When Is a Search Law Reasonable?

• Author: Robert Diab/Chris D.L. Hunt
• Profession: Professor in the Faculty of Law at Thompson Rivers University/Professor in the Faculty of Law at Thompson Rivers University
• Pages: 251-300

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C H A P T E R 7

WHEN IS A SEARCH LAW REASONABLE?

A. INTRODUCTION

Section 8 of the Charter guarantees a right to be “secure against unreasonable search or seizure.”¹The Supreme Court in R v Collins held that a search or seizure will be reasonable under section 8 “if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.”²This chapter explores the Court’s holdings on the second part of this test: when a law authorizing a search or seizure is reasonable.

In crafting the second part of the Collins test, Lamer J, as he then was, had in mind a passage from Hunter et al v Southam Inc.³In Hunter, the Court found that a statutory power authorizing a search and seizure in an oice, building, or home, in the course of a criminal investigation, was unreasonable under section 8 because it did not require a warrant issued by an independent person capable of acting judicially, on the standard of reasonable grounds to believe an ofence had been committed and evidence would likely be found in the place to be searched. Meeting these requirements marked the point at which the “state’s interest in detecting and preventing crime begins to prevail over the individual’s

1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

2 R v Collins, [1987] 1 SCR 265 at 277–78.

3 [1984] 2 SCR 145 [Hunter].

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interest in being left alone.”⁴Justice Dickson, as he then was, held that “[h]istory has conirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement.”⁵But this did not settle, once and for all, the question of when a search law would be reasonable under section 8, because, as Dickson J went on to explain, in some contexts law enforcement interests might prevail over individual privacy at a diferent point:

Where the state’s interest is not simply law enforcement as, for instance, where state security is involved, or where the individual’s interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant standard might well be a diferent one.⁶He was suggesting that whether a law authorizing a search or seizure is reasonable depends on context. It involves a weighing of the state and individual interests at issue and inding a reasonable balance.⁷In the normal course — a conventional criminal law case involving the search of a residence — the Hunter standards will apply. But as we note in Chapter 6, there are many laws that authorize state agents to conduct what amounts to a search or seizure in diferent contexts, involving higher or lower standards than those set out in Hunter. When a person challenges a search law under the second part of the Collins test, a court must engage in the balancing test contemplated in Hunter to decide whether the search law is reasonable.

The Supreme Court has been reluctant to provide a speciic test for how to perform this balancing.⁸It has, however, identiied a set of relevant considerations. Justice Strayer of the Federal Court of Appeal formulated these consideration in Del Zotto v Canada, and the Supreme Court adopted them on appeal.⁹Deciding whether a law is reasonable may depend on “the nature and the purpose of the legislative scheme . . . ,

4 Ibid at 167.
5 Ibid at 167–68.
6 Ibid at 168.
7 As Dickson J notes at the end of Hunter, after engaging in this balancing and inding a law unreasonable, there is little left to do under s 1 of the Charter. Most of the decisions canvassed in this chapter relect this insight, with the Court neglecting to proceed to a s 1 analysis after inding a search law unreasonable, or inding, in a few cases, that it fails s 1 (usually for failing to minimally impair by not requiring a higher standard or more safeguards).
8 Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive

Trade Practices Commission), [1990] 1 SCR 425 at 495 [Thomson Newspapers].
9 Del Zotto v Canada, [1997] 3 FC 40 (CA) [Del Zotto FC], Strayer JA, in dissenting reasons adopted in [1999] 1 SCR 3.

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the mechanism . . . employed and the degree of its potential intrusiveness[,] and the availability of judicial supervision.”¹⁰The Court recently re-airmed the relevance of these considerations in Goodwin v British Columbia (Superintendent of Motor Vehicles).¹¹We make two general observations about the Del Zotto/Goodwin factors. One is that the irst factor, the “nature and purpose of the scheme,” comprises two distinct considerations: whether a power relates to a criminal or regulatory investigation and how pressing is the state interest in this context. The second point is that not every case that decides whether a search or seizure law is reasonable applies all of the Del Zotto/Goodwin factors. They are best understood as a list of the main considerations to be found in the larger body of caselaw on whether powers to search or seize are reasonable. In many cases, courts decide a law is reasonable or unreasonable by focusing on only one or two of the factors.

