View source for Rights Against Search and Seizure

{{LevelZero}}{{HeaderSearch}}
==General Principles==
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{{seealso|Reasonable Expectation of Privacy}}
The relevant Charter provision states under the heading of "legal rights":
{{quotation|8. Everyone has the right to be secure against unreasonable search or seizure.|
[http://canlii.ca/t/8q7l#sec8 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.<ref> R v Nicolosi [http://canlii.ca/t/6h03 1998 CanLII 2006] (ON C.A.){{perONCA|Doherty JA}} (3:0)</ref>

'''When Protections Engaged'''<Br>
A search is only subject to Constitutional review where the search intrudes on a reasonable expectation of privacy of the accused.
<ref>
''R v Edwards'', [http://canlii.ca/t/1frcd 1996 CanLII 255] (SCC), [1996] 1 SCR 128{{perSCC|Cory J and La Forest J}} (9:0) at para 45</ref> Only where the privacy right exists that there is an inquiry into the reasonableness of the search.<ref>{{ibid1|Edwards}}<br> 
Hunter et al. v Southam Inc., [http://canlii.ca/t/1mgc1 1984 CanLII 33] (SCC), [1984] 2 SCR 145{{perSCC|Dickson J}}<br>
</ref>

; Analysis
In any alleged violation of the rights under s. 8 of the Charter the Judge must make two inquiries:<ref>
Edwards{{supra}} at para 33<br>
</ref>
# did the accused have a [[Reasonable Expectation of Privacy|reasonable expectation of privacy]]
# 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".<ref>
''R v Patrick'', [2009] 1 SCR 579, [http://canlii.ca/t/231wj 2009 SCC 17] (CanLII){{perSCC|Binnie J}} (7:0\){{at|14}}<br>
</ref>

A search consists of any state interference of a person's privacy interests.<ref>''R v Law'', [http://canlii.ca/t/51v4 2002 SCC 10] (CanLII), [2002] 1 SCR 227{{perSCC|Bastarache J}} (9:0), at para 15</ref> As such, there is little distinction between the initial intrusion itself and the search subsequent to intrusion. <ref>
''R v McCormack'', [http://canlii.ca/t/537d 2000 BCCA 57] (CanLII), [2000] BCJ No. 143 (BCCA){{perBCCA|Saunders JA}} (3:0) at para 5</ref>

The police cannot justify an invasion of privacy ''ex post facto'' based on the results of the search.<ref>
''R v Kokesch'', [http://canlii.ca/t/1fsq7 1990 CanLII 55] (SCC), (1990), 61 CCC (3d) 207 (SCC){{perSCC|Sopinka J}} (4:3) at 227<br>
R v Genest [http://canlii.ca/t/1ft8j 1989 CanLII 109] (SCC), (1988), 45 CCC (3d) 385 (SCC){{perSCC|Dickson CJ}} (7:0) at 408<br>
</ref>

In general terms, the law should not "unduly hamper" the police in criminal investigations.<ref>
''R v Hart'', [http://canlii.ca/t/fsr1k 2012 NLCA 61] (CanLII){{perNLCA|Green CJ}} (2:1)
</ref>

'''Interpretation of Rights'''<Br>
All Charter rights, including those in s. 8, "must be broadly and liberally construed to effect its purpose".<ref>
''R v Colarusso'', [1994] 1 SCR 20, [http://canlii.ca/t/1frw6 1994 CanLII 134] (SCC){{perSCC|La Forest J}} (9:0)<br>
</ref>

'''Burden'''<Br>
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".<ref>
R v Pugliese [http://canlii.ca/t/1npnm 1992 CanLII 2781] (ON CA), (1992), 71 CCC (3d) 295 (Ont. C.A.){{perONCA|Finlayson JA}} (3:0)</ref>

{{reflist|2}}
===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.<ref>
''R v Edwards'', [http://canlii.ca/t/1frcd 1996 CanLII 255] (SCC), [1996] 1 SCR 128{{perSCC|Cory J}} (9:0)<br>
''R v Dyment'', [1988] 2 SCR 417, [http://canlii.ca/t/1ftc6 1988 CanLII 10] (SCC){{perSCC|Lamer J and La Forest J}} (5:1) at para 17 ("The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state")<Br>
</ref>

