Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Amendment 1

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment 2

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment 3

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment 4

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment 5

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment 6

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment 7

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment 8

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment 9

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment 10

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Amendment 11

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Amendment 12

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Amendment 13

1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

2. Congress shall have power to enforce this article by appropriate legislation.

Amendment 14

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Amendment 15

1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

2. The Congress shall have power to enforce this article by appropriate legislation.

Supreme Court of Canada

Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145

Date: 1984-09-17

Lawson A.W. Hunter, Director of Investigation and Research of the Combines Investigation Branch, Michael J. Milton, Michael L. Murphy, J. Andrew McAlpine, and Antonio P. Marrocco, also known as Anthony P. Marroco Appellants;

and

Southam Inc. Respondent.

File No.: 17569.

1983: November 22; 1984: September 17.

Present: Laskin C.J.[1] and Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Constitutional law—Canadian Charter of Rights and Freedoms—Unreasonable search and seizure—Combines Investigation Act search and seizure powers—Standards required for issuance of warrant—Standards not specified—Neutrality of arbiter issuing warrant—Whether search and seizure powers of Combines Investigation Act inconsistent with s. 8 of Charter and therefore of no force or effect—Canadian Charter of Rights and Freedoms, s. 8—Combines Investigation Act, R.S.C 1970, c. C-23, ss. 10(1), (3).

Pursuant to s. 10(1) of the Combines Investigation Act, the Director of Investigation and Research of the - Combines Investigation Branch authorized several Combines Investigation officers to enter and examine documents and other things at a respondent’s business premises in Edmonton “and elsewhere in Canada”. The authorization was certified by a member of the Restrictive Trade Practices Commission pursuant to s. 10(3) of the Act. The Canadian Charter of Rights and Freedoms was proclaimed after the authorization was made but before the actual search had begun. Respondent unsuccessfully sought an interim injunction pending trial of the question whether the search was in violation of s. 8 of the Charter—the unreasonable search and seizure provision. The Alberta Court of Appeal ordered all documents taken from the respondent’s premises sealed as an interim measure and proceeded with the appeal on the basis that the issue of whether s. 10 was inconsistent

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with the Constitution could have been properly dealt with as an application for summary judgment at first instance. Appellants appeal from that Court’s finding that s. 10(3), and, by implication, s. 10(1) of the Act, were inconsistent with the Charter and therefore of no force or effect.

Held: The appeal should be dismissed.

The Canadian Charter of Rights and Freedoms is a purposive document, the provisions of which must be subjected to a purposive analysis. Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures which extends at least so far as to protect the right of privacy from unjustified state intrusion. Its purpose requires that unjustified searches be prevented. It is not enough that a determination be made, after the fact, that the search should not have been conducted. This can only be accomplished by a requirement of prior authorization. Accordingly, prior authorization, where feasible, is a precondition for a valid search and seizure. It follows that warrantless searches are prima facie unreasonable under s. 8. The party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness.

Section 10(3) of the Combines Investigation Act provides for prior authorization of searches by a member of the Restrictive Trade Practices Commission. The procedures established by s. 10(3), however, are constitutionally defective in two respects.

First, for the authorization procedure to be meaningful, it is necessary for the person authorizing the search to be able to assess the conflicting interests of the state and the individual in an entirely neutral and impartial manner. This means that while the person considering the prior authorization need not be a judge, he must nevertheless, at a minimum, be capable of acting judicially. Inter alia, he must not be someone charged with investigative or prosecutorial functions under the relevant statutory scheme. The significant investigatory functions bestowed upon the Restrictive Trade Practices Commission and its members by the Act vitiated a member’s ability to act in a judicial capacity in authorizing a s. 10(3) search and seizure and do not accord

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with the neutrality and detachment necessary to balance the interests involved.

Second, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard consistent with s. 8 of the Charter for authorizing searches and seizures. Subsections 10(1) and 10(3) of the Act do not embody such a requirement. They do not, therefore, measure up to the standard imposed by s. 8 of the Charter. The Court will not attempt to save the Act by reading into it the appropriate standards for issuing a warrant. It should not fall to the courts to fill in the details necessary to render legislative lacunae constitutional.

In the result, subss. 10(1) and 10(3) of the Combines Investigation Act are inconsistent with the Charter and of no force or effect because they fail to specify an appropriate standard for the issuance of warrants and designate an improper arbiter to issue them.

