Purser Law Blog

What is Section 8 of the Charter?

The Canadian Charter of Rights and Freedoms protects constitutional rights in Canada. Section 8 of the Charter protects people against unreasonable searches and seizures by police, and thus, violations of their privacy. The purpose of section 8 is to balance people’s right to be left alone with the government's desire to enforce the law. A section 8 violation will only be found where a search or seizure conducted by police is unreasonable. An experienced Edmonton criminal lawyer can help you understand whether you have been subject to an unreasonable search or seizure.

 

What is a search? What is a seizure?

A “search” under section 8 is any government activity which interferes with a person’s reasonable expectation of privacy. This could include a police officer reading your text messages, or the recording of a private conversation. A “seizure” under section 8 is when a police officer takes a person’s belongings without their consent.

 

What makes a search or seizure unreasonable under section 8?

To decide whether a search or seizure conducted by police was reasonable under section 8, the Court asks two questions: (1) whether there has been a search or seizure; and (2) whether that search or seizure was reasonable?

 

Has there been a search or seizure?

Not every investigation or seizure of belongings by the government is a search and/or seizure. For a government action to be a search or seizure under the law, the person subject to the search or seizure must have a reasonable expectation of privacy in what the police are searching or taking.

 

To decide whether someone has a reasonable expectation of privacy, Courts take a neutral approach. The Court does not consider whether the person who was searched or who had their belongings seized was committing a crime. Put another way, to decide whether someone has a reasonable expectation of privacy in whatever was being searched or seized, the Court will ask whether, in a free and democratic society, it would be reasonable to expect the police to have total freedom to investigate in a certain way. An Edmonton criminal lawyer can help you in understanding whether you have been subject to a search or seizure.

 

Was the search or seizure unreasonable?

A search or seizure will be reasonable where: (1) it is authorized by law; (2) the law itself is reasonable; and (3) the way the search or seizure is carried out is reasonable. An Edmonton criminal lawyer can assist you in determining whether these three criteria have been met.

 

Whenever a search or seizure is not authorized by law, because there is no statute or legal practice which allows that kind of search or seizure, it will be considered illegal.

 

Whenever the law allowing the search or seizure is unreasonable, the search or seizure will be considered illegal. In order for a law to be considered reasonable, it should generally follow the standards set out in the case Hunter et al. v. Southam Inc., [1984] 2 SCR 145.  These standards mean that a search has to receive prior authorization from an unbiased party (for example, a Judge issues a search warrant), and that the officer doing the search have reasonable and probable grounds to believe that a crime has been committed, and the search or seizure will lead police to finding evidence of the crime.  

 

Even where a search or seizure is allowed by a reasonable law, it will be considered unlawful where the law was applied unreasonably. For example, if an officer conducts a search without reasonable and probable grounds, it will be considered an unreasonable search.

 

What should I do if I think my section 8 rights have been violated?

A violation of section 8 can sometimes result remedies such as the exclusion of certain evidence from your trial, or a stay of proceedings. If you believe that your rights have been violated under section 8, an experienced Edmonton criminal lawyer at Purser Law can assist you. Call 780-851-7435 for a free 30-minute consultation.

 

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