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April 1999 Northern Lights By Steven Skurka; Leslie Pringle
Leslie Pringle is Vice President in the firm of Skurka & Pringle. A former federal prosecutor, she has practiced criminal defense law exclusively since 1991. With an emphasis on search and seizure and wiretap issues, she has had many cases involving constitutional issues including a successful challenge to the duress provisions of the Criminal Code. Search and Seizure in Canada Although Canadians are quick and proud to point out the differences between Canada and the United States, we do draw heavily on American history and experience in defining ourselves. And while we continually observe caution in adopting American legal principles in our courts, our constitutional values are similar. Search and seizure is one area where Canada has been clearly influenced by American constitutional principles. Our Charter,1 proclaimed in 1982, is in its infancy compared to the Bill of Rights. Thus, we regularly turn to American cases to assess how U.S. courts approach searches at the border, searches of people in cars, body cavity searches, and any number of the many and varied fact situations which give rise to intrusion into privacy interests. Section 8 of the Canadian Charter says everyone has the right to be secure against unreasonable search or seizure. Although it is worded quite differently and lacks the express warrant requirement of the Fourth Amendment, our Supreme Court has interpreted Section 8 in a manner consistent with the American approach set out in Katz v. United States:2 A warrantless search is presumed to be an unreasonable search. Our First Step: Hunter et al. v. Southam Inc.3 In April 1982, a search was authorized under the federal Combines Investigation Act to search the offices of a large and well-known company, Southam Inc., which controlled many media and publishing interests in Canada. The purpose of the search was to assist in an inquiry under the Combines Investigation Act, relating to the production and distribution of newspapers. The scope of the authorization was later described by the courts as “breath-taking,” and “tantamount to a license to roam at large on the premises of Southam Inc. at the stated address and elsewhere in Canada.” The authorization was granted by someone closely allied to the investigation, based merely on an assertion that there “may be evidence” relevant to the inquiry at Southam Inc.’s offices. The search was carried out two days after the Canadian Charter of Rights and Freedoms was proclaimed, and quickly became a part of Canadian Charter history. In accordance with classical American constitutional construction, the Supreme Court of Canada undertook a broad and purposive analysis of Section 8 of the Charter. The Court followed Justice Stewart in Katz and agreed that the protection provided by the Section 8 was to people and not to places. In addition, the Court held that what is protected is a reasonable expectation of privacy. In striking down the legislation which permitted the authorization in Southam Inc.’s case, the Court laid down guidelines which have become the cornerstone of search law in Canada: 1. Where it is feasible, a search must be approved by prior authorization. Although it may not always be reasonable to insist on prior authorization, there will be a presumption that a warrantless search is unreasonable. 2. The person authorizing the search must act in a judicial manner. Although the person need not be a judge, he or she must be in a position to assess in a neutral and impartial fashion whether a search is appropriate on the evidence available. 3. The standard for issuance of the warrant is similar to American “probable cause”: There must be reasonable and probable grounds established upon oath to believe that an offence has been committed, and that evidence of that offense is to be found at the place to be searched. The Court found that the legislation permitting the authorization in Southam Inc.’s case failed to pass the tests set out in items 2 and 3. The constitutional remedy was to declare the legislation of no force and effect, because it conflicted with the Charter. Emerging Principles: ‘Reasonableness’ Yardstick As lower courts have struggled to grapple with the flood of Charter challenges to search and seizure laws and practices in individual cases, it has fallen to the Supreme Court of Canada to define the parameters of the rights set out in Hunter v. Southam. In the case of Collins v. the Queen,4 the Court held that a search will be reasonable if it is authorized by law (either common law or legislation), if the law itself is reasonable, and if the manner of the search is also reasonable. In Collins, Ruby Collins was seated in a pub when she was suddenly seized by the throat and thrown to the floor by a man who simply said to her “police officer.” Although a balloon of heroin was subsequently found in her hand, and the Court recognized that drug traffickers commonly swallow evidence upon arrest, there was no evidence put before the trial judge to demonstrate reasonable grounds to believe that Collins was a drug trafficker, or in possession of drugs. Because the trial judge wrongfully precluded such evidence, the case was sent back for a new trial with the Supreme Court simply commenting