Section 8

Protection Against Unreasonable Search and Seizure

Section 8: Everyone has the right to be secure against unreasonable search or seizure

Section 8 of the Charter protects privacy rights and your right to be free from unreasonable search and seizure. A search and/or seizure will violate section 8 if it was is carried out in a way that interferes with a person’s reasonable expectation of privacy. Section 8 law is continually evolving and highly dependent on context. Courts apply many different layers of tests that are regularly re-defined and narrowed. Therefore, it is difficult to state the rules for a s. 8 violation with certainty. This section provides an overview of the general principles behind the evolving laws.

The Test

There are two questions used to determine if there has been a violation of section 8:

1. Do you have a reasonable expectation of privacy?
2. If yes, was the search and/or seizure by the police (or other government authority) conducted reasonably?

If the answers to 1 and 2, were “yes” and “no” respectively, a third question arises: 3. Should the evidence turned up in the search or seizure be allowed in Court? If you think your rights under section 8 have been breached, click here to determine if that breach is unreasonable and unjustified.

Do you have a reasonable expectation of privacy?

When you have a reasonable expectation of privacy, you are entitled to freedom from government interference regarding your personal information and property. The degree of privacy you can reasonably expect varies depending on the type of activity or situation that brings you into contact with the state. Some the questions a Court will ask to assess your reasonable expectation of privacy are:

• Did you have possession or control of the property or place being searched?
• Did you own the property or place being searched?
• Did you have the ability to regulate access to the property being searched?
• What is the history use of the property being searched?
• Were you present at the time of the search?
• Did you actually have an expectation of privacy?
• Would others consider your expectation to be reasonable?

(see: F. P. Hoskins, “Search and Seizure” in J.E. Pink and D. C. Perrier, eds. From Crime to Punishment (Carswell: Scarborough, 1997) 303 at 303).

If you did not have a reasonable expectation of privacy, then you cannot rely on s. 8’s protections.

Was the search or seizure conducted reasonably?

A search or seizure will be reasonable if:

1. it was authorized by law;
2. the law itself was reasonable; and
3. the search was carried out in a reasonable manner. (R v Collins, [1987] 1 SCR 265 [Collins])

Authorized by Law

A search can be “authorized by law” in one of several ways.

• Statutory Authority: The Criminal Code authorizes search and seizure where certain criteria are met. Most commonly, a search and seizure will be authorized by a Search Warrant. The Criminal Code has parameters for peace officers to obtain search warrants to collect DNA samples, conduct video taping and wiretaps, search a dwelling, or conduct “general investigative” searches.
• Common Law Authority: A search may also be authorized through common law powers (authority derived from previous cases in Court). For example, the common law provides a limited authority to conduct a search “incident to arrest” (in other words, pat downs) (see: R v Stillman, [1997] 1 SCR 607; Cloutier v Langlois, [1990] 1 SCR 158); R v Simmons, [1988] 2 SCR 495 (SCC)]. In certain cases, a vehicle may be searched pursuant to common law authority (R v D(I D) (1987), 38 CCC (3d) 289 (Sask CA)) . In limited circumstances, peace officers can search objects in “plain view” (R v Law, 2002 SCC 10) or objects in the garbage (R v Patrick, 2009 SCC 19). They also possess common law powers to conduct strip and body cavity searches (R v Golden, 2001 SCC 83). The reasonableness of common law searches is highly fact-specific and very contentious.

There is a presumption that a search done without a search warrant is unreasonable. In these cases, once it’s proven a warrantless search occurred, the state must prove that the search was nonetheless reasonable. (Collins, supra)

The Law Itself was Reasonable

Laws that were once authority for search and seizures may themselves be found to be unreasonable over time, either through constitutional challenges or developing case law. If the law authorizing the search is itself unreasonable or unconstitutional, then the search flowing from it will be unreasonable. (R v Rao (1984), 12 CCC (3d) 97 (Ont CA), leave to appeal to SCC ref’d, [1984] 2 SCR ix.

The Manner of the Search or Seizure was Reasonable

The actual conduct of the search or seizure must be done reasonably. For example, a male peace officer strip searching a female suspect may be unreasonable if female peace officers were reasonably available and the search did not have to be performed immediately. Using force to conduct a search of someone’s mouth may be unreasonable if the person was cooperating and no force was required in the circumstances.

What Next? To Exclude or Admit Unreasonably Obtained Evidence

If a person had a reasonable expectation of privacy, and an unreasonable search and seizure took place, what ought to be done with the evidence obtained? There are many cases discussing what can be done with unreasonably obtained evidence (see, for example R v Grant, 2009 SCC 32). In some cases, the evidence is excluded (meaning it cannot be used in the accused’s trial). In other cases, despite the fact that it was illegally obtained, the evidence is nonetheless admitted. The admission or exclusion of illegally obtained evidence rests on preserving confidence in the justice system. The Court does not want to send the message that it condones state deviations of the rule of law. Nor does it want to let guilty parties go free on minor technical points. Three questions are asked to determine whether illegally obtained evidence ought to be admitted or excluded:

1. The seriousness of Charter-breaching state conduct — Was the breach caused by deliberate state conduct with reckless disregard for Charter rights, or was it a minor unintentional violation?
2. The impact on the Charter-protected interests of the accused — Was the breach fleeting and technical, or profoundly intrusive into the accused’s privacy rights?
3. Society’s interest in adjudication on the merits — How reliable and important is the evidence to the case? Is the truth-seeking function of the court better served by admitting the evidence, or excluding it?

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