Dear Sir or Madam,
For the first 120-odd years after Confederation, there were no constitutional limits on police procedures. The adoption of the Charter in 1982 changed this by adding three categories of protection. Sections 8-10 of the Charter deal with search and seizure, being detained, and rights once someone has been detained, respectively. Each category has been further defined by the courts over the last 30 years.
Section 8 of the Charter states “Everyone has the right to be secure from unreasonable search and seizure”.1 Of course, the definition of "unreasonable" has been contested. One of the effects of this section is that it gives constitutional backing to the old common law tradition of requiring warrants for entry.2 The key concept in section 8 is a reasonable expectation of privacy. Any overly intrusive action needs some sort of authorization to be justified. Some information can still be obtained without a warrant. For instance, in Plant, the police used utility records to determine that someone was running a marijuana grow-op with an all too appropriate name. The Court found the utility records to be an acceptable means of information gathering because it did not require police to examine anything other than public records, and it also didn’t reveal anything about Mr. Plant’s personal life.3 Another important point is that you only have a reasonable expectation of privacy in the spaces you control. As such, a person’s belongings can be searched when in someone else’s home4 or car.5 A search conducted in this manner will not call their rights into question.
One opportunity where the police are free to search a person is when they are being detained. This makes the definition of "detention" under section 9 extremely important, because valid detention is often the difference between a reasonable search and an unreasonable one. Section 9 states that “Everyone has the right not to be arbitrarily detained or imprisoned”. The most important case on this topic is the Supreme Court decision in R v Grant.7 Grant hinges on when a request to speak to someone crosses the line into detention. Detention does not have to be physical. It begins as soon as the person feels they are being detained. The more directives an officer makes, the more officers in attendance, and the longer the stop, the more likely an encounter will be considered a detention. It is important to remember that until it becomes a detention there is no need to stop for police, and they need reasonable suspicion for a stop to become detention.
Formal detention triggers s. 10 protections. Section 10 is lengthier than the other sections explained above, including rights to know the reason for detention, to contact a lawyer, and to have the reasons for detention be reviewed to ensure it was lawful. The police must inform someone why they are being arrested, and help them contact a lawyer. The police must provide the means for the detainee to contact a lawyer, including offering them a phone8 and information on how to contact legal aid.9 Contact with a lawyer only needs to happen once, to inform the accused of their rights and discern whether it would be best to cooperate or not. Once the accused has had contact with a lawyer, the police can continue questioning them for as long as they wish, and do not have to stop if counsel is requested again.10 The only time that police must refrain from questioning is when the accused appears to not understand the severity of their situation, often due to mental health issues or drug or alcohol consumption, or if the jeopardy of the accused has changed, usually due to new charges being laid.11
If you ever find yourself involved with the police, it is important to remember that you have these rights. These protections against unreasonable search and seizure, arbitrary detention, and mistreatment during detention are constitutionally guaranteed and cannot be denied. These limits on police power ensure that the police function under the authority of society rather than the other way around.
NOTE: To find out more about this issue, please consider attending the 28th Annual McDonald Lecture: Policing the Police on October 5th, 2016. Info can be found here.
Your Obedient and Humble Servants,
The Dominion
1 Canadian Charter of Rights and Freedoms, s 8, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
2 Hunter v Southam, [1984] 2 SCR 145, 11 DLR (4th) 641.
3 R v Plant, [1993] 3 SCR 281, [1993] SCJ No 97.
4 R v Edwards, [1996] 1 SCR 128, 132 DLR (4th) 31.
5 R v Belnavis, [1997] 3 SCR 341, 151 DLR (4th) 443.
6 Charter, s 9.
7 2009 SCC 32, [2009] 2 SCR 353.
8 R v Manninen, [1987] 1 SCR 1233, 41 DLR (4th) 301.
9R v Brydges, [1990] 1 SCR 190, 2 WRR 220.
10R v Sinclair, 2010 SCC 35, [2010] 2 SCR 310.
11R v Oickle, 200 SCC 38, [2000] 2 SCR 3.