The right under s. 8 is broader than the traditional concept of privacy as the "right to be let alone". It is about limiting "state power".<ref>
''R v Tessling'', [http://canlii.ca/t/1j0wb 2004 SCC 67] (CanLII){{perSCC|Binnie J}}, at para 12 to 16<Br>
</ref>

The rights are mean to limit state power in order to foster "underlying values of dignity, integrity and autonomy".<ref>
''R v Plant'', [1993] 3 SCR 281, [http://canlii.ca/t/1fs0w 1993 CanLII 70] (SCC){{perSCC|Sopinka J}} (7:0), at p. 293 (SCR)<br>
</ref>

Privacy is essential to "well-being of the individual" and is grounded in their "physical and moral autonomy".<ref>
Dyment{{ibid}} at para 17<br></ref>

It is "essential for the well-being of the individual" and has a profound significance for the public order."<ref> {{supra1|Edwards}} at 61</ref> 

Privacy is a “protean concept”, meaning that it tends to be highly variable and change.<ref>
Tessling{{supra}} at para 25<br>
Patrick{{supra}} at para 38 (privacy "can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusions occurs, and the purposes of the intrusion")<br>
</ref>

The purpose of the right under s. 8 is to protect "the citizen's right to a reasonable expectation of privacy" <ref>''R v Colarusso'', [http://canlii.ca/t/1frw6 1994 CanLII 134] (SCC), [1994] 1 SCR 20{{perSCC|La Forest J}} (9:0) at para 70</ref> and to "prevent unreasonable intrusions on privacy, not to sort them out from unreasonable intrusions on an ex post facto analysis". 
<ref>
''R v Feeney'', [http://canlii.ca/t/1fr1w 1997 CanLII 342] (SCC), [1997] 2 SCR 13{{perSCC|Sopinka J}} (5:4) at para 47</ref>
It is also “to protect the privacy of individuals from unjustified state intrusion”.<ref>
''R v Hape'', [http://canlii.ca/t/1rq5n 2007 SCC 26] (CanLII), (2007), 220 CCC (3d) 161 (SCC){{perSCC|LeBel J}} (9:0) at para 161
</ref>

It is for these reasons that the principle of reasonable expectation of privacy is a "normative rather than a descriptive standard".<ref>Tessling{{supra}} at para 42</ref> 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".<ref>
''R v Ward'', [http://canlii.ca/t/ft0ft 2012 ONCA 660] (CanLII){{perONCA|Doherty JA}} (3:0\){{at|82}}<br>
</ref>

The right is concerned with balancing the state's interest in law enforcement and privacy interests of persons.<ref>
Tessling{{supra}} at 17<br>
</ref> It is only when the state can "demonstrate the superiority of its interest to that of the individual" that a search can be valid.<ref>
Hunter et al. v Southam Inc., [http://canlii.ca/t/1mgc1 1984 CanLII 33] (SCC), [1984] 2 SCR 145{{perSCC|Dickson J}} at p.160</ref> This point exists where there is reasonable and probable cause which lies at the point where "point where credibly-based probability replaces suspicion".<ref>
Hunter v Southam{{supra}} at p. 114, 115</ref>

The Canadian approach to the right of privacy comes from the US jurisprudence beginning with Katz v U.S. 389 US 347 (1967).<ref>
See Hunter v Southam{{supra}}<br>
See Hutchison, The Law of Search and Seizure at 1-1</ref>

The restrictions on government to engage in searches "go to the essence of a democratic state".<ref>
Dyment{{supra}} at pp. 427-28{{perSCC|La Forest J}} <br>
</ref>

The right to privacy must be balanced against society's interests in "safety, security and the suppression of crime".<ref>
Tessling{{supra}}, at para 17<Br>
</ref>

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.<ref>
Dyment{{supra}} at p. 431<br>
''R v Craig'', [http://canlii.ca/t/gpbj5 2016 BCCA 154] (CanLII){{perBCCA|Bennett JA}}, at para 155 (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.")
</ref>

