A _________ is the least intrusive type of seizure of a person under the fourth amendment.

Abstract

He notes that the key point of the fourth is that all searches and seizures without judicially issued warrants are unreasonable and therefore unconstitutional. One exception to this rule is the stop and frisk case. In Terry v. Ohio, the Supreme Court rules that 'stop and frisk' fell under the fourth amendment decrees in that citizens have a right to walk freely without being stopped by the police. However, the Court recognized that stops and frisks are significantly less intrusive than full-blown searches and seizures and that standards must be developed for stops and frisks. The Court recognized the dangers of a broad stop and frisk law, especially regarding minorities and the poor, but felt that police should have this investigative right as it serves as part of their preventive function. Stop and frisk law must be based on more than whimsy but less than probable cause; it must be based on (1) reasonable suspicion, (2) good cause to believe, and (3) articulable suspicion. In Terry v. Ohio, the Court ruled that officers have the right to stop and pat down a suspect if they have reasonable suspicion that the person may be armed. The basis for this decision was officer safety as was the case in Sivron v. New York, in which the Court ruled that police officers must articulate their fear that the suspect is armed in order for the stop and frisk case to be valid. The Court also set scope limitations of the stop. It cannot be a full-scale seizure of a person; it must be within reach; and it must last only a little while. Similarly, police officers can frisk a suspect only for what is absolutely necessary (e.g., looking for a weapon), and the risk must be a limited search (a pat down of the exterior clothing of the suspect). The police must have a flexible set of escalating responses beginning with an articulable suspicion and extending to a reason to believe that the suspect is armed. If a frisk reveals that there is a weapon, then the police officer may arrest and search the suspect.

Section 8 – Search and seizure

Provision

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

Similar provisions

While privacy is a central or core concern under section 8 of the Charter, section 7 also provides residual protection for privacy interests (R. v. Mills, [1999] 3 S.C.R. 668, and especially at paragraphs 77-89, 94, 99 and 108, where the court embedded privacy analysis based on section 8 considerations within analysis of a section 7 principle of fundamental justice). The Canadian Bill of Rights contains no specific rights to privacy or to be secure against unreasonable search and seizure; but section 1(a) protects a limited right not to be deprived of the enjoyment of property without due process.

A number of international instruments, which are binding on Canada, include provisions protecting aspects of the right to privacy: article 17 of the International Covenant on Civil and Political Rights; article 16 of the Convention on the Rights of the Child; article 22 of the Convention on the Rights of Persons with Disabilities; and article V, IX and X of the American Declaration of the Rights and Duties of Man.

See also the following international, regional and comparative law instruments that are not legally binding on Canada, but include provisions similar to section 8 of the Charter: article 12 of the Universal Declaration of Human Rights; article 11 of the American Convention on Human Rights; article 8 of the European Convention on Human Rights; the Fourth Amendment of the Constitution of the United States of America.

Purpose

Section 8 protects people, not places, against unjustified intrusions on their privacy interests (Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 159; R. v. Gomboc, [2010] 3 S.C.R. 211 at paragraphs 17, 75). As demonstrated by Hunter v. Southam, the protection of people includes corporations as legal persons. The purpose of section 8 is to prevent unjustified searches before they happen, not simply to determine after the fact whether they ought to have occurred in the first place (Hunter v. Southam at page 160).

The values underlying the privacy interest protected by section 8 are dignity, integrity and autonomy (R. v. Plant, [1993] 3 S.C.R. 281 at page 292). The protection section 8 provides for privacy ― personal, territorial and informational — is essential not only to human dignity, but also to the functioning of our democratic society. As such, section 8 protects a sphere of individual autonomy within which people have the right “to be let alone” and on which the state cannot intrude without permission (R. v. Ahmad, 2020 SCC 11 at paragraph 38). At the same time, section 8 permits reasonable searches and seizures in recognition that the state’s legitimate interest in advancing its goals or enforcing its laws will sometimes require a degree of intrusion into the private sphere (Goodwin v. British Columbia (Superintendent of Motor Vehicles), [2015] 3 S.C.R. 250 at paragraph 55).

The Supreme Court has suggested that the interests protected by section 8 may extend beyond those of privacy (R. v. A.M., [2008] 1 S.C.R. 569 at paragraph 33, per Binnie J, citing Hunter v. Southam at page 159) but has not yet articulated the nature of any additional potential section 8 protections. That said, at a minimum, section 8 protections may overlap with protections generally recognized under other Charter rights. For example, in R. v. S.A.B., [2003] 2 S.C.R. 678, the Supreme Court decided that self-incrimination principles in relation to warrant powers to collect DNA evidence at sections 487.04 to 487.09 of the Criminal Code should be analyzed under section 8 of the Charter and that analysis need not turn to section 7 (see paragraphs 1, 33-35; see also Wakeling v. United States of America, [2014] 3 S.C.R. 549 at paragraphs 48-50).

Analysis

Section 8 involves a two-step analysis:

• Has there been a “search” or a “seizure”?

Not every form of examination conducted by the government, and not every taking by the government, will constitute a ‘search’ or ‘seizure’ for constitutional purposes. An inspection is a search, and a 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 (R. v. Tessling, [2004] 3 S.C.R. 432 at paragraph 18; R. v. Evans, [1996] 1 S.C.R. 8 at paragraph 11).

• If so, was the search or seizure reasonable?

A search or seizure will be reasonable where it is (1) authorized by law; (2) the law itself is reasonable; and (3) the manner in which the search is carried out is reasonable (R. v. Collins, [1987] 1 S.C.R. 265 at paragraph 23; Hunter v. Southam; R. v. Nolet, [2010] 1 S.C.R. 851 at paragraph 21; R. v. Shepherd, [2009] 2 S.C.R. 527 at paragraph 15).

Both steps of the inquiry call for a highly contextual analysis, with the result that different contexts yield different expectations of privacy which in turn give rise to different requirements at the second stage of the analysis. In general terms, determining the constitutional reasonableness of a search and seizure is “a function of both the importance of the state objective and the degree of impact on the individual’s privacy interest” (R. v. Rodgers, [2006] 1 S.C.R. 554; S.A.B.at paragraph 38; Hunter v. Southam at pages 159-60).

1. Has there been a search or seizure

(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 conversation expressly consent to the recording (R. v. Duarte, [1990] 1 S.C.R. 30 at pages 42-46).

A right to inspect documents as part of an administrative scheme set up by statute to regulate commercial and industrial activity would likely constitute a search (Comité paritaire de l’industrie de la chemise v. Potash, [1994] 2 S.C.R. 406 at pages 440-441).

A “seizure” for section 8 purposes is the “taking of a thing from a person by a public authority without that person’s consent” (R. v. Dyment, [1988] 2 S.C.R. 417 at 431; R. v. Colarusso, [1994] 1 S.C.R. 20 at 58; R. v. Law, [2002] 1 S.C.R. 227 at paragraph 15). This includes situations in which a person is required to produce a thing (including information) pursuant to a state compulsion (R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627 at 642; Mills (1999)at paragraph 77; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3 at page 34; see also R. v. White, [1999] 2 S.C.R 417; R. v. Fitzpatrick, [1995] 4 S.C.R. 154; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425). The power to make copies of documents is analogous to a requirement for production of documents and constitutes a seizure within section 8 (Comité paritaire at page 439).

In order to constitute a “seizure”, a “taking” by the state need not be directly from the person whose rights are affected. For example, where a medical professional obtains a bodily sample for medical purposes, disclosure of the sample to police will amount to a “seizure” (Dyment; R. v. Dersch, [1993] 3 S.C.R. 768; Colarusso at page 56). This is so whether the sample is provided pursuant to a police demand, request, or whether it is provided voluntarily. The fact that a person who has acquired lawful possession of information for their own purposes voluntarily discloses the information to the state does not vest in the state a delegated or derivative power to appropriate that information for the purposes of a criminal investigation (R. v. Cole, [2012] 3 S.C.R. 34 at paragraph 67).

