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This link leads directly to the Canada website. It explains all of the rights and  how the law enforces this right. It also describes the different kinds of privacy rights.

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Provision

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

Similar provisions

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. 668, and especially at paragraphs 77-89, 94, 99 and 108, where the court embedded privacy analysis based on section 8 considerations within analysis of a section 7 principle of fundamental justice). The Canadian Bill of Rights contains no specific rights to privacy or to be secure against unreasonable search and seizure; but paragraph 1(a) protects a limited right not to be deprived of the enjoyment of property without due process.

Purpose

Section 8 protects people, not places, against unjustified intrusions on their privacy interests ( Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 159; R. v. Gomboc, [2010] 3 S.C.R. 211 at paragraphs 17, 75). As demonstrated by Hunter v. Southam, the protection of people includes corporations as legal persons. The purpose of section 8 is to prevent unjustified searches before they happen, not simply to determine after the fact whether they ought to have occurred in the first place ( Hunter v. Southam at page 160).

The values underlying the privacy interest protected by section 8 are dignity, integrity and autonomy ( R. v. Plant, [1993] 3 S.C.R. 281 at page 292). The protection section 8 provides for privacy ― personal, territorial and informational - is essential not only to human dignity, but also to the functioning of our democratic society. 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. 250 at paragraph 55).

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. 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. That said, at a minimum, section 8 protections may overlap with protections generally recognized under other Charter rights. For example, in R. v. S.A.B., [2003] 2 S.C.R. 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, [2014] 3 S.C.R. 549 at paragraphs 48-50).

Analysis

Section 8 involves a two-step analysis:

Has there been a "search" or a "seizure"?

Not every form of examination conducted by the government, and not every taking by the government, will constitute a 'search' or 'seizure' for constitutional purposes. An inspection is a search, and a taking is a seizure, where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access ( R. v. Tessling, [2004] 3 S.C.R. 432 at paragraph 18; R. v. Evans, [1996] 1 S.C.R. 8 at paragraph 11).

If so, was the search or seizure reasonable?

A search or seizure will be reasonable where it is (1) authorized by law; (2) the law itself is reasonable; and (3) the manner in which the search is carried out is reasonable ( R. v. Collins, [1987] 1 S.C.R. 265 at paragraph 23; Hunter v. Southam; R. v. Nolet, [2010] 1 S.C.R. 851 at paragraph 21; R. v. Shepherd, [2009] 2 S.C.R. 527 at paragraph 15).

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. 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. 554; S.A.B.at paragraph 38; Hunter v. Southam at pages 159-60).

1. Has there been a search or seizure

(i) Types of state conduct to which section 8 may apply

The courts have defined " search" for section 8 purposes as any state activity that interferes with a reasonable expectation of privacy. This can include looking for things that are tangible or intangible, such as spoken words and electronic data ( R. v. Morelli, [2010] 1 S.C.R. 253), or scents ( Evans at paragraphs 12-21; R. v. Kokesch, [1990] 3 S.C.R. 3).

The interception and recording of a private communication should be considered a search in all circumstances, save where all parties to a conversation expressly consent to the recording ( R. v. Duarte, [1990] 1 S.C.R. 30 at pages 42-46).

A right to inspect documents as part of an administrative scheme set up by statute to regulate commercial and industrial activity would likely constitute a search ( Comité paritaire de l'industrie de la chemise v. Potash, [1994] 2 S.C.R. 406 at pages 440-441).

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. 417 at 431; R. v. Colarusso, [1994] 1 S.C.R. 20 at 58; R. v. Law, [2002] 1 S.C.R. 227 at paragraph 15). 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. 627 at 642; Mills at paragraph 77; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3 at page 34; see also R. v. White, [1999] 2 S.C.R 417; R. v. Fitzpatrick, [1995] 4 S.C.R. 154; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425). The power to make copies of documents is analogous to a requirement for production of documents and constitutes a seizure within section 8 ( Comité paritaire at page 439).

In order to constitute a "seizure", a "taking" by the state need not be directly from the person whose rights are affected. For example, where a medical professional obtains a bodily sample for medical purposes, disclosure of the sample to police will amount to a "seizure" ( Dyment; R. v. Dersch, [1993] 3 S.C.R. 768; Colarusso at page 56). This is so whether the sample is provided pursuant to a police demand, request, or whether it is provided voluntarily. 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, [2012] 3 S.C.R. 34 at paragraph 67).

The section 8 protection against seizure does not apply to government action merely because those actions interfere with property rights. Rather, "there must be a superadded impact upon privacy rights occurring in the context of administrative or criminal investigation" ( Quebec (Attorney General) v. Laroche, [2002] 3 S.C.R. 708 at paragraph 53). Thus, a restraint order against property will constitute a seizure where it is issued for the ultimate purpose of investigation ( Laroche at paragraph 54).

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 at paragraph 108; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390 at paragraphs 28-30, 39-43; see also Wakeling at paragraphs 91-96 per McLachlin C.J. 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).

(ii) "Totality of the circumstances" test

Whether or not state action has interfered with a reasonable expectation of privacy (so as to constitute a search or seizure) is to be determined on the basis of the totality of the circumstances. The "totality of the circumstances" test is one of substance, not form ( R. v. Edwards, [1996] 1 S.C.R. 128 at paragraph 45). Four lines of inquiry guide the application of the test ( Cole at paragraph 40; Tessling at paragraph 32):

1. an examination of the subject matter of the search;

2. a determination as to whether the claimant had a direct interest in the subject matter;

3. an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and

4. an assessment as to whether this subjective expectation of privacy was objectively reasonable (Tessling at paragraphs 31-32; Gomboc at paragraphs 18, 78; Cole at paragraph 40; R. v. Patrick, [2009] 1 S.C.R. 579 at paragraph 27).

The totality of the circumstances test determines both the existence and extent of the reasonable expectation of privacy. If there is no reasonable expectation of privacy, the protections of section 8 are not engaged and the analysis ends there. If there is a reasonable expectation of privacy of any degree, section 8 will be engaged to prevent state interference except under the authority of a warrant or other reasonable law ( Cole at paragraph 9).

(a) The subject matter of the search

When identifying the subject matter of an alleged search, the court must not do so "narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action." This involves consideration of what the state activity may "tend to reveal" ( R. v. Spencer, [2014] 2 S.C.R. 212 at paragraphs 26, 31).

The nature of the privacy interest does not depend on whether, in the particular case, privacy shelters legal or illegal activity. 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).

The Supreme Court has identified three broad privacy interests protected by section 8: personal privacy, territorial privacy and informational privacy. The distinction between these categories provides a useful analytical tool but is not determinative of the analysis as, in a given case, the privacy interest may overlap the categories ( Tessling at paragraph 24; see also Gomboc at paragraph 19).

Personal privacy

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.