{{reflist|2}}

==Meaning of a "Search"==
{{seealso|Warrantless Searches}}
Any police conduct interfering with a reasonable expectation of privacy is a "search".<ref>
Hunter v Southam Inc., [http://canlii.ca/t/1mgc1 1984 CanLII 33] (SCC), [1984] 2 SCR 145{{perSCC|Dickson J}}<br> 
''R v Edwards'', [http://canlii.ca/t/1frcd 1996 CanLII 255] (SCC), [1996] 1 SCR 128{{perSCC|Cory J and La Forest J}} (9:0)<br>
''R v Law'', [http://canlii.ca/t/51v4 2002 SCC 10] (CanLII),  [2002] 1 SCR 227{{perSCC|Bastarache J}} (9:0) at para 15 ("...police conduct interfering with a reasonable expectation of privacy is said to constitute a "search" within the meaning of the provision")<br>
''R v Wise'', [http://canlii.ca/t/1fsdl 1992 CanLII 125] (SCC), [1992] 1 SCR 527{{perSCC|Cory J}} (4:3) at 533 (only “[i]f the police activity invades a reasonable expectation of privacy, [that] the activity is a search”)<br>
''R v Evans'', [http://canlii.ca/t/1frf4 1996 CanLII 248] (SCC), [1996] 1 SCR 8{{perSCC|Sopinka J and Major J}} (7:0) at para 11<br>
</ref>

Any "inspection is a search" 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".<ref>
''R v Cole'', [http://canlii.ca/t/ft969 2012 SCC 53] (CanLII){{perSCC|Fish J}} (6:1), at para 34</ref>

'''The "Place" of Search'''<Br>
The "place" where the search takes place can be identified by determining what category of the zone of privacy are implicated.<ref>
e.g. ''R v Patrick'', [http://canlii.ca/t/231wj 2009 SCC 17] (CanLII){{perSCC|Binnie J}} (7:0) at para 41 to 45<br>
</ref>
The "zones" of privacy however are not strictly distinguished.<ref>
Patrick{{supra}} at para 42<br>
</ref>

; Residences
Knocking at the door for an investigative purpose is not a search.<ref>
See R v MacDonald, [http://canlii.ca/t/fr8tp 2012 NSCA 50] (CanLII){{perNSCA|MacDonald CJ}} at para 19, appealed on other issues to [http://canlii.ca/t/g2ng9 2014 SCC 3] (CanLII){{perSCC|LeBel J}}<br> 
''R v Hope'', [http://canlii.ca/t/1vgtf 2007 NSCA 103] (CanLII){{perNSCA|Fichaud JA}} (3:0) at para 27 <br> 
''R v Evans'', at para 8<br>
</ref> However, in other circumstances it can be a search.<ref>
''R v Boughner'', [http://canlii.ca/t/1cwgf 2002 CanLII 44975] (ON CA){{TheCourtONCA}} (3:0)
</ref>

However, going onto private property and peering into windows while attempting to detect odours of marijuana can constitute a search.<ref>
R v Kokesch [http://canlii.ca/t/1fsq7 1990 CanLII 55] (SCC), (1990), 61 CCC (3d) 207 (SCC){{perSCC|Sopinka J}} (4:3)</ref>

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.<ref>
R v MacDonald, [http://canlii.ca/t/g2ng9 2014 SCC 3] (CanLII){{perSCC|LeBel J}} (7:0)
</ref>

An undercover officer who attends on a property by invitation is not a "search".<ref>
''R v Roy'', [http://canlii.ca/t/2cz4d 2010 BCCA 448] (CanLII){{perBCCA|Lowry JA}} (3:0)
</ref>

; 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.<ref>
See R v Mellenthin [http://canlii.ca/t/1fs79 1992 CanLII 50] (SCC), (1992), 76 CCC (3d) 481 (SCC){{perSCC|Cory J}} (5:0) at 486-87
</ref>More generally, it has been accepted that a "police officer may use a flashlight at night to observe activities or objects inside vehicles."<ref>
''R v Diamond'', [http://canlii.ca/t/gmplb 2015 NLCA 60] (CanLII){{perNLCA|Harrington JA}}</ref>

