Secure against Unreasonable Search and Seizure
The right to be secure against unreasonable search and seizure is outlined in section 8 of the Charter of Rights and Freedoms. The right ensures that government actors do not examine aspects of people’s lives that one would reasonably expect to be private. It also ensures that government actors do not seize anything from an individual which can reasonably be expected to be private. Section 8 protects people and not places against unreasonable search and seizure.
What is the Right to be Secure against Unreasonable Search and Seizure?
The right to be secure against unreasonable search and seizure is a right that protects individual’s privacy interests in Canada. There are three types of privacy interests protected by section 8: personal privacy, territorial privacy, and informational privacy. It ensures that the government does not intrude into these aspects of our lives without prior judicial authorization.
Personal privacy involves the right to privacy in one’s body or bodily fluids. For example, an arrest warrant may be necessary before arresting an individual because that individual has a privacy interest in their own body. Territorial privacy refers to the expectation of privacy people have in their own homes, vehicles, or other private property. Informational privacy refers to the expectation of privacy people have in their personal information like banking information and medical records. Section 8 protects the government from unreasonably intruding into these areas without a warrant or as authorized by law.
When is the Right Triggered?
The right to be secure against unreasonable search and seizure exists all the time for anyone living free inside Canada. Except in certain circumstances, law enforcement officials always need judicial authorization before they can intrude into private areas of people’s lives.
Any search into a protected area of one’s life without prior judicial authorization is presumptively unreasonable. This means such an intrusion is presumed to be a violation of one’s section 8 right. Where a violation occurs and the violation leads to charges against the accused, the accused may challenge their arrest and detention. The burden then lies with the Crown to prove to the court that the violation of the accused’s section 8 right was reasonable in the circumstances.
When is a Search Reasonable?
When determining whether a search and/or seizure was reasonable in the circumstances, the court will consider whether there was:
- Prior judicial authorization;
- granted by a neutral and impartial arbiter capable of acting judicially;
- based on reasonable and probable grounds to believe that an offence has been committed and evidence of that offence will be found in the place to be searched.
If the answer to all three of these questions is yes, then there was a valid search warrant, and the search is presumed to be reasonable.
If the answer to any of the above questions is no, the search was presumptively unreasonable because there was not a valid search warrant. In this situation the Crown will bear the burden of demonstrating why the search was reasonable in the circumstances. Warrantless searches are discussed in more detail below.
It is important to note that the search must have also been carried out in a reasonable manner. A search conducted in an unreasonable manner is unreasonable even where there is a valid warrant.
Police execute a search warrant on person A’s residence after receiving a tip from the FBI indicating that person A has been sharing child pornography with an individual in the U.S. Police draft the appropriate warrant application outlining their reasonable and probable grounds to believe evidence of child pornography offences will be found inside the residence. A judge reviews the application and issues a warrant which is then lawfully executed. The search is reasonable and person A’s rights have not been infringed upon.
To learn more about search warrants, click here.
When is a Warrantless Search Reasonable?
The court will consider three factors in determining whether the search was in fact reasonable:
- Whether it was authorized by law
- Whether the law authorizing the search is reasonable
- Whether the manner in which the search was carried out was reasonable
To determine whether the warrantless search was authorized by law, the court will consider whether the search fits into any of the common law exceptions, thereby making it authorized by law. These common law exceptions include:
- Search incident to arrest
- Search incident to investigative detention
- Sniffer dogs
- Plain view doctrine
- Exigent circumstances
Person A is placed under arrest for suspicion of drug trafficking. After placing person A under arrest, the officer pats down person A for drugs and/or weapons. This is a search incident to arrest.
Person A is pulled over for speeding on a public roadway. Upon approaching the vehicle to ticket the driver, the officer notices an open duffle bag on the back seat that appears to have a large assault style firearm inside. The gun is in plain view of the officer. The officer subsequently initiates a search, arrests person A for possession of an illegal firearm and seizes the weapon. The search was reasonable despite there being no warrant because the illegal gun was in plain view of the officer.
In addition to proving that the search itself was authorized by law because it fit into one of the exceptions listed above, the Crown must also prove that the law that authorized the search was itself reasonable. This allows judges to strike down any law deemed unreasonable, meaning it no longer applies. If a judge strikes down an authorizing law as unreasonable, the search will be considered unreasonable and a violation of the accused’s section 8 right.
Finally, for a warrantless search to be reasonable it must have been conducted in a reasonable manner. Even a search that is judicially authorized or authorized by law may be unreasonable if it is carried out in an unreasonable manner.
What happens if the Right is Violated?
If an individual’s section 8 Charter right is violated and they are charged with a criminal offence as a result, they may file a pre-trial motion arguing that their section 8 right was violated because the search conducted by officers was unreasonable. If the accused’s motion is successful, they will ask that the court exclude any evidence gathered as a result of the illegal search. If the court is satisfied that the accused’s rights were violated, they may exclude the impugned evidence pursuant to section 24(2) of the Charter.
Police officers get a warrant to search the home of person A, who is a suspected drug dealer. Unable to get a warrant with the information currently in their possession, the officers lie on the application for the warrant, misleading the judicial officer issuing the warrant. The warrant is issued and executed, and a large quantity of drugs are found in person A’s home.
Person A hires a lawyer who files a pre-trial motion arguing that the warrant was not valid and that therefore the search was unreasonable and illegal. The motion is successful, and the court agrees that the police violated person A’s section 8 Charter right and that the violation was very serious. The court subsequently excludes the drugs found inside the house from evidence.
Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC),  2 SCR 145
In the landmark case of Hunter v. Southam dealing with section 8 privacy interests, the Supreme Court of Canada reiterated that section 8 of the Charter protects the privacy of individuals against unwanted intrusion into their private lives. The right extends to corporations as well. The Court argued that the purpose of the section is to prevent unwanted intrusion from occurring in the first place, not to determine what to do after an intrusion has already occurred.
R. v. Ahmad, 2020 SCC 11
In R. v. Ahmad, the Supreme Court reiterated that the rights conferred in section 8 of the Charter are meant to protect intrusion into one’s private affairs from occurring in the first place. Section 8 protects the right of people to autonomy and to be free from government intervention in private matters, which is essential to human dignity. While section 8 permits reasonable intrusions, they must be carried out only in situations authorized by law.