The section 8 protection against seizure does not apply to government action merely because those actions interfere with property rights. Rather, “there must be a superadded impact upon privacy rights occurring in the context of administrative or criminal investigation” (Quebec (Attorney General) v. Laroche, [2002] 3 S.C.R. 708 at paragraph 53). Thus, a restraint order against property will constitute a seizure where it is issued for the ultimate purpose of investigation (Laroche at paragraph 54). Similarly, where what the police are “really after” is ultimately to access the data on a personal computer, the taking of the computer constitutes a seizure because it deprives individuals of control over highly private information and ensures the preservation of that information for potential future state inspection (R. v. Reeves, 2018 SCC 56 at paragraphs 29-31).

Where the state has seized records, the Supreme Court has indicated that disclosure of those records to individuals outside of those to whom, or for purposes other than for which, they were originally divulged may interfere with a reasonable expectation of privacy (Mills (1999) at paragraph 108; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390 at paragraphs 28-30, 39-43; see also Wakeling at paragraphs 91-96 per McLachlin C.J. and paragraphs 122-125 per Karakatsanis J., dissenting; but see Wakeling at paragraphs 32-40 where Moldaver J. appears to endorse a plain meaning interpretation of s. 8 that would not generally capture the disclosure of information by the state).

(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; Tessling at paragraph 32):

1. an examination of the subject matter of the search;
2. a determination as to whether the claimant had a direct interest in the subject matter;
3. an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and
4. an assessment as to whether this subjective expectation of privacy was objectively reasonable (Tessling at paragraphs 31-32; Gomboc at paragraphs 18, 78; Cole at paragraph 40; R. v. Patrick, [2009] 1 S.C.R. 579 at paragraph 27).

The totality of the circumstances test determines both the existence and extent of the reasonable expectation of privacy. If there is no reasonable expectation of privacy, the protections of section 8 are not engaged and the analysis ends there. If there is a reasonable expectation of privacy of any degree, section 8 will be engaged to prevent state interference except under the authority of a warrant or other reasonable law (Cole at paragraph 9).

(a) The subject matter of the search

It is essential at the outset to identify the subject matter of the search. In many cases this will be a straightforward matter. In others, however, it will not. In such cases, the characterization of the subject matter can make a major contribution to the analysis (see e.g., Patrick at paragraphs 29-30, explaining that the garbage bag at issue in that case was more aptly characterized as a “bag of ‘information’ whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle”; see also Tessling at paragraphs 34, 58; Cole at paragraph 41).

When identifying the subject matter of an alleged search, the court must not do so “narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action.” This involves consideration of what the state activity may “tend to reveal” (R. v. Spencer, [2014] 2 S.C.R. 212 at paragraphs 26, 31).

The nature of the privacy interest does not depend on whether, in the particular case, privacy shelters legal or illegal activity. The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought (Patrick at paragraph 32; Spencer at paragraph 36).

The Supreme Court has identified three broad privacy interests protected by section 8: personal privacy, territorial privacy and informational privacy. The distinction between these categories provides a useful analytical tool but is not determinative of the analysis as, in a given case, the privacy interest may overlap the categories (Tessling at paragraph 24; see also Gomboc at paragraph 19).

Privacy of the person perhaps has the strongest claim to constitutional shelter because it protects, in particular, the right of individuals not to have their bodies touched or explored to disclose objects or matters they wish to conceal (Tessling at paragraph 21) and is often at issue in criminal investigations when the state wishes to pursue invasive procedures such as drug testing and cavity searches.

The Supreme Court has repeatedly emphasized the close relationship between bodily privacy and human dignity (see e.g., Tessling at paragraph 21; R. v. Golden, [2001] 3 S.C.R. 679 at paragraphs 87 and 98-99; Dyment at 431-32; R. v. Pohoretsky, [1987] 1 S.C.R. 945 at 949; R. v. Stillman, [1997] 1 S.C.R. 607 at paragraph 42).

Territorial privacy has its origins in the notion that “the house of everyone is to him as his castle and fortress” (Semayne’s Case, [1558-1774] All E.R. Rep. 62 (1604), at 63). This has developed into a more nuanced hierarchy protecting privacy: in the home, being the place where our most intimate and private activities are most likely to take place (Evans at paragraph 42; R. v. Silveira, [1995] 2 S.C.R. 297 at paragraph 140; R. v. Feeney, [1997] 2 S.C.R. 13 at paragraph 43); in diluted measure, in the perimeter space around the home (Kokesch; R. v. Grant, [1993] 3 S.C.R. 223 (Grant (1993) at pages 237, 241); R. v. Wiley, [1993] 3 S.C.R. 263 at 273); in commercial space (Thomson Newspapers at 517-19; McKinlay Transport at 641); in private cars (R. v. Wise, [1992] 1 S.C.R. 527 at 533; R. v. Mellenthin, [1992] 3 S.C.R. 615); in a school (R. v. M. (M.R.), [1998] 3 S.C.R. 393, at paragraph 32); and even, at the bottom of the spectrum, a prison (Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872, at 877) (Tessling at paragraph 22).

Such a hierarchy of places does not contradict the underlying principle that section 8 protects “people, not places”, but uses the notion of place as an analytical tool to evaluate the reasonableness of a person’s expectation of privacy (Tessling at paragraph 22).

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that section 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual (Plant at 293). Informational privacy has been defined as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” (Tessling at paragraph 23; see also Patrick, Gomboc, Cole, A.M.).

Informational privacy includes at least three conceptually distinct, though overlapping, understandings of what privacy is: privacy as secrecy; privacy as control and privacy as anonymity. Privacy as secrecy encompasses the expectation that information disclosed in confidence will be held in trust and confidence by those to whom it is disclosed. Privacy also encompasses a wider notion of control over, access to, and use of information. This aspect of privacy “derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit” (Spencer at paragraph 40). Privacy as anonymity permits individuals to act in public places but to preserve freedom from identification and surveillance. This conception of privacy is particularly important in the context of Internet usage (Spencer at paragraphs 41-43). Because the Internet has exponentially increased both the quality and quantity of information that is stored about Internet users, and because users cannot fully control or even be fully aware of who may observe a pattern of online activity, it is by remaining anonymous that the user can in large measure be assured that the activity remains private (Spencer at paragraph 46).

Privacy concerns in relation to information are at their strongest where aspects of an individual’s identity are at stake, such as in the context of information “about one's lifestyle, intimate relations or political or religious opinions” (Mills (1999) at paragraph 81; Thomson Newspapers at 517; Branch at paragraph 62).

(b) Whether the claimant had a direct interest in the subject matter

In order to have standing to bring a claim under section 8, the state conduct at issue must implicate the claimant’s personal privacy rights (as opposed to those of a third party) (Edwards at paragraphs 43, 45-47; R. v. Marakah, 2017 SCC 59 at paragraph 12).  In the s. 8 context, the Supreme Court sometimes equates the issue of standing with the existence of a reasonable expectation of privacy (see e.g., Marakah at paragraphs 54-55). In other cases, the Court appears to understand the issue of standing in the narrower sense described above, as a means of limiting arguments based on the constitutional rights of third parties (see e.g., Edwards at paragraph 34; R. v. Ferguson, 2008 SCC 6 at paragraph 61).

As an exception to the general rule that a Charter applicant bears the burden of proving the Charter infringement, the court may assume, for the purpose of considering the applicant’s s. 8 challenge, any fact that the Crown has alleged or will allege in the prosecution (R. v. Jones, 2017 SCC 60 at paragraphs 32-33).

Where a person is a third party in a location where a search or seizure takes place (e.g., a passenger in a stopped vehicle or a guest in a house), this factor may limit their privacy interest in the location and in its contents (R. v. Belnavis, [1997] 3 S.C.R. 341 at paragraphs 22, 24; Edwards at paragraphs 45-47, 49). However, the intrusion on the privacy rights of a third party may be relevant to the question of whether the search was carried out in a reasonable manner, which arises at the second stage of the section 8 analysis (Edwards at paragraphs 35-38; see “(b) If so, was the interference reasonable?” below).

