If you ask: “Are police allowed to search me, my house, car, bag in British Columbia?“, you will find answers in this article.

Everyone in Canada is protected by section 8 of the Canadian Charter of Rights and Freedoms [the “Charter”], subject to some exceptions.

Section 8 of the Charter reads: “Everyone has the right to be secure against unreasonable search or seizure”. Police must be aware of this when searching people and places to avoid violating someone’s section 8 Charter rights.

You can relinquish your section 8 Charter rights by consenting to a search or seizure done by police.T

This is called a consent search and can include searching of your person or your property such as where you live, your car, or items you are carrying such as a backpack.

What Are Consent Searches?

Consent searches are when you consent to a police officer searching you or your property. This is a type of warrantless search meaning the police do not obtain a search warrant in order to search you or your property when they are conducting a consent search.

More information about search warrants you will find in this article

It is widely accepted that warrantless searches or seizures are presumed by courts to be unreasonable. This means that the Crown must demonstrate that the search was reasonable and thereby did not violate section 8. One way the Crown can demonstrate this is if they can prove that the individual who was searched consented. This is because a search that is validly consented to is a lawful search.

What Is Valid Consent to Search?

For consent to a search to be recognized as valid it must be voluntary and informed.

For consent to be voluntary, the person consenting must not be pressured, coerced, or threatened into consenting.

For consent to be informed, the person consenting must be aware of:

  • the nature of the police search or seizure
  • their right to refuse to consent and/or withdraw consent; and,
  • the possible consequences resulting from their consent

This does not mean that the person consenting must know the exact details of how police are going to search (such as the forensic methods used) or every possible outcome resulting from their consent; however, it does mean police must at least inform the person consenting of these three details in the list above.

For the person consenting to know the possible consequences of their consent, the police must inform them of their role in the investigation. This means that police should tell the person they are asking to search whether they are being considered by the police as a suspect in an investigation or a witness. If the person being asked to consent is being considered as a suspect, the police must inform them of the type of potential charge they could face.

One way that police may obtain consent to search is with a consent to search form.

The consent form typically explains that consenting to the search is voluntary and can be withdrawn. It may also inform the person consenting what they are consenting to, such as the details of what police will be searching.

In court, the details surrounding the search including police behaviour and efforts to ensure a voluntary and informed consent may be looked at to determine if the consent was valid or not. This would likely include the consent to search form, if there was one.

Case Example: Valid Consent Search Leads to Incriminating Evidence

If you give police voluntary and informed consent to search, they are lawfully allowed to search you or your property and any evidence they find could be used against you in court, even if you were not initially a suspect when the search began.

This is what occurred in a recent missing persons case, turned murder investigation of Naomi Onotera in Langley, B.C. The case is called R v Regis. The accused, Regis, was the husband of Ms. Onotera.

In the early stages of the missing persons investigation, police asked Regis, on two separate occasions, if they could search his home that he shared with Ms. Onotera to look for anything that may help locate Ms. Onotera. Regis agreed and signed a consent to search form each time. In addition, the police officers explained to him generally what the search was looking for and where they would be searching.

For the second of the two consent searches, police used cadaver dogs. Before Regis consented to the search, police told him the dogs were trained to look for human remains. They further explained the nature of the search to Regis while also having him review and sign a consent form.

Regis’ defence challenged these consent searches, claiming that Regis did not give voluntary and informed consents. The court found that Regis did voluntarily consent as he answered positively when police initially suggested searching his house for the first consent search. For the second consent search, the court found this was voluntary since he scheduled a time that was convenient for him, suggesting that he felt he had a say as to when/if the search occurred.

Further, the court found that Regis did provide informed consent for both consent searches. This is because the officers made him aware that he could revoke consent, the nature of how and what the police were searching, and that he was aware that he was a witness, not a suspect at the time of the searches. It was during the second consent search where police used cadaver dogs that led the police to find incriminating evidence against Regis, which then led police to consider him as a suspect. These considerations are what led the court to find that the consent searches were valid and did not infringe Regis’ section 8 rights.

Consent to Search You, Your Bag, Your Residence or Your Vehicle 

If police, or any peace officer, ask to conduct a consent search of you or your property, such as your purse, your cooler, your vehicle, your apartment or your hotel room, you have a right to refuse.

You also have a right to withdraw your consent to search at any time if you do initially consent. This includes if by-law officers or police ask to see inside your cooler or bag at a beach or ask to see what is inside your purse or pocket at a concert.

This right follows from your section 8 Charter rights. If police conduct the search anyway, without your consent, this may be an unlawful search. Any evidence obtained by an illegal search may be excluded at trial by the judge. In some cases, if the police violate multiple of your Charter rights, or if their violation of a single Charter right was done in an abhorrent way, the Judge may stay your case completely.

Read our article about when your car search is considered unlawful

And here you can find what to do if the police ask to search your cell phone

The Charter protects the basic rights and freedoms of all Canadians. These rights are considered essential to preserving Canada as a free and democratic country. Your right to privacy, and to be free from unreasonable search or seizure, is a fundamental right.

If you are subject to an unlawful search and police find incriminating evidence against you, or if you feel that you were tricked into consenting to a police search, you may have legal recourse to get this evidence thrown out. Reach out to the team at Mickelson, Whysall, Moore & Forhan Law Group so they can assist with your defence.