Attorney General of Canada v. Law Society of British Columbia, 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307, followed; Petrofina Canada Ltd. v. Chairman, Restrictive Trade Practices Commission (No. 2), [1980] 2 F.C. 386, applied; Katz v. United States, 389 U.S. 347 (1967), adopted; Entick v. Carrington (1765), 19 St. Tr. 1029, 1 Wils. K.B. 275; The Queen v. Metropolitan Toronto Pharmacists’ Association (unreported, Ont. H.C., May 4, 1983); Edwards v. Attorney-General for Canada, 1929 CanLII 438 (UK JCPC), [1930] A.C. 124; Minister of Home Affairs v. Fisher, [1980] A.C. 319; M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); United States v. Rabinowitz, 339 U.S. 56 (1950); Inland Revenue Commissioners v. Rossminster Ltd., [1980] 1 All E.R. 80; Minister of National Revenue v. Coopers and Lybrand, 1978 CanLII 13 (SCC), [1979] 1 S.C.R. 495; McKay v. The Queen, 1965 CanLII 3 (SCC), [1965] S.C.R. 798, referred to.

APPEAL from a judgment of the Alberta Court of Appeal 1983 ABCA 32 (CanLII), [1983] 3 W.W.R. 385, 147 D.L.R. (3d) 420, 24 Alta. L.R. (2d) 307, 42 A.R. 93, allowing an appeal (heard as a proper case to have been treated at first instance as an application for summary judgment) from a judgment of Cavanagh J. dismissing an application for an interim injunction pending trial of the matter in issue. Appeal dismissed.

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Eric A. Bowie, Q.C., and Ingrid C Hutton, Q.C., for the appellants.

A.H. Lefever and F.S. Kozak, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—The Constitution of Canada, which includes the Canadian Charter of Rights and Freedoms, is the supreme law of Canada. Any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Section 52(1) of the Constitution Act, 1982 so mandates. The constitutional question posed in this appeal is whether s. 10(3), and by implication s. 10(1), of the Combines Investigation Act, R.S.C. 1970, c. C-23, (the “Act”) are inconsistent with s. 8 of the Charter by reason of authorizing unreasonable searches and seizures and are therefore of no force and effect.

I Background

Subsections 10(1) and 10(3) of the Combines Investigation Act provide:

10. (1) Subject to subsection (3), in any inquiry under this Act the Director [of Investigation and Research of the Combines Investigation Branch] or any representative authorized by him may enter any premises on which the Director believes there may be evidence relevant to the matters being inquired into and may examine any thing on the premises and may copy or take away for further examination or copying any book, paper, record of other document that in the opinion of the Director or his authorized representative, as the case may be, may afford such evidence.

…

(3) Before exercising the power conferred by subsection (1), the Director or his representative shall produce a certificate from a member of the [Restrictive Trade Practices] Commission, which may be granted on the ex parte application of the Director, authorizing the exercise of such power.

On April 13, 1982, in the course of an inquiry under the Act, the appellant Lawson A.W. Hunter, Director of Investigation and Research of the Combines Investigation Branch, authorized the

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other appellants, Messrs. Milton, Murphy, McAlpine and Marroco, all Combines Investigation officers, to exercise his authority under s. 10 of the Act to enter and examine documents and other things at the business premises of the Edmonton Journal, a division of the respondent corporation, Southam Inc.

On April 16, 1982, in fulfilment of the requirement in s. 10(3) of the Act, Dr. Frank Roseman, a member of the Restrictive Trade Practices Commission, (the “R.T.P.C.”) certified his authorization of this exercise of the Director’s powers.

On April 17, 1982, the Constitution Act, 1982, incorporating the Canadian Charter of Rights and Freedoms was proclaimed. Section 8 of the Charter provides:

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

On April 19, 1982 the officers presented their certified authorization at the premises of the Edmonton Journal. The English version of this certificate reads as follows:

In the matter of the Combines Investigation Act and section 33 and section 34(1)(c) thereof

and

in the matter of an Inquiry relating to the Production, Distribution and Supply of Newspapers and Related Products in Edmonton

TO:

M.J. Milton

M.L. Murphy

J.A. McAlpine

A.P. Marrocco

being my representatives under section 10 of the Combines Investigation Act

You are hereby authorized to enter upon the premises hereinafter mentioned, on which I believe there may be evidence relevant to this inquiry, and examine anything thereon and copy or take away for copying any book, paper, record or other document that in your opinion may afford such evidence.

The premises referred to herein are those occupied by or on behalf of

Southam Inc.
10006-101 Street
Edmonton, Alberta

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and elsewhere in Canada

This authorization is not valid after May 31, 1982.

Dated in Hull, in the Province of Quebec this 13th day of April 1982.

Lawson A.W. Hunter

Director of Investigation and Research

Combines Investigation Act

I hereby certify that the above exercise of powers is authorized pursuant to Section 10 of the Combines Investigation Act.

Dated in Ottawa, in the Province of Ontario, this 16th day of April, 1982.

Frank Roseman, Member,

Restrictive Trade Practices Commission

The authorization has a breathtaking sweep; it is tantamount to a licence to roam at large on the premises of Southam Inc. at the stated address “and elsewhere in Canada”.

