Search and Seizure
Do you believe that law enforcement officers have wrongfully interfered with your rights?
What are your rights?
Under the Charter of Rights and Freedoms you are protected against arbitrary and unreasonable exercises of police power – as in illegal searches or unlawful intrusion into your privacy.
This is critical where you are being charged based on illegally obtained evidence. If the police breach your Charter rights, the illegally obtained evidence may be excluded from your trial. The Crown attorney is then not allowed on it to prove your guilt.
Can the police enter your home?
There is a common saying: “a man’s home is his castle”. Police can only lawfully enter your home under certain circumstances.
- If they seek permission from you and you invite them in. Giving them permission to come into your home is not the same as giving them permission to search your home. The police may ask to search your home and you may give them permission to do this as well. If you do so they can search without a warrant. You may be well advised to consult a lawyer before providing consent in these circumstances;
- If they have a legal document called a search warrant- which represents judicial authorization to enter and search premises for evidence of a crime. Search warrants are often used to find illegal drugs or firearms but can be related to a search for evidence in any crime. Depending upon the warrant – it may authorize the police to use force in making their entry. The police can detain the people in the home during the search. The police may seize any number of items found in their search. The validity of a search warrant and the police actions in executing the warrant can be challenged in Court at a later time.
- Sometimes the police will obtain a warrant to enter a home where a wanted person is thought to be present – in order to make an arrest.
- The police may also enter a home without a warrant in limited circumstances to pursue a fleeing suspect. This is sometimes called “hot pursuit” and may include an impaired driver who pulls into his driveway and runs into his home to try and avoid the police
- The police may also have ground to believe that it is necessary to enter a home to stop the immediate destruction of evidence of a crime
- The police may enter the home without a warrant where a 911 call has been made or there are other circumstances where the police reasonably believe that somebody may be in danger
Can the Police search your car?
It is not uncommon to get pulled over by the police while in your vehicle. Circumstances dictate whether evidence they may gather after they have pulled you over can be excluded in a later trial. The police do not require “grounds” to pull your vehicle over to investigate in circumstances where they believe your licence, insurance or registration documents are not up to date. Driving is not looked at as a right – but a privilege – so the Ontario Highway Traffic Act provides the power to stop in such circumstances.
The police cannot pretend to stop a vehicle for such an investigation if they simply “don’t like the way you look or are curious as to what you are doing”. Depending on the circumstances this could be a breach of your section 9 Charter rights.
Also when pulling you over to review your insurance and registration or car’s safety, this does not permit the police to search your vehicle or investigate your passengers. Since they are not driving your car, your passengers are not required to identify themselves unless the police have some other reasonable suspicion or belief that they are involved in a criminal offence.
The police are not allowed to search your trunk or under your seats if they have stopped you for not wearing your seatbelt, or not having valid insurance, etc. Unless the police can later demonstrate to the Court that they had “reasonable grounds” to search you anything found in your vehicle may be excluded as evidence.
The police may “ask” that you allow them to search your car during a routine vehicle stop. Even where this request – sounds more like an order – you do not need to consent to allow the police to do this. If they ask or demand that you let them search your car insist on calling a lawyer before you make any decision or give permission.
If, however the police have reasonable grounds to believe you have committed a criminal offence or if they see you committing a Highway Traffic Offence (like speeding or going through a stop sign, etc.) they have a right to stop your vehicle. They can conduct further investigation of you and perhaps your passengers. If you are stopped in these circumstances you can ask why you are being stopped and insist on your right to speak with a lawyer.
Can the police demand information from you when walking on the street?
If the police stop you on the street and begin to ask you questions, there is generally no obligation to speak with him until the conversation is over. The Charter protects individuals from “arbitrary detention” – which means that they cannot arbitrarily force you through words or actions to stop and remain with them – unless you are under arrest.
A “detention” occurs when the police by force keep you in their custody for example by stating “stop” or “don’t move” or blocking your path in an intimidating manner. You may believe that you are not free to leave. These situations amount to a “detention” under the law – because you reasonably believe that you are not free to walk away.
The police are only permitted to detain you when they have reasonable grounds to suspect that you are engaged in criminal activity. IF they do not have this, the detention is illegal and any evidence the police collects can be excluded at trial.
These are difficult and uncomfortable situations because you do not know whether the police have reasonable grounds to force you to remain. The answer is to tell the police officer that you do not wish to speak with him or her and ask “am I free to leave?” If the officer states that you are not free to leave – you are “detained” and must remain until they allow you to leave.
What are your rights and obligations if you are detained?
S 10 of the Charter requires the police to tell you why you are being detained and requires them to provide you with an opportunity to speak with a lawyer in private as soon as possible.
You are under no obligation to say anything to the police or to answer their questions. The police may make you feel like you have to answer their questions but the law allows you to remain silent.
If you are detained the police have authority to search you. If you are arrested the police may search you and your clothing if they have reasonable grounds to believe that evidence will be found.
If the police stop you but don’t have grounds to arrest you their search is limited to a pat down of the exterior of your body – if they have reasonable grounds to believe you pose a safety risk to yourself or others. They can’t search your pockets.
What is always important is to remain calm and ask the correct questions.
We also take cases in other regions so please call us if your area is not listed.
For a consultation with our criminal lawyer please call 905-847-2826.