The Supreme Court has repeatedly emphasized the close relationship between bodily privacy and human dignity (see e.g., Tessling at paragraph 21; R. v. Golden, [2001] 3 S.C.R. 679 at paragraphs 87 and 98-99; Dyment at 431-32; R. v. Pohoretsky, [1987] 1 S.C.R. 945 at 949; R. v. Stillman, [1997] 1 S.C.R. 607 at paragraph 42).

Territorial/spatial privacy

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. Rep. 62 (1604), at 63). 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, [1995] 2 S.C.R. 297 at paragraph 140; R. v. Feeney, [1997] 2 S.C.R. 13 at paragraph 43); in diluted measure, in the perimeter space around the home ( Kokesch; R. v. Grant, [1993] 3 S.C.R. 223 ( Grant (1993) at pages 237, 241); R. v. Wiley, [1993] 3 S.C.R. 263 at 273); in commercial space ( Thomson Newspapers at 517-19; McKinlay Transport at 641ff); in private cars ( R. v. Wise, [1992] 1 S.C.R. 527 at 533; R. v. Mellenthin, [1992] 3 S.C.R. 615); in a school ( R. v. M. (M.R.), [1998] 3 S.C.R. 393, at paragraph 32); and even, at the bottom of the spectrum, a prison ( Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872, at 877) ( Tessling at paragraph 22).

Such a hierarchy of places does not contradict the underlying principle that section 8 protects "people, not places", but uses the notion of place as an analytical tool to evaluate the reasonableness of a person's expectation of privacy ( Tessling at paragraph 22).

Informational privacy

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. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual ( Plant at 293). Informational privacy has been defined as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others" ( Tessling at paragraph 23; see also Patrick, Gomboc, Cole, A.M.).

Informational privacy includes at least three conceptually distinct, though overlapping, understandings of what privacy is: privacy as secrecy; privacy as control and privacy as anonymity. 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. Privacy also encompasses a wider notion of control over, access to, and use of information. This aspect of privacy "derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit" ( Spencer at paragraph 40). Privacy as anonymity permits individuals to act in public places but to preserve freedom from identification and surveillance. This conception of privacy is particularly important in the context of Internet usage ( Spencer at paragraphs 41-43). Because the Internet has exponentially increased both the quality and quantity of information that is stored about Internet users, and because users cannot fully control or even be fully aware of who may observe a pattern of online activity, it is by remaining anonymous that the user can in large measure be assured that the activity remains private ( Spencer at paragraph 46).

Privacy concerns in relation to information are at their strongest where aspects of an individual's identity are at stake, such as in the context of information "about one's lifestyle, intimate relations or political or religious opinions" ( Mills at page 81; Thomson Newspapers at 517; Branch at paragraph 62).

(b) Whether the claimant had a direct interest in the subject matter

In order to have standing to bring a claim under section 8, the state conduct at issue must implicate the claimant's personal privacy rights (as opposed to those of a third party) ( Edwards at paragraphs 43, 45-47; R. v. Marakah, 2017 SCC 59 at paragraph 12). In the s. 8 context, the Supreme Court sometimes equates the issue of standing with the existence of a reasonable expectation of privacy (see e.g., Marakah at paragraphs 54-55). 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).

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).

Where a person is a third party in a location where a search or seizure takes place ( e.g., a passenger in a stopped vehicle or a guest in a house), this factor may limit their privacy interest in the location and in its contents ( R. v. Belnavis, [1997] 3 S.C.R. 341 at paragraphs 22, 24; Edwards at paragraphs 45-47, 49). 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).

For more discussion of standing under the Charter, see generally subsection 24(1) and subsection 52(1).

(c) Whether the claimant had a subjective expectation of privacy

When determining whether a claimant had a subjective expectation of privacy, "reasonableness" is not the issue ( Patrick at paragraph 37). 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). This is not a high hurdle. For example, in the case of information about activities taking place in a dwelling house, an expectation of privacy can be presumed in the claimant's favour ( Plant at paragraph 37; Gomboc at paragraph 25). Similarly, a subjective expectation of privacy can be inferred in text messages sent to a known recipient ( Jones at paragraph 15).

The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded by section 8 to the values of a free and democratic society. A person who fears their telephone is bugged may longer has a subjective expectation of privacy but does not necessarily forfeit the protection of section 8. Privacy is a normative rather than descriptive standard ( Tessling, paragraph 42).

(d) Whether the subjective expectation of privacy was objectively reasonable

The analysis of whether a subjective expectation of privacy is objectively reasonable is highly contextual and "can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion": ( Patrick at paragraph 38; Colarusso at 53; see also R. v. Buhay, [2003] 1 S.C.R. 631 at paragraphs 22, 23 and 24).

There is no definitive list of factors that must be considered in assessing the objective reasonableness of an expectation of privacy. 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).

Place where the alleged "search" occurred

Private dwellings, in contrast to other premises, carry heightened privacy expectations ( Kokesch at pages 16-18; Feeney at pages 43-45; see also R. v. Landry, [1986] 1 S.C.R. 145). 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, [2014] 1 S.C.R. 37 at paragraphs 26-27).

This heightened expectation of privacy in private dwellings will be lessened in the context of administrative inspections where the dwelling also serves as the workplace in a regulated industry ( Comité paritaire at 424).

The public interest in maintaining an effective emergency response system ( i.e., 911 calls) is significant enough to merit some intrusion on a dwelling house resident's privacy interest ( R. v. Godoy, [1999] 1 S.C.R. 311 at paragraph 22).

Private offices also generally attract a high expectation of privacy ( R. v. Rao (1984), 12 C.C.C. (3d) 97 (Ont. C.A.), leave to appeal refused, [1984] 2 S.C.R. ix; Buhay at paragraphs 23-24).

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, [1991] 3 S.C.R. 421; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459; R. v. National Post, [2010] 1 S.C.R. 477 at paragraph 31).

Similar care must be taken with respect to searches of legal offices in light of the fact that the reasonable expectation of privacy in solicitor-client privileged material is "invariably high", regardless of the context ([2015] 1 S.C.R. 401 at paragraph 38; see also Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209; Maranda v. Richer, [2003] 3 S.C.R. 193; Canada (Attorney General) v. Chambre des notaires du Québec , [2016] 1 S.C.R. 336).

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. 36; Buhay).

Travellers using public transportation maintain a reasonable expectation of privacy in their luggage ( R. v. Kang-Brown, [2008] 1 S.C.R. 456; R. v. Chehil, [2013] 3 S.C.R. 220).

Whether the subject matter was in public view

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, [1994] 2 S.C.R. 488; Stillman at paragraphs 62, 226; Evans at paragraph 50; Baron v. Canada, [1993] 1 S.C.R. 416, at 453; Dyment at 435; R. v. Monney, [ 1999] 1 S.C.R. 652 at paragraph 45; Patrick at paragraphs 27, 40, and 53; and Gomboc at paragraph 119).

