Rights Against Search and Seizure

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General Principles

See also: Reasonable Expectation of Privacy

The relevant Charter provision states under the heading of "legal rights":

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

CCRF

Under this section police are prohibited from "unreasonable" searches. The inquiry of the lawfulness of a search is based on whether the search was "reasonable" in the circumstances. The circumstances include the nature of the duty performed as well as the purpose of the search.[1]

When Protections Engaged
A search is only subject to Constitutional review where the search intrudes on a reasonable expectation of privacy of the accused. [2] Only where the privacy right exists that there is an inquiry into the reasonableness of the search.[3]

Analysis
In any alleged violation of the rights under s. 8 of the Charter the Judge must make two inquiries:[4]

  1. did the accused have a reasonable expectation of privacy
  2. was the search or seizure an unreasonable intrusion on that expectation.

Privacy analysis is from the perspective of a "reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy".[5]

A search consists of any state interference of a person's privacy interests.[6] As such, there is little distinction between the initial intrusion itself and the search subsequent to intrusion. [7]

The police cannot justify an invasion of privacy ex post facto based on the results of the search.[8]

In general terms, the law should not "unduly hamper" the police in criminal investigations.[9]

Interpretation of Rights
All Charter rights, including those in s. 8, "must be broadly and liberally construed to effect its purpose".[10]

Burden
The "right to challenge the legality of a search and seizure" requires the accused to "first discharg[e] the burden of satisfying the court that his personal constitutional rights have been violated".[11]

  1. R v Nicolosi 1998 CanLII 2006 (ON C.A.)
  2. R v Edwards at para 45
  3. R v Edwards
    Hunter v Southam Inc.
  4. R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128 at para 33
  5. R v Patrick, [2009] 1 SCR 579, 2009 SCC 17 (CanLII), at para 14
  6. R v Law, 2002 SCC 10 (CanLII), [2002] 1 SCR 227, at para 15
  7. R v McCormack, 2000 BCCA 57 (CanLII), [2000] BCJ No. 143 (BCCA) at para 5
  8. R v Kokesch, 1990 CanLII 55 (SCC), (1990), 61 CCC (3d) 207 (S.C.C.) at 227
    R v Genest CanLII 109 (SCC), (1988), 45 CCC (3d) 385 (S.C.C.) at 408
  9. R v Hart, 2012 NLCA 61 (CanLII)
  10. R v Colarusso, [1994] 1 SCR 20, 1994 CanLII 134 (SCC)
  11. R v Pugliese 1992 CanLII 2781 (ON CA), (1992), 71 CCC (3d) 295 (Ont. C.A.)

Meaning and Purpose of Rights Against Search and Seizure

Privacy is "at the heart of liberty in a modern state" and is part of the essence of democratic government.[1]

Privacy is essential to "well-being of the individual" and is grounded in their "physical and moral autonomy".[2]

It is "essential for the well-being of the individual" and has a profound significance for the public order."[3] It is also a “protean concept”, meaning that it tends to be highly variable and change.[4]

The purpose of the right under s. 8 is to protect "the citizen's right to a reasonable expectation of privacy" [5] and to "prevent unreasonable intrusions on privacy, not to sort them out from unreasonable intrusions on an ex post facto analysis". [6] It is also “to protect the privacy of individuals from unjustified state intrusion”.[7]

It is for these reasons that the principle of reasonable expectation of privacy is a "normative rather than a descriptive standard".[8] A "normative" standard is one that is "making a value judgement" stating that the "values underlying contemporary Canadian society dictate that the state must respect the personal privacy of individuals unless it is able to constitutionally justify any interference".[9]

The right is concerned with balancing the state's interest in law enforcement and privacy interests of persons.[10] It is only when the state can "demonstrate the superiority of its interest to that of the individual" that a search can be valid.[11] This point exists where there is reasonable and probable cause which lies at the point where "point where credibly-based probability replaces suspicion".[12]

The Canadian approach to the right of privacy comes from the US jurisprudence beginning with Katz v U.S. 389 US 347 (1967).[13]

The restrictions on government to engage in searches "go to the essence of a democratic state".[14]