An officer who sticks his head partially into a car to smell for marijuana is conducting a search.<ref>
see United States v Luis Edgar Montes-Ramos [http://www.gpo.gov/fdsys/pkg/USCOURTS-ca10-07-02027/pdf/USCOURTS-ca10-07-02027-0.pdf]
</ref>

; Person
A gun shot residue analysis on a suspect constitutes a search.<ref>
''R v CD'', [http://canlii.ca/t/29k35 2010 CanLII 22064] (ON SC){{perONSC|Nordheimer J}}
</ref>

Police observations of stains on a shirt visible to the public is not a search.<ref>
''R v Hamadeh'', [http://canlii.ca/t/2fw3p 2011 ONSC 1241] (CanLII){{perONSC|Clark J}} at paras 132 to 145<br>
</ref>

The taking of an accused's photograph at the time of their arrest at the station appears to not be considered a search.<ref>
''R v Elzein'', [http://canlii.ca/t/1pcbq 1993 CanLII 3860] (QC CA), (1993), 82 CCC (3d) 455 (QCCA){{perQCCA|Chevalier JA}}<br>
cf. ''R v Dilling'', [http://canlii.ca/t/1dbw5 1993 CanLII 1943] (BC CA), (1993), 84 CCC (3d) 325 (BCCA){{perBCCA|Goldie JA}} (3:0)<Br>
</ref>

'''Other Observations'''<Br>
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.<ref>
''R v Rajaratnam'', [http://canlii.ca/t/1pxz2 2006 ABCA 333] (CanLII), 67 Alta. L.R. (4th) 22{{TheCourtABCA}} (3:0)</ref> This is distinct from detection with the use of technology, such as a sniffer dog or a FLIR device.<ref>e.g. R v Tessling [http://canlii.ca/t/1j0wb 2004 SCC 67] (CanLII), [2004] 3 SCR 432{{perSCC|Binnie J}} (7:1)</ref>

Video surveillance will amount to a search whenever the observations are of activities which are expected to have a reasonable expectation of privacy.<ref>
''R v Wong'', [http://canlii.ca/t/1fsq9 1990 CanLII 56] (SCC), [1990] 3 SCR 36{{perSCC|La Forest J}} (6:1), at pp. 44 and 61
</ref>

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.<ref>
United States v Crist, (2008) No. 07-1634 <http://caselaw.findlaw.com/us-7th-circuit/1190425.html>
</ref>

'''Undercover Agent'''<Br>
An undercover operator who enters a premises by invitation, express or implied, is not breaching the suspect's expectation of privacy and so is not a "search" within the meaning of s. 8 of the Charter.<ref>
''R v Fitt'' (1995), [http://canlii.ca/t/1mqf2 1995 CanLII 4342] (NS CA), 96 CCC (3d) 341 (N.S.C.A.){{perNSCA|Hallett JA}} (3:0), aff’d [http://canlii.ca/t/1frfb 1996 CanLII 251] (SCC), [1996] 1 SCR 70{{perSCC|Lamer CJ}} (9:0)<br>
''R v Contant'', [http://canlii.ca/t/27jm6 2008 QCCA 2514] (CanLII), 63 C.R. (6th) 133{{perQCCA|Dufresne JA}} (3:0), leave to appeal ref’d [2009] 1 SCR vii<br> 
''R v Gallaugher'', [http://canlii.ca/t/1f965 1999 CanLII 2242] (ON CA); [1999] OJ No 174{{TheCourtONCA}} (3:0)<br>
''R v Felger'', [http://canlii.ca/t/g2vsd 2014 BCCA 34] (CanLII){{perBCCA|Garson JA}} (3:0)<br>
</ref>