For more discussion of standing under the Charter, see generally section 24(1) and section 52(1).

(c) Whether the claimant had a subjective expectation of privacy

When determining whether a claimant had a subjective expectation of privacy, “reasonableness” is not the issue (Patrick at paragraph 37). The question is whether the claimant had, or is presumed to have had, an expectation of privacy in the subject matter of the search (Patrick at paragraph 37; Jones at paragraphs 19-22). This is not a high hurdle. For example, in the case of information about activities taking place in a dwelling house, an expectation of privacy can be presumed in the claimant’s favour (Plant at paragraph 37; Gomboc at paragraph 25). Similarly, a subjective expectation of privacy can be inferred in text messages sent to a known recipient (Jones at paragraph 15).

The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded by section 8 to the values of a free and democratic society. A person who fears their telephone is bugged may no longer have a subjective expectation of privacy but does not necessarily forfeit the protection of section 8. Privacy is a normative rather than descriptive standard (Tessling, paragraph 42; R. v. Jarvis, 2019 SCC 10 at paragraph 68).

(d) Whether the subjective expectation of privacy was objectively reasonable

The analysis of whether a subjective expectation of privacy is objectively reasonable is highly contextual and “can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion” (Patrick at paragraph 38; Colarusso at 53; see also R. v. Buhay, [2003] 1 S.C.R. 631 at paragraphs 22, 23 and 24).

There is no definitive list of factors that must be considered in assessing the objective reasonableness of an expectation of privacy. The relevant case law, however, provides useful guidance in the form of a non-exhaustive list of factors that are potentially relevant (Cole at paragraph 45).

Analysis of this factor can include consideration of: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; and (v) the ability to regulate access, including the right to admit or exclude others from the place (Edwards at paragraph 45; Belnavis at paragraph 20; M.(M.R.) at paragraph 31; Buhay at paragraph 18).

Private dwellings, in contrast to other premises, carry heightened privacy expectations (Kokesch at pages 16-18; Feeney at pages 43-45; see also R. v. Landry, [1986] 1 S.C.R. 145). The perimeter around these dwellings carries similar constitutional protection (Plant at page 291; Wiley at 273; Grant (1993); Gomboc at paragraph 79).

Although police have an implied license to approach the door of a residence and knock for the limited purpose of communicating with the occupant, conduct going beyond the terms of the implied license (e.g., attempting to “sniff” for marihuana or pushing the door open), intrudes on the reasonable privacy interest in the dwelling (Evans at paragraph 15; R. v. MacDonald, [2014] 1 S.C.R. 37 at paragraphs 26-27).

This heightened expectation of privacy in private dwellings will be lessened in the context of administrative inspections where the dwelling also serves as the workplace in a regulated industry (Comité paritaire at 424).

The public interest in maintaining an effective emergency response system (i.e., 911 calls) is significant enough to merit some intrusion on a dwelling house resident’s privacy interest (R. v. Godoy, [1999] 1 S.C.R. 311 at paragraph 22).

Private offices also generally attract a high expectation of privacy (Wise, supra at 534; Buhay, supra at paragraphs 23-24).

Among commercial premises, the media are entitled to particularly careful consideration because of the importance of their role in a democratic society (see e.g., Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459; R. v. National Post, [2010] 1 S.C.R. 477 at paragraph 31; R. v. Vice Media Canada Inc., 2018 SCC 53 at paragraphs 13-14, 82).

Similar care must be taken with respect to searches of legal offices in light of the fact that the reasonable expectation of privacy in solicitor-client privileged material is “invariably high”, regardless of the context ([2015] 1 S.C.R. 401 at paragraph 38; see also Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209; Maranda v. Richer, [2003] 3 S.C.R. 193; Canada (Attorney General) v. Chambre des notaires du Québec, [2016] 1 S.C.R. 336).

A person retains a limited, but still significant, expectation of privacy in a hotel room, public locker, or other place even though there exists a “master key” (R. v. Wong, [1990] 3 S.C.R. 36; Buhay).

Motor vehicles carry a decreased expectation of privacy in contrast to a home or office, given that the use of public highways is a highly regulated activity (Wise at 535; Belnavis at paragraphs 23-24; Nolet at paragraph 31).

Travellers using public transportation maintain a reasonable expectation of privacy in their luggage (R. v. Kang-Brown, [2008] 1 S.C.R. 456; R. v. Chehil, [2013] 3 S.C.R. 220).

A student’s reasonable expectation in the school environment is significantly diminished. Students know that their teachers and other school authorities are responsible for providing a safe environment and maintaining order and discipline in the school, which may sometimes require searches of students and their personal effects and the seizure of prohibited items. Nevertheless, a personal search of a student (i.e., a search of their person or items carried on their person) interferes with a reasonable expectation of privacy (M. (M.R.) at paragraphs 32-33). Students also have a reasonable expectation of the contents of their backpacks on school premises (A.M.).

Virtual spaces raise unique considerations because of the breadth of their content (e.g., social media websites), the ease with which technology allows law enforcement to remotely access a large number of targets, and the increasing prominence of technology as a means by which individuals conduct their personal lives. Surveillance of virtual spaces is, as such, “of an entirely different qualitative order” than surveillance over a physical public space (Ahmad at paragraphs 36-37).

There can be no reasonable expectation of privacy in something that is knowingly exposed to the public, or to a section of the public, or abandoned in a public place (Tessling at paragraph 40; see also R. v. Boersma, [1994] 2 S.C.R. 488; Stillman at paragraphs 62, 226; Evans at paragraph 50; Baron v. Canada, [1993] 1 S.C.R. 416, at 453; Dyment at 435; R. v. Monney, [1999] 1 S.C.R. 652 at paragraph 45; Patrick at paragraphs 27, 40, and 53; and Gomboc at paragraph 119).

However, the mere fact that a person enters a public space does not mean that the person expects to be personally identified and subjected to extensive surveillance (Spencer at paragraph 44).

One may continue to have a reasonable expectation of privacy with respect to property or a thing even when it is no longer in one’s possession (Mills (1999) at paragraph 108; Colarusso at paragraph 74; Marakah at paragraph 37). Privacy interests in modern society include the reasonable expectation that private information will remain confidential to the persons to whom and restricted to the purposes for which it was divulged (Dyment at page 429; Mills (1999) at paragraph 108).

Control over and ability to regulate access to the subject matter of the search are relevant factors in determining the objective reasonableness of a subjective expectation of privacy. However, control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest (Marakah at paragraph 38).

In the context of electronic conversations, individuals exercise meaningful control over the information they send by making choices about how, when and to whom they disclose the information (Marakah at paragraph 39). Even where “technological reality” deprives an individual of exclusive control over his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny (Marakah at paragraph 41; Jones at paragraph 45; Cole at paragraph 54). For example, the fact that text messaging inherently involves the creation of a permanent record that the recipient could disclose to police does not negate a sender’s reasonable expectation that the state will not intrude upon the electronic conversation absent such disclosure (Marakah at paragraph 40).

It is reasonable to ask citizens to bear the “tattletale” risk that someone will tell the police what they said. To accept this risk, however, is not to accept the risk of a different order that someone will consent to the police making an electronic recording of their words (Duarte at page 48; Reeves at paragraph 42). Similarly, to accept the risk that a participant in an electronic conversation could disclose its contents to police is not to accept the risk that the state will intrude upon the electronic conversation absent such disclosure (Marakah at paragraph 40).

A reasonable expectation of privacy may persist in circumstances where the loss of control over the subject matter of the search is involuntary, such as where a person is in police custody, where the subject matter of the search is stolen by a third party, or where the person is restrained from accessing the subject matter of the search by court order (Reeves at paragraph 38).

