Lawful Access–Consultation Document

Appendix 2: Search and Seizure

A search is the investigation of a place in order to discover something or to search for evidence of a breach of a law to be used in criminal or penal proceedings. When it happens in the course of a search, a seizure may be defined as a "seizure of property for investigatory or evidentiary purposes."

The element that underlies these two definitions is that of active scrutiny, generally for penal purposes. Powers of inquiry, investigation and seizure imply a systematic scrutiny by a public servant who, having reasonable grounds to believe that there has been a breach of the law, is looking for evidence of the offence. Such scrutinizing is undertaken for the purposes of suppressing violations of the law and punishing those who break it.

Except in exceptional circumstances, such as in cases in which a warrant cannot be obtained because it would be impractical to obtain it by reason of exigent circumstances, searches and seizures are conducted under the authority of a search warrant obtained generally, in the context of the Criminal Code, under s. 487 or 487.01 , or the Competition Act, under s.15 or s.16. The issuance of a search warrant is a judicial act on the part of a justice, usually performed ex parte and in camera, by the very nature of the proceeding. A search warrant authorizes a peace officer or a public officer to search a building or place, or a computer system in a building or place for anything that will afford evidence of an offence and seize it.

The decision of the Supreme Court of Canada in Hunter v. Southam makes it clear that, prima facie, a warrantless search runs counter to section 8 of the Canadian Charter of Rights and Freedoms. Even where a search has been authorized, the authorization may be challenged under the Charter. Two criteria have been developed in this regard. First, the person who authorizes the search, whether or not that person is a judge, must be in a position to appreciate in an entirely neutral and impartial manner the rights of the parties in question - the state and the individual. Second, the person who wishes to obtain such authorization must give evidence under oath of the existence of reasonable grounds (and not mere suspicions) for believing that an offence has been committed and that evidence is to be found in the place where the search is to be carried out.