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Unlawful performance of a Search and Seizure

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Unlawful performance of a Search and Seizure

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I enjoyed this video and found it to be very helpful because it outlines the guidelines and regulations that constitute reasonable probable grounds for search and seizure.

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Covering your rights if police found drugs on you during a search 

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Covering your rights if police found drugs on you during a search 

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I found this article to be very interesting because it is provided by a personal defence lawyers website and looks to be extensive to aid those who may be in need of counsel following a search in which drugs were found. The article goes in depth and aims to be very informative to those reading it in hopes of clarity on the subject incase they don't know what their rights are.

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Unreasonable Search and Seizure Part 1:
What is Unreasonable Search and Seizure?
Section 8 of the Canadian Charter of Rights and Freedoms states that "Everyone has the right to be secure against unreasonable search or seizure." It is important to understand what makes a police search unreasonable because evidence gathered in this manner may be excluded at trial. This can have important ramifications on the prosecution's ability to prove charges that rely on such evidence.

Traditionally, section 8 requires that state searches be conducted with a warrant; however, the result is not always so simple. In some situations warrants aren't necessary when it would be impractical. This may be the case when ensuring a police officer's safety in the course of an arrest, when the police have a reasonable suspicion of wrong doing or when there is simply no time to obtain a warrant in the circumstances. Essentially, section 8 means that a search requires a warrant and if one is not provided the police must demonstrate why it was reasonable to proceed without one.

Before determining whether a police search has intruded on a person's rights it must be established that the individual did in fact have a reasonable expectation of privacy. Only where a state examination intrudes upon some privacy interest does the action constitute a 'search' within the meaning of section 8." Otherwise, a warrant is unnecessary and the evidence will not be questioned.

Therefore, the basic question under section 8 is two-fold

1. Did the accused have a reasonable expectation of privacy?

2. If so, was the search conducted in a reasonable manner?

What is a Reasonable Expectation of Privacy?

The Supreme Court of Canada has recognized three main forms of privacy, namely: personal, territorial and informational. Personal privacy refers to bodily integrity, in particular, the right not to have one's body touched. Territorial privacy refers to "the home, where our most intimate and private activities are most likely to take place" Finally, informational privacy refers to biographical material that reveals intimate details about lifestyle and identity.

In order to determine whether an individual has a reasonable expectation of personal, territorial or informational privacy the court will consider the totality of the circumstances in any given search.

When considering the circumstances it is important to note that the relevant factors may change based on the form of privacy in question. For example, when considering territorial privacy the court will look at property ownership and the ability to regulate access or exclude people. In one case the Supreme Court ruled an accused, Edwards, did not have a reasonable expectation of privacy over narcotics he had hidden at his girlfriend's home. He had no right to exclude people from her house despite possessing a key. Therefore, the search in that circumstance was not unreasonable and the evidence was admitted.

In all disputed police searches it is necessary to demonstrate both a subjective and objective expectation of privacy in the subject matter. Subjective expectation can be demonstrated by the actions and beliefs of the person under search. If someone locks their property in a public locker they will still subjectively assume that they have a right to privacy despite leaving their possessions behind.

Objective expectation may be harder to prove. Just because Edwards personally believed his drugs were safe from search at his girlfriend's home does not mean he was correct. Some objective considerations are as follows:

What is the location of the search? Certain locations objectively provide less privacy. For example, in an airport or courthouse it would be impractical to obtain a search warrant for everybody who enters.

Was the informational content of the subject matter in public view? Garbage left on the curb is objectively unlikely to garner an expectation of privacy given that it has been publicly abandoned.

Is the information already in the hands of third parties?

Does the information expose any intimate details of the accused's lifestyle, or information of a biographic nature? While some information, such as a high hydro bill for a marijuana grow-op, may be damning evidence it does not constitute biographical information because it does not expose intimate details of one's personal life. Objectively, there is no need for privacy over such data.

If, in light of all these questions, the accused is able to demonstrate a subjective and objective expectation of privacy then the analysis moves onto the second question, was the search conducted in a reasonable manner?

What is a Reasonable Police Search?

The basic test to determine whether a search has been conducted in a reasonable manner is three-fold.

1. Permission to search is provided by an impartial and independent party (a Justice),

2. Evidence, provided under oath, must satisfy the Justice that there are reasonable grounds to suspect that an offence had been committed,

3. that evidence must satisfy the Justice that the police have reasonable grounds to believe that evidence of an offence may be recovered.

The reason why a search should be conducted with an independently provided warrant is that Section 8 is intended to prevent unjustified searches before they happen, not to validate them after the fact.

Without a warrant there will be a presumption that there are no reasonable grounds for the search to have occurred. It is not enough that police merely assume that evidence may be found. When searches are conducted without warrants there is a possibility that the ends will justify the means. The police may not have had enough proof to obtain a warrant, but now that evidence has been found the search can be validated after the fact. For example, in R v Evans police approached the Evans' home and smelt marijuana. They had no justification to suspect that marijuana was present. They never would have received permission to "sniff" the home from a Justice. For that reason the police search of the home based on the odor was unreasonable and excluded at trial.

