When can the police search me?
A police officer in Canada cannot simply stop and search you without reasonable grounds to believe that you have been involved in a crime.
The police must follow the correct procedure and respect your rights under the Canadian Charter of Rights and Freedoms.
Even if the police do have the right to search you, there are guidelines for how this search should be conducted.
Arrested and searched
If you have been detained or arrested, the police have the right to search you and (in some instances) your vehicle, if that was where you were arrested.
A search can be conducted by a police officer in order to:
- Ensure their safety or the safety of the public (e.g. they might suspect that you have a weapon)
- Prevent the destruction of evidence
- Locate evidence of the offence for which they arrested you
If the police arrest you, they either have a warrant issued for your arrest or reasonable grounds to believe that a crime has been committed or was about to be committed.
This means that their investigation into a possible crime has already begun and, by searching you, they take one of the first steps in gathering evidence.
The types of searches that the police are permitted to perform on someone they arrest go beyond those permitted for a detained person.
If the police have only detained you, they can pat you down in order to ensure their safety or reduce the threat to the public but they are generally not allowed to search your bag until they have formally arrested you.
If the police want to search your cell phone activity, they will also need to arrest you. They may need a search warrant and it will normally need to be in relation to a serious offence like drug trafficking or a violent crime.
If the police are investigating you for a recent sexual assault, they may have the right to take a swab of parts of your body (including your penis).
If they are investigating you for a drug crime and believe that you may have swallowed evidence, they can confine you in a way that allows them to recover it.
The police also have powers to search you if you are in a court, an electricity generating station, a nuclear facility, or a correctional institution.
Strip searches are only used by the police in cases where they have reasonable grounds to believe that a weapon or other evidence related to the charges you were arrested for may be concealed on your person and a pat-down search has not located it.
This should be conducted at the police station and with a certain degree of privacy.
If you are asked to remove your clothes voluntarily for a search, speak to your lawyer immediately.
One of the reasons for police searching you with a warrant is to locate evidence that they have reasonable grounds to believe is on your person, or to prevent it from being destroyed.
Depending on circumstances, weapons, drugs or alcohol are common examples of such evidence:
- Weapons – if the police are searching for guns and weapons, they are allowed to search you if they believe you have one on your person.
- Drugs – if the police are conducting an investigation into illegal drug smuggling or possession and believe that you have drugs on your person, they can search you and your belongings. If you are in a public place like an airport, highway, or bus terminal, a sniffer dog may be used.
- Alcohol – police can search you and your vehicle (car, boat, etc.,) if they believe that you are transporting alcohol illegally. If you are stopped for a traffic violation and they believe that you have open bottles or cans of alcohol in your vehicle they can search you and your car without a warrant.
Warrant and informed consent
If the police have a search warrant, the “reasonable grounds” requirement has already been reviewed by the justice system, so the police are free to search you in a reasonable manner. However, the lawfulness of the authorization is often challenged in court in your defence.
Another way that the police are able to legally search you is if you provide informed consent to do so.
“Informed consent” means that you understand the possible consequences and agree to let the police conduct a search that should be limited to what you have consented to. The police must first inform you why they want to conduct the search.
Before providing informed consent, speak to your lawyer so that your legal rights are fully protected and you do not agree to something that you later regret.
Unreasonable search and seizure
You are protected under the Canadian Charter of Rights and Freedoms from “unreasonable search and seizure”.
Any search must be conducted in a reasonable manner, with no unnecessary damage to your property.
If your search and seizure rights are violated, the court may dismiss any evidence that results from the search and you may be released.
What can you do if you are arrested and searched?
Your legal rights when you are arrested include the right to speak to your lawyer.
Cory Wilson is a skilled criminal defence lawyer who will examine how police evidence was collected during the search as well as the nature of the evidence itself.
Hiring the right criminal lawyer is often the difference between being charged and convicted and being acquitted and released.
Don’t take any chances if you are arrested. To arrange a free, no-obligation consultation with us, call 403-978-6052 or email us here.