However, the mere fact that a person enters a public space does not mean that the person expects to be personally identified and subjected to extensive surveillance ( Spencer at paragraph 44).

Control over / ability to regulate access to the subject matter of the search

Control over and ability to regulate access to the subject matter of the search are relevant factors in determining the objective reasonableness of a subjective expectation of privacy. However, control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest ( Marakah 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). 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).

Whether the subject matter had been abandoned

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. 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. In the case of garbage, for instance, abandonment will be a function of both location (where the garbage was left) and the intention of the person abandoning the garbage ( Patrick at paragraphs 54-5, 62).

Discarded bodily samples cannot be said to have been voluntarily abandoned if the person concerned is in custody or detained ( Stillman at paragraphs 59-64).

An item that is stolen is not, by virtue of that fact alone, abandoned. 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).

Whether the subject matter was already in the hands of third parties and, if so, whether it was subject to an obligation of confidentiality

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 at paragraph 108; Colarusso at paragraph 74; Marakah at paragraph 37). 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 at paragraph 108).

The doctor-patient relationship is characterized by a high degree of confidentiality. Bodily samples collected for medical purposes are subject to a duty to respect the privacy and dignity of the person and cannot generally be shared with police absent prior judicial authorization ( Dyment at paragraphs 28-30; Colarusso).

A client has a reasonable expectation of privacy in all documents in the possession of his or her lawyer, which constitute information that the lawyer is ethically required to keep confidential ( Lavallee at paragraph 35; Chambre des notaires at paragraph 35).

Records that are subject to inspection by members of the public at large cannot be said to be subject to an obligation of confidentiality ( Plant at paragraph 22).

The contractual and statutory framework, including any terms or provisions governing the disclosure of the information, may be relevant to whether there is a reasonable expectation of privacy. When dealing with a contract of adhesion in the context of a consumer relationship, caution must be exercised in determining the impact of the contract on the reasonableness of an expectation of privacy ( Spencer at paragraph 54; Gomboc at paragraphs 31-33, 94-95, 138-42). The principle that privacy is a "normative rather than a descriptive standard" must also be kept in mind ( Tessling, paragraph 42; Gomboc, paragraphs 34, 115; Spencer, paragraph 18; Jones, paragraphs 47-51).

Invasiveness of the technique or technology

In the context of personal privacy, the level of invasiveness is a function of the circumstances, including the duration of the search technique, whether there is penetration into the body, whether the technique causes pain or discomfort, and whether the search involves the removal of substances from the body ( Stillman at paragraphs 45-46; R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; R. v. Saeed, [2016] 1 S.C.R. 518 at paragraph 49).

A pat-down or frisk search, which may involve examination of a person's pockets but which does not involve the application of physical force or the removal of clothing, is relatively non-intrusive ( Cloutier v. Langlois, [1990] 1 S.C.R. 158). A strip search, however sensitively conducted, is highly intrusive. The most intrusive type of search is a body cavity search ( Golden; Saeed). For further discussion, see "Search incident to lawful arrest" below.

The forcible taking of bodily samples and dental impressions is highly invasive of personal privacy ( Pohoretsky at 949; Dyment at 436; Colarusso at 53; Stillman at paragraph 42; R. v. Grant, [2009] 2 S.C.R. 353 ( Grant (2009)) at paragraph 109). In general, police must have either consent or a warrant to seize such samples or impressions ( Stillman).

Where bodily samples are taken under a properly issued DNA warrant, however, the impact on physical integrity is "relatively modest". 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. at paragraph 44).

In respect of individuals convicted of serious offences, the identifying information derived from DNA sampling is analogous to fingerprints, photographs and other non-intrusive identification measures ( Rodgers at paragraphs 35-44).

A penile swab is in some ways less invasive than the taking of dental impressions or the forceful removal of hair from an accused's body. Although the accused is required to expose a private area of his body to conduct the swab, the procedure is as a general rule quick, painless, and not penetrative. The information sought is the complainant's DNA and is not personal information to the accused ( Saeed at paragraphs 47-49).

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. Devices used to sense heat emanations from a house are sufficiently crude at this stage of their development that the information gathered by them is non-intrusive and mundane ( Tessling at paragraphs 54-55). 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).

Surreptitious interception and recording of private communications constitutes a serious intrusion into the privacy rights of those affected ( Duarte; Wong at pages 47-49; R. v. Tse, [2012] 1 S.C.R. 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. 535 at paragraphs 47-49; R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343 at paragraph 8).

Video surveillance without prior judicial authorization in a home, hotel room, or other place where there is a reasonable expectation of privacy will also constitute an unreasonable search or seizure ( Wong at pages 50-51).

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. 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., [2013] 2 S.C.R. 3 at paragraphs 1, 5, 32). By contrast, police access to historical text messages (those that have been sent and received or are no longer capable of reception) is not an "interception" and may be authorized pursuant to a production order as opposed to a wiretap ( Jones at paragraphs 74, 80).

Nature of the information

Personal computers, because of the vast amounts of information they contain - including intimate correspondence, the details of our financial, medical and personal situations, Internet browsing histories, as well as information that users cannot control and information that they may not be aware of or may have chosen to discard - attract a very high expectation of privacy ( Morelli at paragraph 105; R. v Vu, [2013] 3 S.C.R. 657 at paragraphs 24, 40-45).

Text messages are both private and discreet: receipt of the information is confined to the people to whom the text message is sent; service providers are contracted to confidentiality; no one else generally knows about the existence or contents of the message ( Marakah at paragraph 34). As such, electronic text conversations are capable of revealing a great deal of personal information (para. 37).

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. 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).

Commercial documents generally carry a lower or diminished expectation of privacy ( Branch at page 35; Plant at pages 293-294; 143471 Canada Inc. v. Quebec (Attorney General); Tabah v. Quebec (Attorney General), [1994] 2 S.C.R. 339 at pages 377-378), especially those documents required to be produced or maintained pursuant to a regulatory scheme ( Comité paritaire at pages 444-445). 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).

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).

A demand by a police officer for production of a driver's license does not constitute a section 8 search. There is no intrusion on a reasonable expectation of privacy where a person is required to produce a licence, permit or other documentary evidence of a status or compliance with a legal requirement that is a lawful condition of the exercise of a right or privilege ( R. v. Hufsky, [1988] 1 S.C.R. 621 at pages 637-638; Mellenthin at page 622).

Context in which the search occurs

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.

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., Comité paritaire; 143471 Canada Inc.; McKinlay Transport; Branch). This is because in a modern industrial society, it is generally accepted that many activities in which individuals can engage must nevertheless to a greater or lesser extent be regulated by the state to ensure that the individual's pursuit of his or her self-interest is compatible with the community's interest in the realization of collective goals and aspirations. In many cases, this regulation must necessarily involve the inspection of private premises or documents by agents of the state, as compliance can only be tested by inspection of the business premises and/or business records. It follows that there can only be a relatively low expectation of privacy in respect of premises or documents that are used or produced in the course of activities which, though lawful, are subject to state regulation as a matter of course Thomson Newspapers; Fitzpatrick; White; Branch).

