Search and Seizure in Drug Cases

The short answer

Many drug cases are won or lost on the legality of the search. Section 8 of the Charter protects everyone in Canada against unreasonable search and seizure. If police searched unlawfully, a judge can exclude the drugs as evidence under s. 24(2), and without the drugs the prosecution often cannot continue. That is why every step of the stop, detention and search deserves careful review.

When police can search

Police generally need legal authority to search a person, a car, a home or a phone. That authority can come from a warrant issued by a justice on reasonable grounds, a search connected to a lawful arrest, your informed and voluntary consent, or certain urgent situations recognized by law. A search that goes beyond its legal basis, even if it starts lawfully, can breach s. 8.

Car searches

A traffic stop does not automatically allow police to search your car. Officers often point to things like the smell of drugs, nervous behaviour or inconsistent answers. However, these factors are often not enough on their own, and the court looks closely at what the officer actually observed and why the search was carried out. Searches of passengers raise their own issues, because a passenger's connection to items in the car may be limited.

Home searches

Police almost always need a warrant to search a home, because people have the highest expectation of privacy there. The information used to obtain the warrant, including tips from confidential informants, can be challenged. If the information was unreliable, incomplete or misleading, the warrant may not have been properly issued.

Phone searches

Phones usually need a warrant, because they contain large amounts of private information. A search of a phone as part of an arrest is tightly limited. Messages are often the main evidence in trafficking cases, so how police got into the phone, and what they looked at, can decide the outcome.

Challenging a search warrant

When police rely on a warrant, the defence can ask to review the information that was put before the justice. If parts of that information were inaccurate or came from an unreliable source, the judge may remove those parts and decide whether the remaining information could still have supported the warrant. In some cases, the defence can also ask to question the officer who swore the information.

Your other Charter rights

• Section 9: You are protected against arbitrary detention.
• Section 10(a): You have the right to be told promptly why you are being detained.
• Section 10(b): You have the right to speak to a lawyer without delay, and to be told about that right.

Breaches of these rights can also lead to evidence being excluded.

How the court decides whether to exclude evidence

Finding a Charter breach does not automatically lead to exclusion. Under s. 24(2), the judge asks whether admitting the evidence would bring the administration of justice into disrepute. The judge looks at how serious the police conduct was, how much the breach affected your rights, and society's interest in a trial on the merits. Serious or deliberate breaches are more likely to lead to exclusion.

What to do if police want to search

• Stay calm and do not physically resist, even if you think the search is unlawful.
• Say clearly that you do not consent to the search.
• Ask whether you are being detained, and why.
• Ask to speak to a lawyer, and do not answer questions until you have.

For example, saying "I don't consent to a search" does not stop police if they have a warrant. However, it makes it much harder for them to rely on consent later in court.

Police dogs

When a police dog sniffs a person, bag or car for drugs, that sniff is a search under the Charter. Police generally need a reasonable suspicion that drugs will be found before using a dog in this way. If police used a dog without that basis, the search may have breached s. 8.

Traffic stops used for other purposes

Police can stop drivers under Ontario's Highway Traffic Act to check licences, insurance, sobriety and the condition of the vehicle. However, a traffic stop cannot be used as an excuse to search for drugs without proper grounds. If the stop quickly turned into a drug investigation, the reason for that change will be examined closely in court.

Statements and the right to silence

You have the right to remain silent when police question you, and anything you say can be used as evidence. Many people try to explain the situation at the roadside or in a police station, but those explanations can be misunderstood or used to prove knowledge. It is usually safer to give your name when required and then ask to speak to a lawyer.

How a Charter application works

1. Notice: Your lawyer files a written application explaining the breach and the remedy being sought.
2. Evidence: The officers involved are usually questioned at a hearing called a voir dire.
3. Decision: The judge decides whether there was a breach and, if so, whether the evidence should be excluded.

If key evidence is excluded, the prosecutor may withdraw the charge or be unable to prove the case at trial.

Searches of your body

Police can search you after a lawful arrest, but the search must be connected to the reason for the arrest and carried out in a reasonable way. A strip search is much more intrusive. Police need specific grounds to believe it is necessary, and it must be done privately and respectfully. Strip searches that do not meet these standards can breach the Charter.

Possible outcomes

Even when a search is upheld, the evidence still has to prove the charge, for example whether drugs were held for possession for the purpose of trafficking or only for personal use.

How we can help

We can review every step of the stop, the detention and the search, and bring a Charter application to exclude the evidence. Call (647) 223-1980 for a free consultation.

Frequently asked questions