that, without very specific information to believe someone was in possession of drugs, a choke-hold such as that endured by Collins would be unreasonable. Collins of course did not answer the important and difficult question of when a search is “reasonable.” Over time it has become clear that there is no definitive answer. Rather, emerging guidelines have been articulated by the courts, using the three principles set out in Hunter v. Southam as the cornerstone. These guidelines dictate that the correct approach to reasonableness is a contextual one, involving an assessment of the interests at stake in the context of the search situation in which it arises. For example, in Simmons,5 a search of a traveller and her baggage at the border was analyzed — both in the context of the privacy interest of the individual involved, and also in the context of the important issue of border security for the country. Ultimately, the Supreme Court of Canada adopted the American view that border searches involve special public and security issues, and that a traveller’s expectation of privacy is reduced when entering the country. Accordingly, the Hunter v. Southam requirements of a warrant and reasonable grounds to believe evidence existed did not apply to routine border searches. A graduated scale of protection of privacy in relation to “reasonable” searches has emerged in Canadian law. At the bottom end of the protection of privacy scale will be those contexts in which the state interest is high, and the reasonable expectation of privacy of the individual is low. Administrative and regulatory contexts such as routine, random audits under the Income Tax Act,6 and normal government scrutiny of highly regulated business activities fall into this category.7 Strict Hunter v. Southam requirements will not apply, although some protections may be called for. However, as the context of the search moves away from the administrative and regulatory arena into the area of criminal law, more stringent protections will be required and the case will move up the yardstick of what reasonableness will require. At the other end of the spectrum are contexts which traditionally demand a high degree of protection of privacy. Personal privacy interests in a person’s bodily integrity or his home are jealously guarded by our courts. In Greffe,8 the Supreme Court took into account the intrusive nature of a rectal search, and considerations of dignity and bodily integrity in excluding evidence of a large quantity of heroin swallowed by the accused and brought over the border. Similar zealous protection is provided to the sanctity of the home, no matter how humble. Our Supreme Court brought home this message only recently in the controversial case of Feeney,9 where the Court altered the common law of arrest, and held that lawful arrests could not take place in a dwelling house without a warrant to enter the home. Despite the fact that there was no provision in the Criminal Code for issuing such a warrant, the Court held that the warrantless search of the defendant’s trailer home was unreasonable, and excluded the evidence obtained by the police in their investigation of a murder of an elderly man. Although the media coverage of the case was predictably critical, Parliament responded with laudable swiftness to fill the legislative gap: Canadians are now protected by a warrant requirement, forcing police to seek judicial authorization before entering a person’s home when carrying out an arrest. (Exceptions exist for “exigent circumstances” and “hot pursuit” in freshly committed crimes.) However, even when privacy interests are at their most intense, there may be competing interests which factor into the equation, and temper the protection of individual privacy. An example of such a concern is public safety. Where police have information that someone may already be critically injured, or where there is a threat that someone may be seriously hurt if police do not act immediately, a warrant will not be required.10 Broad Interpretation of ‘Search,’ Less Generous Analysis of ‘Standing’ “Search” has been broadly interpreted in Canada, and the protections of Section 8 of the Charter clearly include not only protections against unreasonable searches, but also against unreasonable seizures. Wiretapping is caught by Section 8, and requires prior judicial authorization. In fact, the Supreme Court of Canada has taken a broader approach to wiretapping than the U.S. Supreme Court did in White,11 such that in Canada, prior judicial authorization is required for wiretapping even when one of the parties to the communication is a consenting police agent.12 “Search” also encompasses the gathering of bodily substances from a suspect for the purpose of DNA forensic analysis by the police. Accordingly, when Parliament enacted recent DNA warrant legislation permitting the seizure of samples of DNA by hair plucking, buccal swabs or pricking for blood, it attempted to do so with careful attention to the requirements of the Charter. This did not prevent a number of defense counsel from challenging this powerful police investigative tool. The “hair plucking” warrant has been held to be an unconstitutional invasion of privacy based on the fact that 5 to 10 percent of the population will produce no usable DNA evidence as a result of