Section 8 of the Canadian Charter of Rights and Freedoms

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Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure. This right provides those in Canada with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state. Typically, this protects personal information that can be obtained through searching someone in pat-down, entering someone's property or surveillance.

Contents

Under the heading of legal rights, section 8 states:

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

Any property found or seized by means of a violation of section 8 can be excluded as evidence in a trial under section 24(2).

Reasonable expectation of privacy

Section 8 does not apply to every search or seizure. Rather, the right focuses on the action being unreasonable on the basis that it violates the expectation of privacy that a reasonable individual would have.

Examples

The driver of a motor vehicle normally has a reasonable expectation in the contents of that vehicle, although that same expectation does not necessarily extend to the passenger of a vehicle who is not the owner. [1] [2]

Likewise, a visitor to a dwelling house does not enjoy the same expectation of privacy as a permanent occupant. [3]

A reasonable expectation of privacy generally exists in a hotel room, although the expectation of privacy in a hotel room diminishes in circumstances where the occupant indiscriminately invites members of the public inside. [4]

Information which does not "tend to reveal intimate details of the lifestyle and personal choices of the individual" is usually not subject to a reasonable expectation of privacy. For this reason, utility records are generally not subject to an expectation of privacy, nor are heat patterns which can be detected from outside a private building. [5] [6] Garbage placed at the curb for pickup is considered in law to be abandoned, and therefore fails to engage a reasonable privacy interest. [7]

In R. v. TELUS Communications Co., the Supreme Court of Canada found that the reasonable expectation of privacy protected by Section 8 of the Charter of Rights and Freedoms applies to modern communications technologies such as text messages, even if the data in question is located on a third-party server. [8]

Not every form of examination constitutes search. A search within the meaning of section eight is determined by whether the investigatory technique used by the state diminishes a person's reasonable expectation of privacy. The focus of analysis is upon the purpose of the examination. A police officer who compels someone to produce their licence would not be invasive enough to constitute a search ( R. v. Ladouceur , [1990] [9] ). Equally, an inspection of the inside of a car is not a search, but questions about the contents of a bag would be. ( R. v. Mellenthin [1992] [10] ) It has also been ruled that the use of a police dog as a means to gain probable cause to search is also in itself a violation of section 8, and that other factors must be present before a police dog can be used and a search executed. ( R. v. A.M. [2008], [11] R. v. Kang-Brown [2008] [12] )

In R. v. Feeney , the Supreme Court found that the entry into a private home without a warrant constitutes a violation of Section 8.

The use of wiretapping technology is also considered a "search" for the purpose of Section 8. Warrantless wiretapping can sometimes be justified under section 1 of the Charter of Rights and Freedoms in cases where exigent circumstances exist; however the Supreme Court found in R. v. Tse , 2012 SCC 16 that when police use such tactics, they must promptly notify the individual whose reasonable expectation of privacy has been infringed.

The application of section 8 is not limited to the criminal context, and has become an issue in civil forfeiture litigation, with some courts holding that "exactly the same Charter principles apply to the manner in which that evidence is obtained as would be applicable in a criminal case". [13] [14]

In R v Fearon (2014), the Supreme Court held in a 4–3 ruling that police search of a cell phone without a warrant during an arrest does not violate the Charter. However, the Court ruled that police must follow several search guidelines. [15] [16]

Seizure

The meaning of seizure is fairly straightforward. In R. v. Dyment (1988), [17] the Supreme Court defined it simply as the "taking of a thing from a person by a public authority without that person's consent." This meaning has been narrowed to cover property taken in furtherance of administration or criminal investigation ( Quebec (Attorney General) v. Laroche , [2002] [18] ).

See also

Related Research Articles

<i>Reference Re BC Motor Vehicle Act</i> Supreme Court of Canada case

Reference Re BC Motor Vehicle Act, [1985] 2 SCR 486, was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia Motor Vehicle Act. The decision established one of the first principles of fundamental justice in the Canadian Charter of Rights and Freedoms ("Charter"), beyond mere natural justice, by requiring a fault component for all offences with penal consequences. The decision also proved important and controversial for establishing fundamental justice as more than a procedural right similar to due process, but also protects substantive rights even though such rights were counter to the intent of the initial drafters of the Charter.

<i>R v Feeney</i> Supreme Court of Canada case

R v Feeney, [1997] 2 S.C.R. 13 is a leading decision of the Supreme Court of Canada on the right, under section 8 of the Canadian Charter of Rights and Freedoms against unreasonable search and seizure. The Court held that the police are not permitted to enter into someone's house without a search warrant.

<i>R v Collins</i> (1987) Supreme Court of Canada case

R v Collins [1987] 1 S.C.R. 265 1987 SCC 11 is a leading decision of the Supreme Court of Canada on section 8 and was a leading case on section 24(2) of the Constitution Act, 1982 which allowed for the exclusion of evidence upon infringing the Charter. The Collins test for section 24(2) was developed for determining if the administration of justice was brought into disrepute by the inclusion of the evidence. The test was later replaced in R. v. Grant.