A person normally does not retain a reasonable expectation of privacy with respect to property or things, including informational content that have been voluntarily abandoned. The determination of whether a thing has been abandoned — i.e., whether a person has relinquished a privacy interest in it — will have to be determined on the particular facts of the case. In the case of garbage, for instance, abandonment will be a function of both location (where the garbage was left) and the intention of the person abandoning the garbage (Patrick at paragraphs 54-5, 62).

Discarded bodily samples cannot be said to have been voluntarily abandoned if the person concerned is in custody or detained (Stillman at paragraphs 59-64).

An item that is stolen is not, by virtue of that fact alone, abandoned. Although the owner would reasonably expect a certain degree of intrusion into the stolen item (e.g., examination for evidence relevant to its theft or for reasons of safety), he or she does not lose all privacy interest in the object and retains a reasonable expectation that the police will not conduct a search for evidence to be used in a separate and unrelated investigation against the owner (Law at paragraph 28).

Although the reasonable expectation of privacy is not limited to trust-like, confidential, or therapeutic relationships, the nature of the relationship is a relevant part of the overall context (Quesnelle at paragraph 27; see also Plant at page 293; Tessling at paragraph 18).

The doctor-patient relationship is characterized by a high degree of confidentiality. Bodily samples collected for medical purposes are subject to a duty to respect the privacy and dignity of the person and cannot generally be shared with police absent prior judicial authorization (Dyment at paragraphs 28-30; Colarusso).

A client has a reasonable expectation of privacy in all documents in the possession of his or her lawyer, which constitute information that the lawyer is ethically required to keep confidential (Lavallee at paragraph 35; Chambre des notaires at paragraph 35).

Records that are subject to inspection by members of the public at large cannot be said to be subject to an obligation of confidentiality (Plant at paragraph 22).

The contractual and statutory framework, including any terms or provisions governing the disclosure of the information, may be relevant to whether there is a reasonable expectation of privacy. When dealing with a contract of adhesion in the context of a consumer relationship, caution must be exercised in determining the impact of the contract on the reasonableness of an expectation of privacy (Spencer at paragraph 54; Gomboc at paragraphs 31-33, 94-95, 138-42). The principle that privacy is a “normative rather than a descriptive standard” must also be kept in mind (Tessling, paragraph 42; Gomboc, paragraphs 34, 115; Spencer, paragraph 18; Jones, paragraphs 47-51).

Most relationships between adults and children are worthy of section 8’s protection including, but not limited to, those with family, friends, professionals and religious advisers (Mills (2019) at paragraph 24). However, adults cannot reasonably expect privacy online with children they do not know. This reflects the normative standard under section 8, in light of children’s special vulnerability to sexual crimes, the opportunities that the Internet creates to exploit children and the importance of protecting children from these types of offences (Mills (2019) at paragraph 23). Whether the same conclusion would apply to other types of relationships remains to be determined in light of the nature of the relationship in question and the circumstances of the alleged search (Mills (2019) at paragraph 26; see also the minority reasons of Karakatsanis J. at paragraphs 42-52, adopting a broader characterization of the circumstances in which section 8 would not apply to online conversations with an undercover police officer).

In the context of personal privacy, the level of invasiveness is a function of the circumstances, including the duration of the search technique, whether there is penetration into the body, whether the technique causes pain or discomfort, and whether the search involves the removal of substances from the body (Stillman at paragraphs 45-46; R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; R. v. Saeed, [2016] 1 S.C.R. 518 at paragraph 49).

A pat-down or frisk search, which may involve examination of a person’s pockets but which does not involve the application of physical force or the removal of clothing, is relatively non-intrusive (Cloutier v. Langlois, [1990] 1 S.C.R. 158). A strip search, however sensitively conducted, is highly intrusive. The most intrusive type of search is a body cavity search (Golden; Saeed). For further discussion, see “Search incident to lawful arrest” below.

The forcible taking of bodily samples and dental impressions is highly invasive of personal privacy (Pohoretsky at 949; Dyment at 436; Colarusso at 53; Stillman at paragraph 42; R. v. Grant, [2009] 2 S.C.R. 353 (Grant (2009)) at paragraph 109). In general, police must have either consent or a warrant to seize such samples or impressions (Stillman).

Where bodily samples are taken under a properly issued DNA warrant, however, the impact on physical integrity is “relatively modest”. The techniques used (buccal swabs, blood samples obtained by pricking the surface of the skin, and the plucking of hairs) are not particularly invasive in the physical sense (S.A.B. at paragraph 44).

Fingerprinting incident to lawful arrest is relatively non-intrusive (Beare at page 413; Grant (2009) at paragraph 109). In the absence of lawful arrest, however, individuals retain a high expectation of privacy in their fingerprints (Feeney at paragraph 60).

In respect of individuals convicted of serious offences, the identifying information derived from DNA sampling is analogous to fingerprints, photographs and other non-intrusive identification measures (Rodgers at paragraphs 35-44).

The taking of a breath sample is relatively non-intrusive (Goodwin at paragraphs 51, 76; Grant (2009) at paragraph 111). Drivers nevertheless retain some expectation of privacy — albeit a diminished one — in their breath (Goodwin at paragraph 51).

A penile swab is in some ways less invasive than the taking of dental impressions or the forceful removal of hair from an accused’s body. Although the accused is required to expose a private area of his body to conduct the swab, the procedure is as a general rule quick, painless, and not penetrative. The information sought is the complainant’s DNA and is not personal information to the accused (Saeed at paragraphs 47-49).

In the context of technological surveillance tools, the sophistication of the technology involved, in terms of the quality of the information it yields, will be an important factor. Devices used to sense heat emanations from a house are sufficiently crude at this stage of their development that the information gathered by them is non-intrusive and mundane (Tessling at paragraphs 54-55). Information obtained by tracking devices left in cars is, though relatively crude, sufficiently intrusive so as to infringe a reasonable expectation of privacy (Wise at 534-538).

The intrusion into our privacy that occurs when a person hears our words or observes us in passing is fundamentally different than the intrusion that occurs when the same person simultaneously makes a permanent recording of us and our activities. A visual recording may be able to capture a level of detail that the human eye cannot, and can do so in a permanent form that can be accessed, edited, manipulated and studied by the person who created the recording and that can be shared with others. It does not follow, however, that visual recordings in public places will always interfere with reasonable privacy expectations (Jarvis (2019)).

Surreptitious interception and recording of private communications constitutes a serious intrusion into the privacy rights of those affected (Duarte; Wong at pages 47-49; R. v. Tse, [2012] 1 S.C.R. 531 at paragraph 17) and is generally only permissible subject to prior judicial authorization (Duarte at pages 42-43; R. v. Fliss, [2002] 1 S.C.R. 535 at paragraphs 47-49; R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343 at paragraph 8).

Video surveillance without prior judicial authorization in a home, hotel room, or other place where there is a reasonable expectation of privacy will also constitute an unreasonable search or seizure (Wong at pages 50-51). 

Text messaging bears the hallmarks of traditional voice communication — it is intended to be conversational, transmission is generally instantaneous, and there is an expectation of privacy in the communication. Prospective, continuous police access to text messages from an investigative target’s service provider is subject to the high standards for authorization of interception of communications under Part VI of the Criminal Code (R. v. TELUS Communications Co., [2013] 2 S.C.R. 3 at paragraphs 1, 5, 32). By contrast, police access to historical text messages (those that have been sent and received or are no longer capable of reception) is not an “interception” and may be authorized pursuant to a production order as opposed to a wiretap (Jones at paragraphs 74, 80).

Also relevant is the degree to which the investigative technique has the potential to reduce the sphere of privacy enjoyed by citizens. In Mills (2019), the creation of an online profile for a fictitious child allowed the police to know from the outset the investigative technique only capture communications sent by adults seeking out children online who were strangers to them – communications that are not subject to a reasonable expectation of privacy. This is to be distinguished from techniques that would have the potential to capture private communications, such as sifting through communications before being able to ascertain the nature of the relationship, or the monitoring of communications in hopes of discovering illegal content (Mills (2019) at paragraphs 27-30).

