Actions for trespass & Hunter v. Southam.

• Author: Plaxton, Michael
• Position: Canada

INTRODUCTION

In Hunter v. Southam (1984), the Supreme Court held that s. 8 of the Charter (1) ordinarily requires law enforcement officers to obtain a warrant, where "feasible", before conducting a search. (2) The absence of a warrant or common law power, the Court held, gives rise to a presumption that the search is unreasonable and, therefore, contrary to s. 8. (3) The Court, in Hunter, gave no indication that the rule it created was merely one possible means of fulfilling the requirements of s. 8 rather than a mechanism specifically required by the Charter. That may go some way towards explaining why Parliament has, since then, given little or no thought to replacing the search warrant regime with other means of deterring unreasonable searches and seizures. In particular, the viability of constitutional torts as an alternative means of protecting s. 8 rights has not been adequately explored. Those interested in deterring abuses of state power by holding public authorities liable in tort, therefore, ought to be concerned by the way Hunter was decided.

This paper argues that s. 8 does not per se require the legislature to adopt a search warrant regime over other possible means of deterring unreasonable searches; that Parliament was, and perhaps still is, entitled to rely on actions for trespass over search warrants as the preferred means of protecting s. 8 values. In making this argument, this paper does not suggest that the rule created in Hunter is a bad rule, or that we should exchange a search warrant regime for a tort-based deterrent. It claims only that a tort-based regime should be considered a live alternative to the Hunter rule--one open for debate in the House of Commons, not foreclosed by the Constitution. (4) Once we see that rules like that created in Hunter are optional, rather than constitutionally mandated, we see opportunities all around us for public authority liability to assume a greater role.

Before Hunter: The Genesis of Search Warrants

3 Before the release of Hunter, it was far from inevitable that the Court would take the bold position that s. 8 demands a search warrant regime. In 1983, the Law Reform Commission of Canada pointed out that, unlike the Fourth Amendment of the American Constitution, s. 8 makes no specific allusion to warrants. (5) This "raise[d] the possibility that as a constitutional matter, Canadian courts [would] not show the preference for warrants that has characterized American law." (6) The LRC was careful to note that "a similar policy of preference for the warrant could be accepted by Canadian courts" but did so with the caveat that "this policy would have to be advanced in the absence of supportive wording in section 8 of the Charter." (7) The Ontario Court of Appeal in R. v. Rao decided that the Charter did not require the police to acquire a warrant to effect a valid search; that although the failure to obtain a warrant might weigh heavily in favour of a finding that a search was unreasonable (particularly where premises were the object of the search), it was not a reason in itself to make that finding. (8)

It seems even less inevitable that the Court would take the road it has taken when we consider both the debatable legal foundation for the American Supreme Court's approach to unreasonable searches and seizures, and the history of the search warrant itself. Akhil Reed Amar has proposed a reading of the Fourth Amendment differing from that traditionally given by the American Supreme Court. (9) The Fourth Amendment, like s. 8 of the Charter, bars the government from conducting unreasonable searches and seizures. It is distinct insofar as it explicitly mentions warrants: "no warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (10) The U.S. Supreme Court has long supposed that, according to the text of the Fourth Amendment, a warrantless search is presumptively unreasonable. (11) But Amar has observed that warrants were once considered, if anything, presumptively unreasonable--that the Fourth Amendment regards warrants as a lesser vehicle for protecting the right to be free from unreasonable searches and seizures. His reasoning draws heavily on the availability, when the Fourth Amendment was drafted, of actions for trespass.

Amar notes that government officials, when the Fourth Amendment was drafted, would have preferred to seek out a judicial warrant in advance of a search, rather than face the possibility of heavy damages in the event of a successful trespass claim. (12) The warrant, issued by a judge perhaps sympathetic to the officials seeking authorization, would ensure that those executing the search would not have to explain themselves before a jury eager to deter incursions on their civil liberties. (13) An official seeking to justify the reasonableness of a search would almost certainly prefer to do so ex parte and in camera, rather than before a jury in a public trial where his reasons would undergo substantially greater scrutiny. (14) Indeed, Amar suggests that the standard of probable cause was intended to be a much higher evidentiary threshold than one of mere "reasonableness". Since an official would need to be extraordinarily convinced of a search's reasonableness before taking the chance of a costly suit, the de facto threshold of proof for warrantless searches was probable cause. By prescribing a test of probable cause for judicially authorized searches, Amar claims, the Fourth Amendment aimed to make authorized searches at least as practically unlikely as warrantless searches. The Fourth Amendment, according to Amar, did not envision searches taking place where the person conducting the search lacked a high degree of confidence in its reasonableness. (15) The probable cause requirement in the warrant clause reflects the fact that a search conducted under conditions where that level of confidence does not exist is constitutionally unsatisfactory.

The problems with warrants--that they are issued after ex parte, in camera arguments--stem from the circumstances under which they developed. The search warrant today is regarded as an essential condition for individual freedom, an exemplar of a society committed to civil liberties. It was not envisaged in that way when it was devised. The search warrant emerged as a means of empowering, not restraining, law enforcement officers; a mechanism by which the justice of the peace could delegate to someone else the authority to conduct a search. (16) The justice of the peace granting the warrant acted as an administrator rather than an adjudicator. (17)

This might seem counter-intuitive, given that justices of the peace have long been unable to grant a search warrant on a whim. We need, though, to see the limits on their authority to grant search warrants for what they were: instances of (at the time) radical judicial interference with ministerial power. The search warrant as it was initially conceived was perfectly consistent with a conception of the justice of the peace as someone who could search any person's home for any reason or no reason; the warrant was simply a means by which the justice could conduct searches without having to conduct them personally. The common law requirements that the justice of the peace act "judicially" in deciding whether to issue a search warrant, and that the warrant be particular rather than general, were regarded as limits upon the justice of the peace in his use of the search warrant, not as features inherent to the idea of the warrant. (18) There was, in fact, a line of authority stemming from the Star Chamber that general warrants were acceptable. (19) The precedential value of those decisions was disputed by Hale, and by various judges in a series of cases--including the seminal English decision Entick v. Carrington. (20) We should, though, not take that dispute as a sign that the courts disagreed about the nature of the search warrant. The decision to "rudely dismiss" the authority of Star Chamber decisions in common law courts was grounded not in legal interpretation but in political morality. (21)

Once we understand the search warrant as something designed to extend rather than limit power, debates over whether warrants should be required as a precondition to searches get re-cast. Eighteenth-century judges deciding whether search warrants should exist were not trying to find ways of protecting the privacy of citizens, but rather were trying to find new ways to invade the privacy of citizens. Originally, the applicant for a search warrant was not a police officer investigating a criminal offence, but a private citizen wanting to recover stolen goods. (22) Search warrants were justified on the basis that, without them, the owner of stolen goods could never recover them. (23) Applications for search warrants were allowed to be made ex parte and in camera because, if they were not, the thief would have time to place the goods beyond the reach of the true owner, causing irreparable prejudice. The aspects of search warrant procedure most prejudicial to the civil liberties of citizens are precisely those aspects most in keeping with its essential nature, its reason for being.

This is not a rant against search warrants. Whatever their origins, they have come to represent limited government. We should not, though, let historical revisionism blind us to a basic truth: the warrant is used as a tool for protecting civil liberties because the government had already created it for an altogether different purpose. Had eighteenth-century legislators, executive actors and courts been trying to find ways to protect civil liberties, they might well have found a different way. Indeed, as we have seen from Amar's analysis, they might have thought they had a...