On April 20 the officers commenced the search. They said they wished to search every file of Southam Inc. at 10006 - 101 Street, Edmonton, except files in the news room but including all files of J. Patrick O’Callaghan, publisher of the Edmonton Journal. They declined to give the name of any person whose complaint had initiated the inquiry, or to say under which section of the Act the inquiry had been begun. They also declined to give more specific information as to the subject matter of the inquiry than that contained in the authorization to search.

At noon of April 20, Southam Inc. served upon the officers of the Combines Investigation Branch a notice of motion for an interim injunction. The application was heard by Cavanagh J. who held that although Southam had raised a serious question as to whether the search was in violation of s. 8 of the Charter, the balance of convenience militated in favour of denying the interlocutory injunction pending trial of the matter. At the hearing, the appellants maintained, unsuccessfully, that the Director of Investigation and Research, and his authorized representatives, acting pursuant to s. 10 of the Act were a “federal board, commission or other tribunal” within s. 2 of the Federal Court

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Act and that the Federal Court, not the provincial courts of Alberta, had jurisdiction.

Southam appealed to the Alberta Court of Appeal. The appellants also appealed, from that part of the judgment which held that the Alberta Court of Queen’s Bench had jurisdiction. As an interim provision the Court of Appeal ordered that the documents taken from the premises of the Edmonton Journal be sealed pending resolution of the appeal. After hearing the parties, the Court held that the case was a proper one to have been treated at first instance as an application for summary judgment on the issues of (1) whether the Alberta courts or the Federal Court had jurisdiction to make the orders requested and (2) whether s. 10 of the Act was in whole or in part inconsistent with the provisions of the Constitution. The Court therefore directed that the appeal itself be heard on this basis. At the subsequent hearing, the judgment of this Court in Attorney General of Canada v. Law Society of British Columbia, 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307, having by then been delivered, the present appellants abandoned their challenge to the jurisdiction of the Alberta courts and addressed their arguments solely to the substantive issue of the constitutionality of s. 10 of the Act. A unanimous five-judge panel of the Alberta Court of Appeal, speaking through Prowse J.A., held that s. 10(3) and by implication s. 10(1), of the Act were inconsistent with the provisions of s. 8 of the Charter and therefore of no force or effect. It is from this ruling that the present appellants bring their appeal before this Court.

II The Positions of the Parties

A) The Respondent, Southam Inc.

In alleging that subss. 10(1) and 10(3) of the Combines Investigation Act are inconsistent with the right to be secure against unreasonable search and seizure, Southam Inc. relies heavily on the historic protections afforded by common law and by statute as defining the correct standard of reasonableness for purposes of s. 8 of the Charter. This was essentially the approach taken by Prowse J.A. when he said:

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The roots of the right to be so secure are embedded in the common law and the safeguards according that right are found in common law, in statutes subsequently enacted, and in decisions of the courts made as the society in which we live has evolved. The expression of the right in a constitutional document reminds us of those roots and the tradition associated with the right. One would be presumptuous to assume that we have attained the zenith of our development as a civilization and that the right accorded an individual is frozen for eternity. Section 8, however, requires us to be ever mindful of some of the criteria that have been applied in the past in securing the right.

Applying this approach, Prowse J.A. concluded—correctly in Southam Inc.’s submission—that, absent exceptional circumstances, the provisions of s. 443 of the Criminal Code, which extends to investigations of Criminal Code offences the procedural safeguards the common law required for entries and searches for stolen goods, constitute the minimal prerequisites for reasonable searches and seizures in connection with the investigation of any criminal offence, including possible violations of the Combines Investigation Act. Prowse J.A. summarized these procedural safeguards in the following propositions:

(a) the power to authorize a search and seizure is given to an impartial and independent person (at common law a justice) who is bound to act judicially in discharging that function,

(b) that evidence must satisfy the justice that the person seeking the authority has reasonable ground to suspect that an offence had been committed,

(c) that evidence must satisfy the justice that the person seeking the authority has reasonable grounds to believe, at common law, that stolen property may be on the premises or, under s. 443(1)(b), that something will afford evidence of an offence may be recovered, and

(d) there must be evidence on oath before him.

Southam Inc. contends that subss. 10(1) and 10(3) fail to provide any of these safeguards. In its submission, the approval by a member of the

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R.T.P.C. of the Director’s decision to authorize search and seizure is not approval by an independent arbiter or neutral and impartial person. It argues further that subss. 10(1) and 10(3) do not require that the R.T.P.C. member be satisfied that the Director has reasonable grounds to suspect an offence has been committed or to believe there may be evidence at the place at which the Director wishes to search, nor does it require evidence under oath about these matters. In fact, Southam Inc. contends, as these subsections have been judicially interpreted in cases such as Petrofina Canada Ltd. v. Chairman, Restrictive Trade Practices Commission (No. 2), [1980] 2 F.C. 386, they prevent the R.T.P.C. member from ascertaining or passing judgment on anything except that there is, de facto, an inquiry in progress under the Act, an interpretation which, in Southam’s submission, constitutes the R.T.P.C. member as merely a “rubber stamp” for the Director’s decision to authorize a search. For all these reasons, Southam submits, giving effect to subss. 10(1) and 10(3) could yield no other result than an unreasonable search and seizure.

