Know your rights if police want to carry out a drugs search

The police have certain powers to search you, your property or your car if they suspect you of having illicit drugs. Even with the impending decriminalization of marijuana, BC’s freshly minted Cannabis Act includes provisions to carry out searches if they suspect someone of committing a violation.

Exactly what the police can and cannot do during a search as well as what criteria they have to meet before being entitled to do so are often misunderstood by members of the public. Remember, the police simply cannot barge into your home or your car whenever they feel like it. Section 8 of the Charter of Rights states: “Everyone has the right to be secure against unreasonable search and seizure.”

The impetus of those in authority to protect society from dangerous substances must be tempered by the need to protect the public from excessive police force and people’s right to privacy. For this reason, it is important you know your rights and you must ensure police abide by their own rules to prevent a potential miscarriage of justice.

“Simply sniffing and noting an odor of drugs at the door of a suspect’s house is not sufficient to conduct a warrantless search.”

What powers do police have to conduct a search?

For a search to be lawful, the police require some type of authorization, either from legislation or pursuant to common law. There are both federal and provincial laws the police can use if they want to initiate a search. On a national level, the Criminal Code of Canada affords agents of the state the power to examine “a person’s person or property” in order to look for evidence. Before doing so they must obtain a warrant from a justice of the peace, which they are permitted to do over the phone if it is impractical to do so in person. Before a warrant can be issued, however, the police must have more than a suspicion, they must be able to show to the justice there are “reasonable grounds” to believe the search would turn up valuable evidence. The standard of proof is, therefore, higher than “reasonable suspicion” but not as high as “on the balance of probabilities”. For more on standards of proof listen to our podcast, Justice Radio.

Although a search warrant applies to a building, receptacle or place, the Code does not extend this power to a person’s body. Under common law, the police are, however, afforded the power to search you provided you have been lawfully arrested. Police cannot simply search anyone found on the premises where a warrant has been issued, however, the Controlled Drugs and Substances Act (CDSA) – another federal law – does have some exceptions to this rule. If the warrant was issued under the CDSA, which must meet the same preconditions laid out under the Code, police can execute a search of a person for a specific controlled substance. Again, this can only be done if the officer has reasonable grounds. So police can still search you even if you haven’t been arrested but only for specific items.

Under the Code, police are authorized to seize the items listed in a search warrant and other illicit items that are in plain view before taking them to a justice of the peace. The CDSA also enables an officer to seize certain items not specified in the warrant in certain circumstances, such as when they have reasonable grounds to believe the items were used for an offence or they will provide evidence.

How much warning do the police have to give about a search?

Searches can be carried out, in effect, at any time of the day. The Code does state a warrant can only be executed between 6am and 9pm, however, a justice can authorize its use outside of these hours. Similarly, in BC, the Offences Act can be used to issue a warrant to search for drugs and although it is specified to be used during daylight hours, a justice can also give authorization for one to be executed at night. There are no restrictions under the CDSA as to when a warrant has to be executed.

The Supreme Court of Canada has previously ruled in drug-related cases the police may enter a dwelling-house without first announcing their presence if it is necessary to do so to prevent the destruction of evidence.

Can police still search you or your property even without a warrant?

In the past, writs of assistance gave police power to search without a warrant. In 1985, these writs were found unconstitutional as they infringed on citizens’ Section 8 rights and they were repealed by the Supreme Court of Canada.

Although there is a list of requirements that have to be met before a warrant can be issued, there are still certain circumstances where so-called “warrantless searches” are permitted by law. The CDSA recognizes that prior authorization is not always feasible. The courts have established that warrantless searches are permissible when, “exigent circumstances render obtaining a warrant impracticable.”

This can apply when police have reasonable grounds to suspect a vehicle contains illegal drugs. Because courts consider vehicles to have a reduced expectation of privacy and because they are mobile, they are more willing to consider a warrantless search than they would for a home. Only in extreme circumstances is a court likely to consider a warrantless search of a house to be permissible, such as when someone’s life is at stake. Simply sniffing and noting an odor of drugs at the door of a suspect’s house is not sufficient to conduct a warrantless search.

Police may be able to search your vehicle without a warrant but don’t forget, they must have reasonable grounds before doing so. Often police will simply go ahead and pursue their investigation and worry about the consequences later. A police officer might notice your hand shaking when you hand over your driver’s licence or when you’re looking for your insurance, they might think they see something suspicious in your glove box and decide to search your car. This may well have been an improper use of a warrantless search and if so the driver would have had their rights violated in the process, but the officers’ actions will not be challenged until the case is properly tested in court.

How will the Cannabis Act affect police searches?

Under the provisions newly laid out in The Cannabis Act inspections can be ordered by a government official known as the General Manager, who will oversee cannabis in British Columbia or their authorized delegates. The Act will give them the power to conduct searches of retailers and producers, although people selling and producing marijuana without a license will also be subject to the powers of inspection. If a private residence is being utilized, the Act provides for the issuance of a warrant.

Although weed will technically be legal, the Cannabis Act permits a peace officer to obtain a warrant if there are reasonable grounds to believe that a person is violating the Cannabis Act, such as growing without a licence. For more on the types of offences laid out in the Cannabis Act, read lawyer Kyla Lee’s helpful guide.

If the warrant is issued under the Cannabis Act, the search is only permitted for specified items pertaining to violations of the Cannabis Act. This means, if the police locate heroin or illegal guns, for example, they are not permitted to seize these items. However, we can only wait and see how this will work in practical terms and whether discovery of these items during the execution of a warrant could be used as grounds to get another warrant under the Criminal Code or Controlled Drugs and Substances Act.

What to do if you have been charged following a police search

Agents of the government must follow correct procedure before conducting a search of a person or their property. These rules exist for good reason, not just to prevent excessive intrusion into our lives by the state but also to prevent potential miscarriages of justice. Simply being in a car or on premises where a search has been carried out does not make you guilty. If you are suspected of committing an offence it may feel like the chips are stacked against you. Our advice is to seek professional help by hiring a lawyer.

At Acumen Law Corporation, we have considerable experience defending those charged with a range of drugs charges. We have a successful track record defending these types of cases and we are proud to stand up for the Charter rights of citizens.

Call us today for a free consultation on 604-685-8889.

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