This principle is not absolute, however. 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).

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. 495 at page 528; Monney at paragraph 34; R. v. Jacques, [1996] 3 S.C.R. 312 at paragraph 18).

The expectation of privacy is reduced in the school setting in relation to the responsibility of teachers and other school authorities to provide a safe environment and maintain order and discipline in the school ( M.(M.R.)).

Prisons carry a decreased expectation of privacy ( Weatherall; R. v. Conway, [1989] 1 S.C.R. 1659). However, the lowered expectation of privacy within a prison does not allow the seizure without a warrant of bodily samples taken as part of a medical examination ( R. v. Dorfer (1996), 104 C.C.C. (3d) 528 (B.C.C.A.)).

Relationship between the purpose for which the information was initially disclosed or collected and the purpose for which it is to be subsequently used or disclosed

Privacy is not an all or nothing right. 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 at paragraph 108; Dyment at page 429; Colarusso at page 71). Accordingly, a person may have a residual and continuing privacy interest protecting against the subsequent use or disclosure - and potentially retention - of information that has been divulged for a specific or limited purpose ( Law at paragraph 23; Dyment at pages 432-435; Mills at paragraph 94; R. v. Dore (2002), 166 C.C.C. (3d) 225 (Ont. C.A.); Wakeling at paragraph 39).

Constitutional requirements cannot be avoided by employing one state agent for a purpose for which the prerequisites for search may not be as demanding and then allowing another agent attached to the law enforcement apparatus of the state to claim the fruits of that search "without regard to the rightly stringent prerequisites of searches for those [law enforcement] purposes" ( Colarusso at paragraph 42; R. v. Jarvis, [2002] 3 S.C.R. 757; R. v. Ling, [2002] 3 S.C.R. 814; Law at paragraph 23).

Where a government body has regulatory or administrative functions as well as the function of investigating penal offences under the regulatory or administrative statute, a shift in state action from regulatory or administrative inspections to penal investigations affects the applicable Charter standards. In particular, where the predominant purpose of a particular inquiry becomes the determination of penal liability, so as to engage the adversarial relationship between the regulated party and the state, officials must at that point relinquish the authority to use regulatory or administrative inspection powers. 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 at paragraphs 88, 96-98; see also Ling). Penal investigators may, however, make use of materials validly obtained under regulatory or administrative inspection powers prior to the commencement of the offence investigation. 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 at paragraph 97).

In assessing whether the predominant purpose of an investigation is to determine the penal liability of an individual, regard must be had to all relevant factors that bear upon the nature of the inquiry ( Jarvis at paragraph 93). Apart from a clear decision to pursue a criminal investigation, no one factor is necessarily determinative in and of itself in this analysis. Even where there are reasonable grounds to suspect that an offence was committed, it will not always be true that the predominant purpose of the investigation is to determine the penal liability of the individual ( Jarvis at paragraph 89). A lawful regulatory search does not become unlawful or unreasonable simply because the officers also have the expectation that the search might uncover evidence of crime (see e.g., Del Zotto v. Canada, [1999] 1 S.C.R. 3; Jarvis at paragraph 90; Nolet at paragraphs 37-38).

When a state agent, in the course of carrying out his or her authorized regulatory duties, comes across clear evidence of a crime or wrongdoing relating to the very same matters he or she was required to investigate for compliance purposes, the state agent may pass that information on to the appropriate authorities for offence investigation without the need for further lawful authority ( Laroche at paragraph 84; R. v. D'Amour, (2002), 4 C.R. (6th) 275 (Ont. CA) at paragraph 63; Jarvis). These cases were distinguished in Cole on the basis that they all arose in heavily regulated environments. In contrast, a teacher has a reasonable and continuous expectation of privacy in the personal information on his work-issued laptop. Although the school board is legally entitled to inform the police of the discovery of contraband on the laptop, the police required a warrant to search the computer ( Cole at paragraphs 70-73).

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).

(iii) Consent

It is possible for what would otherwise be an infringement of section 8 to be constitutional if the person concerned waives their constitutional right to privacy. For such waiver/consent to be valid, it must be fully informed and voluntary. 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. 145). For the consent to be voluntary, the person must have had a real choice in providing the purported consent (see Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 at paragraph 72; Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at paragraph 98).

Consent for a search and seizure for one purpose does not necessarily allow for the intrusion on the same privacy interests for other purposes ( Mills at page 108; Dyment at page 429). 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). 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, [1998] 3 S.C.R. 339 at paragraphs 89-91). Consent to collect a bodily sample for medical purposes does not allow the police to use the sample for investigative purposes ( Dyment at page 431).

2. Was the search or seizure reasonable?

(i) Search under a warrant

Because the purpose of section 8 is to prevent unjustified searches before they happen, the default standard is a system of prior authorization. More specifically, the default standard has three elements: (1) prior authorization; (2) granted by a neutral and impartial arbiter capable of acting judicially; (3) based on reasonable and probable grounds to believe that an offence has been committed and there is evidence to be found at the place to be search.

The warrant granting power in a statute must involve a true grant of discretion to the decision-maker ( Baron at page 435; see also Kourtessis v. M.N.R., [1993] 2 S.C.R. 53) and must be specific in its focus.

The application for a search warrant must contain a full and frank disclosure of all material facts and not just those favourable to the state. 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. 992 at paragraphs 46-47; R. v. Garofoli, [1990] 2 S.C.R. 1421).

A warrant to search a place does not by itself carry with it sufficient authority, under section 8 Charter principles, to further search a computer found within that place. Rather, a prerequisite for a valid computer search is explicit judicial authorization involving due consideration of the distinctive privacy concerns raised by such a search ( Vu).

(ii) Warrantless searches

A warrantless search or seizure is presumptively unreasonable ( Hunter v. Southam; Nolet at paragraph 21; Goodwin at paragraph 99). The party seeking to justify a warrantless search bears the onus of rebutting the presumption by establishing that the search was:

authorized by law;

the law itself is reasonable; and

the manner in which the search or seizure takes place is reasonable

( Collins at 278; R. v. Caslake, [1998] 1 S.C.R. 51, at paragraphs 10-11; Tessling at paragraph 18; R. v. Mann, [2004] 3 S.C.R. 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).

(a) Authorized by law

Sources of lawful authority for section 8 purposes accepted by courts have so far included statutes, regulation and the common law. 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. 1). There has not yet been judicial consideration of whether or to what extent recent developments on the "prescribed by law" requirement under section 1, which recognize the possibility that other instruments like policies or guidelines may be tantamount to "law" where certain requirements are met, are applicable in the section 8 context: see section 1 for further discussion of those developments.

