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Canadians are protected from unreasonable search and seizure because they are legally afforded a reasonable expectation of privacy. However, that expectation has come into question after a recent decision by the British Columbia Court of Appeal.
The case involves a man who received and opened a package that contained drugs. The police already knew the package contained drugs, however, because an employee of the courier company thought the sender looked suspicious. The employee opened the package, found the drugs and notified police, who then conducted a “controlled delivery” to the recipient.
The contract between the sender and the courier company, DHL, indicated that the company could “open and inspect any shipment and its contents at any time. Customs authorities, or other government authorities, may also open and inspect its contents at any time.”
The question, though, was whether the recipient, who was unaware of and not party to the terms of the contract, should be held to its terms. Were the search and its impact on the recipient legal? The court of appeal said yes and upheld the legality of the search that led to evidence against the recipient.
The decision undoubtedly strikes many as troubling because it suggests that an individual can lose his or her rights — in particular, freedom from unreasonable search and seizure — because of the terms of a contract to which the accused is not a party. In other words, if you unknowingly accept a package that contains an illegal substance, can the contract between the sender and the courier company be used as evidence to convict you? Again, the court of appeal said yes.
The case is a heavy reminder of the importance of a strong criminal defence to protect the rights of the accused. Much is at stake in drug cases, and defendants should be fully aware of their defence options.
Source: Toronto Star, “What’s a ‘reasonable expectation’ of privacy?” Michael Geist, Aug. 20, 2014