Documents of a personal and confidential nature or that reveal a personal core of biographical information carry a reasonable expectation of privacy sufficient to attract constitutional protection (Mills (1999) at paragraph 81; Plant at pages 292-294). This includes information which tends to reveal intimate details of the lifestyle and personal choices of the individual (Plant at page 293; Tessling at paragraph 62).

Personal computers, because of the vast amounts of information they contain — including intimate correspondence, the details of our financial, medical and personal situations, Internet browsing histories, as well as information that users cannot control and information that they may not be aware of or may have chosen to discard — attract a very high expectation of privacy (Morelli at paragraph 105; R. v Vu, [2013] 3 S.C.R. 657 at paragraphs 24, 40-45). Because of the unique and heightened privacy interests in personal computer data, specific, prior judicial authorization is presumptively required to seize a personal computer from a home (Reeves at paragraph 35).

Text messages are both private and discreet: receipt of the information is confined to the people to whom the text message is sent; service providers are contracted to confidentiality; no one else generally knows about the existence or contents of the message (Marakah at paragraph 34). As such, electronic text conversations are capable of revealing a great deal of personal information (para. 37).

Internet subscriber information, by tending to link particular kinds of information to identifiable individuals, may implicate privacy interests relating not simply to the person’s name or address but to his or her identity as the source or possessor of that information. A police request for subscriber information corresponding to specifically observed, anonymous Internet activity engages a high level of informational privacy (Spencer at paragraphs 47, 51).

Commercial documents generally carry a lower or diminished expectation of privacy (Branch at page 35; Plant at pages 293-294; 143471 Canada Inc. v. Quebec (Attorney General); Tabah v. Quebec (Attorney General), [1994] 2 S.C.R. 339 at pages 377-378), especially those documents required to be produced or maintained pursuant to a regulatory scheme (Comité paritaire at pages 444-445). A reasonable expectation may nevertheless be found in commercial documents and section 8 is therefore capable of applying in this context (see e.g., Hunter v. Southam; McKinlay Transport; Thomson Newspapers; and Baron).

Information that has not been developed or created in a confidential context, and is accessible to the public for inspection such as publicly maintained computer records, might not carry a reasonable expectation of privacy (see e.g., Plant).

Images capturing the thermal energy or heat radiating from a building, which are too crude to permit any inferences about the precise activity giving rise to the heat, do not attract a reasonable expectation of privacy (Tessling at paragraphs 54-55). Patterns of electricity consumption as measured by a digital recording ammeter, which is used to measure electrical power flowing into a residence and which permits a strong inference of the presence of a marihuana grow operation, are sufficiently revealing of activities inside the home to attract a reasonable expectation of privacy (Gomboc at paragraphs 36-38, 80-81 and 142; but see Plant, in which less detailed electricity consumption records were held not to attract a reasonable expectation of privacy).

A demand by a police officer for production of a driver's license does not constitute a section 8 search. There is no intrusion on a reasonable expectation of privacy where a person is required to produce a licence, permit or other documentary evidence of a status or compliance with a legal requirement that is a lawful condition of the exercise of a right or privilege (R. v. Hufsky, [1988] 1 S.C.R. 621 at pages 637-638; Mellenthin at page 622).

An individual's genetic makeup provides the foundation for who an individual is as a human being. As such “[i] n a very real sense, an individual's genetic makeup is their “biographical core”” (Reference re Genetic Non-Discrimination Act, 2020 SCC 17 at paragraph 87).

The context of the search, and the activity that brings a person into contact with the state, can have an impact on the person’s reasonable expectation of privacy.

Privacy expectations are generally lower in relation to administrative searches or seizures in regulatory schemes where the purpose of the intrusion is to ensure compliance with the statute rather than the prosecution of criminal acts (see e.g., Comité paritaire; 143471 Canada Inc.; McKinlay Transport; Branch). This is because in a modern industrial society, it is generally accepted that many activities in which individuals can engage must nevertheless to a greater or lesser extent be regulated by the state to ensure that the individual's pursuit of his or her self-interest is compatible with the community's interest in the realization of collective goals and aspirations. In many cases, this regulation must necessarily involve the inspection of private premises or documents by agents of the state, as compliance can only be tested by inspection of the business premises and/or business records. It follows that there can only be a relatively low expectation of privacy in respect of premises or documents that are used or produced in the course of activities which, though lawful, are subject to state regulation as a matter of course Thomson Newspapers; Fitzpatrick; White; Branch).

This principle is not absolute, however. The reasonable expectation of privacy in relation to communications subject to solicitor-client privilege is invariably high, regardless of whether the context is criminal or regulatory (Federation of Law Societies at paragraph 38; Chambre des notaires).

The degree of personal privacy expected at borders, where travellers expect to be searched, is lower than in other enforcement situations (R. v. Simmons, [1988] 2 S.C.R. 495 at page 528; Monney at paragraph 34; R. v. Jacques, [1996] 3 S.C.R. 312 at paragraph 18).

The expectation of privacy is reduced in the school setting in relation to the responsibility of teachers and other school authorities to provide a safe environment and maintain order and discipline in the school (M.(M.R.)).

Prisons carry a decreased expectation of privacy (Weatherall; R. v. Conway, [1989] 1 S.C.R. 1659; Tessling at paragraph 22).

Privacy is not an all or nothing right. It encompasses the reasonable expectation that private information will remain confidential to the persons to whom and restricted to the purposes for which it was divulged (Mills (1999) at paragraph 108; Dyment at page 429; Colarusso at page 71). Accordingly, a person may have a residual and continuing privacy interest protecting against the subsequent use or disclosure — and potentially retention — of information that has been divulged for a specific or limited purpose (Law at paragraph 23; Dyment at pages 432-435; Mills (1999) at paragraph 94; R. v. Dore (2002), 166 C.C.C. (3d) 225 (Ont. C.A.); Wakeling at paragraph 39).

Constitutional requirements cannot be avoided by employing one state agent for a purpose for which the prerequisites for search may not be as demanding and then allowing another agent attached to the law enforcement apparatus of the state to claim the fruits of that search "without regard to the rightly stringent prerequisites of searches for those [law enforcement] purposes” (Colarusso at paragraph 42; R. v. Jarvis, [2002] 3 S.C.R. 757; R. v. Ling, [2002] 3 S.C.R. 814; Law at paragraph 23).

Where a government body has regulatory or administrative functions as well as the function of investigating penal offences under the regulatory or administrative statute, a shift in state action from regulatory or administrative inspections to penal investigations affects the applicable Charter standards. In particular, where the predominant purpose of a particular inquiry becomes the determination of penal liability, so as to engage the adversarial relationship between the regulated party and the state, officials must at that point relinquish the authority to use regulatory or administrative inspection powers. Instead, at this stage, the “full panoply” of Charter rights are engaged and officials are restricted to using investigative powers appropriate to the penal context, thus normally requiring judicial authorization (Jarvis (2002) at paragraphs 88, 96-98; see also Ling). Penal investigators may, however, make use of materials validly obtained under regulatory or administrative inspection powers prior to the commencement of the offence investigation. Parallel regulatory/administrative inspections and penal investigations are permissible, provided that the penal investigators do not avail themselves of information obtained under regulatory/administrative inspection powers after the penal investigation has commenced (Jarvis (2002) at paragraph 97).

In assessing whether the predominant purpose of an investigation is to determine the penal liability of an individual, regard must be had to all relevant factors that bear upon the nature of the inquiry (Jarvis (2002) at paragraph 93). Apart from a clear decision to pursue a criminal investigation, no one factor is necessarily determinative in and of itself in this analysis. Even where there are reasonable grounds to suspect that an offence was committed, it will not always be true that the predominant purpose of the investigation is to determine the penal liability of the individual (Jarvis (2002) at paragraph 89). A lawful regulatory search does not become unlawful or unreasonable simply because the officers also have the expectation that the search might uncover evidence of crime (see e.g., Del Zotto v. Canada, [1999] 1 S.C.R. 3; Jarvis (2002) at paragraph 90; Nolet at paragraphs 37-38).

