Legal Studies 3080

Police Rights of Search

The right to make searches of both people and places is very important in police work. When those the police arrest come to trial, the Crown's case will likely be made up largely of the evidence gathered at the scene of the crime.

Evidence often includes physical objects that help demonstrate the involvement of the accused in the crime. Examples are things like narcotics, weapons, and stolen property. Evidence like this must prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea at the time of its commission. The gathering of evidence is, as you might expect, a very serious matter, and once again the Canadian Charter of Rights and Freedoms puts limits on how far police can go in obtaining it.
The power to search both people and places is a very important tool for investigating officers. The right to search, however, is not one that is guaranteed the police; they have to conduct their searches in accordance with the law. Under common law, the police are allowed to search anyone they believe is carrying a concealed weapon. They can also search property that is under the control of the accused, though this does not mean they have the automatic right to search homes. All other searches are subject to specific statutes - for instance the Controlled Drugs and Substances Act.

Section 8 of the Canadian Charter of Rights and Freedoms guarantees Canadian citizens freedom from "unreasonable search or seizure". Not only must searches be authorized by either a statute or common law; they must also be "reasonable". This means that the police cannot conduct a search because of a hunch; they must have reasonable and probable grounds. A person's right to privacy can be interfered with only if it's felt to be in the best interests of the collective society.

The search warrant is the major source of authority to conduct searches. If an officer wants to conduct a search, the first step is to swear an oath before a justice of the peace. This is called layering on information. This document contains a statement of the officer outlining the reasons for the search, the place to be searched, and the evidence believed to be present there. The document must identify the premises (home, apartment, and so on) to be searched and the crime being investigated; and, as far as possible, it should describe the goods being sought.

If the justice of the peace is satisfied that the officer has reasonable grounds for the request, he or she signs the document and the warrant becomes legal. The police must carry the warrant with them and produce it upon request. If the owner of the premises decides not to comply with the police, they may use as much force as is required to break into the premises.

The last sentence raises the question, what if the police use more force than is required? Is there someone watching over the police? The answer is yes. In 1973 the Law Enforcement Review Board was established. Its role is to provide for an independent and impartial review of citizens' complaints against the police. A decision of this board can result in an official warning being sent to an officer for a minor offence; if the offence is serious enough, the officer can be dismissed.