E. Variations on the Hunter v. Southam Standard

AuthorSteve Coughlan
ProfessionProfessor of Law. Dalhousie University

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Although Hunter is the leading authority on search and seizure, both for setting out the minimum requirements for search with a warrant, and the rule that a search without a warrant is prima facie unconstitutional, it is not the governing authority in every circumstance. Slight variations of the rules, in two contexts, must be discussed: i) searches under an administrative scheme and ii) searches of press offices.

1) Administrative or Regulatory Searches

The Court has held on many occasions that Charter rights must be interpreted in a way consistent with the context in which they arise. This is equally true in the case of section 8, where the Court has held that the approach to section 8 rights as described in Hunter does not apply outside the criminal law context. On some occasions, the state’s primary interest in conducting a search will not be to prosecute a criminal offence, but rather to enforce the rules of some regulated activity. In that event, the state may well have an interest in "the restaurateur’s compliance with public health regulations, the employer’s compliance with employment standards and safety legislation . . . the developer’s or homeowner’s compliance with building codes or zoning regulations [or] compliance with minimum wage, employment equity and human rights legislation."295Effective regulation of these areas may require surprise inspections or the examination of records, and, therefore, the Court has held that people engaged in these activities have a lower expectation of privacy in relation to those activities. Accordingly, searches and seizures that do not comply with the Hunter standards may nonetheless be reasonable under section 8.

On this basis, the Court has concluded that compelling a person to testify regarding predatory pricing procedures under the Combines Investigation Act,296or to produce various documents under the Income Tax Act297or the British Columbia Securities Act,298does not constitute

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unreasonable search or seizure. Although possible prosecution could follow from engaging in the behaviour being investigated, the investigations and the offences are not criminal offences. Accordingly, a search can sometimes be reasonable, even if the Hunter protections are not in place.

The Court has at times recognized the importance of keeping this exception in its proper, limited place, so that it does not undermine the Hunter standards. In Colarusso,299for example, the coroner seized blood samples after a fatal traffic accident under provisions of the Ontario Coroners Act.300No judicial pre-authorization was needed for such a seizure. On the facts, it was clear that the seizure was just as much for the purposes of the police investigation into criminal charges as it was for the legitimate purpose of an inquest (the police transported the samples to the analyst, gave up their previous efforts to obtain a sample from the accused, and so on). The Court held that the evidence was not admissible in the criminal proceedings. Although no difficulty would arise in using the evidence in the context of an inquest "once the evidence has been appropriated by the criminal law enforcement arm of the state for use in criminal proceedings, there is no foundation on which to argue that the coroner’s seizure continues to be reasonable."301Later, in Jarvis the Court attempted to distinguish more clearly when the different levels of Charter protection apply. In that case the accused was required to produce various information under the Income Tax Act,302a statute that the Court notes depends on self-reporting and, therefore, is especially dependent on the honesty of taxpayers. As a result, broad inspection and audit powers are necessary to maintain the integrity of the tax system. At a certain point, however, investigation as to whether a taxpayer has remitted sufficient funds to the government can become an investigation into whether that taxpayer should be prosecuted for an offence. Accordingly, the Court said, differing levels of Charter protection might be found within the same statute. As a general guideline, administrative officials must cease to use their broader

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investigative powers, such as mandatory inspection or production of documents, "where the predominant purpose of a particular inquiry is the determination of penal liability," or, put another way, where there has been a "crystallization of the adversarial relationship."303Determining when officials have "crossed the Rubicon," as the Court puts it, depends on consideration of various factors, none of which is conclusive on its own. These include, in the income tax context, whether there are reasonable grounds to lay charges, whether the general conduct of the authorities was consistent with a criminal investigation, whether an auditor’s files...

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