• Lewis Waring

Privacy in Peril: Search Incident to Arrest - Giovana Hessman Dalaqua


Section 8 of the Canadian Charter of Rights and Freedoms (“Charter”) states that everyone in Canada should be protected against unreasonable search and seizure. This right provides Canadians with a constitutional privacy right against unreasonable intrusion from the government. Hunter v Southam Inc (“Hunter”) was a landmark decision of the Supreme Court of Canada (“the Court”) with respect to section 8 of the Charter. Justice Dickson articulated in Hunter that “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard consistent with s. 8 of the Charter for authorizing searches and seizures.” Hunter is certainly a benchmark for privacy interests, and it still guides courts in analyzing whether or not a search was reasonable.


Warrantless searches under the Charter


Generally speaking, warrants are necessary for conducting a search and, where it is feasible, for obtaining prior government authorization. A warrant is often a precondition for a valid search and seizure. However, there are instances where warrantless search powers are used, often occurring in searches incident to arrest. These powers involve searches of the suspect’s property or person after an arrest, where a police officer might engage in a search for safety reasons and to secure evidence pertaining to the crime.

The search to gather weapons or other dangerous items should happen to prevent their use against the police, the public at large, or even against the accused. There is also the need to protect evidence which can be found in the immediate surroundings of the crime scene which might be essential for the judicial process.

An officer may conduct a search incident to arrest if they subjectively believe a person is committing or has committed an indictable offence. This belief should be based on objectively reasonable grounds. This search power has deep roots in the common law and was argued in many cases. The Court in Cloutier v Langlois, for example, stated that “at common law the police power of search extended to encompass a search of the surroundings of the arrest location and the seizure or anything they found there”.

Nonetheless, a search incident to arrest will be subject to limits since it infringes individual privacy rights. The judicial system, as a guardian of the constitution, has the difficult task of balancing the accused’s rights against objectives of public safety and the needs of law enforcement. The constitutionality of these types of searches was discussed in the Court’s decision in R v Caslake, where the Court held that a warrantless search is prima facie unreasonable. Chief Justice Antonio Lamer, and Justices Cory, McLachlin, and Major found that analyses of searches incident to arrest should start with the principles set in Hunter. They also found that, in order to be reasonable, a search must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner.

The scope of a search incident to arrest might be extended beyond the person to include automobiles and belongings such as backpacks. Searches can range in their time with respect to the time of the arrest and can occur within a few minutes to hours after the arrest in some cases. Also, any search incident to arrest must be related to the purpose of the arrest to be reasonable.


Types of warrantless searches


The Court has considered the rules of warrantless searches in different contexts and has generally held that some searches are more intrusive than others.


Hair samples

In R v Stillman (“Stillman”), for example, the police forcibly removed scalp-hair samples from the accused and allowed him to remove his own pubic-hair sample for evidence. They also took dental impressions and buccal swabs of the inside of the accused’s mouth. The Court in Stillman held that such state interference was an affront to human dignity and that invasive searches require higher grounds of justification. In Stillman, the scalp hair and public hair gathered was not in danger of disappearing. As such, it was unreasonable for the police officers to conduct that search without prior authorization.


Strip Searches

In another Court decision, R v Golden (“Golden”), the Court had to deal with the validity of a strip search incident to arrest. In that case a body-cavity search was conducted for the purpose of finding materials that could be destroyed or hidden. However, the search happened on a restaurant booth in a very humiliating way and the court held that “a strip search will always be unreasonable if it is carried out abusively or for the purpose of humiliating or punishing the arrestee”.

Strip searches deal with the accused’s dignity and the police enforcement needs to guarantee that the individual has a minimum of privacy respected. In this way, the Court duplicated guidelines from UK legislation which includes, among other instructions, that any search should be preferably conducted at a police station by an officer that is the same gender as the accused. Furthermore, a police search in the UK must be conducted as quickly as possible and with proper records of the reason for and the manner in which the strip search has been conducted.

Furthermore, the Court in Golden argued that preconditions are required before a strip search happens, such as the establishment of reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. And even when these preconditions are met, it is also necessary to verify if the way the search is conducted does not infringe s.8 of the Charter of Rights and Freedoms.


Cell phones

Not only the human body but also digital items can be very personal, especially in a digital era. Nowadays, most people keep the most intimate information about their lives on their cellphones and thus it was certain that the Court would have to deal with this circumstance at some point.

In 2014, cell phone searches incident to arrest were discussed in R v Fearon (“Fearon”). In Fearon, when the police conducted a search of the arrestee, they found a cellphone that contained inculpatory draft text messages and a photo of a handgun. This evidence served as the basis for a warrant to search the accused’s car a few days later. The Court’s majority cited Hunter and noted the role of the courts in balancing “the demands of effective law enforcement and everyone’s right to be free of unreasonable searches and seizures.”

The majority in Fearon expressed that a search incident to arrest has to be truly incident to arrest and the police must be attempting to achieve some valid purpose connected to the arrest. In a way, the Court distanced itself from the standard of reasonable and probable grounds and shifted away from an emphasis on privacy interests in the context of police powers when justified. Thus, Fearon established that a search incident to arrest of a digital item requires only that there is some reasonable basis for the police’s conduct.

Unlike bodily and strip searches, the Court in Fearon held that not every cell phone search will constitute a significant intrusion to the individual. The Court concluded that an arrested person has a lower expectation of privacy than persons not under lawful arrest. The high level of complexity involved in cell phone searches led the Court in Fearon to draft Charter-compliant guidelines to be followed in searches incident to arrest. These guidelines require that, for a search of a cell phone incident to arrest to be Charter-compliant, the arrest be lawful, the search be truly incidental to the arrest, and detailed notes of everything examined in the device must be produced.


Canada’s evolving rules on police searches


In conclusion, it is apparent the Hunter decision has had lasting impacts in Canadian jurisprudence in acting as the starting point for courts to decide whether a search was reasonable or not. However, as noted in the last case cited in this blog, it is notable that the Court might at times distance itself from the high standards set in Hunter, which held that police only have authority for a warrantless search if such a search is based on reasonable and probable grounds.

Undoubtedly, police enforcement would benefit from more legislation regarding searches incident to arrest but, just like any aspect of criminal law, every case varies a lot in circumstances and new issues cannot fail to arise. As new challenges imposed by technology and new techniques by criminal minds continue to develop, the court system might still have a long way to go in discussing the reasonableness of searches incident to arrest.