Lecture at: 03/10/2014
C LASS N OTES FOR : P OLI S CI 3NN6
McMaster University, Winter 2014
M ONDAY , M ARCH 10, Y
Unreasonable search or seizure
1. Section 8
“Everyone has the right to be secured against unreasonable search or seizure”
- Life before the charter of rights and freedom
- Police could not enter private property
o Without a warrant, where it was an incident of arrest
o With a warrant - prior authorization from a judicial officer, where a police officer had to
provide strong evidence that goods were concealed in the place to be searched.
o Common law and not part of the constitution, gov’ts could alter, while gov’ts did not
infringe upon these rights very often, there was nothing that prevented them from doing
o Subject to notion of unreasonableness.
2. Who can claim benefit?
- Distinguishing everyone on the basis of natural persons, we no longer make this distinction,
it applies to everyone. Even though a corporation does not have a person, it has a place of
residence and assets. Place to be searched and material to be seized.
- Corporations can now say “This violates section 8” in a positive sense
c. If you are within the four boundaries within Canada, it applies. It also applies outside of Canada.
3. Limitations Section 8
a. Section 33
- Subject to the notwithstanding clause, if gov’t is so inclined, it can infringe upon the rights
against unreasonable search and seizure.
b. Section 1
- Can justify it under section 1 if its needed in a free and democratic society
c. Section 8 - “unreasonable”
- You have the right to be secured against unreasonable seizure, so you can be reasonably
search and materials to be reasonably seized?
- What is the difference between unreasonable and reasonable?
“An examination by agents of the state of a person’s person or property in order to search for
- Looking for evidence
- Cannot just search without reason that it’ll lead for evidence
- Before you can search, there has to be an intent to seize
“Actual taking away by agents of the state of things that can be used as evidence”
o Government couldn’t seize evidence if it didn’t have to search?
o Two distinctive rights, right against unreasonable search AND a right against
o Search and seizure have to be conducted by agents of the state.
Angie © McMaster University 1
Winter 2014 Someone acting on behalf of the state
Individuals that might be private can still be conceived as agents of the state.
- Linked to search for investigatory or evidentiary purposes
o Right against unreasonable seizure is restricted to those things that are to be seized for
- No general property rights
o There is no general right / economic rights
o There is no inherent to private property that is protected
R. v. Becker (1983) 148 DLR (4 ) 539
- Scope of section 8
- It does not extend to taking property by expropriation
- You cannot claim that section 8 rights have been violated
- It’s about the seizure of things for investigatory or evidentiary purposes
- Limited to “things” not persons
o “E.G Police officer took me into custody and has seized me”
o People do not count under section 8.
o It is things that can be taken, inanimate objects.
a. Common law to protect the private interest of individuals. Statutes designed to augment the criminal
law in this context to outline the importance of property, but this changed with the charter of rights and
freedoms. Private concerns of “privacy”
b. Since we’ve focused more on privacy as opposed to property, we’ve expanded to a larger scope.
R. v. Plant
- The police suspected Mr. plant of Marijuana (growing weed)
- Mr. Plant is a growopper, investigating him.
- The police wanted to look up energy consumption to see how it was comparing to other
consumption. Marijuana plants like light?
- Municipal police force that was linked on a municipal system and had municipal utility and
company records without having to leave the police station. Pulled Mr. Plants energy bills,
but was using 4x the amount of energy than the average household. Obtained a search
warrant and found the marijuana growing in the basement.
- Mr. Plant contested the charges
1. ARGUED - use of the electronic information to obtain the warrant was an improper
2. Anything that flows from this information is improper; we can’t just consider that the
warrant excuses everything. The warrant to search the house was unlawfully
obtained information on the consumption of his electricity.
3. Supreme Court agreed that an individual would have a reasonable expectation of
privacy with respect to computerized information that was personal and confidential
4. 5-2 split the majority found that the information, consumption, etc. was not
information that was personal and confidential. It did not tell you anything about Mr.
Plant, other than he use