Under Section 8 of the Canadian Charter of Rights and Freedoms, “Everyone has the right to be secure against unreasonable search or seizure”. This means that all Canadians have the right to protection against having our privacy violated or property seized without reasonable cause. It also means that law enforcement cannot check our person (in a ‘pat down’), our permanent residence, the contents of a vehicle that we are driving, or even our hotel room without just cause, such as reasonable grounds that we committed an offence.
In two recent cases involving Ontario High School students, there was a judgement that the students’ right to be secure against unreasonable search or seizure was violated. The first is a landmark case, R. v. A.M., 2008, in which the Supreme Court of Canada decided that sniffer dogs cannot be used by law enforcement to conduct random searches of public places. Correspondingly, the court found that a student’s Charter rights were violated when a police officer searched his unattended backpack in the school gymnasium after sniffer-dogs identified drugs in his backpack.
The principal of a Sarnia High School offered an open invitation to local police to use sniffer dogs to search for drugs at his school. Without specific authorization to complete a search on that day and without informing school officials, local police and OPP arrived with sniffer dogs to complete a search of the school. Although students were aware that there was zero tolerance for drugs and alcohol at school, staff had a reasonable belief that on any one day there would be drugs at the High School. However, the Supreme Court holds that a ‘well educated’ guess does not constitute reasonable grounds; it is comparable to an expectation that if you search a few hundred people, you are likely to find drugs on at least one person.
When the officer searched the student’s backpack, he found both marihuana and psilocybin, which led to charges of possession of psilocybin and possession of marihuana for the purpose of trafficking. However, the trial judge concluded that both the search of the gymnasium by sniffer dogs and the officer’s search of the student’s back pack were completed without reasonable grounds and therefore violated the student’s right to protection from search and seizure. Correspondingly, any evidence including the drugs found in the search must be excluded. The judge further commented that if the officers had completed a pat-down search of the student, this action would have constituted an even more egregious violation of the student’s rights.
More recently, in Simon Gillies et al v. Toronto District School Board, 2015, a Toronto High School principal was challenged for requiring all students to perform a mandatory breathalyzer test before allowing them to attend their High School prom. At issue in this case is whether the principal's request infringed upon the students’ Section 8 rights under the Charter.
The Toronto principal argued that the use of mandatory breathalyzers was a last resort to counteract the common consumption of alcohol and intoxication at school dances and proms. He further stated that many Toronto High Schools were enforcing breathalyzers at these events, but further investigation disclosed that only one of the approximately 100 schools in the Toronto Board was doing so. The principal also threatened that if the breathalyzer was not permitted, serious consideration would be given to cancelling all future dances and proms.
In considering the evidence of past alcohol-related incidents involving students, the judge in this case found that there were actually only a small number of cases involving students who were sent home, disciplined or sent to hospital for alcohol consumption. He also concluded that breathalyzer screening is a disproportionate reaction by school administrators and further, it is more than minimally intrusive. His finding was that mass breathalyzer screening as a precondition to participating in the dance is a violation of the students’ rights to be free from unreasonable search or seizure.
Under Canadian law, there is a presumption that a search, without a warrant to do so, is unreasonable. The general rule for a lawful search is that the police need prior authorization to conduct the search (such as obtaining a search warrant), as well as reasonable and probable grounds to justify the search. A search should not exceed the purpose of an investigation. Also, police are generally not allowed to search a person (with a pat-down, etc.) unless they are making an arrest.
If police officers ask you whether they can search your home or car, you have the right to ask them why they are requesting the search. An officer may request a search knowing that they can do so without a warrant if they have your permission; however, you are under no obligation to allow them to search your premises without a warrant. Except for emergency circumstances or if they suspect the ongoing commission of a crime, police cannot enter your home unless you invite them or they have a warrant. Even if invited into your home, officers do not have the right to search without permission or a warrant.
Under any circumstances involving search or seizure of your property, whether requested or already completed by police, it is always in your best interests to consult with an experienced criminal lawyer at Ted Yoannou Law to determine your legal rights in the matter.