WDW325 February 10, 2011 Search and Seizure Lecture
-arrest powers are in the Criminal Code
-police can get a warrant if they have RPG
-police can arrest without a warrant if they meet the criteria in s.494 or s.549 of the Code
-powers of private citizens to arrest (without a warrant) are more limited
-something short of arrest
-police need articulable cause
-can be the production of physical or psychological restraint
EITHER will trigger rights under s.10 of the charter
Search and Seizure
Section 8 – Everyone has the right to be free from unreasonable search and seizure
What constitutes a search or seizure?
-historically, searches involved only physical property
-over time, focus shifted to protecting privacy
R. v. Wills (1992 Ont C.A.) – breath sample
‘This section stands as a bulwark against unreasonable state sponsored invasions of an individual’s
privacy. The protection provided by the section is not limited to physical intrusions of recognized property
rights, nor to the taking of tangible things. It protects personal privacy interests in their various
-information is also covered under section 8 of the charter
Must havea reasonable expectation of privacy over the placed search or the items seized for s.8 to
Section 8 can protect the seizure of:
-DNA, bodily substances, personal information, private communications (email, phone calls, text
messages, pin messages, msn chat), physical items
BUT – No expectation of privacy = no s.8 protection
Reasonable Expectation of Privacy - where and when?
R. v. Lebeau and Lofthouse (1988,OCA)
FACTS: men’s publish washroom at the Silvercreek Park in Guelph
-Lebeau was in the third stall with the door closed engaged in sexual activities with another male; others
used washrooms during that time (6 to 6:14)
-Lofthouse and another male engaged in sexual activities between 4:02 and 4:11pm – there were 2 other
people standing guard at the front door
-charged and convicted under s.157:
‘Every one who commits an act of gross indecency with another person is guilty of an indictable offence
and is liable to imprisonment for five years.’
NOTE: indecent act need not be sexual; only has to offend community standard of tolerance (R. v. Jacob)
-police set up human and video surveillance; had cameras monitoring washroom and recording activities
Video recording = seizure of information (images)
ISSUES: does s.8 apply?
1.Did they have a reasonable expectation of privacy?
2.Did it matter what they were doing?
3. Is it a reasonable expectation of privacy different from an expectation of avoiding detection?
-no reasonable expectation of privacy