Rights Against Search and Seizure: Difference between revisions

From Criminal Law Notebook
← Older edit
VisualWikitext
m Text replacement - "perONCA|Doherty" to "perONCA-H|Doherty"
 
(3 intermediate revisions by the same user not shown)
Line 1: Line 1:
{{Currency|October 2023}}
[[fr:Droits_contre_les_fouilles,_perquisitions_et_saisies]]
{{Currency2|October|2023}}
{{LevelZero}}{{HeaderSearch}}
{{LevelZero}}{{HeaderSearch}}
==General Principles==
==General Principles==
Line 446: Line 447:
* [[Seizure of Property]]
* [[Seizure of Property]]
* [[Established Areas of Privacy]]
* [[Established Areas of Privacy]]
* [[Warranted Searches]]
* [[Applications for Judicial Authorizations]]
* [[Warrantless Searches]]
* [[Warrantless Searches]]
** [[Warrantless Search of Abandoned Property]]
** [[Warrantless Search of Abandoned Property]]

Latest revision as of 09:36, 5 September 2024

This page was last substantively updated or reviewed October 2023. (Rev. # 96370)

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 with 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]

Interpretation of s. 8 “must be capable of growth and development over time to meet new social, political, and historical realities often unimagined by its framers.“[11]

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."[12]

Duration of Protection

The rights under s. 8 exist for the full duration in which the evidence and derived information is in the possession of the state.[13]

  1. ↑ R v Nicolosi, 1998 CanLII 2006 (ON CA), 127 CCC (3d) 176, per Doherty JA (3:0)
    R v Campbell, 2011 SCC 32 (CanLII), [2011] 2 SCR 549, at para 14 (" In order to comply with s. 8 of the Charter, prior to conducting a search the police must provide reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" [quotation marks removed])
  2. ↑ R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, per Cory J and La Forest J (9:0), at para 45
    R v LaChappelle, 2007 ONCA 655 (CanLII), 226 CCC (3d) 518, per Rosenberg JA, at paras 34 to 35
    R v SS, 2023 ONCA 130 (CanLII) (working hyperlinks pending), per Pacciocco JA, at para 29
  3. ↑ Edwards, ibid.
    Hunter et al. v Southam Inc, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson J
  4. ↑ Edwards, supra, at para 33
  5. ↑ R v Patrick, 2009 SCC 17 (CanLII), [2009] 1 SCR 579, per Binnie J (7:0), at para 14
  6. ↑ R v Law, 2002 SCC 10 (CanLII), [2002] 1 SCR 227, per Bastarache J (9:0), at para 15
  7. ↑ R v McCormack, 2000 BCCA 57 (CanLII), [2000] BCJ No 143 (BCCA), per Saunders JA (3:0), at para 5
  8. ↑ R v Kokesch, 1990 CanLII 55 (SCC), [1990] 3 SCR 3, per Sopinka J (4:3) at 227
    R v Genest, 1989 CanLII 109 (SCC), [1989] 1 SCR 59, per Dickson CJ (7:0) at 408
  9. ↑ R v Hart, 2012 NLCA 61 (CanLII), 97 CR (6th) 16, per Green CJ (2:1)
  10. ↑ R v Colarusso, 1994 CanLII 134 (SCC), [1994] 1 SCR 20, per La Forest J (9:0)
  11. ↑ Hunter v Southam
  12. ↑ R v Pugliese, 1992 CanLII 2781 (ON CA), 71 CCC (3d) 295, per Finlayson JA (3:0)
  13. ↑ Colarusso, supra at p. 63 ("Consequently, so long as the evidence (or the information derived from the evidence) is in the possession of the state ... the following would hold true: ...) when the evidence, or the information derived from the evidence, is appropriated by the criminal law enforcement arm of the state for use against the person from whom it was seized, the seizure will become unreasonable and will run afoul of s. 8 of the Charter")

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 SAB, 2003 SCC 60 (CanLII), [2003] 2 SCR 678, per Arbour J
    R v Nolet, 2010 SCC 24 (CanLII), [2010] 1 SCR 851, per Binnie J, at para 21
    R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, per Lamer J
    NB: sometimes this is referred to as the "Collins test"
  2. ↑ Hunter v Southam Inc, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per 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")

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]

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."[2] It is a "shield against unjustified state intrusions" on a person's privacy.[3]

The rights are meant to limit state power in order to foster "underlying values of dignity, integrity and autonomy."[4]

Privacy is essential to "well-being of the individual" and is grounded in their "physical and moral autonomy."[5] It has a profound significance for the public order."[6]

Privacy is a “protean concept”, meaning that it tends to be highly variable and change.[7]

