What Is a Search or a Seizure?
| Author | Susanne Boucher & Kenneth Landa |
| Pages | 6-25 |
1Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.) at 108–9; R. v.
Dyment (1988), 45 C.C.C. (3d) 244 (S.C.C.) at 253 [Dyment]; R. v. Duarte (1990), 53
C.C.C. (3d) 449 (S.C.C.) [Law] at 457–58.
2Wise, ibid.
6
Section 8 of the Charter protects against “unreasonable search and seizure.”
Since search and seizure are distinct concepts, it is important to determine
what constitutes each of “search” and “seizure” under the Charter. Accord-
ingly, this chapter will examine two questions central to establishing that
something is a search or seizure for the purpose of section 8: (1) What are
the kinds of activities that will constitute a search or seizure? and (2) Who
are the persons whose activities are constrained by section 8 of the Charter?
A. WHAT CONSTITUTES A SEARCH?
The range of activities that will constitute a search is much wider than the
stereotypical image of the police rummaging around in a person’s home
looking for evidence. A search is any invasion of a person’s reasonable
expectation of privacy, in whatever form, by the state.1In R. v. Wise,2the
Supreme Court provided a simple definition of a search:
It is clear that s. 8 of the Charter guarantees a broad and general right to
be secure from unreasonable search where the person who is the object of
chapter 2
c
What Is a Search or a Seizure?
the search has a reasonable expectation of privacy. In determining whether
the beeper monitoring constitutes a search, the initial question is whether
there is a reasonable expectation of privacy in respect of the monitored
activity. If the police activity invades a reasonable expectation of privacy, then
the activity is a search. [emphasis added]3
Therefore, if a person cannot establish both that he or she had a reason-
able expectation of privacy and that this privacy was breached, then there is
no “search” to scrutinize for the purposes of section 8. In R. v. Hufsky,4the
Supreme Court held that a police officer’s demand that a driver produce
licence and insurance information during a random motor vehicle spot-
check was not a “search,” because driving is a highly regulated activity and
the motorist could not reasonably expect to keep such information private.
As the Court explained:
[T]he demand by the police officer, pursuant to the above legislative provi-
sions, that the appellant surrender his driver’s licence and insurance card
for inspection did not constitute a search within the meaning of s. 8
because it did not constitute an intrusion on a reasonable expectation of
privacy. Cf. Hunter v. Southam Inc., [1984] 2 S.C.R. 145. There is no such
intrusion where a person is required to produce a licence or permit or
other documentary evidence of a status or compliance with some legal
requirement that is a lawful condition of the exercise of a right or privilege.
[emphasis added]5
We can see, therefore, that identifying a search is not simply a matter
of identifying specific police behaviour. Rather, it is an evaluation of the
impact of state activity on the individual and a question of whether society
is prepared to accept that intrusion as reasonable.
When analyzing whether the state’s conduct constitutes a search under
section 8, it is also important to ascertain the intentions of the officer who
performs the activity in question. If the police have specifically adverted to
the possibility of securing evidence through their investigative technique,
then the technique may be considered a search.6For example, in R. v.
Evans,7the Supreme Court of Canada noted that occupants of a home
extend an “implied licence” to the general public to knock at the front door
of their home, for the purpose of communicating with the occupants. This
3Ibid.; see also R. v. Evans, [1996] 1 S.C.R. 8 [Evans]; and Law, above note 1 at para.1.
4R. v. Hufsky (1988), 40 C.C.C. (3d) 398 (S.C.C.).
5Ibid. at 410.
6Evans, above note 3 at 33.
7Ibid.
What Is a Search or Seizure? • 7
To continue reading
Request your trial