In some circumstances, courts may find implied authority for intrusions on diminished privacy interests (Cole; M.(M.R.)). Prisons carry a decreased expectation of privacy (Weatherall; R. v. Conway, [1989] 1 S.C.R. The police searched a car based on the smell of marijuana. 387; R. v. Saeed, [2016] 1 S.C.R. 281 at page 292). Although this may seem straightforward, the law on these rights is not necessarily so. CAUTIO… Although police have an implied license to approach the door of a residence and knock for the limited purpose of communicating with the occupant, conduct going beyond the terms of the implied license (e.g., attempting to “sniff” for marihuana or pushing the door open), intrudes on the reasonable privacy interest in the dwelling (Evans at paragraph 15; R. v. MacDonald, [2014] 1 S.C.R. 569 at paragraph 33, per Binnie J, citing Hunter v. Southam at page 159) but has not yet articulated the nature of any additional potential section 8 protections. 518 at paragraph 49). The context of the search, and the activity that brings a person into contact with the state, can have an impact on the person’s reasonable expectation of privacy. Civil Rights, Criminal Law Related Civil Cases, Diversity, Search and Seizure : Status … Text messaging bears the hallmarks of traditional voice communication — it is intended to be conversational, transmission is generally instantaneous, and there is an expectation of privacy in the communication. While privacy is a central or core concern under section 8 of the Charter, section 7 also provides residual protection for privacy interests (R. v. Mills, [1999] 3 S.C.R. (3d) 528 (B.C.C.A.)). A person retains a limited, but still significant, expectation of privacy in a hotel room, public locker, or other place even though there exists a “master key” (R. v. Wong, [1990] 3 S.C.R. Where the state has seized records, the Supreme Court has indicated that disclosure of those records to individuals outside of those to whom, or for purposes other than for which, they were originally divulged may interfere with a reasonable expectation of privacy (Mills (1999) at paragraph 108; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. This includes situations in which a person is required to produce a thing (including information) pursuant to a state compulsion (R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. Browse 500 sets of search and seizure cases flashcards. The right to privacy encompasses both protection against unreasonable search and seizure and the ability to identify and challenge such invasions. However, the intrusion on the privacy rights of a third party may be relevant to the question of whether the search was carried out in a reasonable manner, which arises at the second stage of the section 8 analysis (Edwards at paragraphs 35-38; see “(b) If so, was the interference reasonable?” below). From the media perspective, assistance orders accompanying a warrant and requiring the surrender of documents are preferable to a physical search of the media premises (National Post at paragraph 90). At the same time, section 8 permits reasonable searches and seizures in recognition that the state’s legitimate interest in advancing its goals or enforcing its laws will sometimes require a degree of intrusion into the private sphere (Goodwin v. British Columbia (Superintendent of Motor Vehicles), [2015] 3 S.C.R. The determination of whether a thing has been abandoned — i.e., whether a person has relinquished a privacy interest in it — will have to be determined on the particular facts of the case. For example, in R. v. 250 at paragraph 55). Both Wilkes v. Wood, 19 Howell's State Trials 1153 (C.P. Judicial neutrality precludes the justice of the peace from becoming personally involved in the drafting of search warrant informations (R. v. Gray (1993), 81 C.C.C. Privacy as secrecy encompasses the expectation that information disclosed in confidence will be held in trust and confidence by those to whom it is disclosed. 554; S.A.B.at paragraph 38; Hunter v. Southam at pages 159-60). Ohio - 367 U.S. 643 (1961) Illegal Search and Seizure On May 23, 1957, a bombing occurred at the home of Don King, a notorious policy racketeer who later became a famous boxing promoter. As demonstrated by Hunter v. Southam, the protection of people includes corporations as legal persons. In general terms, determining the constitutional reasonableness of a search and seizure is “a function of both the importance of the state objective and the degree of impact on the individual’s privacy interest” (R. v. Rodgers, [2006] 1 S.C.R. Significant privacy intrusions generally cannot be implied from the authorizing law; authority must normally be specific and express (see R. v. Shoker, [2006] 2 S.C.R. 312 at paragraph 18). Because the purpose of section 8 is to prevent unjustified searches before they happen, the default standard is a system of prior authorization. The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought (Patrick at paragraph 32; Spencer at paragraph 36). 