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. 399 regarding legislation and Caslake regarding the common law). In some circumstances, courts may find implied authority for intrusions on diminished privacy interests ( Cole; M.(M.R.)).

Common law power of search incident to arrest

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, [2007] 2 S.C.R. 725 at paragraphs 26, 29; Stillman at paragraphs 34-50; Nolet at paragraph 49). Search incident to arrest may not be conducted in an abusive manner ( Cloutier at 185; Stillman at 638).

The intrusiveness of a search is an important factor in assessing its reasonableness. For example, pat-down searches will generally be reasonable (see e.g., Cloutier), but an officer's decision to go beyond an initial pat-down and reach into the pocket of a suspect may be more intrusive than necessary and thus interfere with the suspect's reasonable expectation of privacy ( Mann at paragraph 49). Strip searches or highly invasive examinations, such as body cavity searches, will likely not be reasonable (see e.g., Golden; Vancouver (City) v. Ward, [2010] 2 S.C.R. 28). Strip searches incident to arrest may nevertheless be lawful and reasonable in some circumstances, but such searches should only be carried out where the police have reasonable and probable grounds to conduct the search for the purpose of discovering weapons or seizing evidence related to the offence for which the detainee was arrested and demonstrate an urgency for such a search being conducted in the field. The search must be conducted in a manner that interferes with the privacy and dignity of the person being searched as little as possible ( Golden at paragraphs 101-102; Ward at paragraph 65).

The taking of bodily samples and teeth impressions without a warrant is inconsistent with the common law power of search incidental to arrest ( Stillman at paragraph 49).

The search of an accused person's property in his possession at the time of arrest can be considered to be valid as a search incident to arrest provided the purpose of the search is related to the reasons for the arrest (see Nolet, where the search of a secret compartment in the cab of a truck's trailer, two hours after the driver's arrest for possession of contraband, was valid as a search incidental to arrest for possession of proceeds of crime, but the later inventory search of the cab was invalid as it was no longer incidental to arrest, but was undertaken pursuant to RCMP administrative procedures).

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, [2014] 3 S.C.R. 621 at paragraph 58). As a result, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with section 8 where: (1) the arrest is lawful; (2) the search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable; (3) the nature and the extent of the search are tailored to the purpose of the search; and (4) the police take detailed notes of what they examine on the device and how it is searched. In respect of factor (2), the valid law enforcement purposes in this context are: (a) protecting the police, the accused, or the public; (b) preserving evidence; or (c) discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest ( Fearon at paragraph 83).

Common law power of search incident to lawful investigative detention

Although there is no general power of detention for investigative purposes, police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances ( Mann). Police have a common law power to conduct searches incidental to investigative detention but for this search to be a justified use of police power, the officer must have reasonable grounds to believe that his safety or the safety of others is at risk ( Mann at paragraph 40; Clayton; MacDonald at paragraphs 31, 41). But see MacDonald, which leaves some question as to the precise meaning of this standard: compare especially paragraphs 31 and 41, which appear to affirm the standard in Mann, with paragraphs 39 and 44, which may suggest a higher standard (reasonable grounds to believe that an individual " is armed and dangerous" or that there is "an imminent threat to the safety of the public or police"; paragraphs 66 ff., per Moldaver and Wagner JJ., dissenting). To determine whether the officer's decision to search was reasonable, a court will examine the totality of the circumstances. 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).

Common law power to search in exigent circumstances

Warrantless search may be reasonable in some situations if exigent circumstances make it impracticable to obtain a warrant ( Grant (1993) at pages 239-242; Plant at page 292; see also Wiley). "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). Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. 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). 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. The Supreme Court did not squarely deal with the section 8 issue, but instead considered an analytical framework dealing with the common law/statutory polices duties which followed the structure of a section 8 analysis. 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. See also Tse, where the Court applied section 8 analysis in evaluating the reasonableness of the provisions of the Criminal Code governing warrantless wiretapping under exigent circumstances.

Common law power to use sniffer dogs

In the context of routine crime investigations, investigative detentions where there are reasonable grounds to detain ( Mann), in schools ( Kang-Brown) or in bus stations ( A.M.) - and presumably by extension in certain other locations - there exists, at common law, a police power to use sniffer dogs where police have a "reasonable suspicion" that evidence of an offence will be discovered ( Chehil; R. v. MacKenzie, [2013] 3 S.C.R. 250; Kang-Brown; A.M.).

Plain view doctrine

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). The doctrine does not, however, provide a basis for conducting a wider-ranging search within closed or locked places for contraband or evidence once some evidence of wrong-doing is discovered within plain view and has been seized. A plain view seizure cannot form the basis for a "fishing expedition" ( Mellenthin). Even in the case of a search conducted incidental to a lawful arrest, the permissible ambit of the search and of any consequent seizures made without a warrant depends on an appropriate "link between the location and purpose of the search and the grounds for the arrest" ( Nolet at paragraph 49; see also Cloutier).

(b) Law itself is reasonable

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 law is one that strikes a reasonable balance between the particular state interest that is pursued by the law and privacy ( Shoker; S.A.B. at paragraphs 42-43; McKinlay Transport at page 643; Comité paritaire at pages 422 and 424; Rodgers at paragraphs 35-44; see also Jarvis; Branch; Mann; Clayton; and Wakeling, at paragraphs 66 and 81). Warrantless search powers have been upheld as reasonable in a number of contexts including: administrative and regulatory searches (see e.g., McKinlay Transport; Comité paritaire; Thomson Newspapers); border searches ( Simmons; Monney; Jacques); and roadside searches ( Hufsky). See also the discussion of common law search powers, above.

Nature and purpose of the legislative scheme

The characterization of a search or seizure as criminal on one hand or administrative or regulatory on the other is relevant in assessing its reasonableness ( Goodwin at paragraph 60). The proper characterization of the search or seizure involves a contextual analysis. In addition to the nature of the regime generally, regard may be had for other relevant aspects of the search or seizure such as whether it is administered by a police officer and the severity and immediacy of the consequences flowing from the search or seizure ( Goodwin at paragraph 63).

Mechanism employed

The intrusiveness of a search or seizure on privacy interests is an important consideration. Generally speaking, a law authorizing a search or seizure should reflect the least intrusive means by which the state interest can be achieved (see e.g., McKinlay Transport; Comité paritaire; Goodwin at paragraph 65; Saeed; Chambre des notaires). 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).

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). See discussion of thresholds, below.

Availability of judicial oversight

An unreviewable, discretionary power of search and seizure would be contrary to section 8 ( Hunter v. Southam at 166; Tse at paragraph 82; Goodwin at paragraph 70). The right to privacy encompasses both protection against unreasonable search and seizure and the ability to identify and challenge such invasions. In some circumstances involving searches that are not subject to prior authorization, additional safeguards will be required to ensure the requisite level of transparency and accountability, and to help ensure that such powers are not being abused ( Tse at paragraphs 83-84; Fearon at paragraph 82). 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).