this procedure which violates bodily integrity, and which can be carried out by force.13 Even a seizure of information by the police in a criminal context, where there is a reasonable expectation of privacy, may require that the police obtain a warrant. In the case of Dersch,14 police were faced with the common situation of a serious motor vehicle accident in which a person had been killed, and they wanted to confirm their belief that the driver was drunk at the time of the accident. Without the consent of the patient, doctors released to police a report containing the driver’s blood/alcohol level. Although the police subsequently obtained a warrant to seize the blood samples from the hospital, the Supreme Court of Canada held that the initial obtaining of the information from the hospital, without the patient’s consent and without a warrant, amounted to an unreasonable seizure and excluded the evidence from Dersch’s criminal trial. More recently, the Canadian Supreme Court gave a broad interpretation to “search” in finding that police sniffing at the door of someone’s home amounted to a search. In Evans,15 the Court frowned upon the practice developed by some police forces of “knocking and sniffing”: the police would knock upon the door, and when it was opened, they would sniff to see if they could make out the odor of marijuana. In Evans, the police arrested Evans immediately upon smelling marijuana, and then obtained a warrant to search. They found marijuana plants and related growing paraphenalia. (Interest-ingly, the evidence in this case was not excluded: even though the Court found that the search was unreasonable, it held that the admission of the evidence into Evans’ trial would not bring the administration of justice into disrepute.) “Standing” to challenge the search or seizure in any given case has been more restrictively interpreted. In the Charter context and specifically in relation to searches or seizures, standing is determined by a consideration of whether the person complaining about the search had a reasonable expectation of privacy. Therefore, not all accused persons will be able to raise Section 8 arguments. They will only be able to do so if they can show that they had a personal expectation of privacy which was reasonable in the circumstances. In Edwards,16 the majority of the Supreme Court held that Edwards did not have standing to complain about a rather outrageous police search of his girlfriend’s apartment, during which the police located cocaine, that was believed to belong to him. Although he stayed there and had a key to the apartment, the Court found that no personal rights of Edwards had been violated during the search. This reasoning relied heavily upon American case law, including Rawlings v. Kentucky,17and Rakas v. Illinois.18 In spirited disagreement with this approach, Justice La Forest advocated a broad view of search rights, which are premised on the recognition that we all suffer when police conduct is unreasonable, regardless of whether a “personal” right of the accused was violated. La Forest lamented that the American law on standing was in a “sorry state,” and argued that we should not follow the narrow interpretation given to standing. Later in Belnavis,19 Justice La Forest renewed his concerns as to the narrow view of standing in relation to a passenger in a vehicle. His dissent on this issue was, however, a lonely one. The majority of the judges confirmed our Supreme Court’s acceptance of the American approach to standing. No Automatic Exclusion of Evidence Our Charter does not mandate the automatic exclusion of evidence obtained in violation of Charter rights. Instead, it dictates that “evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”20 The onus is on the party seeking to have it excluded to show, on the balance of probabilities, that the admission of the evidence would bring the administration of justice into disrepute. In search cases, where the purpose of the search is to gain incriminating evidence to convict the accused, it is of paramount importance to the accused to show not only a violation of his rights in obtaining the evidence, but also to show that the unreasonable search brings the administration of justice into disrepute. Otherwise, the battle of a violation of rights may be won, but the war against conviction will be lost. This provision is uniquely Canadian in its attempt to reach a compromise between the rule of automatic exclusion adopted in the United States, and the commonlaw rule that all relevant evidence is admissible no matter how it was obtained. It permits a flexible, principled approach, “having regard to all the circumstances” in any given case. In the context of search and seizure, however, it means that a further element of uncertainty exists as to the ultimate outcome of the trial: to the already flexible determination of what is “reasonable,” is added a discretionary and value-laden judgement by the trial judge as to the effect of the violation on the reputation of the administration of justice. Even the decisions of our Supreme Court have not always been consistent in applying the exclusionary provision to unreasonable searches. In this area, it is fair to say that the principles are still emerging. It can be said that there are three basic propositions which lie at the root of any exclusionary analysis in Canada. These were affirmed by the Supreme Court in Stillman:21 1. Does admission of the evidence affect the trial fairness? If the evidence was conscripted against the accused (e.g. a statement was obtained in violation of his rights), then trial fairness will often be affected because he has been compelled to incriminate himself by the state. However, if the evidence already existed, (which is generally the case in search situations), trial fairness will rarely be affected by the violation because the state did not participate in its creation. 