{{reflist|2}}

==Meaning of "Seizure"==
{{seealso|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".<ref>
''R v Dyment'', [http://canlii.ca/t/1ftc6 1988 CanLII 10], [1988] 2 SCR 417{{perSCC|Lamer J and La Forest J}} (5:1) at para 26<br>
''R v Law'', [http://canlii.ca/t/51v4 2002 SCC 10] (CanLII), [2002] 1 SCR 227{{perSCC|Bastarache J}} (9:0) at para 15<br>
''R v Buhay'', [http://canlii.ca/t/1g6p7 2003 SCC 30] (CanLII), (2003), 174 CCC (3d) 97 (SCC){{perSCC|Arbour J}} (9:0) at 113
</ref>
An individual who gives something to an officer does not constitute a seizure. Rather it is merely the receipt of a thing.<ref>
''R v Wills'', [http://canlii.ca/t/1npnl 1992 CanLII 2780] (ON CA){{perONCA|Doherty JA}} (3:0) at p. 347-348<br>
Illinois v Rodrigues, 110 S. Ct 2793 (1999) <br>
</ref> However, where an officer asks that something be forwarded or given to him will amount to a seizure.<ref>
''R v Weir'', [http://canlii.ca/t/5rdq 2001 ABCA 181] (CanLII){{TheCourtABCA}} (3:0) - officer asks ISP employee to forward messages to him<br>
</ref>

It should be remembered that the Charter was intended to promote privacy not property rights.<ref>
See Hutchison, The Law of Search and Seizure at 2(c)<br></ref>
The "enjoyment of property" was specifically rejected from Charter.<ref>
Hutchison at 2(c)
</ref>
Seizure cannot apply to a person.<ref>
''R v Parton'', [http://canlii.ca/t/2bc7c 1983 CanLII 1181] (AB QB){{perABQB|Hetherington J}}<br>
cf. US law allows seizure of a person (Terry v Ohio, 392 US 1 (1968))</ref>

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".<ref>
Cole{{ibid}} at para 34</ref>

A seizure does not have to be connected to a search.<ref>
''R v DLW'', [http://canlii.ca/t/fts53 2012 BCSC 1700] (CanLII){{perBCSC|Romilly J}} at para 63
</ref>

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".<ref>
''R v Dyment'', [http://canlii.ca/t/1ftc6 1988 CanLII 10] (SCC){{perSCC|Lamer J and La Forest J}} (5:1)</ref>

The expropriation of property is not a "seizure".<ref>
Becker v Alberta, [http://canlii.ca/t/2f0ld 1983 ABCA 161] (CanLII){{perABCA|Lieberman JA}} (3:0)
</ref>

Taking of a photograph by police has been considered a search or seizure.<ref>
''R v Abbey'', [http://canlii.ca/t/1q25h 2006 CanLII 39320] (ON SC), [2006] OJ No 4689 (S.C.J.){{perONSC|Archibald J}}; reversed on other grounds, [http://canlii.ca/t/259rl 2009 ONCA 624] (CanLII), 97 O.R. (3d) 330 (C.A.){{perONCA|Doherty JA}} (3:0), [2010] SCCA No 125: police took a photo of the accused's t-shirt after removing it from his body</ref>

Where the state compels the production of documents, even in a regulatory context, will amount to a seizure.<ref>
R v McKinley Transport Ltd, [1990] 1 SCR 627, [http://canlii.ca/t/1fszd 1990 CanLII 137] (SCC){{perSCC|Wilson J}}</ref>

'''Consent Seizure'''<Br>
Valid [[Consent Search|consent]] in this context is determined based on indicia such as:<ref>
''R v Wills'', [http://canlii.ca/t/1npnl 1992 CanLII 2780] (ON CA){{perONCA|Doherty JA}} at p. 353<br>
adopted in ''R v Borden'', [http://canlii.ca/t/1frrd 1994 CanLII 63] (SCC), [1994] 3 SCR 145{{perSCC|Iacobucci J}}, at p. 162<br>
</ref>
#there was a consent, express or implied;
#the giver of the consent had the authority to give the consent in question;
#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;
#the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
#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,
#the giver of the consent was aware of the potential consequences of giving the consent.

