B. Unreasonable Search and Seizure

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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Section 8 of the Charter states:

Everyone has the right to be secure against unreasonable search or seizure.

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The right conferred by section 8 is of ancient origin. The common law tradition has long recognized the need to protect the property and privacy of citizens against unwarranted incursions by state agents.

This section of the Charter has produced a significant volume of caselaw. Many, if not most, criminal trials involve the introduction of evidence seized by the police, and the propriety of the investigative methods employed by the police in obtaining evidence now comes under close scrutiny. Before the Charter, illegally obtained evidence was admissible. Now, under section 24(2) (discussed in greater detail below), evidence obtained in a manner that violates a Charter right "shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute." This development provides accused persons with a powerful incentive to raise Charter challenges to the manner in which the incriminating evidence was obtained.60While the protection of an individual’s right to privacy can be readily understood, that right has to be reconciled with the competing state interest to conduct searches and seize evidence as part of the law-enforcement process. The right conferred by section 8 is, by its very terms, relative since the individual is protected only against unreasonable searches and seizures. To determine when a search or seizure is unreasonable, it is necessary to consider and balance, on the one hand, the right of the individual to be left alone, and on the other, the legitimate public interest in effective law enforcement.

In one of the Supreme Court’s first Charter decisions, Hunter v Southam Inc,61the Court set out the basic framework for analysis of these issues. It started by interpreting section 8 generously. The section was found to confer a broad and general right to be secure from unreasonable search and seizure. This right extended beyond the protection of property and encompassed the protection of an individual’s reasonable expectation of privacy. From that basic purpose of the right, the Court reasoned that certain procedural elements had to be imposed to reconcile the competing values of privacy and law enforcement. The first was the need for prior judicial authorization. The justification for a search should be assessed before it has been conducted. It would be inconsistent with the notion of an individual right to hold that, if the

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police find something, the search was reasonable, for that is to invite searches on a whim. Protecting individuals against unjustified state intrusion requires preventative measures prior to the search, and hence the Court held that there is a presumption of unreasonableness where a search has been undertaken without a warrant issued by a judicial official. The Court added that, to obtain a warrant, the authorities should be required to justify the need for the search by sworn evidence that satisfies an objective standard. The general standard was "probable cause" or reasonable grounds to believe that a crime was committed and that the search would reveal evidence of the crime. The Court recognized that there could be "exigent" circumstances where the police had to act quickly and where circumstances did not allow time to obtain a warrant, but those cases, said the Court, were very much the exception to the general rule that a warrant is required.

A number of subsequent search-and-seizure cases have turned upon what constitutes a "reasonable" expectation of privacy in particular circumstances. At one end of the spectrum, a person has been held not to have a reasonable expectation of privacy with respect to garbage put out for disposal.62At the other end of the spectrum, in a number of cases, the Court has stressed that people have reasonable expectations of privacy with respect to bodily samples taken by physicians for medical purposes63or non-consensual seizure of bodily substances.64The Court has taken a tough line on this issue, holding that the individual’s right to bodily integrity must take priority and that the police have no right to require suspects to give such samples. Legislation authorizing the police to obtain a warrant to take bodily substances for DNA testing without the consent of the suspect has been enacted and upheld under the Charter.65There are, however, cases where it is more difficult to determine whether the accused has a reasonable expectation of privacy necessary for section 8 protection. The Court has held that, while bodily substances are generally private, they are not private when discarded, for example, by throwing a soiled tissue into the garbage can.66The home is usually considered private, but the use of heat detection technology does not infringe a reasonable expectation of

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privacy because the activities producing the heat are not revealed.67At the same time, there is a reasonable expectation of privacy in luggage at a bus station or in a student’s backpack when drug-sniffing dogs are used.68The determination of a reasonable expectation of privacy is a contextual process, but the courts will not hold that the discovery of evidence of a crime means that the person has no reasonable expectation of privacy.

Although the police can generally frisk-search a person being arrested, the Court has held that because of section 8 of the Charter, this power does not extend to delayed inventory searches of cars,69to routine strip searches,70or to the seizure of DNA samples without a judicial warrant.71Section 8 of the Charter will not be violated by a warrantless search in cases of exigent circumstances where obtaining a warrant is impossible, but it is violated where Parliament provides no accountability measures for how such warrantless powers of electronic surveillance are exercised.72In R v Mann,73the Court held that the police can...

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