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CHA PTER 4
SEARCH AND SEIZUR E
A. INTRODUC TION
Other than in powers of ar rest, the ability of police to interfere with the
liberty of indiv iduals is most evident in powers of search a nd seizure.
Powers to search exist within the Criminal Code and other statutes and
are also found at common law. Powers to seize are typically associated
with search powers, t hough there are occasional exceptions to that rule.
The study of the law of search and seizure is made simpler by early
decisions concerning section 8 of the Canadian Charter of Rights and
Freedoms, which protects against “unre asonable search and seiz ure.”
The Court decided that, for purposes of sect ion 8, a search which was
not authorized by law was unre asonable.1 The effect of that decision
is to make the law of sea rch and seizure and the Charter rules around
search and seizure essentially co-extensive: broadly speaking, what is
not authorized by law violates the Charter, but what is authorized by
law does not. Accordingly, to understand the law of search and sei zure,
one needs to focus on the section 8 right.
One immediate consequence of th is fact is that for section 8 to apply,
as with any other Charter right, there must be state action involved.2 Ty p-
2 In Schreiber v Canada (Att orney General), [1998] 1 SCR 841, for example, the
applicant objected to t he gathering of informat ion about his financial re cords in
Switzerla nd. The Court held that the only action to wh ich the applicant could
object under the Charte r was that taken b y Canadian state offic ials, which was
CRIMIN AL PROCEDURE
76
ically, this will be t he case, such as when a search is conducted by police
or other investigative arms of the state. In some circumstances, other
people, such as school officials, can constitute state actors.3 Fur the r, an
individual can become an agent of the state in certain circum stances, if
they conduct themselves differently i n an interaction because of their
relationship to police or other state official s.4 Without that sort of rela-
tionship, however, a private individual such as a security g uard is not a
state actor, and so Charter rights do not ari se.5
Considering whether there ha s been an unreasonable search
requires looking at two questions: was what occurred a search, and if
so, was the search unre asonable? All section 8 cases, no matter what the
context, follow the same basic structure. Fir st, it is necessary to decide
whether the police investigative technique constituted a “search”: that
question is answered by determining whether the person had a “rea-
sonable expectation of pr ivacy.”6 If the answer to that question is no,
then whatever occurred was not a “search” at all, and section 8 could
not have been violated. On the other hand, i f the answer is yes, then
there was a search, and t he second question must be asked: was the
search unreasonable? That second question is answered by applying
the three-part Collins te st: (1) was the search authorized by law; (2) was
the law itself rea sonable; and (3) was the manner in which t he search
was carr ied out reasonable?7 It will often be the case that the an swer
to one of those questions is not in dispute on the particular facts of a
case: for example, no one would argue that a person subject to a strip
search did not have a reasonable ex pectation of privacy, and typically
limited to send ing a letter of request to Swiss of ficials. Sending t hat letter of
request did not by it self violate his Charter r ights.
3 R v M(MR), [1998] 3 SCR 393 [M(MR)].
Section B(5).
6 In Hunter v So utham Inc, [1984] 2 SCR 145 [Hunter], the Supreme Court spe-
cificall y rejected the notion that the intent of s ection 8 was to protect property
rights and, i nstead, said that the i mportant issue was pr ivacy. The Court als o
observed t hat the section 8 right “might prote ct interests beyond the right of
privacy” (ibid at 159). David Stratas, “R v B(SA) and the Right Again st Self-
Incrimi nation: A Confusing Cha nge of Direction” (2003) 14 Criminal Reports
(6th) 227 [Stratas] observes th at “while the Court opened the do or to s 8 cover-
ing interest s other than privacy bac k in Hunter v Southam in 1984, it has never
Court considere d the extent to which section 8 protecte d an accused against
self-incri mination, and that is to d ate still the only case t hat has considered
anythin g other than privacy concer ns when dealing with s ection 8.
7 Collins, above note 1 at para 23.
Search and Se izure 77
in a search authorized by warrant no one would argue that section 487
of the Criminal Code is an unreasonable law. Even when there is no
explicit discus sion of a particular question, however, it has implicitly
been considered and answered.
This chapter will follow that structure, looking first at reasonable
expectation of privacy and t hen at the Collins test.8 However, there are
additional foundational rule s and principles that need to be recognized
at the start.
An important rule was established in one of the earliest Charter
decision s, Hunter v Southam Inc: a warrantless sea rch is prima facie
unreasonable. That part icular rule is a consequence of the more general
principle that the purpos e of section 8 is “preventing unjustified s earches
before they happen, not simply of determining, after t he fact, whether
they ought to have occurred in the fi rst place.”9 The effect of this rule
is to create a practical di stinction between warrantless searches and
searches with a warrant. In the former case, t he burden shifts to the
Crown to demonstrate that, des pite the absence of a warrant, t he search
was nonetheles s authorized by law.10 There are, in fact, warrantless
search powers, for the most part created at common law, and therefore
typically les s well defined than statutor y powers. As a result, section 8
cases concerning warrantless se arches tend to focus on the first step in
the Collins test: Was the se arch authorized by law? On the other hand,
in cases where a war rant provision exists and a warra nt has been issued,
that first step tends not to be controversia l: instead, argument is more
likely to focus on the second and third steps, whether the law itself is
reasonable, and whether the man ner of search was reasonable. Similarly,
discussion of whether there was a reasonable expectation of privacy
tends not to arise in cases of searches with a warrant: the very fact t hat
the police obtained a warr ant makes it hard to deny that there wa s such
an expectation. Thus, although the same te st applies in both situations,
there are practical differences in application between searches w ith a
warrant and sea rches without a warrant. Accordingly, this chapter w ill
discuss those two situations separately.
One final overarching governing principle about searches must be
noted. Rules relating to search and seizure (like all r ules of criminal
8 For an explanat ion of this issue in cha rt form, see Steve Coughlan & Ale x Gor-
lewski, The Anatomy of Crimi nal Procedure: A Visual Guide to the Law (Toron to:
Irwin L aw, 2019) [Anatomy of Criminal Procedure], Chart 1.1(b)(i), “Is There a
Section 8 Violation?”
9 Hunter, above note 6 at 160 [emphasis in ori ginal].
10 Ibid at 161: section 8 “require[s] the part y seeking to justify a wa rrantless sea rch
to rebut this pre sumption of unreasonablene ss.”
