The Battles

(You may want to scroll down to some of the high-lighted text to get the flavour of the arguments, skipping the details.)

EXCERPTS FROM LEGAL OPINIONS

SECTION 8 CHARTER RIGHT TO PRIVACY OF PERSONAL INFORMATION

DETERMINATION OF WHAT IS  “REASONABLE”

Note:

• Section 8 of the Charter protects citizens against “undue search and seizure”.   Near the end of this posting you will see where the Courts have applied the Charter to protect against undue search and seizure of personal information.  Section 8 is therefore, also,  the Charter right to privacy of personal information.
• Keep in mind when reading the information regarding Statistics Canada, censuses and surveys that Lockheed Martin Corp (the American “defence” department, hugely into surveillance) is involved in the data base on Canadians at Statistics Canada.  Furthermore, the records are not anonymous:  your name is on your record at StatsCan.   The data collection on individuals is on-going every year and year-round through “surveys”, in addition to censuses.
• Also,  the leaks by Edward Snowden about the NSA reinforce and confirm the “back-door” if not front-door access by the American war machine to data bases.

And now to:

 Charter argument Privacy of personal information

REASONABLE 

R. v. Edwards, [1996] 1 S.C.R. 128  

Per Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.:

Several principles pertain to the s. 8 right to be secure against unreasonable search or seizure.  A claim for relief under s. 24(2) of the Charter can only be made by the person whose Charter rights have been infringed.  Like all Charter rights, s. 8 is a personal right.  It protects people and not places.

The right to challenge the legality of a search depends upon whether the accused had a reasonable expectation of privacy, and if so, whether the search by the police was conducted reasonably.

A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.  The factors to be considered may include:

(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;

(v) the ability to regulate access;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.

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I demonstrated the expectation of privacy.

–      Hunter et al. v. Southam Inc.

–        From Wikipedia, the free encyclopedia

–        Hunter et al. v. Southam Inc. [1984] 2 S.C.R. 145 is a landmark Supreme Court of Canada privacy rights case and as well is the first Supreme Court decision to consider section 8 of the Canadian Charter of Rights and Freedoms.

–       Background

–        An investigation was begun by the government under the authority of the Combines Investigation Act into Southam Newspaper. The investigators entered Southam’s offices in Edmonton and elsewhere to examine documents. The search was authorized prior to the enactment of the Charter but the search did not commence until afterwards. The challenge was allowed.

–        At the Alberta Court of Appeal, the judge found that part of the Act was inconsistent with the Charter and therefore of no force or effect.

–        The Supreme Court considered section 8 for the first time and upheld the ruling of the Court of Appeal.000

–       Reasons of the Court

–        Chief Justice Dickson, writing for a unanimous Court, held that the Combines Investigation Act violated the Charter as it did not provide an appropriate standard for administering warrants.

–        The Court held that the purpose of section 8 is to protect an individual’s reasonable expectation of privacy, and to limit government action that will encroach on that expectation. Furthermore, to assess the extent of those rights the right to privacy must be balanced against the government’s duty to enforce the law.

–        In reaffirming the doctrine of purposive interpretation when reading the Constitution, Dickson goes on to make a fundamental and oft quoted statement of the purpose of the Constitution and how it should be interpreted, stating:

–        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’.

http://www.canlii.org/en/ca/scc/doc/1984/1984canlii33/1984canlii33.html

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

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.

, are constitutionally defective in two respects.

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.

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

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”.

…. 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  (no longer section 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,  ( INSERT:  I was not even being investigated in relation to criminal activity)   including possible violations of the Combines Investigation Act. Prowse J.A. summarized these procedural safeguards in the following propositions:

Southam Inc. contends that subss. 10(1) and 10(3) fail to provide any of these safeguards.

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.   (INSERT:  what about World War 2?)

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, [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. …

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.  (INSERT:  it is not even law enforcement in this case of StatsCan.)

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?

… 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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… 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. …

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.  …

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?

…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 (S.C.C.), [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.

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“Biographical core of personal information”

(Link no longer valid:  csc.lexum.umontreal.ca – -)

R. v. Plant, [1993] 3 S.C.R. 281

The United States Supreme Court has limited application of the Fourth Amendment (the right against unreasonable search and seizure) protection afforded by the United States Constitution to situations in which the information sought by state authorities is personal and confidential in nature: United States v. Miller, 425 U.S. 435 (1976).  That case determined that the accused’s cheques, subpoenaed for evidence from a commercial bank, were not subject to Fourth Amendment protection.  While I do not wish to be taken as adopting the position that commercial records such as cancelled cheques are not subject to s. 8 protection, I do agree with that aspect of the Miller decision which would suggest that in order for constitutional protection to be extended, the information seized must be of a “personal and confidential” nature.  In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 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.

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The Crown bears the burden of demonstrating, on the balance of probabilities, that a search was authorize4d by a reasonable law and carried out in a reasonable manner.

