Police Rights of Search
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.