{{reflist|2}}

==Standing==
{{seealso|Charter Applications|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.<ref>
{{supra1|Edwards}}{{at|34}}<br>
''R v Rahey'', [1987] 1 SCR 588, [http://canlii.ca/t/1ftp7 1987 CanLII 52] (SCC){{perSCC|Lamer J}}, at p. 619<br>
''R v Simpson'', [http://canlii.ca/t/gkdsj 2015 SCC 40] (CanLII){{perSCC|Moldaver J}}<Br>
</ref>
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.<ref>
''R v Pugliese'', [1992] OJ 450 (ONCA), [http://canlii.ca/t/1npnm 1992 CanLII 2781] (ON CA){{perONCA|Findlayson JA}}<Br>
</ref>

Where the accused abandons 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.<ref>
''R v Nesbeth'', [http://canlii.ca/t/2065l 2008 ONCA 579] (CanLII){{perONCA|Rosenberg JA}} leave denied<Br>
</ref>

'''Denial of Ownership or Identity'''<br>
Where the accused denies ownership, knowledge or control of the item at issue of the search, the accused may not enforce a Charter right.<ref>
''R v LB'', [http://canlii.ca/t/1srnc 2007 ONCA 596] (CanLII){{perONCA|Moldaver JA}} 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")<br>
cf. ''R v McGean'', [http://canlii.ca/t/grwhz 2016 ONSC 3541] (CanLII){{perONSC|Henderson J}} at paras 34 - 43 - suggests standing even despite denial<br>
</ref>
This will generally apply as well where the accused denies that it is his voice on a wiretap.<ref>
McGean{{ibid}} at paras 34 to 43<br>
</ref>

{{reflist|2}}

==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.<ref>
''R v SAB'', [http://canlii.ca/t/1g3m0 2003 SCC 60] (CanLII){{perSCC|Arbour J}} <br> 
R v Nolet [http://canlii.ca/t/2b8jp 2010 SCC 24] (CanLII){{perSCC|Binnie J}} at para 21<br>
''R v Collins'', [http://canlii.ca/t/1ftnd 1987 CanLII 84] (SCC){{perSCC|Lamer J}}</ref>

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.<ref>
Hunter v Southam Inc., [http://canlii.ca/t/1mgc1 1984 CanLII 33] (SCC), [1984] 2 SCR 145{{perSCC|Dickson CJ}} ("“where it is feasible to obtain prior [judicial] authorization, I would hold that such authorization is a precondition for a valid search and seizure")
</ref>

{{reflist|2}}

==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.

{{Reflist|2}}
==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.

{{Reflist|2}}
===Agents of the State===
{{seealso|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.<ref>
R v M(MR), [http://canlii.ca/t/1fqq9 1998 CanLII 770] (SCC), [1998] 3 SCR 393{{perSCC|Cory J}} at para 29 ("...it must be determined whether the search of the appellant would have taken place, in the form and in the manner in which it did, but for the involvement of the police.") - this is the same test as applies to [[Voluntariness|voluntariness]]<br>
''R v Broyles'', [http://canlii.ca/t/1fshb 1991 CanLII 15] (SCC), [1991] 3 SCR 595{{perSCC|Iacobucci J}}, at p. 608 ("The test for determining whether an informer is a state agent for the purposes of the right to silence is a simple one:  would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?")<br>
''R v Buhay'', [http://canlii.ca/t/1g6p7 2003 SCC 30] (CanLII){{perSCC|Arbour J}} ("Based on the test set out in Broyles, supra, and M. (M.R.), supra, the proper question is whether the security guards would have searched the contents of locker 135 but for the intervention of the police.")<br>
</ref> Mere cooperation between the parties is not enough.<ref>
M. (M.R.){{ibid}}</ref>

The absence of evidence of an agreement or instructions to the searching party will weigh against the finding of agency.<ref>
M(MR){{supra}} - vice-principal search of student's locker
</ref>

An employee of a private company will become an agent of the state when they are directed to perform a task by the police.<ref>
''R v Liang'', [http://canlii.ca/t/1r3nj 2007 YKTC 18] (CanLII){{perYKTC|Ruddy J}} at para 241<br>
''R v Dorfer'', [http://canlii.ca/t/2326g 1996 CanLII 10214] (BC CA){{perBCCA|Macfarlane JA}} at para 39<br>
''R v Weir'', [http://canlii.ca/t/5rdq 2001 ABCA 181] (CanLII){{TheCourtABCA}} at para 9 - officer asks ISP employee to forward a copy of a message<br>
</ref> However, where the actions of the employee, company, or person, were strictly voluntary then they are not agents of the state.<ref>
R v Gomboc [http://canlii.ca/t/2dhlk 2010 SCC 55] (CanLII), [2010] 3 SCR 211{{perSCC|Deschamps J}}<br>
cf. ''R v Poh'', [http://canlii.ca/t/fn5qs 2011 MBQB 214] (CanLII){{perMBQB|Menzies J}} 
</ref>

