Although they are often referred to as two sides of the same coin, search and seizure are in fact (and in law) two distinct concepts (Boucher & Landa, 2005). A search, simply put, “is something that infringes one’s reasonable expectation of privacy,” while a seizure involves “the taking of a substance or thing belonging to, or in the care and control of, a person by a public authority” (R. v. Nairn, 2011, paras. 38, 39).

One of the defining features of a free and democratic society is the right of individuals to privacy, commonly defined as the condition of being free from the unsanctioned intrusion by others. This includes the ability to seclude one’s person, property, and information from the rest of society. The right to privacy is a highly valued right that enables individuals to live their lives largely free from the interference of others, including the state.

Despite the enormous value placed on the individual’s right to privacy, there are times when society has a valid interest in limiting that right in favour of the greater public interest. As described by the Supreme Court (R. v. Genest, 1989, quoting Polyvios G. Polyviou, 1982, p. vii):

“The privacy of a man’s home and the security and integrity of his person and property have long been recognized as basic human rights … . But as much as these rights are valued they cannot be absolute. All legal systems must and do allow official power in various circumstances and on satisfaction of certain conditions to encroach upon the rights of privacy and security in the interests of law enforcement, either to investigate an alleged offence or to apprehend a lawbreaker or to search for and seize evidence of crime … . The task of balancing these conflicting interests is a matter of great importance and of considerable difficulty.”

Under the Charter, law enforcement activities, such as reasonable searches and seizures, are accepted as valid social safety mechanisms; however, despite the social benefits that may flow from police use of such investigative powers, their use must be continually balanced against the right of individuals to expect and enjoy a reasonable degree of privacy in their lives. Investigators who lack an understanding of the central principles of the law of search and seizure – and who fail to gather evidence in accordance with them – jeopardize the admissibility of any evidence they do gather.