Investigatory Powers- Part 1

“Under what circumstances can a police officer search me?” is a question that it is valuable to know the answer to, especially if one finds themselves in a position of being searched by a law enforcement official.

First of all, our rights are protected under the Charter. Section 8 guarantees that everyone has the right to be secure against unreasonable search or seizure. It is presumed that individuals have a reasonable right to privacy from intrusion by the government or law enforcement.

It is important to note, that any evidence that is taken or found by law enforcement, if proven to be unreasonably seized, can be inadmissible in court. Section 24 of the Charter allows the inadmissibility of evidence that is unreasonably obtained. It is common that in courts, judges will not accept evidence that would bring the administration of justice into disrepute, and cast a dark light on our justice system.

An important case law emerged concerning unreasonable searches, and set out the threshold of when evidence may be admitted into court. The case law is R. v. Collins and the test whether or not a search was reasonable is as follows:

  • The search must be authorized by law,
  • The law itself authorizing the search must be reasonable, and
  • The search must be conducted in a reasonable manner

If you believe that the evidence being used against you in a court proceeding has violated one or more parts of this test, you may be able to have evidence excluded pursuant to section 24 of the Charter.

In addition to be found reasonable, a search cannot be arbitrary and must be based on reasonable and probably grounds that an offence has been committed and that evidence relating to that offence is likely to be found at the place to be searched.

One of the ways that a law enforcement official may obtain evidence is through Search and Seizure with a warrant. This warrant can authorize a police officer to enter a specified place to search for and seize specified property which will have evidence of the actual or intended occurrence of a crime. However, even in these circumstances the search can still be found unreasonable.

Another way that law enforcement may obtain evidence is a warrant to search a place. Section 487 of the Criminal Code gives a justice the authority for issuing a search warrant. Keep in mind that an issuance of this type of warrant does not give the law enforcement officers the right to search the person. A search with a properly obtained search warrant is constitutional as long as the law enforcement official did not do anything that could be deemed unreasonable within the course of the search.

If you believe that the evidence that is being used against you in an upcoming legal proceeding has been obtained in an unlawful and unreasonable way, call the lawyers at Bykov Law. The lawyers at Bykov Law have extensive experience in dealing with criminal matters and will ensure your case is in good hands. If you live in the Greater Toronto Area, call the Lawyers at Bykov Law at (416) 519-3259 for a free consultation.