Updated September 10, 2026
The difference between a lawful and an unlawful search is subtle and can often be determined only by an experienced criminal lawyer once all disclosure in your case has been received. Even then, it is sometimes necessary to conduct a preliminary inquiry, or even a trial, to determine whether a search was lawful. The following offers an introduction to the framework that will be used to determine whether you were lawfully or unlawfully searched, which will ultimately impact whether the evidence discovered will be admissible at your trial.
Section 8 of the Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms [the Charter] is a bill of rights that forms part of the Constitution of Canada. The Charter guarantees certain political rights to Canadian citizens and civil rights to everyone in Canada.
One of those rights is found in section 8 of the Charter and states that, “Everyone has the right to be secure against unreasonable search or seizure.”
Simply put, the police cannot conduct a search, whether that means a pat down search of your body, a search of your bag(s), a search of your car, or a search of your home, unless they have a warrant or are authorized to do so by common law or statute.
Police Powers to Search
If the police have a warrant, for your home for example, they must knock and announce their presence (i.e. identify themselves as police and tell you they have a warrant) and provide you with a copy of the warrant. If you believe the warrant should not have been granted to the police, now is not the time to fight with the police. Cooperate with the police, allow them to conduct their search, and call an experienced criminal lawyer at the first opportunity. For more information on home searches, please visit our blogpost “What You Should Know if the Police Come to Your Door”
If the police do not have a warrant, , they must obtain their search powers from some statutory or common law authority. Some individuals wrongfully believe that once they are under arrest they lose all of their rights. While your freedom to move about is temporarily suspended, many of the rights outlined in the Charter remain at play (especially your right to silence – so continue to exercise it, even after you are arrested!).
The Common Law Power to Search Incident to Arrest
The Supreme Court of Canada has said on numerous occasions that upon the arrest of an individual, the police have the power to search the person for the purposes of ensuring the safety of the police and public, protecting evidence (relating to the arrest) from being destroyed at the hands of the arrestee or others, and the discovery of evidence (relating to the arrest) which can be used at the arrestee's trial.
The search, however, must be truly related to the purposes of the arrest. That means that if the police arrest you for outstanding traffic fines, absent some officer safety concerns, they cannot then go on a fishing expedition by searching your car, backpack, purse or other receptacle that is guaranteed not to produce further evidence of the outstanding traffic fines you that were arrested for. Though they may search you for officer safety reasons. Without knowing the details of their investigation, it will be impossible for you to know whether the search is truly authorized by law. Again, it is important not to argue or fight with the police while they are searching for you. If the police search you, and you do not think they are doing so lawfully, let them do their jobs (while not providing them with any information that you don’t have to) and then contact an experienced criminal lawyer at your earliest opportunity. It is important that we meet with you as soon as possible to hear your version of events while it is fresh in your mind.
Conclusion
The police powers to search are complex, and subtle differences in the words officers use can turn a legal search into an illegal one. If you are charged with a criminal offence that involves a search, it is important that you have an experienced criminal defence lawyer review your case. An improper search by the police often leads to the exclusion of the evidence found, which can result in a significant reduction, if not a complete withdrawal of the charges.
If you think you’ve been illegally searched, contact Liberty Law now for a free consultation at 780-784-7500.
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