The purpose of the right under s. 8 is to protect "the citizen's right to a reasonable expectation of privacy" [8] and to "prevent unreasonable intrusions on privacy, not to sort them out from unreasonable intrusions on an ex post facto analysis." [9] It is also “to protect the privacy of individuals from unjustified state intrusion”.[10]

It is for these reasons that the principle of reasonable expectation of privacy is a "normative rather than a descriptive standard."[11] 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."[12]

The right is concerned with balancing the state's interest in law enforcement and privacy interests of persons.[13] It is only when the state can "demonstrate the superiority of its interest to that of the individual" that a search can be valid.[14] This point exists where there is reasonable and probable cause which lies at the point where "point where credibly-based probability replaces suspicion."[15]

The Canadian approach to the right of privacy comes from the US jurisprudence, beginning with Katz v U.S. 389 US 347 (1967).[16]

The restrictions on the government to engage in searches "go to the essence of a democratic state."[17]

The right to privacy must be balanced against society's interests in "safety, security and the suppression of crime."[18]

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.[19]

  1. ↑ R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, per Cory J (9:0)
    R v Dyment, 1988 CanLII 10 (SCC), [1988] 2 SCR 417, per 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")
  2. ↑ R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432, per Binnie J, at paras 12 to 16
  3. ↑ R v Kang-Brown, 2008 SCC 18 (CanLII), [2008] 1 SCR 456, per LeBel J, at para 8
  4. ↑ R v Plant, 1993 CanLII 70 (SCC), [1993] 3 SCR 281, per Sopinka J (7:0), at p. 293 (SCR)
  5. ↑ Dyment, ibid., at para 17
    Edwards, supra, at para 61
  6. ↑ Edwards, supra, at para 61
  7. ↑ Tessling, supra, at para 25
    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")
  8. ↑ R v Colarusso, 1994 CanLII 134 (SCC), [1994] 1 SCR 20, per La Forest J (9:0), at para 70
  9. ↑ R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13, per Sopinka J (5:4), at para 47
  10. ↑ R v Hape, 2007 SCC 26 (CanLII), [2007] 2 SCR 292, per LeBel J (9:0) , at para 161
  11. ↑ Tessling, supra, at para 42
  12. ↑ R v Ward, 2012 ONCA 660 (CanLII), 97 CR (6th) 377, per Doherty JA (3:0), at para 82
  13. ↑ Tessling, supra, at para 17
  14. ↑ Hunter et al. v Southam Inc, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson J, at p. 160
  15. ↑ Hunter v Southam, supra, at pp. 114, 115
  16. ↑ See Hunter v Southam, supra
    See Hutchison, The Law of Search and Seizure at 1-1
  17. ↑ Dyment, supra, per La Forest J, at pp. 427-28
  18. ↑ Tessling, supra, at para 17
  19. ↑ Dyment, supra, at p. 431
    R v Craig, 2016 BCCA 154 (CanLII), 335 CCC (3d) 28, per 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.")

Meaning of "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 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 an 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]

Undercover Agent

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.[20]

Online

Where a police officer assumes the online account of a third-party known to the accused, and engages in conversation, that conversation is a "search"[21]

The use of a screenshot tool to capture a electronic conversation that is legally viewable by police is not a search or seizure.[22]