When a state agent, in the course of carrying out his or her authorized regulatory duties, comes across clear evidence of a crime or wrongdoing relating to the very same matters he or she was required to investigate for compliance purposes, the state agent may pass that information on to the appropriate authorities for offence investigation without the need for further lawful authority (Laroche at paragraph 84; R. v. D’Amour, (2002), 4 C.R. (6th) 275 (Ont. CA) at paragraph 63; Jarvis (2002)). These cases were distinguished in Cole on the basis that they all arose in heavily regulated environments. In contrast, a teacher has a reasonable and continuous expectation of privacy in the personal information on his work-issued laptop. Although the school board is legally entitled to inform the police of the discovery of contraband on the laptop, the police required a warrant to search the computer (Cole at paragraphs 70-73).

A provincial law authorizing the use, for the purpose of an administrative roadside sanction scheme, of breath samples taken pursuant to Criminal Code powers to screen drivers for alcohol constitutes a distinct search for Charter purposes (Goodwin at paragraphs 53-54).

(iii) Consent

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 voluntarily given by the rights holder. To be fully informed, a person must be provided with sufficient information to make the preference meaningful (R. v. Borden, [1994] 3 S.C.R. 145). For the consent to be voluntary, the person must have had a real choice in providing the purported consent (see Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 at paragraph 72; Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at paragraph 98).

Consent cannot be given by a third party (Cole at paragraphs 75-79). In the context of shared computers, in which multiple people may have privacy interests, waiver by one rights holder does not constitute waiver for all rights holders (Reeves at paragraph 52). While it is reasonable to ask citizens to bear the risk that a co-user of their shared computer may access their data or discuss the data with police, it is not reasonable to ask them to bear the risk that a co-user could consent to the “taking” of the computer by police (Reeves at paragraph 43). In Reeves, the majority distinguished the “taking” of a home computer by police, with the consent of a co-owner, from the situation in which a citizen voluntarily brings an item to police. The question of whether the latter situation would engage section 8 was expressly left for another day (Reeves at paragraph 46; see also paragraph 129 per Côté J, dissenting). Note, however, the majority’s passing observation that the co-owner signed the consent form authorizing the police to take the computer because she did not think she had a choice (paragraph 46).

Consent for a search and seizure for one purpose does not necessarily allow for the intrusion on the same privacy interests for other purposes (Mills (1999) at page 108; Dyment at page 429). Consent to take bodily samples will generally only be consent to use the sample for the specific purpose for which consent is given (Borden at page 162). However, where no specific limits are placed by the police or the consenting party on the use to which a bodily sample is to be made, there may be no subsisting expectation of privacy protecting against the use of the sample in a later investigation that was not and could not reasonably have been anticipated by the police at the time the sample was taken (R. v. Arp, [1998] 3 S.C.R. 339 at paragraphs 89-91). Consent to collect a bodily sample for medical purposes does not allow the police to use the sample for investigative purposes (Dyment at page 431).

2. Was the search or seizure reasonable?

(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 searched.

The warrant granting power in a statute must involve a true grant of discretion to the decision-maker (Baron at page 435; see also Kourtessis v. M.N.R., [1993] 2 S.C.R. 53) and must be specific in its focus.

Judicial neutrality precludes the justice of the peace from becoming personally involved in the drafting of search warrant informations. However, this does not preclude judges from providing advice or direction to an officer applying for a warrant (R. v. Clark, 2015 BCCA 448 at paragraph 49, aff’d 2017 SCC 3).

The application for a search warrant must contain a full and frank disclosure of all material facts and not just those favourable to the state. The application, while being clear and concise, must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed (Morelli at paragraphs 4, 44-60; R. v. Araujo, [2000] 2 S.C.R. 992 at paragraphs 46-47; R. v. Garofoli, [1990] 2 S.C.R. 1421).

Where tainted evidence is used in order to obtain a warrant, the search may nevertheless be sustained and the warrant may be constitutionally sufficient provided that, after excising the objectionable information, there remains sufficient independently obtained information to validly authorize the search (Grant (1993) at pages 253-254; Plant at page 296; see also Wiley). Despite the presence of reasonable and probable grounds (after excision) a warrant based on a deliberate or fraudulent attempt to mislead the issuing judge may be set aside where doing so is necessary to protect the process of prior authorization and the preventive function it serves (Araujo at paragraphs 54-59).

Where a search warrant or production order is sought in respect of a journalist or the media, the issuing judge should apply a four-part analysis. First, the judge should consider whether to require notice to the media, which may be appropriate in cases where judge does not have sufficient information to carry out the balancing exercise at the third stage of the analysis. Second, the judge must be satisfied that all statutory preconditions have been met. Third, the judge must balance the state interest in investigating and prosecuting crimes against the media’s right to privacy in gathering and disseminating the news. This balancing exercise should be based on all the circumstances, which may include: (1) the likelihood and extent of any potential chilling effects; (2) the scope of the materials sought and whether the order sought is narrowly tailored; (3) the likely probative value of the materials; (4) whether there are alternative sources from which the information may reasonably be obtained and, if so, whether the police have made all reasonable efforts to obtain the information from those sources; (5) the effect of prior partial publication, which must be assessed on a case-by-case basis; and (6) the vital role that the media plays in the functioning of a democratic society and the fact that the media will generally be an innocent third party. At the final stage of the analysis, the authorizing judge should consider imposing conditions on the order to ensure that the media will not be unduly impeded in the publishing and dissemination of the news. This may include, for example, providing for a sufficient period of time for compliance with a production order to allow the media to challenge it. The authorizing judge may also see fit to order that the materials be sealed for a period pending review (Vice Media at paragraph 82; National Post at paragraphs 78-84; Lessard). From the media perspective, assistance orders accompanying a warrant and requiring the surrender of documents are preferable to a physical search of the media premises (National Post at paragraph 90).

A warrant to search a place does not by itself carry with it sufficient authority, under section 8 Charter principles, to further search a computer found within that place. Rather, a prerequisite for a valid computer search is explicit judicial authorization involving due consideration of the distinctive privacy concerns raised by such a search. Where police come across a computer in the course of a warranted search but do not have specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sorts of things covered by the warrant) and do what is necessary to ensure the integrity of the data (Vu at paragraphs 48 to 49).

(ii) Warrantless searches

A warrantless search or seizure is presumptively unreasonable (Hunter v. Southam; Nolet at paragraph 21; Goodwin at paragraph 99). The party seeking to justify a warrantless search bears the onus of rebutting the presumption by establishing that the search was:

• authorized by law;
• the law itself is reasonable; and
• 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. Mann, [2004] 3 S.C.R. 59 at paragraph 36; Grant (2009) at paragraph 56; Shepherd at paragraph 15; Nolet at paragraph 21; but see Nolet at paragraph 46, upholding the warrantless search on the basis that the reasonableness of the law authorizing it had not been challenged). 

(a) Authorized by law

Sources of lawful authority for section 8 purposes accepted by courts have so far included statutes, regulation and the common law. This is not to necessarily rule out other sources that meet the general criteria for being “law” (see, generally, John Mark Keyes, Executive Legislation (2nd Edition, 2010), Chapter. 1). There has not yet been judicial consideration of whether or to what extent recent developments on the “prescribed by law” requirement under section 1, which recognize the possibility that other instruments like policies or guidelines may be tantamount to “law” where certain requirements are met, are applicable in the section 8 context: see section 1 for further discussion of those developments.

Significant privacy intrusions generally cannot be implied from the authorizing law; authority must normally be specific and express (see R. v. Shoker, [2006] 2 S.C.R. 399 regarding legislation and Caslake regarding the common law). In some circumstances, courts may find implied authority for intrusions on diminished privacy interests (Cole; M.(M.R.)).

