-related offences and the fact that the substance is more easily concealed, it would appear that more intrusive searches may be allowed. The courts are certainly aware of the tactics used by offenders to conceal drugs and may be more willing to allow police conduct that would otherwise be unreasonable. It is clear from the decisions, however, that the more intrusive the search, the greater must be the justification and greater the constitutional protection.

  

Schools

In R. v. M. (M.R.),[18][39] in a majority decision, the Supreme Court of Canada has held that a student’s reasonable expectation of privacy in the school environment is “significantly diminished” because school authorities are responsible for “providing a safe environment and maintaining order and discipline in the school.” In the case of searches by school authorities (not the police), there is no requirement for a warrant, and the standard is reasonable belief. The school authority must not, however, be an agent of the police. The Court added that students must know “that this may sometimes require searches of students and their personal effects and the seizure of prohibited items.” In the result, the Court held that the seizure of marijuana from a student searched during a school dance did not infringe his rights under section 8 of the Charter. While setting out the parameters for a reasonable warrantless search in such circumstances, it must be noted that the majority decision expressly limited its findings to the elementary or secondary school milieu, with “no consideration” having been given to a college or university setting.   

 

Borders

Searches conducted by customs officers at the border are an example of reduced constitutional protections where the courts find that there is a lower expectation of privacy based on the context. In such cases, the standards established in Hunter may not apply.  

Section 98 of the Customs Act[19][40] allows an officer to search a person who has just arrived in Canada within a reasonable time of the person's arrival, or a person who is about to leave, if the officer suspects on reasonable grounds that the person has hidden illegal items on his or her person. The Supreme Court of Canada has interpreted this standard as one of reasonable suspicion and not the higher standard of reasonable grounds.[20][41] A person about to be searched can request to be taken before a senior officer who will make a determination as to whether the search shall proceed.[21][42]

In R. v. Simmons,[22][43] the accused was required to submit to a strip search as the result of a customs officer’s belief that she was carrying contraband. The Supreme Court’s decision acknowledged Canada’s right as a sovereign state to control both who and what crosses its boundaries. Even though the search power did not meet the standards that it had set out in Hunter (for example, prior authorization and reasonable grounds), the Court stated:

 

I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation and involve a search process beginning with completion of a declaration of all goods being brought into the country. Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods.

 

In my view, routine questioning by customs officers, searches of luggage, frisk or pat searches, and the requirement to remove in private such articles of clothing as will permit investigation of suspicious bodily bulges permitted by the framers of ss. 143 and 144 of the Customs Act, are not unreasonable within the meaning of s. 8. Under the Customs Act searches of the person are not routine but are performed only after customs officers have formed reasonable grounds for supposing that a person has contraband secreted about his or her body. The decision to search is subject to review at the request of the person to be searched. Though in some senses personal searches may be embarrassing, they are conducted in private search rooms by officers of the same sex. In these conditions, requiring a person to remove pieces of clothing until such time as the presence or absence of concealed goods can be ascertained is not so highly invasive of an individual’s bodily integrity to be considered unreasonable under s. 8 of the Charter.

 

I also emphasize that, according to the sections in question: (i) before any person can be searched the officer or person so searching must have reasonable cause to suppose that the person searched has goods subject to entry at the customs, or prohibited goods, secreted about his or her person, and (ii) before any person can be searched, the person may require the officer to take him or her before a police magistrate or justice of the peace or before the collector or chief officer at the port or place who shall, if he or she sees no reasonable cause for search, discharge the person.

 

In light of the existing problems in controlling illicit narcotics trafficking and the important government interest in enforcing our customs laws, and in light of the lower expectation of privacy one has at any border crossing, I am of the opinion that ss. 143 and 144 of the Customs Act are not inconsistent with s. 8 of the Charter. [23][44]

It is noteworthy for our purposes that the Court mentioned the problems of controlling illicit narcotics trafficking as a factor in determining that the search was reasonable under section 8 of the Charter.

