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Know Your Rights, Including the Right Not to Consent to a Search
When you’re pulled over by police, whether for an alleged traffic violation, suspected impaired driving or any other reason – police may sometimes ask whether they can conduct a search of your vehicle. Either due to a feeling of intimidation, a desire to be accommodating, or a lack of understanding of their rights, drivers often consent to a search of their vehicle. More often than not, consenting to a search of your car can have profoundly negative consequences on your defence if you are ultimately charged with a crime based on what is found in such a search.
Specifically, Section 8 of the Canadian Charter of Rights and Freedoms places limits on when police can search your vehicle. The failure of police to follow these guidelines or overstep their authority may constitute a violation of your rights under the Charter and could mean that that any incriminating evidence they find in such a search will not be allowed to be used against you in court. However, if you consent to a search, you can lose your right to challenge the validity of the search and thus eliminate what may have been a significant element of your defence.
Police Need “Reasonable Grounds” In Order to Justify a Vehicle Search
The reasons you can be pulled over and the reasons police can search your car are two separate and distinct things. Under Canadian law, police can generally pull over a driver under the following circumstances:
- To check your sobriety;
- To determine whether you have a legitimate driver’s licence;
- To check if the car is properly registered and insured; and
- To see if the car is in good working order.
While police don’t need to show a reasonable suspicion to pull you over, they cannot stop you for the sole purpose of intimidating or harassing you if you are otherwise obeying the law.
However, police do need to show “reasonable and “probable” cause to search your car during routine traffic stops (including sobriety stops). The interpretation of what is “reasonable” and “probable” has been subject to significant scrutiny by the courts, and there are no hard and fast rules that apply to every conceivable situation.
Courts have held that police may conduct “warrantless searches” of a vehicle where the following factors exist:
- The vehicle contains illegal items;
- Waiting to get a warrant may lead to destruction of the evidence; and
- An offence has been, is being, or is about to be committed and that a search will disclose evidence relevant to that offence.
Of course, if police have obtained a properly issued search warrant, that means they have previously established in the opinion of a court that there are reasonable and probable grounds for a search. Additionally, if incriminating evidence is in plain view, or upon a legitimate arrest, the police can and will proceed to search the vehicle.
Consult With an Experienced Criminal Defence Lawyer If Your Car Has Been Searched
You should not be afraid to exercise your constitutional rights and respectfully deny your consent to a vehicle search. But regardless of whether a search of your vehicle was with your consent or not, if you’ve been charged with a criminal offence in whole or in part because of what was discovered in the search, you need to consult with an experienced criminal defence lawyer at the earliest opportunity. The success of your defence may depend on whether the results of the search are admissible in court, and a skilled criminal defence lawyer can explore every available avenue to have the evidence excluded.
The materials provided on this site are for information purposes only. These materials constitute general information relating to areas of law familiar to our firm lawyers. They do NOT constitute legal advice or other professional advice and you may not rely on the contents of this website as such.
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