Privacy issues in criminal law.

AuthorDavison, Charles
PositionSpecial Report: Privacy Law

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From almost the beginning of recorded history in England it had been recognized that "a man's home is his castle" and accordingly, the Sovereigns men could only enter if they had legal authority to do so. Over the centuries that authority evolved into the modern day search warrant. Canada's Criminal Code included provisions governing the issuance of search warrants. But, before the enactment of the Charter of Rights in Canada, the violation of these laws by state authorities would only give an affected person the right to sue for trespass. Under pre-Charter principles, even if a location was entered and searched illegally, the police and Crown could nonetheless rely upon any evidence discovered to help in the prosecution of the accused.

The enactment of the Canadian Charter of Rights and Freedoms resulted in one of the most significant developments in Canadian law: the massive growth of laws intended to protect our personal privacy. What had been ordinary statute law, and thus subject to repeal at any time by Parliament, became enshrined as a mandatory constitutional requirement. In the 1984 case of Hunter v. Southam Inc., the Supreme Court of Canada said that under the Charter S. 8 guarantee to "the right to be secure from unreasonable search and seizure", the state may only conduct a search of private property if it has first demonstrated to an independent judicial officer (usually a judge) that it has a valid reason to believe that this will lead to the discovery of evidence of a crime.

A new era had arrived, giving the privacy of Canadians a priority. While the Court recognized that there might still be emergency situations in which the police or other authorities could not obtain prior authorization before searching, those cases would be rare. Furthermore, when proceeding without a warrant, it would fall to the authorities to later demonstrate to a court that their actions were reasonable. Most importantly, where an individual's right of privacy had been improperly violated by the state, any evidence obtained as a result would potentially be excluded from consideration in later criminal proceedings pursuant to Section 24(2) of the Charter.

From that first decision in 1984, the courts have developed principles that apply to a myriad of situations concerning the privacy rights and interests of Canadians. In the 30 years since the Charter came into force, these principles have been applied to situations where the...

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