We proceed in this chapter in two parts. In the irst, we look in more detail at the considerations in Del Zotto, providing examples of what they entail. However, looking at these in isolation leaves out a sense of how the Court has carried out the balancing test in relation to various powers to search or seize. To illustrate how the Court has done this in speciic cases, we turn to, in the second part of the chapter, a survey of the Court’s decisions on reasonable laws, grouped by category or theme.

B. CONSIDER ATIONS FOR ASSESSING A REASONABLE LAW

1) Nature of the Scheme: Criminal or Regulatory

A central consideration when deciding whether a power to search or seize is reasonable under section 8 is whether it serves as a tool for investigating a criminal rather than a regulatory ofence. Discerning whether an ofence is criminal or regulatory turns on the purpose of the ofence or the legislative scheme of which it forms a part. Ofences are criminal in nature where their primary aim is to deter and punish action that is inherently wrongful by imposing serious consequences (usually penal) and the stigma of a criminal conviction. Ofences are regulatory that aim to manage acceptable but risky conduct by submitting it to a

10 Del Zotto FC, above note 9, as cited in Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 at para 57 [Goodwin].

11 Goodwin, ibid.

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minimum standard of care and enforcing this through ines and lesser punishments.¹²

The Court has held in a number of cases that “[w]here an impugned law’s purpose is regulatory and not criminal, it may be subject to less stringent standards.”¹³Explaining the rationale for this in British Columbia Securities Commission v Branch, Sopinka and Iacobucci JJ noted that in certain areas of activity that fall under state authority, search or seizure is so closely related to the task of regulation as to “raise virtually no expectation of privacy whatsoever.”¹⁴These include iling requirements, an expectation of inspections or “spot checks,” or requests for information on a demand basis — and often without the state agent requiring a suspicion or belief in wrongdoing. These powers are generally thought to be reasonable on the basis that “inspection may be the only means of detecting non-compliance, and that its detection serves an important public purpose.”¹⁵The converse is also true. Standards should remain high if the search or seizure power is criminal in nature. In these cases, courts presume the standards in Hunter should apply, with departures from them needing to be justiied by either a lower expectation of privacy, a pressing state interest arising in the situation, or both.¹⁶If state agents shift their purpose in gathering evidence from a regulatory to a criminal investigation, higher standards should apply.¹⁷

12 An authoritative source on the distinction between criminal and regulatory ofences can be found in Cory J’s opinion in R v Wholesale Travel Group Inc, [1991] 3 SCR 154 at 216–22, noting at 219:

Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests. While criminal ofences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.

13 Goodwin, above note 10 at para 60, citing British Columbia Securities Commission v Branch, [1995] 2 SCR 3 at para 52 [British Columbia Securities]; R v McKinlay Transport Ltd, [1990] 1 SCR 627 at 647, Wilson J [McKinlay]; R v Jarvis, 2002 SCC 73 [Jarvis].

14 British Columbia Securities, above note 13 at para 53, citing Wilson J’s opinion in

McKinlay, above note 13 at 645–46 and A. Reid & A.H. Young in “Administrative Search and Seizure Under the Charter” (1985) 10 Queen’s Law Journal 392 at 398–99.
15 Ibid.
16 R v Grant, [1993] 3 SCR 223 at 239–40 [Grant].
17 R v Colarusso, [1994] 1 SCR 20 at 65–67; Jarvis, above note 13 at para 88.

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One might question this “binary” approach. As Steven Penney has argued, “there is no reason to treat privacy as categorically less important (and law enforcement more important) in regulatory investigations than criminal ones (or vice versa).”¹⁸Taking this approach, courts have approved of search powers that are too invasive, even in the regulatory context, and disapproved of non-intrusive powers because they apply...