The right to privacy must be balanced against society's interests in "safety, security and the suppression of crime".[15]

The words "search" and "seizure" are to be treated disjunctively. It is possible for one to lawful and at the same time the other one unlawful.[16]

  1. R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128
    R v Dyment, [1988] 2 SCR 417, 1988 CanLII 10 (SCC) at para 17 per LaForest J ("The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state")
  2. Dyment, ibid. at para 17
  3. R v Edwards at 61
  4. R v Tessling 2004 SCC 67 (CanLII) at para 25
  5. R v Colarusso, 1994 CanLII 134 (SCC), [1994] 1 SCR 20 at para 70
  6. R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13 at para 47
  7. R v Hape, 2007 SCC 26 (CanLII), (2007), 220 CCC (3d) 161 (S.C.C.) at para 161
  8. R v Tessling at para 42
  9. R v Ward, 2012 ONCA 660 (CanLII), at para 82
  10. Tessling, supra at 17
  11. Hunter et al. v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145 at p.160
  12. Hunter v Southam, supra at p. 114, 115
  13. See Hunter v Southam, supra
    See Hutchison, The Law of Search and Seizure at 1-1
  14. Dyment, supra at pp. 427-28 per LaForest J.
  15. Tessling, supra, at para 17
  16. Dyment, supra at p. 431
    R v Craig, 2016 BCCA 154 (CanLII), at para 155 per Bennett JA. (Section 8 of the Charter protects against unreasonable search or seizure. These words are used disjunctively...Thus, it is possible for a search to be reasonable, but a seizure to be unreasonable.")

Meaning of a "Search"

See also: Warrantless Searches

Any police conduct interfering with a reasonable expectation of privacy is a "search".[1]

Any "inspection is a search" where where a "person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access".[2]

The "Place" of Search
The "place" where the search takes place can be identified by determining what category of the zone of privacy are implicated.[3] The "zones" of privacy however are not strictly distinguished.[4]

Residences
Knocking at the door for a investigative purpose is not a search.[5] However, in other circumstances it can be a search.[6]

However, going onto private property and peering into windows while attempting to detect odours of marijuana can constitute a search.[7]

An officer who pushes the apartment door open further in order to view the inside of the house better is a "search" and is not covered as implied licence to knock.[8]

An undercover officer who attends on a property by invitation is not a "search".[9]

Vehicles
Merely peering into a car windows at night using a flash-light while the car in on a public highway is not a search.[10]More generally, it has been accepted that a "police officer may use a flashlight at night to observe activities or objects inside vehicles."[11]

An officer who sticks his head partially into a car to smell for marijuana is conducting a search.[12]

Person
A gun shot residue analysis on a suspect constitutes a search.[13]

Police observations of stains on a shirt visible to the public is not a search.[14]

The taking of an accused's photograph at the time of their arrest at the station appears to not be considered a search.[15]

Other Observations
Detection of an odour of marijuana from a bag, by an officer using his own senses, while performing other duties does not constitute a search.[16] This is distinct from detection with the use of technology, such as a sniffer dog or a FLIR device.[17]

Video surveillance will amount to a search whenever the observations are of activities which are expected to have a reasonable expectation of privacy.[18]

The forensic "fingerprinting" of computer files through calculating a file "hash" value on a device, even where the files are not examined by a person, can still be considered a search.[19]