In addition to judicial review of the lawfulness of the search, section 8 may also require a mechanisms for review of the reliability of the findings, particularly where the consequences of a search or seizure follow automatically and immediately ( Goodwin at paragraph 71). 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).

Thresholds upon which a search may be authorized

" Reasonable grounds to believe" is the common standard in the Criminal Code, and most federal enactments, authorizing a search warrant in Canada.

"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. 1140 at page 1166). "Reasonable grounds" is the equivalent of "reasonable and probable grounds" ( Baron at pages 446-447; Morelli at paragraphs 127-8, per Deschamps J., in dissent but not on this point).

Reasonable grounds can be based upon detailed "tips" furnished by a reliable informer ( Debot at pages 1168-1169; Plant at pages 296-297; see also Grant (1993); Wiley). Reasonable grounds can also be based on information provided in a 911 call, particularly where firearms posing a risk to public safety are the focus of the investigation ( Clayton at paragraphs 33-5).

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. Rather, the "may afford evidence" standard, when coupled with a requirement of "credibly-based probability" that the things sought are likely to be found, achieves the standard that is required by section 8 ( Baron at 448-449).

The standard referred to as " reasonable suspicion" or " reasonable grounds to suspect" is to be contrasted with the higher standard of "reasonable grounds to believe".

"Reasonable suspicion" as opposed to "reasonable grounds to believe" is generally an insufficient basis upon which to conduct a search in a criminal investigation context ( Mann at paragraphs 34, 40). However, "reasonable grounds to suspect" has been held to be a constitutionally sufficient standard in some contexts:

in the Criminal Code's roadside screening regime (Hufsky; Clayton);

for border searches in the customs context (Simmons; Jacques; Monney at paragraph 34);

some searches using sniffer dogs (Kang-Brown; A.M.; Chehil; MacKenzie).

Factors the Court has considered in assessing the constitutional sufficiency of the reasonable suspicion standard for certain types of searches include the minimally intrusive nature of the particular type of search, a relatively low expectation of privacy, a narrowly targeted objective, the effectiveness of the investigative technique, the presence of safeguards against abuses of the power, and the fact that inappropriate conduct by the police can be addressed under the "reasonableness of the search" component of the section 8 framework if necessary ( Kang-Brown at paragraphs 24-25, per Binnie J., paragraphs 159-169, per Deschamps J., and paragraphs 243-244, per Bastarache J.; A.M. at paragraphs 77-89, per Binnie J.).

In some cases arising in the administrative or regulatory context, the Court has accepted as reasonable laws authorizing searches or seizures on a broader threshold of relevance (see e.g., McKinlay Transport at paragraph 35: requirement to produce, for audit purposes, information that may be relevant to the filing of an income tax return; Comité paritaire: power to access a premises of employment and to inspect records relevant to determining an employer's compliance with regulations governing working conditions). The relevance standard is commonly used for regulatory or administrative inspection powers in federal enactments.

(c) Was the search carried out in a reasonable manner?

Searches or seizures conducted pursuant to reasonable lawful authority can, nevertheless, be found to limit section 8 if the search or seizure is carried out in an unreasonable manner ( R. v. Genest, [1989] 1 S.C.R. 59; R. v. Cornell, [2010] 2 S.C.R. 142). The manner will be reasonable if the search is no more intrusive than is reasonably necessary to achieve its objectives ( Vu).

The reasonableness of a search executed pursuant to a warrant will be judged based on whether "the search overall, in light of the facts reasonably known to the police, was reasonable" ( Cornell at paragraph 31).

It is not generally a constitutional requirement that a warrant spell out in advance the manner in which a computer is to be searched. Rather, the manner search is generally reviewed after the fact. In circumstances where the manner of search goes beyond the purposes for which the warrant was issued ( e.g., to search for evidence of an unrelated crime) the search may be unreasonable for Charter purposes ( Vu at paragraphs 53-55).

3. Additional considerations

(i) Interaction between section 8 of the Charter and section 8 of the Privacy Act

The privacy protection offered by the Charter and the Privacy Act can overlap but differences in purpose and scope between the two regimes exist and ought not to be overlooked. Compliance with one regime does not remove the need for compliance with the other. Section 8 of the Charter may constrain at least some of the various exceptional disclosures permitted under subsection 8(2) of the Privacy Act.

(ii) Interaction with section 1 of the Charter

In a number of cases, the Supreme Court has suggested that limits on section 8 rights are unlikely to be justified under section 1 of the Charter given the overlap between the reasonableness standard under section 8 and the minimal impairment analysis under the section 1 test ( Lavallee at paragraph 46, per Arbour J.; Grant, (1993) at 241; Thomson Newspapers, per Wilson J.; Lessard, per La Forest J.; Baron,per Sopinka J.; Chambre des notaires at paragraphs 89-91).

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

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This is an example of a violation of the right to be secure against unreasonable search or seizure. They are not only breaking in, but they also, as one officer states, did not announce that they were about to enter or their reason for being there.

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This is an example of what should happen during a search or seizure. The officer should provide the warrant and read the rights of the individual before moving forward.

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This video explains how search and seizures are supposed to be carried out. It also explains why a search and seizure might happen and what your rights are.

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Definition

Imagine someone going into your home and searching through your personal items. Your things are handled, displaced, and even seized, without your permission. Would you feel that your rights had been violated and wonder why this could happen?

While there are times when law enforcement agents can go through your home or property to look for specific things, there are a lot of rules governing the search and seizure process.

Let's begin by defining these terms. A search is a process conducted by authorized agents of the law going through part or all of individual's property, looking for specific items that are related to a crime that they have reason to believe has been committed. A seizure happens if the officers take possession of items during the search.

We've said there are rules governing searches and seizures, so let's take a look at what our rights are and how searches and seizures happen.

Fourth Amendment Rights

The Fourth Amendment of the United States Constitution states:

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.

What this means is that we are protected from illegal search and seizure. Law officers cannot search your car, your house, or your personal belongings unless they have your consent, a warrant signed by a judge, probable cause, or a plain view of illegal items.

The law states that if you consent to a search, then the officers can go through your belongings and any items they find during that search can be seized as evidence against you. The same law covers warrants. An officer must show probable cause before a judge can authorize the officer to search your car, your home, or your belongings, and the warrant has to be specific about what can be searched.

What Is Probable Cause?

An officer has probable cause to perform a search and seizure if there is evidence from a crime present or the officer has the reasonable belief that a crime has been committed.

For example, if an officer pulls an individual over for speeding and smells marijuana, he then has reason to believe there's an illegal substance in the car. The officer can ask for consent to search the car and if the driver denies consent then there are other methods that can be used. For example, a specially trained K-9 dog can complete a walk around the vehicle in question. If the K-9 alerts officers, then they can search without permission.