2. How serious was the violation? In search situations, the nature of the privacy interest will inevitably affect the assessment of the seriousness of the breach. If the search was a body cavity one, the court will be protective of privacy, whereas if the search is merely that of a car, the relatively low expectation of privacy afforded to motor vehicles may tend to minimize the seriousness. The good faith of the police, (or lack of it), will also be an important factor, as well as the manner of the search. 3. How would the exclusion of the evidence affect the repute of the administration of justice? In cases where the breach is trivial, yet the offense is serious, the courts will be mindful of the fact that exclusion of evidence which means the accused will not be convicted may tarnish the reputation of the justice system because the accused “got off on a technicality.” On the other hand, where the breach is serious and the privacy interests are high, our courts have not hesitated to protect the long term rights of all Canadians against abuses by the police, even if it means letting one guilty individual go free. Battle Continues The Charter has had a profound impact on the Canadian criminal justice system. In particular, challenges by accused or aggrieved persons in the area of search and seizure have been responsible for changing police practices, reshaping the common law, and for striking down numerous pieces of legislation which did not accord with Charter values. Although momentous and ground-breaking decisions of the Supreme Court of Canada (and lower courts on a more daily basis), are often greeted with skepticism by the public or with derision by the media, in general terms the values promoted by the Charter are a quintessential part of why we are proud to be Canadian. However lest we become too complacent, and feel that the values enshrined in the Charter don’t need to be renewed on a constant basis, we can reflect on this quotation from a police officer who was being questioned on police attitudes at the famous Morin inquiry in Toronto.22 Guy Paul Morin was found guilty of a murder he did not commit, and one of the things the inquiry looked into was how entrenched police thinking, or police “tunnel vision,” played a part in the wrongful conviction: Sergeant Van Dyke: . . . I’m not sure if you’re familiar with Feeney ... where officers are no longer allowed to go into a residence to arrest someone once it falls under ... specific exceptions. Officers find this very frustrating, and one of the things that I tell them is that when the Bail Reform Act came in, police were frustrated. They said: That’s it, we’re finished. We’re never going to be able to hold anybody [in custody] again. When the right to counsel came in: That’s it, we’re finished, we’re never going to be able to get a statement from anyone again. And now we have the Feeney case, and yet we managed to get around those other things. Nothing really changed. . . . Notes 1. The Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, enacted by the Canada Act 1982 (U.K.), c. 11. 2. Katz v. United States, 389 U.S. 347 (1967). 3. Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 96 (S.C.C.). 4. Collins v. the Queen (1987), 33 C.C.C. (3d) 1 (S.C.C.). 5. R. v. Simmons (1988), 45 C.C.C. (3d) 296 (S.C.C.). 6. See for example, R. v. McKinlay Transport Ltd. (1990), 55 C.C.C. (3d) 530 (S.C.C.). 7. See Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research) (1990), 54 C.C.C. (3d) 416 (S.C.C.). 8. R. v. Greffe (1990), 55 C.C.C. (3d) 161 (S.C.C.). 9. R. v. Feeney (1997), 115 C.C.C. (3d) 129 (S.C.C.). 10. See R. v. Godoy (1997), 115 C.C.C. (3d) 272 (Ont.C.A.) and R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.). 11. United States v. White, 401 U.S. 745 (1971). 12. R. v. Duarte (1990), 53 C.C.C. (3d) 1 (S.C.C.). 13. Re F.(S.) (1997), 120 C.C.C. (3d) 260 (O.C.J., Gen. Div.). 14. R. v. Dersch (1993), 85 C.C.C. (3d) 1 (S.C.C.). 15. R. v. Evans (1996), 104 C.C.C. (3d) 136 (S.C.C.). 16. R. v. Edwards (1996), 104 C.C.C. (3d) 136 (S.C.C.). 17. Rawlings v. Kentucky, 448 U.S. 98, (1980). 18. Rakas v. Illinois, 439 U.S. 128, (1978). 19. R. v. Belnavis (1997), 118 C.C.C. (3d) 405 (S.C.C.). 20. Section 24 (2) of the Canadian Charter of Rights and Freedoms. 21. R. v. Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.). 22. The Commission on Proceedings Involving Guy Paul Morin, December 8, 1997, ADGN/RP-045, (QuickLaw Database GOLD).
Northern Lights Steven Skurka Leslie Pringle Suite 1705 439 University Avenue Toronto Ontario Canada M5G 1Y8 Phone (416) 596-8192 Fax (416) 596-8449 Web www.crimlaw.org | |||||||||
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National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org | |||||||||
