Section 8 - Unreasonable Search & Seizure

Section 8-

Everyone has the right to be secure against unreasonable search or seizure.

PURPOSE

The purpose of section 8 of the Canadian Charter of Rights and Freedoms is to prevent unjustified searches by the state before they happen (Hunter v Southam, [1984] 2 SCR 145). Section 8 aims to protect underlying values of dignity, integrity and autonomy (R v Plant, [1993] 3 SCR 281). Broadly speaking, a search or a seizure will violate section 8 if it interferes with an individual’s reasonable expectation of privacy.

The provision itself permits reasonable search and seizures, recognizing that the state has a legitimate interest in advancing goals of law enforcement, and this sometimes requires intrusions into the private sphere (Goodwin v B.C., [2015] 3 SCR 250). As such, applications of section 8 attempt to balance the state’s desire to maintain law and order, and an individual’s desire for privacy.

SECTION 8 ANALYSIS

Overview

  • 1. Has there been a search or seizure?

  • 2. If so, was the search or seizure unreasonable?

1. Has there been a search or seizure?

Not every form of government examination amounts to a “search” or “seizure” under section 8 of the Charter. The courts have defined:

  • a search as an “inspection or any state activity that interferes with a reasonable expectation of privacy” and,

  • a seizure as a “taking by a public authority without that person’s consent” where a person has a reasonable privacy interest in the subject matter (R v Tessling, 2004 SCC 67 at para 18).

If there is no finding of a reasonable expectation of privacy, the protections afforded by section 8 are not engaged. If there is a reasonable expectation of privacy, section 8 rights are engaged and used to prevent further state intrusion, unless a warrant has been obtained.

Whether an individual has a “reasonable expectation of privacy” and the extent of such an expectation is assessed in the totality of the circumstances.

Totality of the Circumstances Test

Four lines of inquiry guide this test (See R v Cole, 2012 SCC 53; R v Tessling, 2004 SCC 67):

  • 1. An examination of the subject matter

    • In identifying the subject matter of the search, the court must not do so “narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action.” In other words, the subject matter refers to what the state activity may “tend to reveal” about the individual (R v Spencer, 2014 SCC 43 at paras 26, 31.)

    • The SCC has enunciated three broad privacy interests protected by section 8:

      • Personal privacy: Protects the right of a person not to have their bodies touched or explored for things they may wish to conceal.

      • Territorial privacy: Protects privacy in places where most intimate and private activities take place, including the home, the ears around the home, a commercial space, private cars, schools and prisons. Within the territorial interest, places are used as a tool to determine the reasonableness of a person’s expectation of privacy (Tessling).

      • Informational privacy: Protects information that individuals would wish to control and maintain from the state. It is “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to other” (Tessling; See also Cole). These considerations are strongest where one’s identity is at stake. (R v Mills, [1999] 3 SCR 668)

  • 2. A determination as to whether the claimant has a direct interest in the subject matter.

    • An individual claiming infringement of their privacy must have their own rights implicated, as opposed to those of a third party (R v Marakah, 2017 SCC 59 at para 12).

    • Generally, a Charter applicant bears the burden of proving a Charter infringement. In the context of a section 8 challenge, however, the Court is permitted to assume any fact that the Crown is alleging in the prosecution (in other words, the defence is entitled to rely on the Crown’s theory of the case) (R v Jones, 2017 SCC 60 at paras 32-33).

  • 3. An inquiry into whether the claimant has a subjective expectation of privacy in the subject matter.

    • At this stage, the Court must consider whether the claimant had, or is presumed to have had, an expectation of privacy in the subject matter of the search. Importantly, this stage does not consider the reasonableness of the expectation.

    • The courts have consistently held that this is a low threshold.

  • 4. An assessment as to whether this expectation of privacy is objectively reasonable

    • This stage considers the reasonableness of the expectation of privacy and is highly contextual. There is no definitive or exhaustive list of factors to consider reasonableness.

    • Some factors may include:

      •  The place where the alleged search occurred

      • Whether the subject matter is in public view (See R v Jarvis, 2019 SCC 10)

      • Control over the subject matter of the search (See R v Marakah, 2017 SCC 59 and R v Edwards, [1996] 1 SCR 128)

      • Whether the subject matter has been abandoned (See R v Patrick, 2009 SCC 17)

      • Relationship between parties seeking/forgoing privacy

      • The invasiveness of the technique/technology (See R v Jarvis, 2019 SCC 10)

      • Nature of the information being transmitted

      • The context in which the search occurs

Consent

A section 8 infringement may be constitutional if an individual has waived their right to privacy. For rights to be waived, an individual must be properly informed (R v Borden, [1994] 3 SCR 145) and do so voluntarily (Godbout v Longueuil (City), [1997] 3 SCR 844). In determining this, a person must have had sufficient information to make a legitimate preference, and have had a real choice in giving consent.