Plain View

What if an officer stops someone and sees a knife or a gun in the person's waistband? Do you think the officer can search the person? Is this probable cause? The answer is yes. If the officer or the public are in immediate danger, the officer can legally search the individual and seize the knife or the gun because they were in plain view.

If an item is in plain view, there is no need for consents or warrants because the contraband was observed without conducting a search or without moving or manipulating other items to see it. As long as the items were in plain view and the officer did not have to enter a home or a car to see them, then the item can legally be seized. However, the officer cannot reach into a car and move a jacket on a seat to see what's under the jacket. This would be manipulating items and is not legal.

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laws & rights - video & lesson transcript | study.com

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Search & Seizure: Definition, Laws & Rights - Video & Lesson Transcript | Study.com

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Imagine someone going into your home and searching through your personal items. Your things are handled, displaced, and even seized, without your permission. Would you feel that your rights had been violated and wonder why this could happen?

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This website explains rights of search and seizure when crossing the border or at airports. Rights still stand, however, the officers are allowed to search and seize objects without a warrant.

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Travellers at Canadian airports and U.S. border crossings are subject to close scrutiny and several layers of security measures. Airports, sea ports, international waterways and land border crossings are significantly different from other public places in Canada because the expectation of privacy is reduced. Does that mean people lose all right to privacy? No.

Here is some information about what to expect and where you can turn if you feel your privacy rights have been violated.

On this page

Canadian Customs Searches

At border controls, Canada Border Services Agency ( CBSA) officers have widespread powers to stop and search people, and examine their baggage and other possessions including devices such as laptops and smartphones. These activities are carried out under the authority of Canada's Customs Act; a warrant is not required.

Individuals are also subject to these measures even if they are not planning to cross a border, but are in so-called "customs controlled areas." These are designated zones in a border crossing area or airport where domestic employees or travellers leaving Canada might mingle with arriving international travellers and goods that have not yet been cleared by the CBSA. Signs and notices are posted in these areas. Travellers and/or employees in or leaving these areas must identify themselves, answer questions and present their goods for examination if asked to do so by a CBSA officer. They may also be subject to physical searches.

Cell phone, tablet, and laptop searches at the Canadian border

Canadian courts have generally recognized that people have reduced expectations of privacy at border points. In this context, privacy and other Charter rights continue to apply but are limited by state imperatives of national sovereignty, immigration control, taxation and public safety and security. The Canadian courts have not yet ruled on whether a border officer can compel a person to turn over their password and on what grounds, so that their electronic device may be searched at a border crossing.

While the law is unsettled, CBSA policy states that examinations of personal devices should not be conducted as a matter of routine; such searches may be conducted only if there are grounds or indications that "evidence of contraventions may be found on the digital device or media."

If your laptop or mobile device is searched, it should be searched in line with this policy and, in that context, you will likely be asked to provide your password. If you then refuse to provide your password, your device may be held for further inspection. According to the policy, officers may only examine what is stored within a device, which includes, for example, photos, files, downloaded e-mails and other media. Officers are advised to disable wireless and internet connectivity, limiting access to any data stored external to the device, for instance, on social media or in a cloud.

Individuals entering Canada who are concerned about how this policy might be applied may wish to exercise caution by either limiting the devices they travel with or removing sensitive personal information from devices that could be searched. Another potential measure is to store it on a secure device in Canada or in a secure cloud which would allow you to retrieve it securely once you arrive at your destination.

Travelling to the U.S. or other countries

Cell phone, tablet, and laptop searches at a foreign border

Canadians need to know that U.S. border officials have broad inspection powers which can include seeking passwords to your laptop, tablet or mobile phone. Although infrequent, basic searches of electronic devices by U.S. officers do not require evidence of contraventions. They are performed without grounds as a routine border inspection. However, according to a new U.S. Customs and Border Protection directive, advanced searches by U.S. officials, which involve connecting to external equipment to review, copy or analyze the contents of a device, require reasonable suspicion of illegal activity or if there is a national security concern. It is important to note that the powers of border officials in many foreign countries will vary from those that exist in Canada.

According to the directive, in both basic and advanced searches, U.S. border officers may only inspect data that resides on a device and is accessible through its operating system or through other software, tools or mobile applications. They may not intentionally access information stored remotely, for instance in a cloud. To avoid doing so, they are required to ask travellers to disable internet connectivity, or where authorized, they should disable it themselves.

Travellers who are concerned about groundless searches or other aspects of the U.S. directive may wish to exercise caution and either limit the devices they bring when travelling to foreign countries, including the U.S., or remove sensitive information from devices that could be searched. Another potential measure - particularly if travelling for work and carrying protected information, for instance information subject to solicitor-client privilege - is to store it in a secure cloud which would allow you to retrieve it once you arrive at your destination.

Canadian citizens should be aware that, even after legalization of cannabis, a U.S. border agent could deem them inadmissible to the United States if the agent determines they have used cannabis, even legally.

With that in mind, you may wish to consider removing from your electronic devices any information related to the lawful use of cannabis (e.g. photos) or lawful purchases of cannabis (e.g. receipts).

You should also be aware that if U.S. officers determine you have provided false or deceptive information at the border, you could be deemed inadmissible to the United States.

The Office of the Information and Privacy Commissioner for British Columbia has developed helpful guidance for its residents on protecting privacy when lawfully purchasing cannabis which we have adapted for all Canadians. The guidance notes, for example: "Individuals seeking to purchase cannabis or cannabis products online need to be made aware that the retailer is collecting their personal information (such as name, date of birth, home address, credit card number, purchase history, and email address). Providing personal information, especially through online formats, creates additional risks that purchasers need to consider."

Global Affairs Canada provides information on Entry/exit requirements for the United States and Cannabis and international travel.

U.S. border officials on Canadian soil (preclearance)

It is also important to note that travellers to the U.S. could encounter U.S. border officials while still on Canadian soil. At a growing number of preclearance points across Canada, U.S. border officials have the authority to examine passengers and their goods, including electronic devices, ahead of travel.

The rules in the above section on searches of electronic devices for travellers to the U.S. apply equally to searches performed at preclearance facilities. We therefore give the same advice to those concerned about these searches.

While preclearance legislation states U.S. officers must, while in Canada, also comply with Canadian law, including the Charter, a Canadian who believes a U.S. customs official has broken Canadian law has little recourse in the courts due to the principle of state immunity.

