Do you know what treatment you should expect if law enforcement officers stop you for search and seizure? Section 8 is one of the most important sections of the Canadian Charter of Rights and Freedoms, the cornerstone of Canada’s democracy and covers citizens’ right to be “free from unreasonable search and seizure.”
This article focuses on Section 8, the Plain View Doctrine, and the practical implications of the landmark “R v Caslake” case, all of which have shaped today’s legal interpretation of Section 8.
What is Section 8 of the Charter?
Section 8 covers unlawful search and seizure and states, “Everyone has the right to be secure against unreasonable search or seizure.”
This complex area of law relies on the balance between the state’s ability to maintain law and order and an individual’s right to privacy. As a result, it involves plenty of nuance to navigate and understand.
The crux of Section 8 is that protecting an individual’s right to privacy includes a provision against unlawful intrusion by the state, including law enforcement officers and other governmental agencies.
What is a “reasonable” search or seizure
While Section 8 protects individuals against certain things, the definition of “reasonable” is ambiguous. So, how can you determine what is reasonable if you’re stopped for search or seizure?
Quite simply, officers must be legally authorized to conduct searches or seizures. Usually, this means officers require a court-issued warrant, although this is not always possible. Regardless of whether a warrant is present, individuals have the right to be secure against unreasonable search or seizure.
Any search deemed unreasonably intrusive or conducted in an abusive and aggressive manner could be unreasonable and violate Section 8.
Unlawful Search and Seizure
The law balances an individual’s right to privacy against the state’s need to maintain public safety. When considering whether a search or seizure was unreasonable and unlawful, courts consider several aspects.
For example, they’ll consider the urgency of the enforcement officers’ actions against individuals and the necessity and force of their actions. Judges can rule the search and seizure unlawful where officers have acted unreasonably and breached Section 8.
Here are some of the other elements courts will consider when making their judgments:
Reasonable expectation of privacy
The Canadian Supreme Court has provided guidance to help assess whether individuals have a reasonable expectation of privacy during a search or seizure. The Supreme Court ruled that courts should consider where the search occurred. For example, was it at home, the workplace, or in a public space? What information were law enforcement officers looking for, and what were the individual’s expectations of privacy while the search was undertaken?
Remember, law enforcement officers must have legitimate reasons for conducting a search or seizure, including suspicion or probable cause. Where this is missing, an individual’s privacy rights might have been breached.
In addition, officers’ conduct must protect an individual’s reasonable expectation of privacy. Not only should searches have a minimal impact on an individual’s privacy, they should also avoid excessive force or physical intrusion.
Exclusion of Evidence
Once a court has ruled a search or seizure unlawful, the next step is to decide whether any evidence obtained during the unreasonable search or seizure should be excluded. Section 24(2) of the Charter allows evidence to be excluded from a case if it could bring justice into disrepute.
The court weighs the seriousness of the infringement against the need to maintain the integrity of the judicial process before ruling on whether or not evidence can be excluded.
The Plain View Doctrine
One of the many nuances that affects Section 8 is The Plain View Doctrine. It states that “objects falling in plain view of an officer with the right to be in that position are subject to seizure and can be introduced as evidence.”
This doctrine means that law enforcement officers who witness evidence of a crime when they are lawfully present can immediately seize it without needing a warrant.
While the Plain View Doctrine allows evidence gathered in a search or seizure without a warrant to be used in a criminal case, law enforcement officers cannot infringe on an individual’s right to privacy without due cause.
For evidence to be used in a criminal case, it must meet certain thresholds. For example, officers must be lawfully present when they see the object and the object must be in plain view of the officer. In addition, the object must obviously be evidence of a crime that’s been committed.
The Plain View Doctrine helps individuals understand their rights, what they can expect during search or seizure stoppages, and the limits law enforcement can operate within.
The Case of R v Caslake
Following a drug deal in 1998, officers arrested Caslake following a drug deal on possession of narcotics. After conducting a search of the car, they discovered drugs in the center console.
Caslake’s legal team challenged the reasonableness of the search, arguing that it had taken place without a legal warrant and several hours after his arrest. The case was taken to the Supreme Court to rule whether the search had violated Caslake’s right to privacy under the rights granted to him under Section 8 of the Charter.
The Supreme Court ruled that while the police have the legal right to search a vehicle after an arrest, the search should take place promptly and be directly related to the grounds for the individual’s arrest.
As the search of Caslake’s car was conducted to take inventory of the contents of the vehicle, the search was held to be unlawful.
One of the most important outcomes of R v Caslake was clarifying the rights and protections afforded to individuals under Section 8 in searches incident to arrest.
The Final Word
The right to privacy is one of the foundations of Canadian democracy, enshrined in Section 8 of the Charter. While recognizing the state’s need to maintain law and order, it also protects an individual’s privacy.
Every search or seizure has its own unique set of circumstances. If you think you have been subject to an unreasonable or unlawful search or seizure, contact Posner Craig Stein LLP today for more information and professional legal guidance.