B) The Appellants

The appellants take a different view. In their submission the constitutionality of s. 10 ought to be considered on the basis of whether its provisions could be applied consistently with the Charter. It is their contention that they can. In their view, approval by the R.T.P.C. member does constitute authorization by a neutral and impartial arbiter. They deny there is any reasonable apprehension of bias attaching to him or to his function in approving the Director’s authorizations to enter and search premises. As to the further requirements cited by Prowse J.A. and amplified on by Southam Inc., the appellants implicitly deny that an easy parallel can be drawn between the offences set out in the Criminal Code and those created by the Combines Investigation Act so as to justify invoking the procedural safeguards in s. 443 as the proper standard of reasonableness for searches and seizures by the authorities in connection with these latter offences. In their submission combines

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offences require specialized techniques for their detection and suppression. They say that for such offences, as compared to most other criminal offences, there is inherently less basis for certainty and specificity, both as to the commission of an offence and as to the existence of specific physical evidence in relation to such offence. In this context, they contend, s. 10 does not authorize “unreasonable” search or seizure. Further, the appellants argue, the wording of s. 10 does not prevent the R.T.P.C. member in appropriate cases from requiring, for instance, evidence under oath before he approves the Director’s authorization. In any event, they maintain, it cannot be said that s. 10 is incapable of being applied in a manner which does not offend the Constitution, and it ought not, therefore, to be struck down. At most it ought to be read down so as to include any necessary procedural safeguards. In support, they cite the decision of Van Camp J. in The Queen v. Metropolitan Toronto Pharmacists’ Association (unreported, Ont. H.C., May 4, 1983).

III “Unreasonable” Search or Seizure

At the outset it is important to note that the issue in this appeal concerns the constitutional validity of a statute authorizing a search and seizure. It does not concern the reasonableness or otherwise of the manner in which the appellants carried out their statutory authority. It is not the conduct of the appellants, but rather the legislation under which they acted, to which attention must be directed.

As is clear from the arguments of the parties as well as from the judgment of Prowse J.A., the crux of this case is the meaning to be given to the term “unreasonable” in the s. 8 guarantee of freedom from unreasonable search or seizure. The guarantee is vague and open. The American courts have had the advantage of a number of specific prerequisites articulated in the Fourth Amendment to the United States Constitution, as well as a history

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of colonial opposition to certain Crown investigatory practices from which to draw out the nature of the interests protected by that Amendment and the kinds of conduct it proscribes. There is none of this in s. 8. There is no specificity in the section beyond the bare guarantee of freedom from “unreasonable” search and seizure; nor is there any particular historical, political or philosophic context capable of providing an obvious gloss on the meaning of the guarantee.

It is clear that the meaning of “unreasonable” cannot be determined by recourse to a dictionary, nor for that matter, by reference to the rules of statutory construction. The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American courts “not to read the provisions of the Constitution like a last will and testament lest it become one”.

The need for a broad perspective in approaching constitutional documents is a familiar theme in Canadian constitutional jurisprudence. It is contained in Viscount Sankey’s classic formulation in Edwards v. Attorney-General for Canada, 1929 CanLII 438 (UK JCPC), [1930] A.C. 124, at p. 136, cited and applied in countless Canadian cases:

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The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada… Their Lordships do not conceive it to be the duty of this Board—it is certainly not their desire—to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation.

More recently, in Minister of Home Affairs v. Fisher, [1980] A.C. 319, dealing with the Bermudian Constitution, Lord Wilberforce reiterated at p. 328 that a constitution is a document “sui generis, calling for principles of interpretation of its own, suitable to its character”, and that as such, a constitution incorporating a Bill of Rights calls for:

…a generous interpretation avoiding what has been called “the austerity of tabulated legalism,” suitable to give individuals the full measure of the fundamental rights and freedoms referred to.

Such a broad, purposive analysis, which interprets specific provisions of a constitutional document in the light of its larger objects is also consonant with the classical principles of American constitutional construction enunciated by Chief Justice Marshall in M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). It is, as well, the approach I intend to take in the present case.

I begin with the obvious. The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action. In the present case this means, as Prowse J.A. pointed out, that in guaranteeing the right to be secure from unreasonable searches and seizures, s. 8 acts as a limitation on whatever powers of search and seizure the federal or provincial governments already and otherwise possess. It does not in itself confer any powers, even of “reasonable” search and seizure,

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on these governments. This leads, in my view, to the further conclusion that an assessment of the constitutionality of a search and seizure, or of a statute authorizing a search or seizure, must focus on its “reasonable” or “unreasonable” impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective.