  1. Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145
    R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128
    R v Law, 2002 SCC 10 (CanLII), [2002] 1 SCR 227 at para 15 ("...police conduct interfering with a reasonable expectation of privacy is said to constitute a "search" within the meaning of the provision")
    R v Wise, 1992 CanLII 125 (SCC), [1992] 1 SCR 527 at 533 (only “[i]f the police activity invades a reasonable expectation of privacy, [that] the activity is a search”)
    R v Evans, 1996 CanLII 248 (SCC), [1996] 1 SCR 8 at para 11
  2. R v Cole, 2012 SCC 53 (CanLII), at para 34
  3. e.g. R v Patrick, 2009 SCC 17 at para 41 to 45
  4. Patrick, supra at para 42
  5. See R v MacDonald, 2012 NSCA 50 (CanLII) at para 19
    R v Hope, 2007 NSCA 103 (CanLII) at para 27
    R v Evans, at para 8
  6. R v Boughner, 2002 CanLII 44975 (ON CA)
  7. R v Kokesch 1990 CanLII 55 (SCC), (1990), 61 CCC (3d) 207 (S.C.C.)
  8. R v MacDonald, 2014 SCC 3 (CanLII),
  9. R v Roy, 2010 BCCA 448 (CanLII)
  10. See R v Mellenthin 1992 CanLII 50 (SCC), (1992), 76 CCC (3d) 481 (S.C.C.) at 486-87
  11. R. v Diamond, 2015 NLCA 60 (CanLII)
  12. see United States v Luis Edgar Montes-Ramos [1]
  13. R v C.D., 2010 CanLII 22064 (ON SC)
  14. R v Hamadeh, 2011 ONSC 1241 (CanLII) at paras 132 to 145
  15. R v Elzein, 1993 CanLII 3860 (QC CA), (1993), 82 CCC (3d) 455 (QCCA)
    c.f. R v Dilling, 1993 CanLII 1943 (BC CA), (1993), 84 CCC (3d) 325 (BCCA)
  16. R v Rajaratnam, 2006 ABCA 333 (CanLII), 67 Alta. L.R. (4th) 22
  17. e.g. R v Tessling 2004 SCC 67 (CanLII), [2004] 3 SCR 432
  18. R v Wong, 1990 CanLII 56 (SCC), [1990] 3 SCR 36, at pp. 44 and 61
  19. United States v Crist, (2008) No. 07-1634 <http://caselaw.findlaw.com/us-7th-circuit/1190425.html>

Meaning of "Seizure"

See also: Warrantless Seizure Under Section 489

A "seizure" in essence is the "taking of a thing from a person by a public authority without that person's consent".[1] An individual who gives something to an officer does not constitute a seizure. Rather it is merely the receipt of a thing.[2] However, where an officer asks that something be forwarded or given to him will amount to a seizure.[3]

It should be remembered that the Charter was intended to promote privacy not property rights.[4] The "enjoyment of property" was specifically rejected from Charter.[5] Seizure cannot apply to a person.[6]

Any "taking is a seizure" where "a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access".[7]

A seizure does not have to be connected to a search.[8]

The line between seizure and "mere finding of evidence" will exist at the point where "it can reasonably be said that the individual ha[s] ceased to have a privacy interest in the subject-matter allegedly seized".[9]

The expropriation of property is not a "seizure".[10]

Taking of a photograph by police has been considered a search or seizure.[11]

Where the state compels the production of documents, even in a regulatory context, will amount to a seizure.[12]

Consent Seizure
Valid consent in this context is determined based on indicia such as:[13]

  1. there was a consent, express or implied;
  2. the giver of the consent had the authority to give the consent in question;
  3. the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
  4. the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
  5. the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,
  6. the giver of the consent was aware of the potential consequences of giving the consent.
  1. R v Dyment, 1988 CanLII 10, [1988] 2 SCR 417 at para 26
    R v Law, 2002 SCC 10 (CanLII), [2002] 1 SCR 227 at para 15
    R v Buhay, 2003 SCC 30 (CanLII), (2003), 174 CCC (3d) 97 (S.C.C.) at 113
  2. R v Wills, 1992 CanLII 2780 (ON CA) at p. 347-348
    Illinois v Rodrigues, 110 S. Ct 2793 (1999)
  3. R v Weir, 2001 ABCA 181 (CanLII) - officer asks ISP employee to forward messages to him
  4. See Hutchison, The Law of Search and Seizure at 2(c)
  5. Hutchison at 2(c)
  6. R v Parton, 1983 CanLII 1181 (AB QB)
    c.f. US law allows seizure of a person (Terry v Ohio, 392 US 1 (1968))
  7. R v Cole at para 34
  8. R v D.L.W., 2012 BCSC 1700 (CanLII) at para 63
  9. R v Dyment, 1988 CanLII 10 (SCC)
  10. Becker v Alberta, 1983 ABCA 161 (CanLII)
  11. R v Abbey, 2006 CanLII 39320 (ON SC), [2006] O.J. No. 4689 (S.C.J.); reversed on other grounds, 97 O.R. (3d) 330 (C.A.), [2010] S.C.C.A. No. 125: police took a photo of the accused's t-shirt after removing it from his body
  12. R v McKinley Transport Ltd, [1990] 1 SCR 627, 1990 CanLII 137 (SCC)
  13. R v Wills, 1992 CanLII 2780 (ON CA) at p. 353
    adopted in R v Borden, 1994 CanLII 63 (SCC), [1994] 3 SCR 145, at p. 162