The fact that those travelling through customs have a lower reasonable expectation of privacy does not, however, diminish the obligation on state authorities to adhere to the Charter, even if the grounds prompting the search are reasonable and drugs are found as a result. Before any search, the inspectors must clearly explain to the subject his/her rights under the Charter – especially the prior right to consult a lawyer – and the right to have the search request reviewed before complying with it, as provided in the Customs Act.  In Simmons, the subject remained ignorant of her legal position because she had not properly been informed of her rights. As a result, the Supreme Court of Canada found that the search was unreasonable; even so, the evidence was not excluded because the customs officers had acted in good faith.

The Supreme Court of Canada has determined that section 98 of the Customs Act, authorizing searches for contraband “secreted on or about” the person, applies to contraband that a traveller has ingested. In R. v. Monney,[24][45] the Court concluded that a customs officer who has reasonable grounds to suspect that contraband has been ingested is authorized by the Act to detain the traveller in a “drug loo facility” until that suspicion can be confirmed or dispelled. Although such action amounts to a search for the purposes of section 8 of the Charter, the Court confirmed that “the degree of personal privacy reasonably expected at customs is lower than in most other situations” and that the search in question was “reasonable for the purposes.”  

The Court did indicate that the different levels of intrusion raise different constitutional issues (for example, by potentially requiring a higher standard than reasonable suspicion). The Court stated: “the potential degree of state interference with an individual’s bodily integrity for searches in the third category requires a high threshold of constitutional justification.”[25][46]  

It is clear that the courts apply a lower standard of constitutional protection for searches at the border than elsewhere. As stated in Monney, “decisions of this Court relating to the reasonableness of a search for the purposes of s. 8 in general are not necessarily relevant in assessing the constitutionality of a search conducted by customs officers at Canada’s border.”[26][47]

 

Electronic surveillance

Because of the consensual nature of drug offences, police often resort to special investigative techniques to detect these crimes, including the use of electronic surveillance. The Supreme Court of Canada has stated that electronic surveillance constitutes a search for the purposes of section 8 of the Charter, and its decisions in this area have had a significant impact on the Criminal Code provisions dealing with such techniques. Because electronic surveillance is more invasive of privacy than actions under regular search warrants, more procedural safeguards are provided in the legislation. Although surreptitious interception is often used for drug offences, it can also be used for many other serious offences under the Code and other federal legislation.[27][48] The Solicitor General’s 1998 report entitled Annual Report on the Use of Electronic Surveillance states the following with respect to the importance of electronic surveillance as an investigative tool:

 

Electronic surveillance plays a crucial role in the battle against organized crime, especially with respect to the offence of drug trafficking. In curtailing the importation and distribution of illicit drugs in Canada, law enforcement agencies rely heavily upon the interception of private communications. Section III of this report demonstrates that the majority of authorizations granted by the courts allow for the use of electronic surveillance in relation to trafficking in a controlled substance. As in previous years, many of these authorizations were related to criminal conspiracies, crimes which are difficult for the police to detect, investigate and solve.

 

…The use of electronic surveillance has led to a number of seizures of large quantities of drugs in Canada. These seizures reduce the amount of drugs available in streets and neighbourhoods, and assist in the prevention of crimes associated with drug abuse. Without this crucial tool, the ability of the law enforcement community to prevent crimes and ensuing social harm would be seriously hindered.

 

Although it is clear that electronic surveillance is an effective investigative tool, it is also clear that it constitutes a dramatic infringement of the right to privacy. The Supreme Court of Canada stated the following:

 

The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposes us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. As Douglas J., dissenting in United States v. White, supra, put it, at p. 756: “Electronic surveillance is the greatest leveller of human privacy ever known.” If the state may arbitrarily record and transmit our private communications, it is no longer possible to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrude on privacy in the furtherance of its goals, notably the need to investigate and combat crime.

 

This is not to deny that it is of vital importance that law enforcement agencies be able to employ electronic surveillance in their investigation of crime. Electronic surveillance plays an indispensable role in the detection of sophisticated criminal enterprises. Its utility in the investigation of drug related crimes, for example, has been proven time and again. But, for the reasons I have touched on, it is unacceptable in a free society that the agencies of the state be free to use this technology at their sole discretion. The threat this would pose to privacy is wholly unacceptable. [28][49]

Because electronic surveillance is more invasive of privacy than are actions permitted under regular search warrants, more procedural safeguards are provided in the legislation. Similar rules apply to video surveillance.  