Since the proper approach to the interpretation of the Charter of Rights and Freedoms is a purposive one, before it is possible to assess the reasonableness or unreasonableness of the impact of a search or of a statute authorizing a search, it is first necessary to specify the purpose underlying s. 8: in other words, to delineate the nature of the interests it is meant to protect.

Historically, the common law protections with regard to governmental searches and seizures were based on the right to enjoy property and were linked to the law of trespass. It was on this basis that in the great case of Entick v. Carrington (1765), 19 St. Tr. 1029, 1 Wils. K.B. 275, the Court refused to countenance a search purportedly authorized by the executive, to discover evidence that might link the plaintiff to certain seditious libels. Lord Camden prefaced his discussion of the rights in question by saying, at p. 1066 [19 St. Tr. 1029]:

The great end, for which men entered into society, was to preserve their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole.

The defendants argued that their oaths as King’s messengers required them to conduct the search in question and ought to prevail over the plaintiff’s property rights. Lord Camden rejected this contention, at p. 291 [1 Wils. K.B. 275]:

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…our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave: if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.

Lord Camden could find no exception from this principle for the benefit of King’s messengers. He held that neither the instrusions nor the purported authorizations were supportable on the basis of the existing law. That law would only have countenanced such an entry if the search were for stolen goods and if authorized by a justice on the basis of evidence upon oath that there was “strong cause” to believe the goods were concealed in the place sought to be searched. In view of the lack of proper legal authorization for the governmental intrusion, the plaintiff was protected from the intended search and seizure by the ordinary law of trespass.

In my view the interests protected by s. 8 are of a wider ambit than those enunciated in Entick v. Carrington. Section 8 is an entrenched constitutional provision. It is not therefore vulnerable to encroachment by legislative enactments in the same way as common law protections. There is, further, nothing in the language of the section to restrict it to the protection of property or to associate it with the law of trespass. It guarantees a broad and general right to be secure from unreasonable search and seizure.

The Fourth Amendment of the United States Constitution, also guarantees a broad right. It provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Construing this provision in Katz v. United States, 389 U.S. 347 (1967), Stewart J. delivering the

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majority opinion of the United States Supreme Court declared at p. 351 that “the Fourth Amendment protects people, not places”. Justice Stewart rejected any necessary connection between that Amendment and the notion of trespass. With respect, I believe this approach is equally appropriate in construing the protections in s. 8 of the Charter of Rights and Freedoms.

In Katz, Stewart J. discussed the notion of a right to privacy, which he described at p. 350 as “his right to be let alone by other people”. Although Stewart J. was careful not to identify the Fourth Amendment exclusively with the protection of this right, nor to see the Amendment as the only provision in the Bill of Rights relevant to its interpretation, it is clear that this notion played a prominent role in his construction of the nature and the limits of the American constitutional protection against unreasonable search and seizure. In the Alberta Court of Appeal, Prowse J.A. took a similar approach to s. 8, which he described as dealing “with one aspect of what has been referred to as the right of privacy, which is the right to be secure against encroachment upon the citizens’ reasonable expectation of privacy in a free and democratic society”.

Like the Supreme Court of the United States, I would be wary of foreclosing the possibility that the right to be secure against unreasonable search and seizure might protect interests beyond the right of privacy, but for purposes of the present appeal I am satisfied that its protections go at least that far. The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in

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order to advance its goals, notably those of law enforcement.

The question that remains, and the one upon which the present appeal hinges, is how this assessment is to be made. When is it to be made, by whom and on what basis? Here again, I think the proper approach is a purposive one.

A) When is the Balance of Interests to be Assessed?

If the issue to be resolved in assessing the constitutionality of searches under s. 10 were in fact the governmental interest in carrying out a given search outweighed that of the individual in resisting the governmental intrusion upon his privacy, then it would be appropriate to determine the balance of the competing interests after the search had been conducted. Such a post facto analysis would, however, be seriously at odds with the purpose of s. 8. That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.

A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search and seizure both at common law and under most statutes. Such a requirement puts the onus on the state to demonstrate the superiority of its interest to that of the individual. As such it accords with the apparent intention of the Charter to prefer, where feasible, the right of the individual to be free from state interference to the interests of the state in advancing its purposes through such interference.

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I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals’ expectations of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure.

Here also, the decision in Katz, supra, is relevant. In United States v. Rabinowitz, 339 U.S. 56 (1950), the Supreme Court of the United States had held that a search without warrant was not ipso facto unreasonable. Seventeen years later, however, in Katz, Stewart J. concluded that a warrantless search was prima facie “unreasonable” under the Fourth Amendment. The terms of the Fourth Amendment are not identical to those of s. 8 and American decisions can be transplanted to the Canadian context only with the greatest caution. Nevertheless, I would in the present instance respectfully adopt Stewart J.’s formulation as equally applicable to the concept of “unreasonableness” under s. 8, and would require the party seeking to justify a warrantless search to rebut this presumption of unreasonableness.