A police informer wearing a wire is an agent of the state.<ref>
''R v Broyles'', [http://canlii.ca/t/1fshb 1991 CanLII 15] (SCC), [1991] 3 SCR 595{{perSCC|Iacobucci J}}<br>
</ref>

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".<ref>
''R v Fatima'', [2006] OJ No 3634 (O.S.C.), [http://canlii.ca/t/232f5 2006 CanLII 63701] (ON SC){{perONSC|Watt J}} at para 181<br>
''R v Roberts'', [http://canlii.ca/t/gpcn8 2016 ONSC 2390] (CanLII){{perONSC|O'Marra J}} at para 47<Br>
</ref>

Employees of government agencies, such as social workers, who discover or investigate possible offences are agents of the state.<ref>
''R v Choy'', [http://canlii.ca/t/21qxs 2008 ABQB 737] (CanLII){{perABQB|Marceau J}} at para 28 - social worker discovering bruising<br>
R v Westrageer et al, [http://canlii.ca/t/1lwwm 2005 BCSC 1558] (CanLII){{perBCSC|Joyce J}} at para 43: social working investigating child welfare complaint<br>
''R v Chang'', [http://canlii.ca/t/4s1h 2003 ABCA 293] (CanLII){{TheCourtABCA}}: private security guard seizing property for police
cf. ''R v Allen'', [http://canlii.ca/t/2dvjl 2010 CanLII 73011] (NL PC){{perNLPC|Gorman J}}
</ref>
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.<ref>
''R v Lerke'', [http://canlii.ca/t/1nnwz 1986 ABCA 15] (CanLII){{perABCA|Laycraft CJ}} </ref>

An Internet Service Provider forwarding information on the discovery of child pornography is acting as an agent of the state.<ref>
''R v Weir'', [http://canlii.ca/t/5rdq 2001 ABCA 181] (CanLII){{TheCourtABCA}}  at para 11</ref>

A sheriff's officers executing an eviction order that was valid on its face were state actors for the purpose of s. 8.<ref>
''R v Stevens'', [http://canlii.ca/t/fm7rk 2011 ONCA 504] (CanLII){{perONCA|Armstrong JA}}{{at|54}}<br>
</ref>

'''Landlords'''<Br>
A landlord entering into an apartment in response to a compliant and then reports the findings to police is not acting as an agent.<ref>
''R v Drakes'', [http://canlii.ca/t/24f74 2009 ONCA 560] (CanLII){{TheCourtONCA}}
</ref>

; Schools
It is usually the case that principals have statutory duties under the provincial education acts to "maintain a safe school environment".<ref>
''R v Cole'', [http://canlii.ca/t/ft969 2012 SCC 53] (CanLII){{perSCC|Fish J}} at para 62<br>
R v M(MR){{supra}} at para 51 ("...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.  ...")
</ref>
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".<ref>
Cole{{ibid}} at para 62<br>
</ref>

'''Hospital Staff'''<br>
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.<ref>
''R v McDougall'', [http://canlii.ca/t/g2qg0 2013 SKQB 358] (CanLII){{perSKQB|McMurtry J}}{{at|88}}<br>
see also [[Section 487 Search Warrants]]
</ref> The applicant must prove that the medical staff was otherwise acting as an agent before an intrusion on privacy can be found.<ref>
''R v Decap'', [http://canlii.ca/t/56z7 2003 SKQB 301] (CanLII){{perSKQB|Barclay J}}, at para 18</ref>

'''Security Personnel'''<br>
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.<ref>
''R v Jacobs'', [http://canlii.ca/t/g6z23 2014 ABCA 172] (CanLII){{TheCourtABCA}}<br>
</ref>

{{Reflist|2}}

==Manner of Search==
{{seealso|Manner of Search|Execution of Search Warrants}}

==See Also==
* [[Seizure of Property]]
[[Category:Canadian Charter Rights]]