Has there been a “search” or a “seizure”? To determine whether the officer’s decision to search was reasonable, a court will examine the totality of the circumstances. Privacy expectations are generally lower in relation to administrative searches or seizures in regulatory schemes where the purpose of the intrusion is to ensure compliance with the statute rather than the prosecution of criminal acts (see e.g., ComitÃ© paritaire; 143471 Canada Inc.; McKinlay Transport; Branch). This is not to necessarily rule out other sources that meet the general criteria for being “law” (see, generally, John Mark Keyes, Executive Legislation (2nd Edition, 2010), Chapter. [email protected] The search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest (R. v. Fearon,  3 S.C.R. In the administrative or regulatory context, the procedural safeguards fashioned in Hunter v. Southam may not apply. 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). Parallel regulatory/administrative inspections and penal investigations are permissible, provided that the penal investigators do not avail themselves of information obtained under regulatory/administrative inspection powers after the penal investigation has commenced (Jarvis (2002) at paragraph 97). It is reasonable to ask citizens to bear the “tattletale” risk that someone will tell the police what they said. This has developed into a more nuanced hierarchy protecting privacy: in the home, being the place where our most intimate and private activities are most likely to take place (Evans at paragraph 42; R. v. Silveira,  2 S.C.R. In many cases this will be a straightforward matter. Information obtained by tracking devices left in cars is, though relatively crude, sufficiently intrusive so as to infringe a reasonable expectation of privacy (Wise at 534-538). The two English cases are usefully treated as a pair. The "may afford evidence" standard is not the same as the "possibility of finding evidence" standard that was rejected as too low in Hunter v. Southam. Consent to take bodily samples will generally only be consent to use the sample for the specific purpose for which consent is given (Borden at page 162). T.L.O. The party seeking to justify a warrantless search bears the onus of rebutting the presumption by establishing that the search was: (Collins at 278; R. v. Caslake,  1 S.C.R. Ho., 2012 ABCA 348 at paragraphs 42-44). The techniques used (buccal swabs, blood samples obtained by pricking the surface of the skin, and the plucking of hairs) are not particularly invasive in the physical sense (S.A.B. When law enforcement officers violate an individual's constitutional rights under the Fourth Amendment, and a search or seizure is deemed unlawful, any evidence derived from that search or seizure will almost certainly be kept out of any criminal case … 531 at paragraph 17) and is generally only permissible subject to prior judicial authorization (Duarte at pages 42-43; R. v. Fliss,  1 S.C.R. Both Wilkes v. Wood, 19 Howell's State Trials 1153 (C.P. Search. at paragraphs 32-33). The fact that a person who has acquired lawful possession of information for their own purposes voluntarily discloses the information to the state does not vest in the state a delegated or derivative power to appropriate that information for the purposes of a criminal investigation (R. v. Cole,  3 S.C.R. Browse 500 sets of search seizure cases flashcards. CA) at paragraph 63; Jarvis (2002)). A lawful search must be (a) authorized by law; (b) the law itself must be reasonable; and (c) the manner in which the search was carried out must be reasonable. 1). Text messaging bears the hallmarks of traditional voice communication â it is intended to be conversational, transmission is generally instantaneous, and there is an expectation of privacy in the communication. The determination of whether a thing has been abandoned â i.e., whether a person has relinquished a privacy interest in it â will have to be determined on the particular facts of the case. 1140 at page 1166). In Mills (2019), the creation of an online profile for a fictitious child allowed the police to know from the outset the investigative technique only capture communications sent by adults seeking out children online who were strangers to them â communications that are not subject to a reasonable expectation of privacy. Sources of lawful authority for section 8 purposes accepted by courts have so far included statutes, regulation and the common law. Prospective, continuous police access to text messages from an investigative target’s service provider is subject to the high standards for authorization of interception of communications under Part VI of the Criminal Code (R. v. TELUS Communications Co.,  2 S.C.R. Second, the judge must be satisfied that all statutory preconditions have been met. Although the reasonable expectation of privacy is not limited to trust-like, confidential, or therapeutic relationships, the nature of the relationship is a relevant part of the overall context (Quesnelle at paragraph 27; see also Plant at page 293; Tessling at paragraph 18). 945 at 949; R. v. Stillman,  1 S.C.R. While it is reasonable to ask citizens to bear the risk that a co-user of their shared computer may access their data or discuss the data with police, it is not reasonable to ask them to bear the risk that a co-user could consent to the “taking” of the computer by police (Reeves at paragraph 43). Kitchener: 519-744-0973. ),  3 S.C.R. In the context of technological surveillance tools, the sophistication of the technology involved, in terms of the quality of the information it yields, will be an important factor. Although the owner would reasonably expect a certain degree of intrusion into the stolen item (e.g., examination for evidence relevant to its theft or for reasons of safety), he or she does not lose all privacy interest in the object and retains a reasonable expectation that the police will not conduct a search for evidence to be used in a separate and unrelated investigation against the owner (Law at paragraph 28). Information that has not been developed or created in a confidential context, and is accessible to the public for inspection such as publicly maintained computer records, might not carry a reasonable expectation of privacy (see e.g., Plant). 