A search incident to a lawful arrest must be based on reasonable grounds to believe that the search is necessary for a valid objective related to the reasons for the arrest such as safety of the arrestee or officer, preservation of evidence from destruction, and the discovery of evidence that can be used in the prosecution of the arrestee (Cloutier; Caslake at paragraphs 17, 48; Golden at paragraphs 92-95; Mann at paragraph 37; R. v. Clayton, [2007] 2 S.C.R. 725 at paragraphs 26, 29; Stillman at paragraphs 34-50; Nolet at paragraph 49). Search incident to arrest may not be conducted in an abusive manner (Cloutier at 185; Stillman at 638).

The intrusiveness of a search is an important factor in assessing its reasonableness. For example, pat-down searches will generally be reasonable (see e.g., Cloutier), but an officer’s decision to go beyond an initial pat-down and reach into the pocket of a suspect may be more intrusive than necessary and thus interfere with the suspect’s reasonable expectation of privacy (Mann at paragraph 49). Strip searches or highly invasive examinations, such as body cavity searches, will likely not be reasonable (see e.g., Golden; Vancouver (City) v. Ward, [2010] 2 S.C.R. 28). Strip searches incident to arrest may nevertheless be lawful and reasonable in some circumstances, but such searches should only be carried out where the police have reasonable and probable grounds to conduct the search for the purpose of discovering weapons or seizing evidence related to the offence for which the detainee was arrested and demonstrate an urgency for such a search being conducted in the field. The search must be conducted in a manner that interferes with the privacy and dignity of the person being searched as little as possible (Golden at paragraphs 101-102; Ward at paragraph 65).

The taking of bodily samples and teeth impressions without a warrant is inconsistent with the common law power of search incidental to arrest (Stillman at paragraph 49).

The search of an accused person’s property in his possession at the time of arrest can be considered to be valid as a search incident to arrest provided the purpose of the search is related to the reasons for the arrest (see Nolet, where the search of a secret compartment in the cab of a truck’s trailer, two hours after the driver’s arrest for possession of contraband, was valid as a search incidental to arrest for possession of proceeds of crime, but the later inventory search of the cab was invalid as it was no longer incidental to arrest, but was undertaken pursuant to RCMP administrative procedures).

The search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest (R. v. Fearon, [2014] 3 S.C.R. 621 at paragraph 58). As a result, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with section 8 where: (1) the arrest is lawful; (2) the search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable; (3) the nature and the extent of the search are tailored to the purpose of the search; and (4) the police take detailed notes of what they examine on the device and how it is searched. In respect of factor (2), the valid law enforcement purposes in this context are: (a) protecting the police, the accused, or the public; (b) preserving evidence; or (c) discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest (Fearon at paragraph 83).

Although there is no general power of detention for investigative purposes, police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances (Mann). Police have a common law power to conduct searches incidental to investigative detention but for this search to be a justified use of police power, the officer must have reasonable grounds to believe that his safety or the safety of others is at risk (Mann at paragraph 40; Clayton; MacDonald at paragraphs 31, 41). But see MacDonald, which leaves some question as to the precise meaning of this standard: compare especially paragraphs 31 and 41, which appear to affirm the standard in Mann, with paragraphs 39 and 44, which may suggest a higher standard (reasonable grounds to believe that an individual “is armed and dangerous” or that there is “an imminent threat to the safety of the public or police”; paragraphs 66, per Moldaver and Wagner JJ., dissenting). To determine whether the officer’s decision to search was reasonable, a court will examine the totality of the circumstances. The officer’s decision cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition (Mann at paragraph 40; Clayton at paragraph 29).

Warrantless searches may be reasonable in some situations if exigent circumstances make it impracticable to obtain a warrant (Grant (1993) at pages 239-242; Plant at page 292; see also Wiley). “Exigent circumstances” denotes not merely convenience but urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety (R. v. Paterson, 2017 SCC 15 at paragraphs 32-33). Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. While the fact that the evidence sought is believed to be present on a motor vehicle, water vessel, aircraft or other fast moving vehicle will often create exigent circumstances, no blanket exception exists for such conveyances (see e.g., Hunter v. Southam; Grant (1993); Wiley; and see Silveira, where entry into a dwelling house while awaiting the issuance of a warrant to prevent the destruction of evidence violated section 8). For situations involving emergency entries to protect life and to prevent death or serious injury, see Godoy, in which police entered a dwelling house without a warrant as a result of a 911 call. The Supreme Court did not squarely deal with the section 8 issue, but instead considered an analytical framework dealing with the common law/statutory police duties which followed the structure of a section 8 analysis. The Court noted that the police have the authority to investigate a 911 call but said that whether the police can enter a dwelling house as part of that investigation would depend on the circumstances of each case. See also Tse, where the Court applied section 8 analysis in evaluating the reasonableness of the provisions of the Criminal Code governing warrantless wiretapping under exigent circumstances.

In the context of routine crime investigations, investigative detentions where there are reasonable grounds to detain (Mann), in schools (Kang-Brown) or in bus stations (A.M.) — and presumably by extension in certain other locations — there exists, at common law, a police power to use sniffer dogs where police have a “reasonable suspicion” that evidence of an offence will be discovered (Chehil; R. v. MacKenzie, [2013] 3 S.C.R. 250; Kang-Brown; A.M.).

Officers may validly seize clear evidence of wrongdoing that is in plain view provided that the officers are otherwise lawfully engaged in the execution of their duties (see Mellenthin; Law; Belnavis; Boersma; Buhay at paragraph 37). The doctrine does not, however, provide a basis for conducting a wider-ranging search within closed or locked places for contraband or evidence once some evidence of wrong-doing is discovered within plain view and has been seized. A plain view seizure cannot form the basis for a “fishing expedition” (Mellenthin). Even in the case of a search conducted incidental to a lawful arrest, the permissible ambit of the search and of any consequent seizures made without a warrant depends on an appropriate “link between the location and purpose of the search and the grounds for the arrest” (Nolet at paragraph 49; see also Cloutier).

(b) Law itself is reasonable

Since individuals have different expectations of privacy in different contexts and with regard to different subject matters, it follows that the standard of review of what is “reasonable” in a given context must be flexible, if it is to be meaningful (McKinlay Transport). A reasonable law is one that strikes a reasonable balance between the particular state interest that is pursued by the law and privacy (Shoker; S.A.B. at paragraphs 42-43; McKinlay Transport at page 643; Comité paritaire at pages 422 and 424; Rodgers at paragraphs 35-44; see also Jarvis (2002); Branch; Mann; Clayton; and Wakeling, at paragraphs 66 and 81). Warrantless search powers have been upheld as reasonable in a number of contexts including: administrative and regulatory searches (see e.g., McKinlay Transport; Comité paritaire; Thomson Newspapers); border searches (Simmons; Monney; Jacques); and roadside searches (Hufsky). See also the discussion of common law search powers, above.

There is no “hard and fast” test for reasonableness under section 8 (Thomson Newspapers at 495; Goodwin at paragraph 57). Considerations that may be helpful in the reasonableness analysis include: the nature and purpose of the legislative scheme, the mechanism employed having regard for the degree of its potential intrusiveness and its reliability, and the availability of judicial supervision (Del Zotto; Goodwin at paragraph 57).

A compelling public purpose will weigh more heavily in the reasonableness analysis (Goodwin at paragraph 59; see e.g., McKinlay Transport; Comité paritaire).

The characterization of a search or seizure as criminal on one hand or administrative or regulatory on the other is relevant in assessing its reasonableness (Goodwin at paragraph 60). The proper characterization of the search or seizure involves a contextual analysis. In addition to the nature of the regime generally, regard may be had for other relevant aspects of the search or seizure such as whether it is administered by a police officer and the severity and immediacy of the consequences flowing from the search or seizure (Goodwin at paragraph 63).