In the present case the appellants make no argument that it is unfeasible or unnecessary to obtain prior authorization for the searches contemplated by the. Combines Investigation Act and, in my view, no such argument could be made. I would therefore conclude that in the absence of a valid procedure for prior authorization searches conducted under the Act would be unreasonable. In the event, s. 10(3) does purport to establish a requirement for prior authorization, specifying, as it does, that searches and seizures conducted under s. 10(1) must be authorized by a member of the R.T.P.C. The question then becomes whether s. 10(3) provides for an acceptable prior authorization procedure.

B) Who Must Grant the Authorization?

The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the state and the individual to be assessed, so that the individu-

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al’s right to privacy will be breached only where the appropriate standard has been met, and the interests of the state are thus demonstrably superior. For such an authorization procedure to be meaningful it is necessary for the person authorizing the search to be able to assess the evidence as to whether that standard has been met, in an entirely neutral and impartial manner. At common law the power to issue a search warrant was reserved for a justice. In the recent English case of Inland Revenue Commissioners v. Rossminster Ltd., [1980] 1 All E.R. 80, Viscount Dilhorne suggested at p. 87 that the power to authorize administrative searches and seizures be given to “a more senior judge”. While it may be wise, in view of the sensitivity of the task, to assign the decision whether an authorization should be issued to a judicial officer, I agree with Prowse J.A. that this is not a necessary precondition for safeguarding the right enshrined in s. 8. The person performing this function need not be a judge, but he must at a minimum be capable of acting judicially.

In Minister of National Revenue v. Coopers and Lybrand, 1978 CanLII 13 (SCC), [1979] 1 S.C.R. 495, this Court had occasion to discuss the difference between an administrative and a judicial function in the authorization of a search and seizure. The Income Tax Act, 1970-71-72 (Can.), c. 63, as amended, confers upon the Minister a number of powers including, in s. 231(4), the power under certain conditions to authorize the entry and search of buildings. At p. 507 the Court described the Minister’s powers as “fundamentally administrative”, going on to explain:

The power he exercises under s. 231(4) is properly characterized as investigatory, rather than adjudicatory. He will collect material and advice from many sources. In deciding whether to exercise the right… [to authorize entry and search], he will be governed by many considerations, dominant among which is the public interest and his duty as an executive officer of the government to administer the Act to the best of his ability. The decision to seek authority to enter and

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search will be guided by public policy and expediency, having regard to all the circumstances.

The Court contrasted these powers with the judicial powers which s. 231(4) conferred on a judge of the superior or county court to approve the Minister’s authorization.

Under the scheme envisaged by s. 10 of the Combines Investigation Act it is clear that the Director exercises administrative powers analogous to those of the Minister under s. 231(4) of the Income Tax Act. They too are investigatory rather than adjudicatory, with his decision to seek approval for an authorization to enter and search premises equally guided by considerations of expediency and public policy. But what of the member of the R.T.P.C. whom s. 10(3) empowers to approve the Director’s authorization? Is his function investigatory or adjudicatory? In the Alberta Court of Appeal Prowse J.A. carefully reviewed the respective powers of the Director and the Commission and concluded that the Act was not entirely successful in separating the role of the Director as investigator and prosecutor from that of the Commission as adjudicator. In his view circumstances may arise under the Act where “the Director is acting as investigator and prosecutor and the Commission is acting as investigator and judge with respect to breaches of the Act”. Southam Inc. summarizes and enlarges upon Prowse J.A.’s analysis, producing the following list of investigatory functions bestowed upon the Commission or one of its members by the Act:

(i) the power in s. 47 to instruct the Director to commence a s. 8 inquiry;

(ii) the power to cause evidence to be gathered pursuant to ss. 9, 10, 12 and 17;

(iii) the power to issue a s. 17 order;

(iv) the power under ss. 17, 22(2)(b) to seek further or better evidence after the Commission has commenced a hearing;

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(v) the power under s. 22(2)(b) after commencing a hearing and receiving evidence to direct the Director to make further inquiry and, in effect, to go back to the investigatory stage;

(vi) the power under s. 22(2)(c) to compel the Director to turn over to the R.T.P.C. copies of all books, papers, records or other documents obtained by the Director in such further inquiry;

(vii) the power under s. 27.1 to order the Director to give evidence before any other federal board, commission or other tribunal;

(viii) the power under s. 45.1 to seek production of statistics for evidence in an inquiry;

(ix) the power to deliver to the Director all books, papers, records or other documents produced on a s. 17 hearing;

(x) the power under s. 13 to request the appointment and instruction of counsel to assist in the inquiry.

