73
Search Issues
3
I. Overview ................................................
II. Introduction to Search and Seizure ...........................
III. Search Warrants ..........................................
IV. Search Incident to Arrest ...................................
V. Consent .................................................
VI. Shared Devices ...........................................
VII. Discarded Items ..........................................
VIII. DNA and Bodily Samples ..................................
A. DNA Warrants ......................................
B. Informed Consent ...................................
C. The Complainant’s DNA on the Accused’s Body ..........
IX. Informational Privacy ......................................
A. Specic Prior Judicial Authorization .....................
B. Searches of Cellular Devices Incident to Arrest ............
C. Online Conversations ................................
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74 Prosecuting and Defending Sexual Oence Cases
I. Overview
Unlike most other crimes, sexual oences often occur behind closed doors, out of the
view of eyewitnesses who could potentially corroborate the accused’s or complain-
ant’s version of events. Furthermore, the prosecution generally has little physical
evidence of the oence to assist in meeting its burden. In these cases, the likeli-
hood of conviction depends primarily on the complainant’s ability to articulate what
happened and to convince a judge or jury that they were sexually assaulted by the
accused. When physical evidence of the crime does exist, it has the potential to be
highly incriminating. As a result, the manner in which physical evidence is obtained
by the police must be carefully scrutinized to ensure that the search and seizure com-
plies with constitutional standards before the evidence can be admitted at trial.
The purpose of this chapter is to discuss some of the common types of evidence
that may turn up in sexual assault prosecutions and to review the ways that this evi-
dence can be secured by the police. This chapter begins by reviewing the legal frame-
work governing searches and seizures in all criminal cases. Common sources of the
police power to search (e.g., judicial authorization through search warrants, the com-
mon law power to search incident to arrest, or informed consent) will then be out-
lined. Next, an accused’s expectation of privacy in discarded items will be addressed.
The chapter then examines search and seizure issues related to two kinds of evidence:
forensic evidence, including DNA, blood samples, and penile swabs, and digital evi-
dence, such as photos, text messages, and social media accounts.
II. Introduction to Search and Seizure
The tension between legitimate law enforcement objectives and individual privacy
rights permeates the law of search and seizure. Section 8 of the Canadian Charter of
Rights and Freedoms1 guarantees the “right to be secure against unreasonable search
and seizure.” This section protects individuals from unjustified state intrusion upon
their privacy, including violations of their bodily integrity, intrusions on private prop-
erty, and the non-consensual disclosure of personal information. However, only a
reasonable expectation of privacy will attract Charter protection.2 A reasonable and
informed person in the position of the accused must expect privacy before the Char-
ter protection applies. This requirement strikes a balance between an individual’s
interest in being left alone by the state and the state’s interest in intruding on the
individual’s privacy in order to advance its law enforcement goals.3
1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11
[the Charter].
2 Hunter v Southam Inc, [1984] 2 SCR 145 at 159, 14 CCC (3d) 97; R v Cole, 2012 SCC 53 at
para35.
3 Hunter v Southam Inc, ibid at 159-60.
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