Search and Arrest CLN4U

Search and Seizure What is a SEARCH and SEIZURE? legal procedure in which the authorities (police) search a person who is suspected of commiting a crime it includes searching most of one’s personal belongings and property; confiscating relevent evidence that would be useful to the particular case

The Charter of Rights and Freedoms During a search and seizure, a person is protected under s. 8 of The Chater of Rights and Freedoms where it states: “Everyone has the right to be secure against unreasonable search or seizure.” What is a REASONABLE search? it must be authorized by law; the law itself must be reasonable; and the manner in which the search was carried out must be reasonable

Search Warrants Generally, authorities are given the right to search a suspect and their property if they obtain a search warrant. Often displayed in television shows (CSI, Law and Order)

Search without a Warrant In some cases, police have the power to search and seize without a warrant. Under s 487.11 of the Criminal Code allows for warrantless search of persons and places, and seizure in circumstances where conditions exist to obtain a warrant, but doing so would be impractical. i.e. - When evidence is in immediate danger of being destroyed, it would be impractical to obtain a warrant.  Therefore, seizure is permitted as it would be contrary to the fundamental principles of our criminal law to allow wrongdoers to destroy evidence, when it can be prevented. 

Search and Seizure in Common Law There are several types of common law search and seizure powers that are recognized by Canadian courts.  The police have the power to search a person who has been lawfully arrested, however, more invasive types of searches are regulated by statute (i.e.: blood samples).  When consent is given.  consent must be “real” and “voluntary.”  Accused must have a sufficient awareness of the right and the potential consequences of giving up that right.  Police, who are lawfully engaged in the execution of their duties can seize evidence that is in plain view. 

Unlawful Search and Seizure If evidence is obtained through an illegal search, it may be excluded and therefore, cannot be used against the defendant during his/her trail. Section 24.(2)  “Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the 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.” I.e. R v. Collins 84 (SCC), [1987]

Arrest

POLICE RIGHTS UPON ARREST: The police have the right to search an accused upon arrest to look for evidence (same sex). The police may take away possessions of the accused when arrested. They have the right to take the accused to the police station (perhaps for a more thorough search). Police have the right to fingerprint and photograph the accused if it is an indictable offence. The police must have a warrant to collect DNA samples.

When detained citizen’s have the right: CITIZENS RIGHTS When detained citizen’s have the right: To remain silent (except name and address) If questioning continues, to ask to contact a lawyer, write down officer’s badge number and names of any witnesses. to be searched. not to be taken to the police station (expect in the case of impaired driving offences)

CITIZENS RIGHTS cont… When arrested, citizens : have the right to be informed promptly of charge. can contact a lawyer without delay – this includes being advised of the availability of duty counsel and legal aid if the person cannot afford a lawyer must give name, address, occupation, and date of birth must understand their rights do not have to take part in a line-up do not have to take a polygraph test do not give blood, urine, or breath samples except in the case of impaired driving offences.

Issues The Charter Sections 9 and 10 outline the procedures for the protection of constitutional rights: S9– right not to be arbitrarily detained S10—arrest rights

Landmark Case: R. v Brown Racial Profiling: is any action undertaken by law enforcement personnel for reasons of safety, security or public protection, that relies on stereotypes about race, colour, ethnicity, ancestry, religion, or place of origin, or a combination of these, rather than on a reasonable suspicion, to single out an individual for greater scrutiny or different treatment. Video 1 Video 2

R. v Brown – Discussion Questions Do you think there were reasonable grounds to justify the initial stop of Mr. Brown? Why or why not? Do you think the evidence should have been included or excluded? Why? What does “racial profiling” mean to you? Do you think racial profiling is ever appropriate?

Citizen’s arrest Defined as: an arrest without a warrant by any person other than a peace officer. S494 of the Criminal Code 1) Anyone may arrest without a warrant a person whom he finds committing an indictable offence; or A person who, on reasonable grounds, he believes i) has committed a criminal offence, and ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person

Citizen’s arrest cont… (2) Anyone who is a) the owner or a person in lawful possession of property, or b) a person authorized by the owner or by a person in lawful possession of property may arrest without warrant a person whom he finds committing a criminal offence in relation to that property

Vigilante grocer vs. career criminal and justice system David Chen Prime minister proposes citizen's arrest bill

Chen – Discussion Questions The Criminal Code requires a thief to be caught in the act for a citizen’s arrest to be justified. Should David Chen have been convicted of assault and forcible confinement? Do you believe that citizens should have expanded powers to make a citizen’s arrest? Explain. What could be some possible negative consequences of the proposed legislation?