477 at paragraph 31; R. v. Vice Media Canada Inc., 2018 SCC 53 at paragraphs 13-14, 82). Toggle navigation. 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),  3 S.C.R. The proper characterization of the search or seizure involves a contextual analysis. Strip searches or highly invasive examinations, such as body cavity searches, will likely not be reasonable (see e.g., Golden; Vancouver (City) v. Ward,  2 S.C.R. 607 at paragraph 42). 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). Even where “technological reality” deprives an individual of exclusive control over his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny (Marakah at paragraph 41; Jones at paragraph 45; Cole at paragraph 54). The perimeter around these dwellings carries similar constitutional protection (Plant at page 291; Wiley at 273; Grant (1993); Gomboc at paragraph 79). 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,  1 S.C.R. Privacy of the person perhaps has the strongest claim to constitutional shelter because it protects, in particular, the right of individuals not to have their bodies touched or explored to disclose objects or matters they wish to conceal (Tessling at paragraph 21) and is often at issue in criminal investigations when the state wishes to pursue invasive procedures such as drug testing and cavity searches. 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. 500+ items found for your search: search and seizure Page: 1 of 72. (3d) 225 (Ont. As an exception to the general rule that a Charter applicant bears the burden of proving the Charter infringement, the court may assume, for the purpose of considering the applicant’s s. 8 challenge, any fact that the Crown has alleged or will alleged in the prosecution (R. v. Jones, 2017 SCC 60 at paragraphs 32-33). A demand by a police officer for production of a driver's license does not constitute a section 8 search. 30 at pages 42-46). Similarly, a subjective expectation of privacy can be inferred in text messages sent to a known recipient (Jones at paragraph 15). Section 8 does not apply to every search or seizure. 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. 459; R. v. National Post,  1 S.C.R. To accept this risk, however, is not to accept the risk of a different order that someone will consent to the police making an electronic recording of their words (Duarte at page 48; Reeves at paragraph 42). 678, the Supreme Court decided that self-incrimination principles in relation to warrant powers to collect DNA evidence at sections 487.04 to 487.09 of the Criminal Code should be analyzed under section 8 of the Charter and that analysis need not turn to section 7 (see paragraphs 1, 33-35; see also Wakeling v. United States of America,  3 S.C.R. The doctor-patient relationship is characterized by a high degree of confidentiality. 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). 265 at paragraph 23; Hunter v. Southam; R. v. Nolet,  1 S.C.R. Territorial privacy has its origins in the notion that “the house of everyone is to him as his castle and fortress” (Semayne’s Case, [1558-1774] All E.R. In the context of shared computers, in which multiple people may have privacy interests, waiver by one rights holder does not constitute waiver for all rights holders (Reeves at paragraph 52). In such cases, the characterization of the subject matter can make a major contribution to the analysis (see e.g., Patrick at paragraphs 29-30, explaining that the garbage bag at issue in that case was more aptly characterized as a “bag of ‘information’ whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle”; see also Tessling at paragraphs 34, 58; Cole at paragraph 41). 253), or scents (Evans at paragraphs 12-21; R. v. Kokesch,  3 S.C.R. Browse 500 sets of search and seizure cases flashcards. 211 at paragraphs 17, 75). 387; R. v. Saeed,  1 S.C.R. Among commercial premises, the media are entitled to particularly careful consideration because of the importance of their role in a democratic society (see e.g., Canadian Broadcasting Corp. v. Lessard,  3 S.C.R. Family Members of Man Killed by Minneapolis Police Say Raid Left Them Shaken. Study sets. Instead, at this stage, the “full panoply” of Charter rights are engaged and officials are restricted to using investigative powers appropriate to the penal context, thus normally requiring judicial authorization (Jarvis (2002) at paragraphs 88, 96-98; see also Ling). (6th) 275 (Ont. 585 US _ (2018) Chambers v. Maroney . However, this does not preclude judges from providing advice or direction to an officer applying for a warrant (R. v. Clark, 2015 BCCA 448 at paragraph 49, aff’d 2017 SCC 3; R. v. M.N.R.,  2 S.C.R. Section 8 protects people, not places, against unjustified intrusions on their privacy interests (Hunter v. Southam Inc.,  2 S.C.R. There is no guarantee whatsoever as to the accuracy, completeness, or currency of the information provided in this or any other companion text. There can be no reasonable expectation of privacy in something that is knowingly exposed to the public, or to a section of the public, or abandoned in a public place (Tessling at paragraph 40; see also R. v. Boersma,  2 