Section 8 of the Charter of Rights and Freedoms provides all Canadians with the right to be free of unreasonable search and seizure by state actors. In the context of this section, search refers to any government examination into aspects of a person’s life that a person would reasonably expect to be private.
To protect this right, law enforcement officials are required to get warrants before being able to legally search an individual or seize anything from an individual. Without the appropriate warrant, the search and seizure are illegal, and the government has violated the individual’s section 8 right.
A warrant is required any time law enforcement officials, or some other government actor wishes to look into aspects of an individual’s life which one would expect would be private. A warrant is also required where a government actor wishes to seize anything from an individual that the individual has a reasonable expectation of privacy in.
Any search and seizure done without a warrant is presumptively unreasonable and thus illegal. When a search is done without a warrant, the Crown bears the burden of proving why it was not unreasonable in the circumstances. However, the Crown will only be required to prove the search was reasonable if the defendant brings a pre-trial motion to exclude evidence because of a section 8 Charter violation.