297 at paragraph 140; R. v. Feeney, [1997] 2 S.C.R. The Crown, in other words, cannot rely on ex post facto justifications (Cornell at paragraph 20). Questions arose as to whether the search for, seizure of and introduction into evidence of certain records violated the Fourth and Fifth Amendments. Consent cannot be given by a third party (Cole at paragraphs 75-56). A person who fears their telephone is bugged may no longer have a subjective expectation of privacy but does not necessarily forfeit the protection of section 8. “Exigent circumstances” denotes not merely convenience but urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety of public safety (R. v. Paterson, 2017 SCC 15 at paragraphs 32-33). ), leave to appeal refused, [1984] 2 S.C.R. Since individuals have different expectations of privacy in different contexts and with regard to different subject matters, it follows that the standard of review of what is “reasonable” in a given context must be flexible, if it is to be meaningful (McKinlay Transport). A reasonable expectation may nevertheless be found in commercial documents and section 8 is therefore capable of applying in this context (see e.g., Hunter v. Southam; McKinlay Transport; Thomson Newspapers; and Baron). Synopsis of Rule of Law. Officers may validly seize clear evidence of wrongdoing that is in plain view provided that the officers are otherwise lawfully engaged in the execution of their duties (see Mellenthin; Law; Belnavis; Boersma; Buhay at paragraph 37). To be fully informed, a person must be provided with sufficient information to make the preference meaningful (R. v. Borden, [1994] 3 S.C.R. Browse 500 sets of search seizure cases flashcards. 1). The relevant case law, however, provides useful guidance in the form of a non-exhaustive list of factors that are potentially relevant (Cole at paragraph 45). As such, electronic text conversations are capable of revealing a great deal of personal information (para. The reasonable expectation of privacy in relation to communications subject to solicitor-client privilege is invariably high, regardless of whether the context is criminal or regulatory (Federation of Law Societies at paragraph 38; Chambre des notaires). As a result, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. A “seizure” for section 8 purposes is the “taking of a thing from a person by a public authority without that person’s consent” (R. v. Dyment, [1988] 2 S.C.R. Facebook; Twitter; WhatsApp; SMS; Email; Print; Save; The Supreme … 399 regarding legislation and Caslake regarding the common law). The “totality of the circumstances” test is one of substance, not form (R. v. Edwards, [1996] 1 S.C.R. For example, the fact that text messaging inherently involves the creation of a permanent record that the recipient could disclose to police does not negate a sender’s reasonable expectation that the state will not intrude upon the electronic conversation absent such disclosure (Marakah at paragraph 40). However, "reasonable grounds to suspect" has been held to be a constitutionally sufficient standard in some contexts: Reasonable suspicion is linked to the notion of "articulable cause" and is defined as "a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation" (R. v. Simpson (1993), 12 O.R. The intrusiveness of a search or seizure on privacy interests is an important consideration. ), [1998] 3 S.C.R. While the fact that the evidence sought is believed to be present on a motor vehicle, water vessel, aircraft or other fast moving vehicle will often create exigent circumstances, no blanket exception exists for such conveyances (see e.g., Hunter v. Southam; Grant (1993); Wiley; and see Silveira, where entry into a dwelling house while awaiting the issuance of a warrant to prevent the destruction of evidence violated section 8). The information sought is the complainant’s DNA and is not personal information to the accused (Saeed at paragraphs 47-49). The reader is assumed to already have a knowledge of criminal law. A compelling public purpose will weigh more heavily in the reasonableness analysis (Goodwin at paragraph 59; see e.g., McKinlay Transport; Comité paritaire). The question is whether the claimant had, or is presumed to have had, an expectation of privacy in the subject matter of the search (Patrick at paragraph 37; Jones at paragraphs 19-22). 253), or scents (Evans at paragraphs 12-21; R. v. Kokesch, [1990] 3 S.C.R. In other cases, the Court appears to understand the issue of standing in the narrower sense described above, as a means of limiting arguments based on the constitutional rights of third parties (see e.g., Edwards at paragraph 34; R. v. Ferguson, 2008 SCC 6 at paragraph 61). Unlike the rest of the Bill of Rights, the Fourth Amendment's origins can be traced precisely—it arose out of a strong public reaction to three cases from the 1760s, two decided in Englandand one in the colonies. Travellers using public transportation maintain a reasonable expectation of privacy in their luggage (R. v. Kang-Brown, [2008] 1 S.C.R. at paragraphs 42-43; McKinlay Transport at page 643; Comité paritaire at pages 422 and 424; Rodgers at paragraphs 35-44; see also Jarvis (2002); Branch; Mann; Clayton; and Wakeling, at paragraphs 66 and 81). For more discussion of standing under the Charter, see generally section 24(1) and section 52(1). 