  1. ↑ Hunter v Southam Inc, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson J
    R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, per Cory J and La Forest J (9:0)
    R v Law, 2002 SCC 10 (CanLII), [2002] 1 SCR 227, per 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")
    R v Wise, 1992 CanLII 125 (SCC), [1992] 1 SCR 527, per Cory J (4:3) 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, per Sopinka J and Major J (7:0), at para 11
  2. ↑ R v Cole, 2012 SCC 53 (CanLII), [2012] 3 SCR 34, per Fish J (6:1), at para 34
  3. ↑ e.g. R v Patrick, 2009 SCC 17 (CanLII), [2009] 1 SCR 579, per Binnie J (7:0), at paras 41 to 45
  4. ↑ Patrick, supra, at para 42
  5. ↑ See R v MacDonald, 2012 NSCA 50 (CanLII), 283 CCC (3d) 308, per MacDonald CJ, at para 19, appealed on other issues to 2014 SCC 3 (CanLII), per LeBel J
    R v Hope, 2007 NSCA 103 (CanLII), 828 APR 99, per Fichaud JA (3:0), at para 27
    Evans, supra, at para 8
  6. ↑ R v Boughner, 2002 CanLII 44975 (ON CA), 159 OAC 316, per curiam (3:0)
  7. ↑ R v Kokesch, 1990 CanLII 55 (SCC), [1990] 3 SCR 3, per Sopinka J (4:3)
  8. ↑ R v MacDonald, 2014 SCC 3 (CanLII), [2014] 1 SCR 37, per LeBel J (7:0)
  9. ↑ R v Roy, 2010 BCCA 448 (CanLII), 261 CCC (3d) 62, per Lowry JA (3:0)
  10. ↑ See R v Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 SCR 615, per Cory J (5:0) at 486-87
  11. ↑ R v Diamond, 2015 NLCA 60 (CanLII), 333 CCC (3d) 61, per Harrington JA
  12. ↑ see United States v Luis Edgar Montes-Ramos [1]
  13. ↑ R v CD, 2010 CanLII 22064 (ON SC), per Nordheimer J
  14. ↑ R v Hamadeh, 2011 ONSC 1241 (CanLII), OJ No 819, per Clark J, at paras 132 to 145
  15. ↑ R v Elzein, 1993 CanLII 3860 , per Chevalier JA
    cf. R v Dilling, 1993 CanLII 1943 (BC CA), 84 CCC (3d) 325, per Goldie JA (3:0)
  16. ↑ R v Rajaratnam, 2006 ABCA 333 (CanLII), 67 Alta LR (4th) 22, per curiam (3:0)
  17. ↑ e.g. R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432, per Binnie J (7:1)
  18. ↑ R v Wong, 1990 CanLII 56 (SCC), [1990] 3 SCR 36, per La Forest J (6:1), at pp. 44 and 61
  19. ↑ United States v Crist, (2008) No. 07-1634 <http://caselaw.findlaw.com/us-7th-circuit/1190425.html>
  20. ↑ R v Fitt, 1995 CanLII 4342 (NS CA), 96 CCC (3d) 341, per Hallett JA (3:0), aff’d 1996 CanLII 251 (SCC), [1996] 1 SCR 70, per Lamer CJ (9:0)
    R v Contant, 2008 QCCA 2514 (CanLII), 63 CR (6th) 133, per Dufresne JA (3:0), leave to appeal ref’d [2009] 1 SCR vii
    R v Gallaugher, 1999 CanLII 2242 (ON CA), OJ No 174, per curiam (3:0)
    R v Felger, 2014 BCCA 34 (CanLII), 306 CCC (3d) 143, per Garson JA (3:0)
  21. ↑ R v Campbell, 2022 ONCA 666 (CanLII), per Trotter JA
  22. ↑ R v Mills, 2019 SCC 22 (CanLII) (working hyperlinks pending), per Karakatsanis J, at para 56

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 actions of securing an item for later inspection, such as a electronic device can be a seizure.[9]

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."[10]

The expropriation of property is not a "seizure."[11]

Taking of a photograph by police has been considered a search or seizure.[12]

Where the state compels the production of documents, even in a regulatory context, will amount to a seizure.[13]

Consent Seizure

Valid consent in this context is determined based on indicia such as:[14]

  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 (SCC), [1988] 2 SCR 417, per Lamer J and La Forest J (5:1), at para 26
    R v Law, 2002 SCC 10 (CanLII), [2002] 1 SCR 227, per Bastarache J (9:0), at para 15
    R v Buhay, 2003 SCC 30 (CanLII), [2003] 1 SCR 631, per Arbour J (9:0) at 113
  2. ↑ R v Wills, 1992 CanLII 2780 (ON CA), 70 CCC (3d) 529, per Doherty JA (3:0), at pp. 347-348
    Illinois v Rodrigues, 110 S. Ct 2793 (1999)
  3. ↑ R v Weir, 2001 ABCA 181 (CanLII), 156 CCC (3d) 188, per curiam (3:0) - 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), 9 CCC (3d) 295, per Hetherington J
    cf. US law allows seizure of a person (Terry v Ohio, 392 US 1 (1968))
  7. ↑ R v Cole, 2012 SCC 53 (CanLII), [2012] 3 SCR 34, per Fish J, at para 34
  8. ↑ R v DLW, 2012 BCSC 1700 (CanLII), per Romilly J, at para 63
  9. ↑ R v Lambert, 2023 ONCA 689 (CanLII), per Paciocco JA, at para 72
  10. ↑ R v Dyment, 1988 CanLII 10 (SCC), [1988] 2 SCR 417, per Lamer J and La Forest J (5:1)
  11. ↑ Becker v Alberta, 1983 ABCA 161 (CanLII), 9 CRR 192, per Lieberman JA (3:0)
  12. ↑ R v Abbey, 2006 CanLII 39320 (ON SC), [2006] OJ No 4689 (SCJ), per Archibald J; reversed on other grounds, 2009 ONCA 624 (CanLII), 97 OR (3d) 330, per Doherty JA (3:0), [2010] SCCA No 125: police took a photo of the accused's t-shirt after removing it from his body
  13. ↑ R v McKinley Transport Ltd, 1990 CanLII 137 (SCC), [1990] 1 SCR 627, per Wilson J
  14. ↑ R v Wills, 1992 CanLII 2780 (ON CA), 70 CCC (3d) 529, per Doherty JA, at p. 353
    adopted in R v Borden, 1994 CanLII 63 (SCC), [1994] 3 SCR 145, per Iacobucci J, 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 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.[3]