<i>R v Buhay</i> Supreme Court of Canada case

R v Buhay [2003] 1 S.C.R. 631, 2003 SCC 30 is a leading Supreme Court of Canada decision on the Charter rights protecting against unreasonable search and seizure and the criteria for the exclusion of evidence under section 24(2). The court held that for evidence to be excluded on the Collins test, the seriousness of the breach must be determined by looking at factors such as good faith and necessity. On the facts, marijuana found in a bus station locker was excluded from evidence because the police had insufficient reason to search it without a warrant.

<i>Hunter v Southam Inc</i> Supreme Court of Canada case

Hunter v Southam Inc [1984] 2 S.C.R. 145 is a landmark Supreme Court of Canada privacy rights case and as well is the first Supreme Court decision to consider section 8 of the Canadian Charter of Rights and Freedoms.

<i>R v Tessling</i> Supreme Court of Canada case

R v Tessling [2004] 3 S.C.R. 432, is a leading Supreme Court of Canada decision where the Court held that the use of thermal imaging by police in the course of an investigation of a suspect's property did not constitute a violation of the accused's right to a reasonable expectation of privacy under section 8 of the Canadian Charter of Rights and Freedoms.

<i>R v Strachan</i> Supreme Court of Canada case

R v Strachan, [1988] 2 S.C.R. 980 is a leading Supreme Court of Canada decision on the exclusion of evidence under section 24(2) of the Canadian Charter of Rights and Freedoms subsequent to a violation of a Charter right. The Court held that there does not need to be a causal connection between the violation and the evidence, but rather there need only be a temporal link between the two.

<i>R v Dyment</i> Supreme Court of Canada case

R v Dyment, [1988] 2 S.C.R. 417 is a leading Supreme Court of Canada decision on the constitutional right to privacy under section 8 of the Canadian Charter of Rights and Freedoms.

<i>R v Wong</i> Supreme Court of Canada case

R v Wong, [1990] 3 S.C.R. 36, is a leading decision of the Supreme Court of Canada on the evidence obtained by electronic video surveillance conducted without authorization. The Court held that individuals have a reasonable expectation of privacy in a hotel room. This expectation does not depend on whether those persons were engaging in illegal activities. Therefore, individuals can expect that agents of the state will not engage in warrantless video surveillance. Electronic surveillance without authorization violates Section Eight of the Canadian Charter of Rights and Freedoms. However, for this particular case, the Supreme Court held that the police acted in good faith and had reasonable and probable ground to believe criminal activities were committed. The surveillance without authorization was a result of misunderstanding. Hence, acceptance of the surveillance as evidences will not bring the administration of justice into disrepute under Section Twenty-four of the Canadian Charter of Rights and Freedoms.

<i>R v Ladouceur</i> Supreme Court of Canada case

R v Ladouceur, [1990] 1 S.C.R. 1257 is a leading decision of the Supreme Court of Canada on the constitutionality of random police traffic checks. The Court found that the random checks violated the right not to be arbitrarily detained or imprisoned under section 9 of the Canadian Charter of Rights and Freedoms. However, the violation was saved under section 1 as it was a valid form of deterrence for a pressing problem of traffic safety.

<i>R v Belnavis</i> Supreme Court of Canada case

R v Belnavis, [1997] 3 S.C.R. 341, is a leading Supreme Court of Canada decision on the right against unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms. The Court held that there is no reasonable expectation of privacy in the backseat of a car.

<i>R v Duarte</i> Supreme Court of Canada case

R v Duarte, [1990] 1 SCR 30 is a leading case decided by the Supreme Court of Canada on the right to privacy under section 8 of the Canadian Charter of Rights and Freedoms ("Charter"). The Court held that a warrantless and surreptitious video recording of private communications violated section 8. Consent of only one party to a conversation is insufficient to be reasonable.

<i>Mills v R</i> Supreme Court of Canada case

Mills v R, [1986] 1 S.C.R. 863 is a leading constitutional decision of the Supreme Court of Canada concerning the right to a trial within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms and the meaning of a "court of competent jurisdiction" under section 24(1) of the Charter. The Court held that a thirty-one month delay was not unreasonable in the circumstances and that preliminary hearing judges are not within jurisdiction, superior courts can sometimes be within jurisdiction, and criminal trial courts were always within jurisdiction.

<i>R v Kang-Brown</i> Supreme Court of Canada case

R v Kang-Brown, [2008] 1 S.C.R. 456, 2008 SCC 18, is a constitutional decision by the Supreme Court of Canada on the limits of police powers for search and seizure. The Court found that police do not have the right to perform a sniffer-dog search of public spaces when such search is not specifically authorized by statute. In this case, a suspect's section 8 rights under the Canadian Charter of Rights and Freedoms ("Charter") were violated when a police officer stopped him at a bus station and sniffer-dog searched his bag finding drugs in his possession.