In my view, investing the Commission or its members with significant investigatory functions has the result of vitiating the ability of a member of the Commission to act in a judicial capacity when authorizing a search or seizure under s. 10(3). This is not, of course, a matter of impugning the honesty or good faith of the Commission or its members. It is rather a conclusion that the administrative nature of the Commission’s investigatory duties (with its quite proper reference points in considerations of public policy and effective enforcement of the Act) ill-accords with the neutrality and detachment necessary to assess whether the evidence reveals that the point has been reached where the interests of the individual must constitutionally give way to those of the state. A member of the R.T.P.C. passing on the appropriateness of a proposed search under the Combines Investigation Act is caught by the maxim nemo judex in sua causa. He simply cannot be the impartial arbiter necessary to grant an effective authorization.

On this basis alone I would conclude that the prior authorization mandated by s. 10(3) of the

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Combines Investigation Act is inadequate to satisfy the requirement of s. 8 of the Charter and consequently a search carried out under the authority of subss. 10(1) and 10(3) is an unreasonable one. Since, however, the Alberta Court of Appeal found other, perhaps even more serious defects in these provisions I pass on to consider whether even if s. 10(3) did specify a truly neutral and detached arbiter to authorize searches it would nevertheless remain inconsistent with s. 8 of the Charter.

C) On What Basis must the Balance of Interests be Assessed?

Section 10 is terse in the extreme on the subject of criteria for issuing an authorization for entry, search and seizure. Section 10(3) merely states that an R.T.P.C. member may grant an authorization ex parte. The only explicit criteria for granting such an authorization are those mentioned in s. 10(1), namely: (1) that an inquiry under the Act must be in progress, and (2) that the Director must believe that the premises may contain relevant evidence.

In cases argued before passage of the Charter of Rights and Freedoms the courts took a narrow view of what s. 10 required or permitted the R.T.P.C. member to consider when asked to authorize search and seizure. In Petrofïna Canada Ltd. v. Chairman, Restrictive Trade Practices Commission (No. 2), supra, the applicant challenged authorizations under ss. 9(2) and 10(3) of the Act on the grounds, inter alia, that the members who gave their authorizations did not show that they had before them sufficient information to enable them to determine the legality of the inquiry then in progress or the reasonableness of the Director’s belief that circumstances warranted the exercise of his powers. The Federal Court of Appeal rejected the relevance of such considerations to the members’ decisions, at p. 391:

In making the decisions that sections 9 and 10 require them to make, the Members must act judicially…

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However, that duty to act judicially applies only to the decisions that the Members are required to make under sections 9(2) and 10(3). Under those provisions, the Members are neither required nor authorized to determine the legality of the Director’s decision to hold an inquiry; they are merely required to ascertain that there is, de facto, an inquiry in progress under the Act. The Members are not required or authorized, either, to pass judgment on the reasonableness of the motives prompting the Director to exercise his powers under sections 9 and 10. As the Members did not have to make decisions on those two points, they cannot, in my opinion, be blamed for not having required information on those points.

As Prowse J.A. pointed out, if the powers of a Commission member are as the Federal Court of Appeal found them to be, then it follows that the decision of the Director in the course of an inquiry to exercise his powers of entry, search and seizure is effectively unreviewable. The extent of the privacy of the individual would be left to the discretion of the Director. A provision authorizing such an unreviewable power would clearly be inconsistent with s. 8 of the Charter.

Assuming, arguendo, that the Federal Court of Appeal was wrong, and the member is authorized, or even required, to satisfy himself as to (1) the legality of the inquiry and (2) the reasonableness of the Director’s belief that there may be evidence relevant to the matters being inquired into, would that remove the inconsistency with s. 8?

To read subss. 10(1) and 10(3) as simply allowing the authorizing party to satisfy himself on these questions, without requiring him to do so, would in my view be clearly inadequate. Such an amorphous standard cannot provide a meaningful criterion for securing the right guaranteed by s. 8. The location of the constitutional balance between a justifiable expectation of privacy and the legitimate needs of the state cannot depend on the subjective appreciation of individual adjudicators. Some objective standard must be established.

Requiring the authorizing party to satisfy himself as to the legality of the inquiry and the

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reasonableness of the Director’s belief in the possible existence of relevant evidence, would have the advantage of substituting an objective standard for an amorphous one, but would, in my view, still be inadequate. The problem is with the stipulation of a reasonable belief that evidence may be uncovered in the search. Here again it is useful, in my view, to adopt a purposive approach. The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them. To associate it with an applicant’s reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit the right of the individual to resist, to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure.

Anglo-Canadian legal and political traditions point to a higher standard. The common law required evidence on oath which gave “strong reason to believe” that stolen goods were concealed in the place to be searched before a warrant would issue. Section 443 of the Criminal Code authorizes a warrant only where there has been information upon oath that there is “reasonable ground to believe” that there is evidence of an offence in the place to be searched. The American Bill of Rights provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…” The phrasing is slightly different but the standard in each of these formulations is identical. The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement

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as the threshold for subordinating the expectation of privacy to the needs of law enforcement. Where the state’s interest is not simply law enforcement as, for instance, where state security is involved, or where the individual’s interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant standard might well be a different one. That is not the situation in the present case. In cases like the present, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure. In so far as subss. 10(1) and 10(3) of the Combines Investigation Act do not embody such a requirement, I would hold them to be further inconsistent with s. 8.