Standing

See also: Charter Applications and Voir Dire

Only an accused person with a reasonable expectation of privacy over a thing seized or a place searched may enforce their rights under s. 8.[1] Simply being the target of an investigation does not qualify you as having standing to challenge the search and seizure, absent a reasonable expectation of privacy.[2]

Where the accused abandon's an item that is subject of a search and seizure, such as during a pursuit, there will be no expectation of privacy where in the "totality of circumstances" the accused intended to abandon the item irrevocably.[3]

Denial of Ownership or Identity
Where the accused denies ownership, knowledge or control of the item at issue of the search, the the accused may not enforce a Charter right.[4] This will generally apply as well where the accused denies that it is his voice on a wiretap.[5]

  1. R v Edwards, at para 34
    R v Rahey, [1987] 1 SCR 588, 1987 CanLII 52 (SCC), at p. 619
    R v Simpson, 2015 SCC 40 (CanLII)
  2. R v Pugliese, [1992] OJ 450 (ONCA)
  3. R v Nesbeth, 2008 ONCA 579 (CanLII) leave denied
  4. R v LB, 2007 ONCA 596 (CanLII) at para 71 ("[h]aving disclaimed any privacy interest in the [thing], the respondent effectively precluded himself from relying on s. 8 of the Charter")
    c.f. R v McGean, 2016 ONSC 3541 (CanLII) at paras 34 - 43 - suggests standing even despite denial
  5. R v McGean, 2016 ONSC 3541 (CanLII) at paras 34 to 43

Validity of a Search

A lawful search must be (a) authorized by law; (b) the law itself must be reasonable; and (c) the manner in which the search was carried out must be reasonable.[1]

The third element constrains the actions undertaken by the officer during the search. For example, whether they are required to stop after a certain amount of time or after recovering a certain amount of evidence.

There is effectively a presumption of unreasonableness for all searches and seizures that are warrantless in criminal or quasi-criminal matters.[2]

  1. R v S.A.B., 2003 SCC 60 (CanLII)
    R v Nolet 2010 SCC 24 (CanLII) at para 21
    R v Collins, 1987 CanLII 84 (SCC)
  2. Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145 per Dickson C.J. ("“where it is feasible to obtain prior [judicial] authorization, I would hold that such authorization is a precondition for a valid search and seizure")

Purpose of Search

The purpose of the search is a relevant to the analysis of the search. The most frequent form of search is a search for evidence of a commission of an offence, criminal or otherwise. Secondarily, there will be searches for the purpose of officer safety. Each type of search will have different scope of powers of search.

Authorized by Law

Authorization to intrude on zone of privacy can arise out of the common law or statute. Depending on the circumstances certain zones will requires judicial authorization by way of a warrant.

Valid Law

See Constitutional Challenges to Legislation

Party Performing the Search

Section 8 of the Charter governs searches by government and its agents. The scope and degree of privacy is always with respect to a particular party.

