It is safe to assume that at some point, you have watched police searches on American TV shows. Keep in mind the laws in America are different to those in Canada and this blog will focus on the latter.
In Canada, you have rights. These rights are protected under a constitutional document referred to as the Charter of Rights and Freedoms. It is worth taking a look; simply do a Google search of the Charter and voila, before you know it, you are viewing your protected rights. Being familiar with your rights is sure to come in handy at some point in your future.
It is fair to say that no one enjoys being searched, and by the police no less. So, this begs the question: what searches can the police conduct and when is it too far?
To protect society, the police are empowered with searching powers, however, the critical note here is that the searches are limited. This is because the Canadian justice system seeks to balance the needs of society with the liberty of the individual. What follows are some examples of when a police has inherent power to search you:
- You have been detained
- You have been arrested
- You have been caught drinking and driving
- You have been caught at the scene of a crime
- You have been caught near a scene of a crime
- in certain circumstances, when you are at a place where they are searching for evidence and they believe you have the evidence on you
- You are in a vehicle or boat, and they believe you are improperly storing or carrying open alcohol
- You gave them informed consent to search you
Police Search – Weapons
The police are allowed to search you if they have reasonable grounds to believe that you have evidence related to an investigation. For example, they can search you if you are at a place where they are searching for guns or other weapons, and they believe you have a weapon on your person.
Police Search – Drugs
Police can also search you if you are at a place where they are searching for drugs, and they believe you have the drugs. The police may be able to rely on a sniffer dog to search you and your belongings if they have reasonable grounds to believe you have illegal drugs and you are in place where you cannot expect to have very much privacy. This includes:
- bus terminals
- airports
- schools
- public highways.
Police Search – Alcohol
The police can search for alcohol without a warrant if they have reasonable grounds to believe you are transporting liquor unlawfully. They can search you, or your boat or vehicle for:
- open bottles or cans of alcohol that are being consumed or transported, and
- alcohol that has not been stored in a closed compartment.
Police Search – Safety search
The police can search you if they are protecting life and safety and have reasonable grounds to believe there is a real, immediate threat to the safety of the public or the police that can be eliminated by the search.
Police Search – Strip Search
The police do not usually need to do a strip search. They may decide to do one however, if they have reasonable grounds that it is necessary to discover weapons or evidence related to the charges you were arrested for. If the police ask you to remove your clothes voluntarily so that they can do a search, ask to talk to a lawyer right away. You should never be asked to remove your clothes where a person of the opposite sex or the public can see you. A strip search should be conducted at the police station and should not be captured on police video.
Your rights on Search and Seizure
The Canadian Charter of Rights and Freedoms protects you from unreasonable search and seizure. What this means is that the police must do the search in a reasonable manner. They aren’t allowed to destroy your property for no reason. If the police violate this right, a court may later decide that the evidence they found through the unreasonable search can’t be used against you.
What to do When Arrested?
If you are arrested, ask the officer if you are being detained. If so, you have a right, under the Charter, to be told you are being detained. When the police detain you, they can pat you with their hands to search for a gun or other weapon if they have reasonable grounds to believe you are a threat to the police or public safety. This is called a protective pat-down search. They are not allowed to empty your pockets, purse, or other type of bag. They are only allowed to frisk you to find and take away weapons.
Exercise your Right to Speak to a Lawyer
If you are being detained, ask to talk to a lawyer right away. You have the right, under the Charter, to talk to a lawyer when you are being detained. The police must tell you that you have this right. If you tell the police you want to talk to a lawyer, the police must allow you to contact a lawyer. You must be allowed to talk to the lawyer in private.
You have the right to remain silent. In most situations, you do not have to answer any questions the police ask you. Anything you say to the police may be used as evidence.
Ask if you are being arrested. You have the right, under the Charter, to be told why you are being arrested. If the police fail to explain why you are being arrested, you may have a defence to challenge your case.
The police are allowed to search you when you are being arrested to:
- find evidence related to the offence you are being arrested for
- prevent you from destroying evidence
- protect the police or the public
When you are being arrested, the police can conduct a more thorough search of you and your property. They can search your immediate surroundings, which include:
- you
- your clothing
- anything you are carrying including your cell phone
- your car if that’s where you’re arrested
Police Search – Cell Phone
If you have been arrested, the police can do a limited search of your cell phone without a warrant. Having a password does not mean that the police are not allowed to search your phone.
However, it does limit their ability to search your phone when you are being arrested. You have the right to remain silent during an arrest. This means that you do not have to give the police the password for your phone.
The Aitken Robertson Team of Criminal Defence Lawyers
We hope this blog has offered you some helpful insight into what the police can search and your associated rights. We have blogs on related topics and criminal charges as well so we encourage you to review these to better educate yourself about topics of interest. If you have any more questions or are facing any charges, call our office for a free 30-minute consultation and learn how we can help your case.