In the administrative or regulatory context, the procedural safeguards fashioned in Hunter v. Southam may not apply. Searches and seizures in such contexts will generally — but not always — be subject to a lower standard in assessing what intrusions are reasonable in the circumstances (Thomson Newspapers Ltd.; but see Federation of Law Societies and Chambre des notaires, explaining the heightened standard applicable to searches implicating solicitor-client privileged material, regardless of context).

The intrusiveness of a search or seizure on privacy interests is an important consideration. Generally speaking, a law authorizing a search or seizure should reflect the least intrusive means by which the state interest can be achieved (see e.g., McKinlay Transport; Comité paritaire; Goodwin at paragraph 65; Saeed; Chambre des notaires). A legislative provision that interferes with solicitor-client privilege more than is “absolutely necessary” to achieve the ends of the enabling legislation will be unreasonable for s. 8 purposes (Lavallee at paragraph 36; Chambre des notaires at paragraphs 28, 82).

Another relevant consideration is the threshold on which the search or seizure may be conducted, and whether the power to search or seize is narrowly targeted (Chehil at paragraph 28). See discussion of thresholds, below.

The reliability of a search or seizure mechanism is directly relevant to its reasonableness (Goodwin at paragraph 67). A method of searching that captures an inordinate number of innocent individuals cannot be reasonable (ibid.; Chehil at paragraph 51).

An unreviewable, discretionary power of search and seizure would be contrary to section 8 (Hunter v. Southam at 166; Tse at paragraph 82; Goodwin at paragraph 70). The right to privacy encompasses both protection against unreasonable search and seizure and the ability to identify and challenge such invasions. In some circumstances involving searches that are not subject to prior authorization, additional safeguards will be required to ensure the requisite level of transparency and accountability, and to help ensure that such powers are not being abused (Tse at paragraphs 83-84; Fearon at paragraph 82). Such safeguards may include after-the-fact notice to the target of the search (see e.g., Tse; Chehil at paragraph 58) as well as record-keeping requirements (Fearon at paragraph 82).

In addition to judicial review of the lawfulness of the search, section 8 may also require a mechanism for review of the reliability of the findings, particularly where the consequences of a search or seizure follow automatically and immediately (Goodwin at paragraph 71). A law imposing serious administrative sanctions on the basis of an unreliable breath screening test requires a mechanism for meaningful review of the accuracy of the test result in order to satisfy the section 8 reasonableness requirement (Goodwin at paragraph 75).

"Reasonable grounds to believe" is the common standard in the Criminal Code, and most federal enactments, authorizing a search warrant in Canada.

"Reasonable grounds to believe" and "probable cause" as found in the Fourth Amendment to the American Constitution are identical standards (Hunter v. Southam at pages 167-168) and equate with "reasonable and probable grounds" (R. v. Debot, [1989] 2 S.C.R. 1140 at page 1166). "Reasonable grounds" is the equivalent of "reasonable and probable grounds" (Baron at pages 446-447; Morelli at paragraphs 127-8, per Deschamps J., in dissent but not on this point).

Reasonable grounds can be based upon detailed "tips" furnished by a reliable informer (Debot at pages 1168-1169; Plant at pages 296-297; see also Grant (1993); Wiley). Reasonable grounds can also be based on information provided in a 911 call, particularly where firearms posing a risk to public safety are the focus of the investigation (Clayton at paragraphs 33-5).

The existence of reasonable and probable grounds is a question of law (Shepherd at paragraph 20), which the Crown bears the onus of proving (e.g., where an officer demands that an accused submit to a breathalyzer test) (Shepherd at paragraph 16).

The "may afford evidence" standard is not the same as the "possibility of finding evidence" standard that was rejected as too low in Hunter v. Southam. Rather, the "may afford evidence" standard, when coupled with a requirement of "credibly-based probability" that the things sought are likely to be found, achieves the standard that is required by section 8 (Baron at 448-449).

The standard referred to as “reasonable suspicion" or "reasonable grounds to suspect" is to be contrasted with the higher standard of "reasonable grounds to believe".

"Reasonable suspicion" as opposed to "reasonable grounds to believe" is generally an insufficient basis upon which to conduct a search in a criminal investigation context (Mann at paragraphs 34, 40). However, "reasonable grounds to suspect" has been held to be a constitutionally sufficient standard in some contexts:

• in the Criminal Code’s roadside screening regime (Hufsky; Clayton);
• for border searches in the customs context (Simmons; Jacques; Monney at paragraph 34);
• some searches using sniffer dogs (Kang-Brown; A.M.; Chehil; MacKenzie).

Reasonable suspicion is linked to the notion of "articulable cause" and is defined as "a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation" (R. v. Simpson (1993), 12 O.R. (3d) 182 (Ont. C.A.) at pages 202-203; Mann at paragraph 27; Chehil at paragraph 29; Ahmad at paragraph 46). Reasonable suspicion is individualized – in the sense that it “picks an individual target” out of a group of persons or places (Ahmad at paragraph 48) and requires an objective assessment of the information the police actually had (Ahmad at paragraph 29). While the reasonable suspicion standard is not unduly onerous and requires only the possibility, rather than probability, of criminal activity, it is subject to "rigorous," "independent" and "exacting" judicial scrutiny because it provides police officers with justification to engage in otherwise impermissible, intrusive conduct (Chehil, at paragraphs 3 and 26; Ahmad at paragraph 46).

Factors the Court has considered in assessing the constitutional sufficiency of the reasonable suspicion standard for certain types of searches include the minimally intrusive nature of the particular type of search, a relatively low expectation of privacy, a narrowly targeted objective, the effectiveness of the investigative technique, the presence of safeguards against abuses of the power, and the fact that inappropriate conduct by the police can be addressed under the “reasonableness of the search” component of the section 8 framework if necessary (Kang-Brown at paragraphs 24-25, per Binnie J., paragraphs 159-169, per Deschamps J., and paragraphs 243-244, per Bastarache J.; A.M. at paragraphs 77-89, per Binnie J.).

In some cases arising in the administrative or regulatory context, the Court has accepted as reasonable laws authorizing searches or seizures on a broader threshold of relevance (see e.g., McKinlay Transport at paragraph 35: requirement to produce, for audit purposes, information that may be relevant to the filing of an income tax return; Comité paritaire: power to access a premises of employment and to inspect records relevant to determining an employer’s compliance with regulations governing working conditions). The relevance standard is commonly used for regulatory or administrative inspection powers in federal enactments.

(c) Was the search carried out in a reasonable manner?

Searches or seizures conducted pursuant to reasonable lawful authority can, nevertheless, be found to limit section 8 if the search or seizure is carried out in an unreasonable manner (R. v. Genest, [1989] 1 S.C.R. 59; R. v. Cornell, [2010] 2 S.C.R. 142). The manner will be reasonable if the search is no more intrusive than is reasonably necessary to achieve its objectives (Vu).

The reasonableness of a search executed pursuant to a warrant will be judged based on whether “the search overall, in light of the facts reasonably known to the police, was reasonable” (Cornell at paragraph 31).

Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house (Cornell at paragraph 18). The onus is on them, where they depart from the “knock and announce” principle, to explain why they thought it necessary to do so, as judged by what was, or should reasonably have been, known to them at the time. The Crown, in other words, cannot rely on ex post facto justifications (Cornell at paragraph 20).

It is not generally a constitutional requirement that a warrant spell out in advance the manner in which a computer is to be searched. Rather, the manner search is generally reviewed after the fact. In circumstances where the manner of search goes beyond the purposes for which the warrant was issued (e.g., to search for evidence of an unrelated crime) the search may be unreasonable for Charter purposes (Vu at paragraphs 53-55).

3. Additional considerations

(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 notaires at paragraphs 89-91).

What is a seizure under the Fourth Amendment?

Which of the following is the most intrusive type of seizure?

What are some exceptions to the Fourth Amendment?

What is the right against unreasonable searches and seizures?