There is a difference between searches for law enforcement or intelligence purposes and searches conducted for regulatory purposes, such as inspection, auditing or the like.

Regulatory searches are carried out for many legitimate and reasonable purposes in the interests of maintaining certain standards for public health, or safety or to protect the public interest. There are many different types of search or inspection powers under federal and provincial laws. They are carried out by officials ranging from building inspectors, animal protection investigators, health inspectors or employment standards officers, to fisheries inspectors and financial markets regulators.

Judges have decided that regulatory legislation plays a fundamental role in the protection of individuals and groups in Canada and that Canadians rely on and expect their governments to regulate and control activities which may be harmful or risky. (1) The underlying purpose of regulatory inspections, searches or demands for documents is to ensure that the regulation is being obeyed.  These types of searches do not carry with them the stigma associated with a criminal investigation, nor are the consequences such a threat to individual liberty. (2) Therefore, regulatory searches, inspections and investigations are held to a more flexible standard of reasonableness.

These types of searches typically take place during working hours, are often focused on businesses and business practices, and in many cases require prior notice. In most cases you do not have the right to deny officials entry to the premises. If you do try to deny them entry, they often have the power to ask the police to enforce the entry.

If You Are Subject to a Regulatory Search

If you have a concern about an inspection by a municipal official, you should contact the office of the City Clerk in your municipality.

If it is a federal search or inspection which is of concern, contact your MP’s constituency office, of the nearest office of the federal department or agency administering the statute under which the search or inspection is being done.

Demands for Documents

Some statutes, like those that regulate financial activities or the Income Tax Act, allow the regulator to demand that you produce documents or business records. If you receive an official demand, you should consult a lawyer.

School Searches

Students are entitled to privacy in the school environment, but their reasonable expectation of privacy is less than it would be in other circumstances. (3) School officials are granted a broad measure of discretion and flexibility when carrying out searches for the purposes of school discipline.  Judges have decided that a modified standard of reasonableness is required for school officials to allow them the necessary flexibility to carry out their responsibilities to maintain a safe and orderly school environment. The search must be minimally intrusive but a school official can carry out a pat-down search, and a search of lockers or bags, so long as they have a reasonable suspicion that they will find drugs, weapons or other contraband.

However, when police conduct the search or when school authorities conduct the search acting as agents of the police, the ordinary standard of reasonable and probable grounds will be required. This is a higher standard than “reasonable suspicion”.

Thus when police search students in school, or search the school, they must follow the same rules that apply in any other public place: the police must have reasonable and probable grounds to carry out the search. The search cannot be random or speculative. The principal cannot give police a standing invitation to search whenever it is convenient for them to do so. When they search a school, police can use sniffer dogs to search for drugs, but they must have a reasonable suspicion about the person or bag before using the dog to sniff that person or bag. (4)