S.C.R. This is so whether the sample is provided pursuant to a police demand, request, or whether it is provided voluntarily. Search and seizure, practices engaged in by law enforcement officers in order to gain sufficient evidence to ensure the arrest and conviction of an offender. Topic: Civilian Rights, Discrimination, Police Accountability, Search and Seizure News Release Supreme Court of Canada upholds strong protections against warrantless search and seizure Posted on March 17, 2017 Although this may seem straightforward, the law on these rights is not necessarily so. Similarly, where what the police are “really after” is ultimately to access the data on a personal computer, the taking of the computer constitutes a seizure because it deprives individuals of control over highly private information and ensures the preservation of that information for potential future state inspection (R. v. Reeves, 2018 SCC 56 at paragraphs 29-31). A person normally does not retain a reasonable expectation of privacy with respect to property or things, including informational content that have been voluntarily abandoned. It encompasses the reasonable expectation that private information will remain confidential to the persons to whom and restricted to the purposes for which it was divulged (Mills (1999) at paragraph 108; Dyment at page 429; Colarusso at page 71). Both steps of the inquiry call for a highly contextual analysis, with the result that different contexts yield different expectations of privacy which in turn give rise to different requirements at the second stage of the analysis. A law imposing serious administrative sanctions on the basis of an unreliable breath screening test requires a mechanism for meaningful review of the accuracy of the test result in order to satisfy the section 8 reasonableness requirement (Goodwin at paragraph 75). 1763), and Entick v. Carrington, 19 Howell's State Tri… Another relevant consideration is the threshold on which the search or seizure may be conducted, and whether the power to search or seize is narrowly targeted (Chehil at paragraph 28). One may continue to have a reasonable expectation of privacy with respect to property or a thing even when it is no longer in one’s possession (Mills (1999) at paragraph 108; Colarusso at paragraph 74; Marakah at paragraph 37). v. N.J. Terry v. Ohio. Such safeguards may include after-the-fact notice to the target of the search (see e.g., Tse; Chehil at paragraph 58) as well as record-keeping requirements (Fearon at paragraph 82). Internet subscriber information, by tending to link particular kinds of information to identifiable individuals, may implicate privacy interests relating not simply to the person’s name or address but to his or her identity as the source or possessor of that information. 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. 393, at paragraph 32); and even, at the bottom of the spectrum, a prison (Weatherall v. Canada (Attorney General),  2 S.C.R. Home; Contact Us; Free Consultation; About. In others, however, it will not. Rep. 62 (1604), at 63). Prisons carry a decreased expectation of privacy (Weatherall; R. v. Conway,  1 S.C.R. 535 at paragraphs 47-49; R. v. Pires; R. v. Lising,  3 S.C.R. The officer’s decision cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition (Mann at paragraph 40; Clayton at paragraph 29). This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual (Plant at 293). Privacy interests in modern society include the reasonable expectation that private information will remain confidential to the persons to whom and restricted to the purposes for which it was divulged (Dyment at page 429; Mills (1999) at paragraph 108). However, where no specific limits are placed by the police or the consenting party on the use to which a bodily sample is to be made, there may be no subsisting expectation of privacy protecting against the use of the sample in a later investigation that was not and could not reasonably have been anticipated by the police at the time the sample was taken (R. v. Arp,  3 S.C.R. 390 at paragraphs 28-30, 39-43; see also Wakeling at paragraphs 91-96 per McLachlin C.J. The Court noted that the police have the authority to investigate a 911 call but said that whether the police can enter a dwelling house as part of that investigation would depend on the circumstances of each case. A search incident to a lawful arrest must be based on reasonable grounds to believe that the search is necessary for a valid objective related to the reasons for the arrest such as safety of the arrestee or officer, preservation of evidence from destruction, and the discovery of evidence that can be used in the prosecution of the arrestee (Cloutier; Caslake at paragraphs 17, 48; Golden at paragraphs 92-95; Mann at paragraph 37; R. v. Clayton,  2 S.C.R. "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,  2 S.C.R. Everyone has the right to be secure against unreasonable search or seizure. For situations involving emergency entries to protect life and to prevent death or serious injury, see Godoy, in which police entered a dwelling house without a warrant as a result of a 911 call. 212 at paragraphs 26, 31). Nevertheless, a personal search of a student (i.e., a search of their person or items carried on their person) interferes with a reasonable expectation of privacy (M. 59 at paragraph 36; Grant (2009) at paragraph 56; Shepherd at paragraph 15; Nolet at paragraph 21; but see Nolet at paragraph 46, upholding the warrantless search on the basis that the reasonableness of the law authorizing it had not been challenged). To which the investigative technique has the potential to reduce the sphere of,. 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