(Link no longer valid:  csc.lexum.umontreal.ca – – )

R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30

To establish an infringement of s. 8, the person raising the claim must first establish that he or she had a reasonable expectation of privacy in the thing searched or seized (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 159; Edwards, at para. 30).  Reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances (see, for example, Edwards, at para. 31, and R. v. Wong, [1990] 3 S.C.R. 36, at p. 62).  The factors to be considered in assessing the totality of the circumstances include, but are not restricted to, the accused’s presence at the time of the search, possession or control of the property or place searched, ownership of the property or place, historical use of the property or item, ability to regulate access, existence of a subjective expectation of privacy, and the objective reasonableness of the expectation (Edwards, at para. 45).

22     A reasonable expectation of privacy is contextual.  The expectation does not have to be of the highest form of privacy to trigger the protection of s. 8.

24                              As recently stated in R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10, this Court has adopted a liberal approach to the protection of privacy.  Bastarache J. stressed at para. 16 that this protection extends not only to homes and personal items, but to information which we choose to keep confidential

32                              We must now determine whether the search of the locker by the police was a reasonable search within the meaning of s. 8 (Edwards, supra, at para. 45).  “A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable”:  Collins, supra, at p. 278. The search of the locker was a warrantless search.  Such searches are prima facie unreasonable, and the onus rests on the Crown to demonstrate on a balance of probabilities that the search was reasonable.

38                              The warrantless search and seizure of the items stored in the rented and locked bus depot locker was an impermissible intrusion of the state on a legitimate and reasonable expectation of privacy and, therefore, constitutes a violation of s. 8 of the Charter.

59   It should first be noted that the officer’s subjective belief that the appellant’s rights were not affected does not make the violation less serious, unless his belief was reasonable (see, e.g., Mercer, supra, at p. 191).  As Sopinka,  Lederman and Bryant note, supra, at p. 450, “good faith cannot be claimed if a Charter violation is committed on the basis of a police officer’s unreasonable error or ignorance as to the scope of his or her authority”.

63                              The failure of the police officers to explore the other investigative techniques that were available to them shows the absence of sincere effort to comply with the Charter (see R. v. Strachan, [1988] 2 S.C.R. 980, at p. 1008, per Dickson C.J.;  Sopinka, Lederman and Bryant, supra, at p. 455).  As  Lamer J. wrote in Collins, supra, at p. 285,“the availability of other investigatory techniques and the fact that the evidence could have been obtained without the violation of the Charter tend to render the Charter violation more serious”. This principle was reiterated in R. v. Feeney, [1997] 2 S.C.R. 13, at para. 76, where Sopinka J. held that “[i]f other techniques were indeed available, it is demonstrative of bad faith and is particularly serious that the police chose to violate the appellant’s rights”.  Similarly, in Dyment, supra, where there was no evidence that the respondent’s rights were knowingly breached, but where there was no urgency and other investigative techniques were available, this Court made it clear, at p. 440, that “such lax police procedures cannot be condoned”.

65                              Some other elements must be considered and some militate in favour of admission of the evidence.  The search was not especially obtrusive and the appellant had a lesser expectation of privacy than there is in one’s body, home or office.  As Cory J. stressed in Belnavis, supra, at para. 40:  “Obviously, the degree of the seriousness of the breach will increase the greater the expectation of privacy.

66                              However, in balancing all of the relevant factors in the circumstances of this case, I cannot conclude that the conclusion of Aquila Prov. Ct. J. as to the seriousness of the violation is unreasonable.  The evidence considered as a whole supports a conclusion that the violation was serious.  The trial judge’s assessment of the seriousness of the interference with the appellant’s privacy interests reveals no misapprehension of the evidence, or failure to consider relevant factors, and is not unreasonable.  His reasons reveal a full and clear understanding of the law.  There is, in my view, no question that Aquila Prov. Ct. J. was in  the best position to weigh the testimonies that led him to conclude that the police took a casual approach at infringing the appellant’s rights.

70                              Lamer J. stressed at p. 281 in Collins that s. 24(2) is not a remedy for police misconduct.  However, he also stressed that the purpose of s. 24(2) “is to prevent having the administration of justice brought into further disrepute by the admission of the evidence in the proceedings.  This further disrepute will result from the admission of evidence that would deprive the accused of a fair hearing, or from judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies” (first emphasis in original; second emphasis added).  Iacobucci J. also recalled in R. v. Burlingham, [1995] 2 S.C.R. 206, at para. 25, that the purpose of the Collins test is “to oblige law enforcement authorities to respect the exigencies of the Charter . . .”.  The expressed concern of the trial judge that admitting the evidence in these circumstances may encourage similar police conduct in the future is in line with this purpose of the Collins test.  More importantly, provincial court judges handle these kinds of issues on a daily basis.  They have a much better understanding than we do about the likely effects of their decisions on their communities and on those who enforce the law in those communities.  A concern such as the one expressed by Aquila Prov. Ct. J. should not, in my view, be dismissed lightly.  The administration of justice does not have to be brought into disrepute on a national scale before courts may interfere to protect the integrity of the process within which they operate.