The Supreme Court of Canada decisions rendered on 25 January 1990 in the Duarte and Wiggins cases had a significant impact on policing methods, particularly undercover investigations involving drug and morality offences. In Duarte,[29][50] the Court affirmed that electronic surveillance constitutes a search and seizure within the meaning of section 8. This only occurs, however, where a reasonable expectation of privacy exists. The Court said that unauthorized electronic surveillance and interception “of private communications by an instrumentality of the state with the consent of the originator or intended recipient thereof, without prior judicial authorization, does infringe the rights and freedoms guaranteed by section 8.” Until then, it had been legal for the police to intercept such communications, as long as one of the parties to the conversation consented. It is now necessary for a judge to authorize such interception in the same way as interception of an entirely private conversation (“wiretapping”) where neither party has given prior consent. The Court also required that there be reasonable and probable grounds, established on oath, to believe that there is evidence of an offence in the place to be searched.  Suspicion would not satisfy this requirement.

In Duarte, the Supreme Court of Canada said that “the primary value served by section 8 is privacy,” which it defined as “the right of the individual to determine when, how, and to what extent he or she will release personal information.” Accordingly, “one can scarcely imagine a state activity more dangerous to individual privacy than electronic surveillance and to which, in consequence, the protection accorded by s. 8 should be more directly aimed.” The Court took the position that it could no longer allow the police an “unfettered discretion ... to record and transmit our words” without prior judicial authorization because this widespread police practice represented an “insidious danger” to the “very hallmark of a free society,” namely, the “freedom not to be compelled to share our confidences with others.” In Wiggins,[30][51] the use of “body pack” microphones by police was also found to be unconstitutional, for the reasons expressed in Duarte. The Duarte decision demonstrates that even if conduct is authorized by legislation, this does not mean that it is reasonable under section 8. The Code has since been amended to provide for prior authorization of consent interceptions.

With respect to surreptitious interceptions, a judge must ensure that: (1) the best interests of the administration of justice would be served; and (2) other investigative procedures (a) have been tried and have failed; or (b) are unlikely to succeed; or (c) the situation is urgent. In 2000, the Supreme Court of Canada in R. v. Araujo[31][52] interpreted the second requirement set out in the legislation. The Court indicated that the standard for branch (b) was not one of “efficiency” but rather “necessity.” The test is: There must be, practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry.

 

Section 24

Section 24(1) of the Charter provides a course of action for accused persons whose Charter rights have been infringed or denied. Under it, they can apply to a “court of competent jurisdiction” for the “appropriate and just” remedy. Section 24(2) allows a court to exclude evidence obtained in a manner that infringed or denied Charter rights, if admitting it into evidence “would bring the administration of justice into disrepute.” The three primary factors to be considered are:  (a) does the admission of the evidence affect the fairness of the trial; (b) how serious was the Charter breach; and (c) what would be the effect on the system’s repute of excluding the evidence.

Some have criticized the way these factors are applied to drug-related offences.  For example, Don Stuart stated the following:

 

The impression left by these recent Supreme Court and Ontario Court of Appeal rulings, especially in drug cases, is that these Courts seem generally determined not to exclude real evidence found in violation of section 8. These Courts tend to ratchet up the rhetoric respecting the third Collins factor about the seriousness of the offence and the effect on the repute of the system if the exclusion of reliable evidence were to result in acquittals. If this is the major reason for admitting the evidence, it points to an irony and inconsistency with the Stillman approach, in that the seriousness of the offence and reliability are not relevant factors when evidence is characterized as going to trial fairness. Canadian criminal trials under the Charter are no longer exclusively concerned with determining guilt or innocence and it betrays respect for the Charter to argue a return to the pre-Charter days where police conduct was not a material consideration. Particular abhorrence of drug offences may well have coloured consideration of the second Collins factor so that seriousness of the violation is unduly de-emphasised. The Courts, as guardians of the Charter, should be above the war against drugs. This one category of offences does not require special and reduced Charter standards. [32][53]

 

The decision of whether the evidence should be excluded can be important; if courts are reluctant to exclude evidence, they may be sending conflicting messages to the police. Although their conduct will have been found to breach a person’s Charter rights, there may be little incentive for the police to adhere to the limits imposed by the courts if the evidence is not excluded.