When no warrant is obtained the standard that police must meet in conducting a search is that of a reasonable suspicion. "Suspicion" is an expectation that the targeted individual is possibly engaged in criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon probable grounds. Searches conducted without a warrant, require after the fact scrutiny of the grounds for the "reasonable suspicion" and must be rigorously examined.

In Conclusion

This is a complicated area of the law and one that is constantly debated before the Supreme Court. Therefore, consultation with legal representation is a must when attempting to argue that a police search has been conducted inappropriately. However, it is possible to summarize the broad strokes of a Section 8 analysis.

If a person has a reasonable expectation of privacy based on both a subjective and objective analysis of the situation, and this privacy is breached, evidence discovered can only be held against the accused if the search was conducted with a warrant or under reasonable suspicion that evidence of a crime would be discovered.

Searches that are neither warranted by a Justice nor reasonable under the circumstances may be excluded at court if allowing it would bring the administration of justice into disrepute. To find out how evidence is excluded and learn more about the legal concept of "disrepute" turn to Unreasonable Search and Seizure Part 2: Excluding Evidence under the Canadian Charter.

Footnotes

1. Canadian Charter of Rights and Freedoms.

2. R v Campanella.

3. R v Fearon.

4. R v Kang-Brown.

5. Hunter v Southam Inc, at para 11.

6. Ibid.

7. R v Tessling, at para 18.

8. R v Tessling, at para 20.

9. Ibid, at para 21.

10. Ibid, at para 22.

11. R v Tessling, at para 23.

12. R v Edward.

13. Ibid, at para 45.

14. Ibid.

15. R v Tessling.

16. R v Buhay.

17. R v Campanella.

18. R v Patrick.

19. R v Tessling.

20. Ibid, at para 27.

21. R v Plant.

22. R v Edwards, at para 45.

23. Hunter v Southam Inc, at para 11.

24. Ibid, at para 27.

25. Ibid, at para 11.

26. R v A.M.

27. R v Kang-Brown, at para 75.

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Read this if police found drugs on you - Search and Seizure Laws

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What is Unreasonable Search and Seizure? Section 8 of the Canadian Charter of Rights and Freedoms states that "Everyone has the right to be secure against unreasonable search or seizure." It is important to understand what makes a police search unreasonable because evidence gathered in this manner may be excluded at trial.

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This picture depicts very well the American 4th amendment rights while officers are currently performing a search on Uncle Sam, who is regarded as a major constitutional symbol in their country. To have an important figure addressing the regulations that must be met when performing a lawful search.

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This is the exert and summary of the case that I was interested in looking over as it pertained to my topic of search and seizure. I found this summary to be very helpful in understanding the different aspects of this case.

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I found this picture to be related very well to search and seizure and how it may be represented in the USA based upon the generalized stereotypes that they use to classify people who should be searched without question and even wen questioned about their intents into a questionable search they are able to rely on the typical standard stereotypes to support their actions.

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Search and Seizure cases that should have gone to the Supreme Court 2

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Search and Seizure cases that should have gone to the Supreme Court 2

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This video talks about police questioning and what they are aloud to do in the situation that they are detaining someone for an investigation and are required to perform a pat down search for officer safety, as well as questioning for officer safety and as it pertains to the investigation.

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Police Questioning: Cases That Should Have Gone to the Supreme Court of Canada, But Didn't

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Welcome to Cases That Should Have Gone to the Supreme Court of Canada, But Didn't! This week, we discuss how far police should be allowed to question suspects for the purposes of officer safety.

Acumen Law Corporation lawyer Kyla Lee gives her take on a made-in-Canada court case each week, and discusses why these cases should have been heard by Canada's highest court: the Supreme Court of Canada.

For more Kyla Lee, follow her on Twitter at twitter.com/IRPlawyer

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Search and Seizure cases that should have gone to the Supreme Court

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Search and Seizure cases that should have gone to the Supreme Court

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This video examines a special case of how police are allowed to use their powers in a situation like this where a call was placed to 9-1-1 saying something had occurred at this house but when police arrived they found the call had not come from the house but were permitted to enter by the homeowner, upon entry they found a firearm as well as the scent of marijuana. They then conducted a search and found that there was a growing operation in the residence.

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Search and Seizure: Cases That Should Have Gone to the Supreme Court of Canada, But Didn't!

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This article depicts how a mans drug conviction was being thrown out after it was found that his charter right of s. 10(b) was violated when he was not able to speak to his attorney for an hour and a half after he was searched and arrested. Even though they found 73 grams of cocaine and $5,000 cash in his residence, his case was thrown out after they made the mistake of not allowing him to have counsel for an extended period of time.

