Section 8 of the ''

Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part ...

'' protects against unreasonable

search and seizure Search and seizure is a procedure used in many civil law and common law legal systems by which police or other authorities and their agents, who, suspecting that a crime has been committed, commence a search of a person's property and confisca ...

. This right provides those in Canada with their primary source of

constitutional A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these prin ...

ly 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 Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...

surveillance Surveillance is the monitoring of behavior, many activities, or information for the purpose of information gathering, influencing, managing or directing. This can include observation from a distance by means of electronic equipment, such as ...

. Under the heading of legal rights, section 8 states: 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).

Reasonable expectation of privacy

Section 8 does not apply to every search or seizure. Rather, the right focuses on the action being unreasonable on the basis that it violates the

expectation of privacy Expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. It is related to, but is not the same as, a ''right to privac ...

that a reasonable individual would have.

Examples

The driver of a motor vehicle normally has a reasonable expectation in the contents of that vehicle, although that same expectation does not necessarily extend to the passenger of a vehicle who is not the owner. Likewise, a visitor to a dwelling house does not enjoy the same expectation of privacy as a permanent occupant. A reasonable expectation of privacy generally exists in a hotel room, although the expectation of privacy in a hotel room diminishes in circumstances where the occupant indiscriminately invites members of the public inside. Information which does not "tend to reveal intimate details of the lifestyle and personal choices of the individual" is usually not subject to a reasonable expectation of privacy. For this reason, utility records are generally not subject to an expectation of privacy, nor are heat patterns which can be detected from outside a private building. Garbage placed at the curb for pickup is considered in law to be abandoned, and therefore fails to engage a reasonable privacy interest. In ''R. v. TELUS Communications Co.'', the

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

found that the reasonable expectation of privacy protected by Section 8 of the ''Charter of Rights and Freedoms'' applies to modern communications technologies such as text messages, even if the data in question is located on a third-party server.

Search

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'',

990 Year 990 ( CMXC) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar. Events By place Europe * Al-Mansur, ''de facto'' ruler of Al-Andalus, conquers the Castle of Montemor-o-Velho (mode ...

. 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'' 992 It has also been ruled that the use of a police dog as a means to gain

probable cause In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition o ...

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. ''R v AM'', , is a constitutional decision by the Supreme Court of Canada on the limits of police powers for search and seizure. The Court found that police do not have the right to perform a sniffer-dog search (to use dogs to conduct random searc ...

'' 008 ''

R. v. Kang-Brown ''R v Kang-Brown'', , is a constitutional decision by the Supreme Court of Canada on the limits of police powers for search and seizure. The Court found that police do not have the right to perform a sniffer-dog search (to use dogs to conduct ra ...

'' 008 In '' R. v. Feeney'', the Supreme Court found that the entry into a private home without a warrant constitutes a violation of Section 8. The use of wiretapping technology is also considered a "search" for the purpose of Section 8. Warrantless wiretapping can sometimes be justified under section 1 of the ''Charter of Rights and Freedoms'' in cases where exigent circumstances exist; however the Supreme Court found in ''

R. v. Tse ''R v Tse'', 2012 SCC 16 is a Supreme Court of Canada decision regarding the constitutionality of warrant-less wiretaps in emergency situations. The Court found that the emergency wiretap provisions found in section 184.4 of the ''Criminal Code'' ...

'', 2012 SCC 16 that when police use such tactics, they must promptly notify the individual whose reasonable expectation of privacy has been infringed. The application of section 8 is not limited to the criminal context, and has become an issue in civil forfeiture litigation, with some courts holding that "exactly the same ''Charter'' principles apply to the manner in which that evidence is obtained as would be applicable in a criminal case". In '' R v Fearon'' (2014), the Supreme Court held in a 4–3 ruling that police search of a cell phone without a warrant during an arrest does not violate the ''Charter''. However, the Court ruled that police must follow several search guidelines.

Seizure

The meaning of seizure is fairly straightforward. In '' R. v. Dyment'' (1988), the Supreme 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 Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirteen p ...

'', 002ref>Quebec (Attorney General) v. Laroche, 0023 S.C.R. 708).

References

External links