We’re answering questions about police searches in BC – what rights do you have and how do you deal with all kinds of searches?
Mark: Hi, Mark Bossert, Top Local Lead Generation. We’re here with Vancouver criminal defence lawyer Troy Anderson from troyandersonlaw.com. How’re you doing today Troy?
Troy: Very well thank you Mark, and you?
Mark: I’m good. So Troy, we’re going to be talking about police searches and I know there’s quite different rules in different parts and people have impressions from what they see on television. Maybe you can let us know what the actual rules are in British Columbia?
Troy: Sure, the rules relating to police searches vary dramatically from case to case. So we’re going to begin with the simplest scenario and that’s the person walking down the street who is stopped by a police officer. What many of us forget is that you as an individual, have a right, generally, to be left alone, so in order for a police office to stop and search you there has to be some basis for the stop – not simply a desire to search you – because you do have that right to be left alone. So for example, if a police officer who’s going to arrest you sees you shoplifting of something like that or believes he has the grounds to arrest you, he or she is entitled to search you incident to the lawful arrest. That’s long been enshrined in our criminal law. But most interactions that you see on the street where the police are searching somebody is probably something short of an arrest and some of them which you hear in the media refers to a street… are actually characterized as a voluntary interaction with the police, which for anyone who’s observed them or been through them notice it is far from voluntary interaction. It is the police pressing the advantage, I think this is as polite as I could put it and perhaps preying on people’s ignorance of their own rights. There is no power for the police to do a street check, they can stop and ask questions, but of course, you have no responsibility nor do you have a duty to actually cooperate with that. If they do have the grounds to arrest you, that is something different. To confuse things, there is the police detention which is where the police may have grounds to stop and investigate a crime and have the power to detain you for a brief period. That’s something shorter than arrest and their power to search you incidental to a detention, are actually less than they are on a lawful arrest. So they can do, for example, a quick pat down search for officer safety, make sure you don’t have a gun stuck down your pants or something like that but they really shouldn’t be turning your pockets out, looking inside your wallet and the like. The most important thing for the average citizen to remember is that if the police want to start looking through your pockets they need to have a lawful basis to do so, not simply them saying turn out your pockets. They have an obligation to inform you of why you’re being detained and why you’re being arrested and then you can act accordingly based on that information.
Mark: So, do the police have a right to search my car?
Troy: Well, a car is something very different because the police dealings with a driver of a motor vehicle generally begin with an investigation. For example, under the Motor Vehicle Act, you’re stopped … they have the power to pull you over under the Motor Vehicle Act to ensure you have a valid drivers licence to ensure the vehicle is insured, there’s a couple other ones we don’t need to go in to. So you do have an obligation to stop and identify yourself and the officer, and again for officer safety reasons does have a limited power to look into your vehicle, and that’s not asking you to open up the trunk, that’s not asking you to open up the glove box, and it certainly does not empower an officer to haul you out of your car, make you stand on the curb while he starts looking under the seats, in the trunk, in the glove box, through the bags of groceries that may be in the back seat. That is not empowered by a brief officer safety cursory search of a vehicle. The power to search a vehicle can flow again from the power to search incidental to a lawful arrest. so if you’re foolish enough to be driving while smoking a joint, then you can be arrested for that and your vehicle can be searched incidental to that lawful arrest. but short of that, no there is no general right to search a vehicle. In order for an office to search a vehicle, unless it’s besides the scenarios I’ve just outlined, just as they do with your home, or your office or any other place.
Mark: So you’d mentioned, do they have a right to just walk up and start searching my house?
Troy: No, no that used to be the way many years ago, before we had our Canadian Charter of Rights and Freedoms. Now for a police officer to search your house, the general scenario was that the police officer needs to obtain a search warrant. So what that police officer will do, they will conduct an investigation and put together what’s called information to obtain search warrant and that’s an affidavit that is presented to a Justice of the Peace who then decides if there’s sufficient evidentiary basis to grant to the police the power to enter your residence to conduct a search. That power is circumscribed by time so a police officer is not entitled to go in until the time specified on the warrant. There are of course some exceptions. If a police officer is dispatched to a 911 call where there is a report of someone screaming inside a residence, our Supreme Court of Canada has said that the officer actually has an obligation to go and ensure that there’s nobody hurt inside. But once again, that’s a circumscribed power, it doesn’t give the police officer the power to for example, start poking around in your freezer to see if you’re got anything you shouldn’t have in there, or go through all your cupboards and the like. Interestingly enough, there’s further protection afforded to your computer and you’re a computer guy, so I’m sure that would be of interest to you. The Supreme Court of Canada over the last couple years has recognized that a persons personal computer contains a wealth of very personal information and so there’s another search warrant requirement to go through somebody’s computer for example. So there ways for them to search your house, your computer or your car but is circumscribed by law and it’s actually quite limited and most of the time, they need judicial authorization to do so.
Mark: So what can I do if I think the police has unlawfully searched my, me or my property?
Troy: Well, the one thing you will do is if they have searched your property and they see something, the chances are you are facing a criminal charge and your remedy is to then contact your lawyer and your lawyer will then look at the justification if there is one for the search and seizure of your property, and if you’re facing a criminal charge, and the property in question is contraband, so for example it’s drugs or it weapons or something like that, then the application to to apply to have that piece of evidence excluded from the Court’s consideration. So what you want to do is show the Court that is was unlawfully obtained in violation of the right to be free from unreasonable search and seizure as guaranteed by Section Eight of the Canadian Charter of Rights and Freedoms and if you’re able to show that, they you can apply to the Court to have the evidence excluded. So that means there would be no drugs available for example, to prosecute you for possession of a controlled substance or possession for the purpose of trafficking. It may also apply if your property has been unlawfully or unreasonably searched it can come into play when you’re dealing with issues such as civil forfeiture. There’ve been many occasions where people vehicles have been seized and the province, the office of civil forfeiture is trying to have the vehicle forfeited as offence related property. For example if they found a marijuana grow operation in your house, they may try to seize your house as offence related property. Our courts in British Columbia are now coming down, I think, more and more strongly on the side of the notion that your charter rights apply not only to criminal proceedings but also civil forfeiture proceedings. So it’s very important that you get legal advice if you are involved in any scenario where something of yours is being searched by the police.
Mark: Great, thanks a lot Troy. This is a fascinating subject for me and I know that most of us, and I put myself in that category, don’t really know what all our rights are and what we’re informed by American television which is not accurate in a lot of cases. Would you agree?
Troy: The notorious stop and frisk policies for example in New York City, people are just being stopped in the street and patted down for no reason other than having a particular skin colour and that’s not allowed in Canada. We wouldn’t tolerate that and that’s one of the reasons why we have such circumscribed powers of search and detention on the police. They actually have to be able to articulate the reason for every stop, not simply, I wanna search that guy.
Mark: We’ve been talking with Troy Anderson, he’s a criminal lawyer here in Vancouver. You can reach him at troyandersonlaw.com or you can give him a call 604-638-9188. Thanks a lot Troy
Troy: Thanks Mark