Section Eight of the Canadian Charter of Rights and Freedoms

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Canadian Charter
of Rights and Freedoms
Part of the Constitution Act, 1982.
Preamble
Guarantee of Rights and Freedoms
1
Fundamental Freedoms
2
Democratic Rights
3, 4, 5
Mobility Rights
6
Legal Rights
7, 8, 9, 10, 11, 12, 13, 14
Equality Rights
15
Official Languages of Canada
16, 16.1, 17, 18, 19, 20, 21, 22
Minority Language Education Rights
23
Enforcement
24
General
25, 26, 27, 28, 29, 30, 31
Application of Charter
32, 33
Citation
34

Section 8 of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state. Typically, this protects personal information that can be obtained through searching someone in pat-down, entering someone's property or surveillance.

Under the heading of legal rights, section 8 states:

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

Any property found or seized by means of a violation of section 8 can be excluded as evidence in a trial under section 24(2).

Contents

Reasonable expectation of privacy [edit]

Generally speaking, the reasonable expectation of privacy does not protect against normal searches or seizures. Rather, the right focuses on the action being unreasonable on the basis that it violates an individual's reasonable expectation of privacy.

Search [edit]

Not every form of examination constitutes search. A search within the meaning of section eight is determined by whether the investigatory technique used by the state diminishes a person's reasonable expectation of privacy. The focus of analysis is upon the purpose of the examination. A police officer who compels someone to produce their licence would not be invasive enough to constitute a search (R. v. Ladouceur, [1990][1]). Equally, an inspection of the inside of a car is not a search, but questions about the contents of a bag would be. (R. v. Mellenthin [1992][2]) It has also been ruled that the use of a police dog as a means to gain probable cause to search is also in itself a violation of Section 8, and that other factors must be present before a police dog can be used and a search executed. (R. v. A.M. [2008],[3] R. v. Kang-Brown [2008][4])

Seizure [edit]

The meaning of seizure is fairly straightforward. In R. v. Dyment (1988),[5] the Court defined it simply as the "taking of a thing from a person by a public authority without that person's consent." This meaning has been narrowed to cover property taken in furtherance of administration or criminal investigation (Quebec (Attorney General) v. Laroche, [2002][6]).

See also [edit]

References [edit]

  1. ^ R. v. Ladouceur, [1990] 1 S.C.R. 1257.
  2. ^ R. v. Mellenthin, [1992] 3 S.C.R. 615.
  3. ^ R. v. A.M., 2008 SCC 19
  4. ^ R. v. Kang‑Brown, 2008 SCC 18
  5. ^ R. v. Dyment, [1988] 2 S.C.R. 417.
  6. ^ Quebec (Attorney General) v. Laroche, [2002] 3 S.C.R. 708

External links [edit]

Wikibooks has a book on the topic of: Canadian Criminal Procedure and Practice
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