Constitutional Protections Against Unreasonable Search and Seizure

• Author: Susanne Boucher & Kenneth Landa
• Pages: 1-5

Section 8 of the Canadian Charter of Rights and Freedoms guarantees:

Everyone has the right to be secure against unreasonable search and

seizure.1

Legal protections against unreasonable search and seizure are funda-

mentally important to a free and democratic society. At both common law

and under our constitution, the twin goals of protecting the individual from

unwarranted intrusions by the state and protecting the state and its citizens

against crime require a delicate balancing of interests. This balancing has

shaped the statutory, common law and constitutional framework in which

police investigations and criminal proceedings are conducted. Judicial deci-

sions often make this balancing process explicit. In R. v. Genest, police exe-

cuting a defective search warrant on a house smashed in a door without

warning.2Chief Justice Dickson of the Supreme Court of Canada quoted the

following passage from the author Polyviou3summarizing the concerns and

conflicting interests involved in state searches:

1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982

(U.K.), 1982, c. 11, s. 8.

2R. v. Genest (1989), 45 C.C.C. (3d) 385 (S.C.C.) [Genest].

3 Polyvios G. Polyviou, Search and Seizure: Constitutional and Common Law (London:

Duckworth, 1982) vii.

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chapter 1

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Constitutional Protections Against Unreasonable

Search and Seizure