Is There a Section 8 Violation?

• Author: Steve Coughlan/Alex Gorlewski
• Pages: 26-30

26 Police Powers / Search and Seizure / Search and Seizure with a Warrant

1.1(b)(i) Is There a Section 8 Violation?

Does the target have a reasonable expectation of privacy?1

No

No section 8 violation Section 8 violation

Yes

Is the search

authorized

by law?2

Yes

Is the law itself

reasonable?3

Is the manner of

search reasonable?4

No

No

No

Yes

Yes

1. DOES THE TARGET HAVE A REASONABLE EXPECTATION OF

PRIVACY?

Section 8 of the Charter protects a “reasonable expectation of privacy.” That

concept is important at more than one stage in the section 8 analysis, but one

role it plays is to function as a threshold step. That is, an investigative tech-

nique does not constitute a “search” if it does not infringe on the subject’s rea-

sonable expectation of privacy; therefore, if there were no reasonable expecta-

tion of privacy, there could be no search, and thus no unreasonable search.

There is a great deal of caselaw about how to determine whether a person

has a reasonable expectation of privacy. The most important overarching con-

sideration is that the test is not a factual one asking about the risk of privacy

being infringed, but rather asks about the level of privacy people are entitled

to expect. In R v Spencer, 2014 SCC 43 at para 18, the Supreme Court held:

The reasonable expectation of privacy standard is normative rather than

simply descriptive: Tessling, at para. 42. Thus, while the analysis is sensitive