<i>R v Patrick</i> Supreme Court of Canada case

R v Patrick, [2009] 1 S.C.R. 579, 2009 SCC 17, is a constitutional decision by the Supreme Court of Canada on the limits of police powers for search and seizure. The Court found that police have the right to take garbage bags placed for collection at edge of a property without warrant. In this case, the accused abandoned his privacy interest when he placed his garbage for collection at the rear of his property where it was accessible to any passing member of the public. His section 8 rights under the Canadian Charter of Rights and Freedoms were not violated when a police officer seized bags of garbage at the rear of his property and used the contents of seized bags as evidence of criminal activity.

<i>R v AM</i> Supreme Court of Canada case

R v AM, [2008] 1 S.C.R. 569, 2008 SCC 19, is a constitutional decision by the Supreme Court of Canada on the limits of police powers for search and seizure. The Court found that police do not have the right to perform a sniffer-dog search of public spaces when such search is not specifically authorized by statute. In this case, a student's section 8 rights under the Canadian Charter of Rights and Freedoms ("Charter") were violated when a police officer sniffer-dog searched his unattended backpack in the gymnasium of his school finding drugs in his possession.

<i>R v M (MR)</i> Supreme Court of Canada case

R v M (MR), [1998] 3 SCR 393 is a leading decision of the Supreme Court of Canada on search and seizure by teachers and principals in Canadian schools (not colleges or universities). In this case, a student's section 8 rights under the Canadian Charter of Rights and Freedoms ("Charter") were not violated by being searched by a school principal with a police constable present.

<i>R v Spencer</i> Supreme Court of Canada case

R v Spencer, 2014 SCC 43 is a landmark decision of the Supreme Court of Canada on informational privacy. The Court unanimously held that internet users were entitled to a reasonable expectation of privacy in subscriber information held by Internet service providers. And as such, police attempts to access such data could be subject to section 8 of the Charter of Rights and Freedoms.

<i>R v Golden</i> Canadian legal decision

R v Golden, 2001 SCC 83 is a landmark decision of the Supreme Court of Canada on limitations to the power of police officers to perform strip searches. The Court held that the common law rule allowing peace officers to perform warrantless searches incident to arrest must be limited in relation to strip searches, citing their heightened intrusiveness and impact on the Charter protected privacy interests of the accused.

<i>R v Stairs</i> Canadian legal decision

R v Stairs, 2022 SCC 11 is a constitutional rights decision of the Supreme Court of Canada. The Court established new standards for searches of a person's home after they have been arrested. At issue in the case was whether the traditional common law power of Search Incident to Arrest, which allows police officers to engage in warrantless searches of lawfully arrested persons, was compliant with section 8 of the Charter of Rights and Freedoms as it related to searches of the home.

References

  1. ↑ R. v. Harrison , 2009 SCC 34 , [2009] 2 S.C.R., Supreme Court (Canada)
  2. ↑ R. v. Belnavis , CanLII 320 , [1997] 3 S.C.R. 341, Supreme Court (Canada)
  3. ↑ R. v. Edwards , 1996 CanLII 255 , [1996] 1 S.C.R. 128, Supreme Court (Canada)
  4. ↑ R. v. Wong , 1990 CanLII 56 , [1990] 3 S.C.R. 36, Supreme Court (Canada)
  5. ↑ R. v. Plant , 1993 CanLII 70 , [1993] 3 S.C.R. 281, Supreme Court (Canada)
  6. ↑ R. v. Tessling , 2004 SCC 67 , [2004] 3 S.C.R. 432, Supreme Court (Canada)
  7. ↑ R. v. Patrick , 2009 SCC 17 , [2009] 1 S.C.R. 579, Supreme Court (Canada)
  8. ↑ R. v. TELUS Communications Co. , 2013 SCC 16 , Supreme Court (Canada)
  9. ↑ R. v. Ladouceur, [1990] 1 S.C.R. 1257.
  10. ↑ R. v. Mellenthin, [1992] 3 S.C.R. 615.
  11. ↑ R. v. A.M., 2008 SCC 19 Archived 2008-04-28 at the Wayback Machine
  12. ↑ R. v. Kang‑Brown, 2008 SCC 18 Archived 2008-04-28 at the Wayback Machine
  13. ↑ Alberta (Justice and Attorney General) v. Petros , 2011 ABQB 541 , Court of Queen's Bench (Alberta,Canada)
  14. ↑ British Columbia (Director of Civil Forfeiture) v. Huynh , 2013 BCSC 980 , Supreme Court (British Columbia,Canada)
  15. ↑ R. v. Fearon, 2014 SCC 77.
  16. ↑ Tucker, Erika (December 11, 2014). "What rules must police follow to search a cellphone during arrest?". Global News . Retrieved December 15, 2014.
  17. ↑ R. v. Dyment, [1988] 2 S.C.R. 417.
  18. ↑ Quebec (Attorney General) v. Laroche, [2002] 3 S.C.R. 708
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