Under s.8 of the Canadian Charter of Rights and Freedoms you have the right “to be secure against unreasonable search or seizure.” A search by the police is presumed to be unreasonable if they don’t have a warrant. But under some circumstances police are permitted to conduct a search without a warrant. The law in this area is complex and very much fact-driven (i.e. the context of the search matters). I am here only going to attempt to briefly outline two important concepts that go into the inquiry as to whether the s. 8 right is being violated by a search of a vehicle: the concept of “reasonable expectation of privacy” and the concept of “reasonable grounds to believe.”
Reasonable Expectation of Privacy
If you think that your s. 8 right to be secure against unreasonable search or seizure has been violated by the police’s conduct in searching without a warrant, the first thing the court would consider is if you can show that what the police did infringed your reasonable expectation of privacy. Any police conduct interfering with your reasonable expectation of privacy is considered a “search.”
Do you have a reasonable expectation of privacy in your car? You do but it is considered to be a diminished or reduced expectation. The law does not view you as having the same expectation of privacy in your vehicle as in your home. (And your passenger has hardly any expectation of privacy in your vehicle at all.)
So when the police look into your car windows while your car in on a public highway, even if it’s at night and they are using a flashlight, that action is not considered a search and therefore not a violation of your s. 8 rights. The police cannot open your closed briefcase that’s in the view in the car just to check if there is something incriminating inside. However, whatever incriminating things are in plain view are fair game for seizure and can justify your arrest.
If you have been lawfully arrested, the police can then conduct a “search incident to arrest” of your vehicle. But, the police must reasonably believe the search is necessary to uncover relevant evidence or for reasons of safety.
If what the police did does amount to a search, and because there is the presumption that a warrantless search is unreasonable, the Crown would have to show: that the search was authorized by law; that the authorizing law is reasonable; and, that the authority to conduct the search was exercised in a reasonable manner.
Reasonable Grounds to Believe
If the police action did in fact constitute a search, and it was a warrantless search, the Crown will have to prove (to rebut the presumption that the warrantless search was unreasonable), that the police had reasonable grounds to believe that relevant evidence would be discovered by the search. What does “reasonable grounds” entail?
. . . the reasonable grounds standard requires a credible foundation that makes it reasonably probable/“fair probability” in all of the circumstances, as opposed to a “possibility”, that evidence of an offence will be found in the place of the search.1
So the officer had to believe that it was probable, not just possible that evidence would be found. The officer could not just rely on a hunch or have a mere suspicion.
To sum up (and admittedly over-simplify)
The question of whether or not the police can legally search your vehicle boils down to two questions: 1) Is what the police are doing considered a “search”? and 2) If it is a search, is it reasonable?
It is not a search if your reasonable expectation of privacy is not engaged and it is reasonable if the police either had a warrant, or had reasonable grounds to believe that evidence of an offence would be found.
Here are some more concrete examples:
The police pull you over one night for a check-stop set up as part of a program to check vehicles. When the officer shines a flashlight into the interior of your vehicle to ensure officer safety, she notices a bag of weed in plain view on the console and arrests you for possession of marijuana. That’s not a search so your s. 8 right is not violated.
But, if the police pull you over for a drinking and driving offence and without any reasonable grounds to believe that you probably had drugs, search your vehicle and find a bag of marijuana inside the closed console, that would be a warrantless search. And, it would probably be considered unreasonable and therefore a violation of your s. 8 right. Whether this evidence obtained in violation of your Charter right is evidence that will be excluded by the court and lead to an acquittal, cannot be said for certain, but on these simple facts alone it is likely.
I have here greatly over-simplified the law surrounding searches of motor vehicles. As mentioned above, this area of law is very fact-driven, so whether or not the police violated your s. 8 Charter right when they searched your vehicle and charged you with an offence will depend on the very specific facts of your particular case and is something worth consulting a lawyer about.
1. Campbell, 2010 ONCA 588, at paras. 49-54, aff’d 2011 SCC 32.