Section Eight of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada
with protection against unreasonable search and seizure
. This Charter
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:
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)
.
, [1990]). 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]) 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], R. v. Kang-Brown
[2008])
(1988), 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]).
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
with protection against unreasonable search and seizure
Search and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
. This Charter
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
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
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
or surveillance
Surveillance
Surveillance is the monitoring of the behavior, activities, or other changing information, usually of people. It is sometimes done in a surreptitious manner...
.
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)
Section Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
.
Reasonable expectation of privacy
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
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. LadouceurR. v. Ladouceur
R. v. Ladouceur, [1990] 1 S.C.R. 1257 is a leading decision of the Supreme Court of Canada on the constitutionality of random police traffic checks. The Court found that the random checks violated the right not to be arbitrarily detained or imprisoned under section 9 of the Canadian Charter of...
, [1990]). 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]) It has also been ruled that the use of a police dog
Police dog
A police dog, often referred to as a "K-9 dog" in some areas , is a dog that is trained specifically to assist police and other law-enforcement personnel in their work...
as a means to gain probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
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. A.M.
R. v. A.M., , 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 of public spaces when such search is not specifically authorized by statute...
[2008], R. v. Kang-Brown
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 of public spaces when such search is not specifically authorized by statute...
[2008])
Seizure
The meaning of seizure is fairly straightforward. In R. v. DymentR. v. Dyment
R. v. Dyment, [1988] 2 S.C.R. 417 is a leading Supreme Court of Canada decision on the constitutional right to privacy under section 8 of the Canadian Charter of Rights and Freedoms.-Background:...
(1988), 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]).
See also
- Fourth Amendment to the United States ConstitutionFourth Amendment to the United States ConstitutionThe Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
: equivalent US constitutional right
External links
- CanLII section 8 digest
- Search and Seizure Overview
- Fundamental Freedoms: The Charter of Rights and Freedoms - Charter of Rights website with video, audio and the Charter in over 20 languages