Regulatory Search and Seizures
Author | David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan |
Pages | 293-318 |
Regulatory
Searches and
Seizures
8
I. Overview .................................................
II. Regulatory Searches and the Charter ..........................
A. The Dierence Between Regulatory and Criminal Searches ...
B. The Application of the Charter to Regulatory Searches
and Seizures ........................................
III. Examples of Regulatory Search Powers .........................
A. Commercial Activities and Financial Services ..............
B. Employment Standards ...............................
C. Professional Discipline ................................
D. Death Investigations ..................................
E. Transportation .......................................
IV. Evolving and Parallel Investigations ...........................
A. Regulatory to Criminal ................................
B. Criminal to Regulatory ................................
C. Practical Considerations ...............................
© [2021] Emond Montgomery Publications. All Rights Reserved.
Search and Seizure
I. Overview
Governmental regulation in the name of the public interest and in the pursuit of pub-
lic welfare is a hallmark of modern social existence. We interact with each other and
with our surroundings through myriad professional and personal activities that can
cause physical, psychological, economic, or environmental harm. To prevent, combat,
or redress that harm, we rely on our federal, provincial, and municipal governments
to make regulations and to enforce those regulations.
In furtherance of their protective mandate, many regulatory schemes contemplate
a robust degree of oversight by the agency tasked with enforcement, impose concomi-
tant obligations, and levy penalties for non-compliance. Those powers, obligations,
and penalties are subject to Charter scrutiny.1 However, regulatory investigations may
engage dierent interests from criminal investigations and may therefore import a dif-
ferent constitutional calculus than their criminal law analogues.2 Further, regulatory
schemes are as varied as the subject matter to which they are addressed. Any evalua-
tion of a regulatory power must therefore account for the specific context in which the
regulated entity operates—including the nature of the regulated activity, the benefits
and risks of that activity, and the objectives advanced by the regulatory scheme.3
With respect to searches and seizures, the specific regulatory context will deter-
mine the nature and degree of a regulated entity’s reasonable expectation of privacy,
and the reasonableness of the state’s exercise of authority vis-à-vis that expectation of
privacy. For example, business records generated as part of a regulated entity’s volun-
tary participation in a highly regulated industry may engage a reasonable expectation
of privacy at the lower end of the spectrum; similarly, business premises may implicate
privacy interests to a lesser degree than a personal residence.4 Accordingly, regulatory
investigations do not always need to adhere to the Hunter v Southam Inc “reasonable
grounds” standard that is the norm in criminal law. The analytical gap closes as the
1 Charter, s 32; Hunter v Southam Inc, [1984] 2 SCR 145, 1984 CanLII 33.
2 See Ontario v Canadian Pacific Ltd, [1995] 1 SCR 1031 at para 57, 1995 CanLII 112, GonthierJ,
citing R v Wholesale Travel Group Inc, [1991] 3 SCR 154 at 233, 1991 CanLII 39, Cory J: “Our
country simply could not function without extensive regulatory legislation. The protection
provided by such measures constitutes a second justification for the dierential treatment, for
Charter purposes, of regulatory and criminal oences.”
3 Wholesale Travel Group Inc, supra note 2 at 227, CoryJ, citing McKinney v University of Guelph,
[1990] 3 SCR 229 at 356, 1990 CanLII 60, WilsonJ.
4 Canadian Broadcasting Corporation v Lessard, [1991] 3 SCR 421 at para 45, 3 RCS 421 (“a
greater degree of privacy may be expected in a home than in commercial premises which may
be subject to statutory regulation and inspection”); R v Nolet, 2010 SCC 24 at para 31 (cab of
a commercial tractor-trailer rig is “not only a place of rest but a place of work” and “therefore
vulnerable to frequent random checks in relation to highway transport matters”).
© [2021] Emond Montgomery Publications. All Rights Reserved.
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