Illegal Searches

Some people agree with the old adage that “knowledge of the law is half the battle” and in most legal situations, there is no doubt this is the case. Knowing the laws of Canada and abiding by them can keep you out of trouble. Some may argue that unless you are an experienced criminal defence lawyer it is impossible to know every possible criminal or regulatory law and that somehow we can all end up in “hot water” at some point. This can be true to a certain extent unless you are an expert in criminal law. However, ignorance of the law does not exempt anyone from prosecution. Knowing your legal rights can help you avoid running afoul of the law.

Aside from one of our most important rights which is the “right to remain silent”, there are other important rights that the police will advise a detainee of either before or during their arrest. One of these important rights which the police will read to you upon arrest is the s. 10(b)Charter “Right to retain and instruct counsel without delay.” At the time of your arrest, you should exercise your right to call a criminal defence lawyer who will provide you with free legal advice on the phone. If you don’t have your own private lawyer to call, you can also ask to speak to a duty counsel free of charge. The most important advice the lawyer or duty counsel will provide you is to not discuss any aspect of your case with the police. Based on my experience, most people who are placed under arrest seem to want to talk to the police and provide their side of the story in a misguided attempt to “help” their situation. The police also have many legal tricks and techniques to make a person think it is in their best interest to co-operate with the police and tell them what happened. This is a huge and detrimental mistake that usually always hurts the person’s chances of winning and never helps them. A person who is charged with any criminal offence should not say a word to the police and should remain silent.

Let’s take a brief look at the interesting issue of whether there is a legal right to search a person in Canada specifically with the use of trained “sniffer dogs”.

The law developed over the years in Canada that the use of sniffer dogs in a public place like a bus station or while a person was simply walking on the sidewalk invariably resulted in an illegal search- any evidence found as a result of the search was inadmissible. Whether or not the search was intentional, it was considered an illegal search in Canada.

In R v. Kang-Brown this factual and legal issue was argued extensively at all court levels. The Supreme Court of Canada ultimately made a ruling in April of 2008.

Facts of the Case:

• In January 2002, the defendant Kang-Brown stepped off a bus at a bus terminal in Calgary via Vancouver which the police alleged was a known drug route. The bus terminal was under surveillance that day by plain clothes law enforcement officers.
• The defendant made repeated eye contact with a man who then approached him just before he was about to leave. The man stopped him, showed him a badge and introduced himself as a police officer. The officer also let Kang-Brown know that he was free to go at any time and was not in trouble, but he would like to ask him a few questions, to which Kang-Brown complied.
• After some random questioning, the officer realized that the defendant was becoming increasingly nervous so he then asked pointedly if he was carrying any drugs to which he responded no.
• The officer then asked to be allowed to take a look in the bag that Kang-Brown was carrying and after the accused placed it in the ground, he hastily snatched it back just before the officer could look inside.
• At this point, the officer hailed another officer with a sniffer dog to come over. The dog sat next to the bag which indicated to the officer, based on the dog’s training, that narcotics were present.
• The accused was arrested and approximately ninety thousand dollars worth of cocaine and heroin were found in the bag.

During Kang-Brown’s trial, his defence lawyer cleverly argued that the “sniffer dog” search was illegal under the Canadian Charter of Rights and Freedoms and therefore any evidence found would be inadmissible in court and without this evidence there should be no conviction on the charge.

When the case eventually made its way to the Supreme Court of Canada on appeal, a majority of six Justices agreed with the defendant’s lawyer, and three disagreed. While the decision was split, there were commonalities between. All agreed that the search was reasonably founded, but six agreed that it was contrary to the Charter and excluded the evidence under s. 24(2) of the Charter.

Since this ruling, general monitoring by sniffer dogs has been severely restricted in Canada to situations where there are clear reasonable and probable grounds to suspect the person has contraband or drugs on their person.

Though many of the criteria surrounding the factual situation in Kang-Brown leaned in favor of the search being legal (including the fact the bus terminal was a public place and there were signs indicating that random searches may be conducted), the court ultimately differentiated between a mere reasonable suspicion versus reasonable and probable grounds. A search in this context can only legally take place if there are clear “reasonable and probable” grounds that the person is carrying illegal drugs or contraband. A search cannot be conducted on a mere “reasonable suspicion”.

Kruse Law Firm has offices and criminal lawyers across the province. Kruse Law is widely known and respected by judges, prosecutors, and the public for understanding the intricacies of criminal law and the Charter. All of the criminal defence lawyers at Kruse Law have the right experience to win any type of criminal case including drug cases, crimes of violence such as assault, sexual assault or murder, property, theft or fraud cases, and impaired driving charges. Let our many years of professionalism and experience guide you through one of the most dire and stressful times in your life. We will get you the best results possible- whether it be winning your case outright or using the law to our advantage to minimize your sentence.

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