D) Reading In and Reading Down

The appellants submit that even if subss. 10(1) and 10(3) do not specify a standard consistent with s. 8 for authorizing entry, search and seizure, they should not be struck down as inconsistent with the Charter, but rather that the appropriate standard should be read into these provisions. An analogy is drawn to the case of McKay v. The Queen, 1965 CanLII 3 (SCC), [1965] S.C.R. 798, in which this Court held that a local ordinance regulating the use of property by prohibiting the erection of unauthorized signs, though apparently without limits, could not have been intended unconstitutionally to encroach on federal competence over elections, and should therefore be “read down” so as not to apply to election signs. In the present case, the overt inconsistency with s. 8 manifested by the lack of a neutral and detached arbiter renders the appellants’ submissions on reading in appropriate standards for issuing a warrant purely academic. Even if this were not the case, however, I would be disin-

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clined to give effect to these submissions. While the courts are guardians of the Constitution and of individuals’ rights under it, it is the legislature’s responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution’s requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional. Without appropriate safeguards legislation authorizing search and seizure is inconsistent with s. 8 of the Charter. As I have said, any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. I would hold subss. 10(1) and 10(3) of the Combines Investigation Act to be inconsistent with the Charter and of no force and effect, as much for their failure to specify an appropriate standard for the issuance of warrants as for their designation of an improper arbiter to issue them.

IV Section 1

Section 1 of the Charter provides:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The phrase “demonstrably justified” puts the onus of justifying a limitation on a right or freedom set out in the Charter on the party seeking to limit. In the present case the appellants have made no submissions capable of supporting a claim that even if searches under subss. 10(1) and 10(3) are “unreasonable” within the meaning of s. 8, they are nevertheless a reasonable limit, demonstrably justified in a free and democratic society, on the right set out in s. 8. It is, therefore, not necessary in this case to consider the relationship between s. 8 and s. 1. I leave to another day the difficult question of the relationship between those two sections and, more particularly, what further

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balancing of interests, if any, may be contemplated by s. 1, beyond that envisaged by s. 8.

Conclusion

By order of Chief Justice Laskin the constitutional question was stated as follows:

Did the Alberta Court of Appeal err in holding that subsection 10(3), and by implication subsection 10(1), of the Combines Investigation Act, R.S.C. 1970, c. C-23 are inconsistent with the provisions of Section 8 of the Canadian Charter of Rights and Freedoms and that they are therefore of no force or effect?

I would answer that question in the negative. I would dismiss the appeal with costs to the respondent.

Appeal dismissed with costs.

Solicitor for the appellants: R. Tassé, Ottawa.

Solicitors for the respondent: Reynolds, Mirth & Côté, Edmonton.

Section 8 – Search and seizure

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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. 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).

Personal privacy

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/spatial privacy

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).

Informational privacy

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 page 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 alleged 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).

Place where the alleged “search” occurred

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 (R. v. Rao (1984), 12 C.C.C. (3d) 97 (Ont. C.A.), leave to appeal refused, [1984] 2 S.C.R. ix; Buhay 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.).

Whether the subject matter was in public view

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).

Control over / ability to regulate access to the subject matter of the search

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).

Whether the subject matter had been abandoned

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).

Nature of the relationship between the party releasing the information and the party claiming its confidentiality

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).

Invasiveness of the technique or technology

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).

Nature of the information

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 page 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).

Context in which the search occurs

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). However, the lowered expectation of privacy within a prison does not allow the seizure without a warrant of bodily samples taken as part of a medical examination (R. v. Dorfer (1996), 104 C.C.C. (3d) 528 (B.C.C.A.)).

Relationship between the purpose for which the information was initially disclosed or collected and the purpose for which it is to be subsequently used or disclosed

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 voluntar 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 75-56). 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 search.

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 (R. v. Gray (1993), 81 C.C.C. (3d) 174 at pages 182-183 (Man. C.A.)). 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; R. v. Ho., 2012 ABCA 348 at paragraphs 42-44).

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.)).

Common law power of search incident to arrest

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).

Common law power of search incident to lawful investigative detention

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).

Common law power to search in exigent circumstances

Warrantless search 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 of 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 polices 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.

Common law power to use sniffer dogs

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.).

Plain view doctrine

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).

Nature and purpose of the legislative scheme

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).

Mechanism employed

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).

Availability of judicial oversight

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 mechanisms 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).

Thresholds upon which a search may be authorized

"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 breathalyser 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).

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).