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- The section 8 protection against seizure does not apply to government action merely because those actions interfere with property rights.
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Does a search or seizure violate Section 8?
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What is Section 8 of the Canadian Charter of rights & freedoms?
Does Section 8 protect people from unjustified intrusions?
Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure. This right provides those in Canada with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state.
Aug 18, 2020 · Section 8 aims to protect underlying values of dignity, integrity and autonomy (R v Plant, [1993] 3 SCR 281). Broadly speaking, a search or a seizure will violate section 8 if it interferes with an individual’s reasonable expectation of privacy.
- Sara Little
- Has There Been A Search Or Seizure
- Consent
- Was The Search Or Seizure Reasonable?
- Additional Considerations
(i) Types of state conduct to which section 8 may apply
The courts have defined “search” for section 8 purposes as any state activity that interferes with a reasonable expectation of privacy. This can include looking for things that are tangible or intangible, such as spoken words and electronic data (R. v. Morelli, [2010] 1 S.C.R. 253), or scents (Evans at paragraphs 12-21; R. v. Kokesch, [1990] 3 S.C.R. 3). The interception and recording of a private communication should be considered a search in all circumstances, save where all parties to a co...
(ii) “Totality of the circumstances” test
Whether or not state action has interfered with a reasonable expectation of privacy (so as to constitute a search or seizure) is to be determined on the basis of the totality of the circumstances. The “totality of the circumstances” test is one of substance, not form (R. v. Edwards, [1996] 1 S.C.R. 128 at paragraph 45). Four lines of inquiry guide the application of the test (Cole at paragraph 40; Tesslingat paragraph 32): 1. an examination of the subject matter of the search; 2. a determinat...
It is possible for what would otherwise be an infringement of section 8 to be constitutional if the person concerned waives their constitutional right to privacy. For such waiver/consent to be valid, it must be fully informed and voluntary given by the rights holder. To be fully informed, a person must be provided with sufficient information to mak...
(i) Search under a warrant
Because the purpose of section 8 is to prevent unjustified searches before they happen, the default standard is a system of prior authorization. More specifically, the default standard has three elements: (1) prior authorization; (2) granted by a neutral and impartial arbiter capable of acting judicially; (3) based on reasonable and probable grounds to believe that an offence has been committed and there is evidence to be found at the place to be search. The warrant granting power in a statut...
(ii) Warrantless searches
A warrantless search or seizure is presumptively unreasonable (Hunter v. Southam; Nolet at paragraph 21; Goodwinat paragraph 99). The party seeking to justify a warrantless search bears the onus of rebutting the presumption by establishing that the search was: 1. authorized by law; 2. the law itself is reasonable; and 3. the manner in which the search or seizure takes place is reasonable. (Collins at 278; R. v. Caslake, [1998] 1 S.C.R. 51, at paragraphs 10-11; Tessling at paragraph 18; R. v....
(i) Interaction between section 8 of the Charter and section 8 of the Privacy Act
The privacy protection offered by the Charter and the Privacy Act can overlap but differences in purpose and scope between the two regimes exist and ought not to be overlooked. Compliance with one regime does not remove the need for compliance with the other. Section 8 of the Charter may constrain at least some of the various exceptional disclosures permitted under section 8(2) of the Privacy Act.
(ii) Interaction with section 1 of the Charter
In a number of cases, the Supreme Court has suggested that limits on section 8 rights are unlikely to be justified under section 1 of the Charter given the overlap between the reasonableness standard under section 8 and the minimal impairment analysis under the section 1 test (Lavallee at paragraph 46, per Arbour J.; Grant, (1993) at 241; Thomson Newspapers, per Wilson J.; Lessard, per La Forest J.; Baron,per Sopinka J.; Chambre des notairesat paragraphs 89-91). 1. Previous 2. Table of conten...
In any alleged violation of the rights under s. 8 of the Charter the Judge must make two inquiries: [4] did the accused have a reasonable expectation of privacy. was the search or seizure an unreasonable intrusion on that expectation.
Dec 14, 2023 · Section 8 of the Charter states: “Everyone has the right to be secure against unreasonable search or seizure.” This statement, though concise, carries significant implications. It protects Canadians from unlawful intrusion into their personal privacy by the state, particularly by law enforcement agencies.
- Imperium
In the absence of evidence demonstrating those exigent circumstances, two warrantless searches conducted by the police were held to be unreasonable and in violation of section 8.
Oct 25, 2021 · If a search or a seizure interferes with an individual’s reasonable expectation of privacy, it violates Section 8. However, know that the section protects people, not places, against unjustified intrusions.