Agents of the State

See also: Charter Applications#State Agents

A person is an agent of the police where there is a relationship between the parties for a specific purpose and that the purpose would not have been undertaken but for the involvement of the police.[1] Mere cooperation between the parties is not enough.[2]

The absence of evidence of an agreement or instructions to the searching party will weigh against the finding of agency.[3]

An employee of a private company will become an agent of the state when they are directed to perform a task by the police.[4] However, where the actions of the employee, company, or person, were strictly voluntary then they are not agents of the state.[5]

A police informer wearing a wire is an agent of the state.[6]

An important question to ask is whether the conduct resulting in the discovery of evidence would have taken place in "the form and manner in which it did, but for the intervention of the state and its agents".[7]

Employees of government agencies, such as social workers, who discover or investigate possible offences are agents of the state.[8] Similarly, a private citizen performing a citizen's arrest and searching a person in anticipation of the arrival of the police is an agent of the state.[9]

An Internet Service Provider forwarding information on the discovery of child pornography is acting as an agent of the state.[10]

A sheriff's officers executing an eviction order that was valid on its face were state actors for the purpose of s. 8.[11]

Landlords
A landlord entering into an apartment in response to a compliant and then reports the findings to police is not acting as an agent.[12]

Schools
It is usually the case that principals have statutory duties under the provincial education acts to "maintain a safe school environment".[13] This power will necessarily include the "power to seize and search a school-board-issued laptop if the principal believed on reasonable grounds that the hard drive contained compromising photographs of a student".[14]

Hospital Staff
A member of the hospital staff in execution of their duties are not agents of the state. Blood samples taken for medical reasons is not a violation of s. 8 as they are not acting as agents.[15] The applicant must prove that the medical staff was otherwise acting as an agent before an intrusion on privacy can be found.[16]

Security Personnel
A security guard screening people at the entrance of an exhibition is not a state actor even when performing duties in the presence of a peace officer.[17]

  1. R v M(MR), 1998 CanLII 770 (SCC), [1998] 3 SCR 393 at p. 608 - this is the same test as applies to voluntariness
    R v Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595, per Iacobucci J, at para 24
    R v Buhay, 2003 SCC 30 (CanLII)
  2. M. (M.R.)
  3. M(MR), supra - vice-principal search of student's locker
  4. R v Liang, 2007 YKTC 18 (CanLII) at para 241
    R v Dorfer, 1996 CanLII 10214 (BC CA) at para 39
    R v Weir, 2001 ABCA 181 (CanLII) at para 9 - officer asks ISP employee to forward a copy of a message
  5. R v Gomoboc 2010 SCC 55 (CanLII), [2010] 3 SCR 211
    c.f. R v Poh, 2011 MBQB 214 (CanLII)
  6. R v Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595
  7. R v Fatima, [2006] O.J. No. 3634 (O.S.C.) at para 181
    R v Roberts, 2016 ONSC 2390 (CanLII) at para 47
  8. R v Choy, 2008 ABQB 737 (CanLII) at para 28 - social worker discovering bruising
    R v Westrageer et al, 2005 BCSC 1558 (CanLII) at para 43: social working investigating child welfare complaint
    R v Chang, 2003 ABCA 293 (CanLII): private security guard seizing property for police c.f. R v Allen, 2010 CanLII 73011 (NL PC)
  9. R v Lerke, 1986 ABCA 15 (CanLII)
  10. R v Weir, 2001 ABCA 181 (CanLII) at para 11
  11. R v Stevens, 2011 ONCA 504 (CanLII), at para 54
  12. R v Drakes, 2009 ONCA 560 (CanLII)
  13. R v Coles, 2012 SCC 53 (CanLII) at para 62
    R v M(MR), supra at para 51 per Cory J ("...There is no specific authorization to search provided in the Education Act, R.S.N.S. 1989, or its regulations. Nonetheless, the responsibility placed upon teachers, and principals to maintain proper order and discipline in the school and to attend to the health and comfort of students by necessary implication authorizes searches of students. ...Teachers must be able to search students if they are to fulfil the statutory duties imposed upon them. It is reasonable, if not essential to provide teachers and principals with this authorization to search. ...")
  14. Coles, ibid. at para 62
  15. R v McDougall, 2013 SKQB 358 (CanLII), at para 88
    see also Section 487 Search Warrants
  16. R v Decap, 2003 SKQB 301 (CanLII), at para 18
  17. R v Jacobs, 2014 ABCA 172 (CanLII)

Manner of Search

See also: Manner of Search and Execution of Search Warrants

See Also