Denial of Ownership or Identity

It is not necessary that the accused concede ownership over a thing in order to claim a Charter right to privacy over the contents of the thing.[4]

  1. ↑ R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, per Cory J and La Forest J (9:0), at para 34
    R v Rahey, 1987 CanLII 52 (SCC), [1987] 1 SCR 588, per Lamer J, at p. 619
    R v Simpson, 2015 SCC 40 (CanLII), [2015] 2 SCR 827, per Moldaver J
  2. ↑ R v Pugliese, 1992 CanLII 2781 (ON CA), [1992] OJ 450 (ONCA), per Findlayson JA
  3. ↑ R v Nesbeth, 2008 ONCA 579 (CanLII), 238 CCC (3d) 567, per Rosenberg JA leave denied
  4. ↑ R v Jones, 2017 SCC 60 (CanLII), [2017] 2 SCR 696, per Cote J

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.

State Actors or Agents

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, per 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
    R v Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595, per 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?")
    R v Buhay, 2003 SCC 30 (CanLII), [2003] 1 SCR 631, per 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.")
  2. ↑ M(MR), ibid. at para 28
    R v Buhay, 2003 SCC 30 (CanLII), [2003] 1 SCR 631, per Arbour J, at paras 29 to 30
    R v RMJT, 2014 MBCA 36 (CanLII), 311 CCC (3d) 185, at paras 73 to 74
  3. ↑ M(MR), supra - vice-principal search of student's locker
  4. ↑ R v Liang, 2007 YKTC 18 (CanLII), 154 CRR (2d) 187, per Ruddy J, at para 241
    R v Dorfer, 1996 CanLII 10214 (BC CA), 104 CCC (3d) 528, per Macfarlane JA, at para 39
    R v Weir, 2001 ABCA 181 (CanLII), 156 CCC (3d) 188, per curiam, at para 9 - officer asks ISP employee to forward a copy of a message
  5. ↑ R v Gomboc, 2010 SCC 55 (CanLII), [2010] 3 SCR 211, per Deschamps J
    cf. R v Poh, 2011 MBQB 214 (CanLII), 269 Man R (2d) 139, per Menzies J
  6. ↑ R v Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595, per Iacobucci J
  7. ↑ R v Fatima, 2006 CanLII 63701 (ON SC), [2006] OJ No 3634 (O.S.C.), per Watt J, at para 181
    R v Roberts, 2016 ONSC 2390 (CanLII), per O'Marra J, at para 47
  8. ↑ R v Choy, 2008 ABQB 737 (CanLII), 181 CRR 247, per Marceau J, at para 28 - social worker discovering bruising
    R v Westrageer et al, 2005 BCSC 1558 (CanLII), BCTC 1558, per Joyce J, at para 43: social working investigating child welfare complaint
    R v Chang, 2003 ABCA 293 (CanLII), 180 CCC (3d) 330, per curiam: private security guard seizing property for police cf. R v Allen, 2010 CanLII 73011 (NL PC), per Gorman J
  9. ↑ R v Lerke, 1986 ABCA 15 (CanLII), 24 CCC (3d) 129, per Laycraft CJ
  10. ↑ R v Weir, 2001 ABCA 181 (CanLII), 156 CCC (3d) 188, per curiam, at para 11
  11. ↑ R v Stevens, 2011 ONCA 504 (CanLII), 274 CCC (3d) 353, per Armstrong JA, at para 54
  12. ↑ R v Drakes, 2009 ONCA 560 (CanLII), 252 OAC 200, per curiam
  13. ↑ R v Cole, 2012 SCC 53 (CanLII), [2012] 3 SCR 34, per Fish J, at para 62
    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. ...")
  14. ↑ Cole, ibid., at para 62
  15. ↑ R v McDougall, 2013 SKQB 358 (CanLII), 430 Sask R 173, per McMurtry J, at para 88
    see also Section 487 Search Warrants
  16. ↑ R v Decap, 2003 SKQB 301 (CanLII), 237 Sask R 135, per Barclay J, at para 18
  17. ↑ R v Jacobs, 2014 ABCA 172 (CanLII), 312 CCC (3d) 45, per curiam

Manner of Search

See also: Manner of Search and Execution of Search Warrants

See Also

Retrieved from "https://criminalnotebook.ca/index.php?title=Rights_Against_Search_and_Seizure&oldid=96370"