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In 2018, Justice Jocelyn Speyer of the Superior Court of Justice rejected all but one of Noel's arguments, agreeing the implementational aspect of his right to counsel was infringed. Speyer, however, denied Noel's attempt - under s.24(2) of the Charter - to exclude the cocaine and cash from evidence on that basis.

Noel repurposed his Charter-breach arguments for the Court of Appeal, which found the Speyer's s. 24(2) ruling erred in evaluating the seriousness and impact of the s. 10(b) breach. Speyer had found the seriousness of the breach was attenuated by the fact the police held off questioning Noel until he spoke with a lawyer. The Court of Appeal found the police had, in fact, tried to use Noel "as a source of self-incriminating evidence" and there was no evidence he ever succeeded in speaking to counsel, said the decision.

Speyer had found there was evidence that right to counsel was delayed but not that it was denied, nor that the delay had an adverse impact on his ability to "have a meaningful conversation with counsel," said the decision. Speyer added the onus was on Noel to testify on the breach's impact on his protected right, which he didn't.

"With respect, this passage reflects a misunderstanding of the relevant Charter protected interest," the Court of Appeal Justices wrote in the decision. "That interest is the right is to consult counsel without delay. The loss of this right is in no way neutralized because the right to consult counsel is delayed, as opposed to denied. Nor is the impact of delayed access to counsel neutralized where an accused fails to demonstrate that the delay caused them to be unable to have a late but meaningful conversation with counsel. It would be inconsistent with solicitor-client privilege to expect a detainee to lead evidence about the quality of their solicitor-client conversation. More importantly, this inquiry misses the mark."

Those arrested require "immediate" legal advice, which they can't access without the police's help because they are detained, said the decision. The lawfulness of the arrest and search of private property, the obligation to submit, validity of search warrant and the scope of authority it gives to police are all questions a lawyer needs to answer for the accused, said the decision. The court cited R v. Rover to show the psychological value of access to counsel, which shows the accused "they are not entirely at the mercy of the police."

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Drug conviction overturned over s. 10(b) Charter breach

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In 2018, Justice Jocelyn Speyer of the Superior Court of Justice rejected all but one of Noel's arguments, agreeing the implementational aspect of his right to counsel was infringed. Speyer, however, denied Noel's attempt - under s.24(2) of the Charter - to exclude the cocaine and cash from evidence on that basis.

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This article explains how police were able to find that someone had almost successfully shipped over 100 kilos of meth into Vancouver from Mexico. Border service agents were tipped of to a shipping container and once inside they discovered slabs of pink bricks, that once opened, revealed packages of a white substance that was tested and determined to be meth.

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VANCOUVER -- A massive amount of methamphetamine was seized in B.C. earlier this year, the Canada Border Services Agency said Tuesday.

The tip came in on Feb. 4, the agency said in a statement issued two months later, and involved a shipping container at a Vancouver-area facility.

Officials did not say what raised their suspicions, but some kind of information was passed on from the CBSA National Targeting Centre.

Border officers examined the container, which had been shipped from Mexico to the Tsawwassen Container Examination Facility.

CBSA says its agents uncovered "bags of white crystal" inside.

A photo released by the agency shows stacks of pink bricks.

A second photo appears to show one of the bricks cracked open. It looks hollow, and inside is a plastic bag filled with a white substance.

The substance was tested in a lab and determined to be methamphetamine, the agency says.

It claims officers found about 106 kilograms of powerful and highly addictive stimulant during the seizure. The estimated value of that much meth is about $13.5 million.

The investigation has been passed on to the RCMP, CBSA said.

"We will not tolerate those who attempt to benefit from drug smuggling or any organized crime," Nina Patel, acting regional director general for the Pacific region, said in the emailed statement Tuesday.

In a separate statement, the RCMP announced four men had been charged for allegedly importing the drugs.

Mounties said the contents of the shipping container were moved, after shipping, to a warehouse in Surrey, B.C. The location was "closely monitored" by the RCMP, and a warrant was obtained in late February, allowing investigators to search the warehouse.

Four men were seen running from the business, and were arrested, the RCMP said.

The following men have been charged with one count each of importation of a controlled substance and possession of a controlled substance:

Xavier Eduardo Hernandez Cedillo, age 27

Alan Jesus Hernandez Cedillo, age 25

Roberto Renteria Maldonado, age 35

Sergio Ivan Cota Garcia, age 34

The RCMP says all four are citizens of Mexico, and have been released pending a court appearance in July.

CBSA officers are trained to examine, investigate and intercept prohibited goods and illicit drugs, the agency says.

Ports of entry in the Vancouver area receive about 60 per cent of more than 2.5 million marine containers shipped to Canada each year.

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Someone tried to ship more than 100 kilograms of meth into B.C.: CBSA

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VANCOUVER -- A massive amount of methamphetamine was seized in B.C. earlier this year, the Canada Border Services Agency said Tuesday. The tip came in on Feb. 4, the agency said in a statement issued two months later, and involved a shipping container at a Vancouver-area facility.