It should also be noted that where consent is given for a single search and seizure event, it does not allow for intrusion for other purposes (Mills). Some specific exceptions may exist where there are no limits placed on investigating parties and the subsisting use of consented information may occur (R v Arp, [1998] 3 SCR 339).

Consent cannot be given by a third party. In the context of shared devices (i.e. a family computer), waiver by one privacy rights holder does not constitute a valid waiver for all rights holders (see R v Reeves, 2018 SCC 56 at para 52).

2. If so, was the search or seizure unreasonable?

A search or seizure is reasonable where it is:

  • 1. Authorized by law;

  • 2. the law itself is reasonable; and

  • 3. the manner in which the search is carried out is reasonable (R v Collins, [1987] 1 SCR 265 at para 23)

Searches with a Warrant

Prior authorization (or warrants) are the default system by which to prevent unjustified state intrusion. This standard requires that (1) there be a prior authorization, (2) it is granted by a neutral and impartial person capable of acting judicially, and (3)is based on reasonable and probable grounds to believe that an offence has occurred.

Warrants are obtained through an application for search warrants, which must contain full disclosure of the material facts, even ones adverse to the state’s interest.

Warrants or production orders sought concerning journalists or the media required a different 4-part analysis, which considers (i) potentially required notice to the media, (ii) whether statutory provisions are met, (iii) a balance f the state’s interest in investigation of crimes and the media’s right to privacy, and (iv) conditions that may unduly impede the media in publishing and disseminating news.

Separate judicial authorization is required to search a device, like a computer, that is found within a place being investigated under warrant (R v Vu, 2013 SCC 60).

Warrantless Searches

A warrantless search/seizure is presumptively unreasonable (Hunter v Southam). The onus is on the party seeking/justifying the warrantless search to establish that the search was: (R v Collins, [1987] 1 SCR 265; Tessling; R v Mann, 2004 SCC 52; R v Grant, [1993] 3 SCR 223).

  • Authorized by Law - Generally, what is considered “law” has included statutes, regulations and the common law, but there may be a possibility to include other instruments where requirements are met to make them applicable under section 8. Established law includes:

    • Common law power of search incident to arrest (See Cloutier v Langlois, [1990] 1 SCR 158; R v Caslake, [1998] 1 SCR 51; R v Golden, [2001] 3 S.C.R. 679; Mann; R v Stillman, [1997] 1 SCR 607; R v Simmons, [1988] 2 S.C.R. 495)

    • Common law power of search incident to lawful investigative detention (See Mann)

    • Common law power to search in exigent circumstances (See Grant 1993; Plant)

    • Common law power to use sniffer dogs (See Mann; R v Kang-Brown, 2008 SCC 18; R v A.M., 2008 SCC 19).

    • Plain view doctrine (See R v Mellenthin, [1992] 3 SCR 615).

  • Law Itself is Reasonable - There is no one hard-and-fast rule for determining reasonableness (Thomson Newspapers). But, generally, a reasonable law would balance the state’s particular interest in law enforcement and an individual’s rights to privacy (R v McKinlay Transport, [1990] 1 SCR 627). Essentially, if the law authorizing the search is found to be unconstitutional or unreasonable, then the search will be unreasonable. Regardless, the standard of review of what is “reasonable” must be flexible (McKinlay Transport). Some considerations to determine reasonableness at this stage include:

    • The nature and purpose of a legislative scheme

    • Mechanisms deployed

    • Availability of judicial oversight

    • Thresholds upon which a search is authorized

    •  A “reasonable grounds to believe” standard is commonly used.

    • For others, see Hunter v Southam; Baron v Canada, [1993] 1 SCR 416; R v Morelli, 2010 SCC 8; Mann).

  • Manner in which the search or seizure takes place is reasonable - The manner of a search will be considered reasonable if it is no more intrusive than is necessary to achieve its objectives (Vu).

Note: This post was co-written by Ramisha Farooq and Sara Little. Ramisha is entering her third year of law school at the University of Windsor. She has a passion for criminal law and human rights, especially as they pertain to the participation of vulnerable groups in the justice system. Ramisha recently served as a legal fellow at the United Nations High Commissioner for Refugees office in Toronto. This post was copy-edited by Sara Little.

Sara LittleSection 8, Unreasonable Search and Seizure, Charter 101, Charter