193; Canada (Attorney General) v. Chambre des notaires du Québec, [2016] 1 S.C.R. In case of illegal entry, search, seizure or arrest without any reasonable ground of suspicion or when somebody vexatiously and unnecessarily seizes the property of person on the pretence of searching and seizing for narcotic drug or when a person is arrested without any valid reason then in such cases imprisonment up to 6 months or fine up to 1000 or both can be levied. The degree of personal privacy expected at borders, where travellers expect to be searched, is lower than in other enforcement situations (R. v. Simmons, [1988] 2 S.C.R. A legislative provision that interferes with solicitor-client privilege more than is “absolutely necessary” to achieve the ends of the enabling legislation will be unreasonable for s. 8 purposes (Lavallee at paragraph 36; Chambre des notaires at paragraphs 28, 82). The Canadian Charter of Rights and Freedoms. The proper characterization of the search or seizure involves a contextual analysis. The application, while being clear and concise, must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed (Morelli at paragraphs 4, 44-60; R. v. Araujo, [2000] 2 S.C.R. In fostering the underlying values of dignity, integrity and autonomy, it is fitting that section 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. In Reeves, the majority distinguished the “taking” of a home computer by police, with the consent of a co-owner, from the situation in which a citizen voluntarily brings an item to police. Whether the same conclusion would apply to other types of relationships remains to be determined in light of the nature of the relationship in question and the circumstances of the alleged search (Mills (2019) at paragraph 26; see also the minority reasons of Karakatsanis J. at paragraphs 42-52, adopting a broader characterization of the circumstances in which section 8 would not apply to online conversations with an undercover police officer). and paragraphs 122-125 per Karakatsanis J., dissenting; but see Wakeling at paragraphs 32-40 where Moldaver J. appears to endorse a plain meaning interpretation of s. 8 that would not generally capture the disclosure of information by the state). This includes information which tends to reveal intimate details of the lifestyle and personal choices of the individual (Plant at page 293; Tessling at paragraph 62). The section 8 protection against seizure does not apply to government action merely because those actions interfere with property rights. Filter ... topic: searches and seizures. The onus is on them, where they depart from the “knock and announce” principle, to explain why they thought it necessary to do so, as judged by what was, or should reasonably have been, known to them at the time. 145). 814; Law at paragraph 23). Family Members of Man Killed by Minneapolis Police Say Raid Left Them Shaken. Diagrams. 531 at paragraph 17) and is generally only permissible subject to prior judicial authorization (Duarte at pages 42-43; R. v. Fliss, [2002] 1 S.C.R. A reasonable expectation of privacy may persist in circumstances where the loss of control over the subject matter of the search is involuntary, such as where a person is in police custody, where the subject matter of the search is stolen by a third party, or where the person is restrained from accessing the subject matter of the search by court order (Reeves at paragraph 38). 432 at paragraph 18; R. v. Evans, 1 S.C.R. Support Us! 263 at 273); in commercial space (Thomson Newspapers at 517-19; McKinlay Transport at 641); in private cars (R. v. Wise, [1992] 1 S.C.R. The Supreme Court has suggested that the interests protected by section 8 may extend beyond those of privacy (R. v. A.M., [2008] 1 S.C.R. A police request for subscriber information corresponding to specifically observed, anonymous Internet activity engages a high level of informational privacy (Spencer at paragraphs 47, 51). "Reasonable grounds to believe" and "probable cause" as found in the Fourth Amendment to the American Constitution are identical standards (Hunter v. Southam at pages 167-168) and equate with "reasonable and probable grounds" (R. v. Debot, [1989] 2 S.C.R. 844 at paragraph 72; Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. A provincial law authorizing the use, for the purpose of an administrative roadside sanction scheme, of breath samples taken pursuant to Criminal Code powers to screen drivers for alcohol constitutes a distinct search for Charter purposes (Goodwin at paragraphs 53-54). 872, at 877) (Tessling at paragraph 22). Why Choose Kruse; Our Winning Edge In DUI Cases; Our Lawyers. When determining whether a claimant had a subjective expectation of privacy, “reasonableness” is not the issue (Patrick at paragraph 37). 708 at paragraph 53). Privacy is a normative rather than descriptive standard (Tessling, paragraph 42; R. v. Jarvis, 2019 SCC 10 at paragraph 68). 1659). 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