Methods of recourses are set out below. Individuals may also withdraw from the preclearance facility and thereby forego their wish to enter the U.S., a decision that may be recorded and that could impact future travel.
If you have concerns or questions
If you have concerns about enforcement action taken by U.S. Customs and Border Protection, you may submit a complaint or concern. More information about preclearance, including a list of preclearance sites and contact information can be found. For general Customs and Border Protection inquiries, callers outside the U.S. may contact (202) 325-8000. (Or toll free within the U.S. at 1-877-CBP-5511). If you are concerned that a U.S. border official operating in a preclearance facility has violated Canadian law, you may wish to contact Public Safety Canada's Preclearance Unit, part of the International Affairs Division:

Public Safety Canada
International Affairs Division - Preclearance
269 Laurier Avenue West
Ottawa, Ontario K1A 0P8
Canada

Airport Security Screening

The Canadian Air Transport Security Authority (mechanisms may also be used by CATSA) is responsible for screening baggage, passengers, flight crews and airport workers. Every air passenger must pass through security screening, which includes presenting your boarding pass and identification, having personal items, including electronic devices (but not their content), and carry-on bags screened by X-ray machines, and walking through a metal detector. Other screening CATSA.

Physical Searches

A physical search can be required to resolve screening equipment alarms, or if a passenger is selected for additional screening. It may also be needed if an individual has a medical condition (e.g., pacemaker) that makes using a scanner dangerous.

Millimetre-wave Full Body Scanners

Full body scanners can detect items such as ceramic weapons, liquids, plastic explosives or other concealed objects that do not show up with standard metal detectors.

When first introduced in Canada, full body scanners raised privacy concerns due to the detailed images produced of passengers' bodies. In an effort to address concerns, software is now used to generate "stick figures" rather than a detailed body outline.

Passengers selected for additional screening can choose either inspection by the scanner (where available) or a physical "pat down."

Your name, boarding pass number and passport information are not associated with the generic stick figure generated by the full body scanner.

Images are examined and then immediately deleted.

If you have concerns
CATSA has a toll-free, 24-hour number (1-888-294-2202) to answer questions or take complaints stemming from screening procedures or dealings with screening officers.

Travellers may also report concerns on the CATSA website. Travellers with complaints about a search of personal items or devices may contact CATSA's Claims Management Unit.

Collection of Traveller Data

Advance Passenger Information/Passenger Name Record Program

Under the Advance Passenger Information/Passenger Name Record Program ( API/PNR), the CBSA seeks to identify travellers who may pose a security risk - before they arrive in Canada.

Information on all individuals travelling to Canada, regardless of carrier or citizenship, is reviewed. Data collected and reviewed includes: name, date of birth, gender, citizenship, travel document data, itinerary, address, ticket payment information, frequent flyer information, baggage details and contact telephone numbers. Travellers are checked against alerts, watch lists and other screening programs, and some may be referred for further examination at port of entry.

Scenario Based Targeting ( SBT) is a technique used by the CBSA to assess the risk posed by air travellers arriving into Canada. It is done by analyzing the API/PNR data sent to the CBSA by commercial air carriers against pre-determined risk scenarios. A data analytics program matches all travellers' characteristics - such as age, gender, nationality, time spent abroad, travel patterns and other elements - against these scenarios to identify individuals for further risk assessment. Additional risk assessments and database checks are conducted manually by CBSA officers for those who match one or more scenarios. Travellers identified as potentially high risk after this process may be subject to secondary examination at port of entry.

According to the CBSA, the Agency does not keep an active record of travellers who match risk scenarios and who, after further assessment, are found to pose no actual threat. Records of individuals referred for secondary examination at port of entry are retained. Individuals who wish to access the personal information held about them by the CBSA may make a request under the Privacy Act.

Entry/Exit System

Authorities have not only a record of when you entered Canada but they also know when you leave Canada.

The CBSA and U.S. Department of Homeland Security exchange data on people travelling between the two countries at major land crossings. Under the Entry/Exit Initiative, the CBSA collects information from the United States about individuals who have left Canada at land border crossings. This presently applies to all U.S. persons, permanent residents living in Canada and third country nationals. A bill currently before Parliament would extend these provisions to all travellers, including Canadian citizens, but it has not yet passed.

Biometrics and facial recognition

Biometric and facial recognition technologies are increasingly being used in travel documents and by customs and border officials to detect fraud, improve security and ease travel. For instance, iris images are used in the voluntary CANPASS and NEXUS border clearance programs. Passport Canada uses facial recognition technology to prevent fraud, by checking photos submitted in passport applications against a database of existing passport holders.

The CBSA began introducing Primary Inspection Kiosks at major Canadian airports in March 2017. The self-service kiosks are intended to simplify the process for verifying identity and completing customs declarations. Use of these kiosks is optional.

The OPC is in the process of updating guidance for public and private sector organizations on privacy and the use of biometric and facial recognition technology.

Canada's No-fly List

The goal of Canada's no-fly initiative, known as the Passenger Protect Program, is to prevent people from boarding airplanes to, from, or within Canada if there are reasonable grounds to suspect they pose a threat to transportation security or are attempting to travel abroad to commit certain terrorism offences.
If you have concerns
Public Safety Canada administers the Passenger Protect Program. If you or a family member has experienced a travel disruption due to an aviation security list, you should contact the Passenger Protect Inquiries Office.

More information and help

Concerns related to government security programs

If you think your personal information has been collected, used or disclosed improperly by a government security program, you can turn to one of the redress mechanisms described in this fact sheet.

There are also dedicated review bodies for complaints against the RCMP (the Civilian Review and Complaints Commission for the RCMP) and the Canadian Security Intelligence Service ( Security Intelligence Review Committee).

Concerns related to airlines

If you are concerned about the potentially inappropriate collection or handling of your personal information by an airline or other business, you should start by contacting the organization directly and trying to have your issue resolved. Privacy concerns can be raised with the person responsible for privacy issues within the organization, often called the Chief Privacy Officer.

Complaints to the Office of the Privacy Commissioner of Canada

If you are not satisfied with the response of a federal government department or agency or a private sector organization regarding a privacy concern, you can file a complaint with the Office of the Privacy Commissioner of Canada.

The Commissioner has the power to investigate complaints, search for resolutions satisfactory to both parties, and make findings and recommendations. In the case of commercial organizations, he may take an unresolved complaint to Federal Court to obtain an order to respect your privacy rights which may have been violated.

Footnote 1

The CBSA has not published this policy, therefore no link is provided.

Footnote 2

According to U.S. Customs and Border Protection, 0.007 per cent of arriving international travelers to the U.S. had their electronic devices searched in 2017.

Footnote 3

The Privacy Act provides individuals and employees of the government (current and former) with relevant information to access personal information about themselves held by government institutions subject to the Privacy Act and to exercise their rights under the Privacy Act. The CBSA's main Info Source page outlines what information is included in which information bank.

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Travellers at Canadian airports and U.S. border crossings are subject to close scrutiny and several layers of security measures. Airports, sea ports, international waterways and land border crossings are significantly different from other public places in Canada because the expectation of privacy is reduced. Does that mean people lose all right to privacy?

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This website describes the rules and laws regarding searches of students, their lockers/desks and their bags during school. Although their belongings can be checked without a warrant, the school must provide a reason for believing they might be carrying something illegal.

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Can a student be searched at school and have their property taken?

Students have an "expectation of privacy" that applies outside and on school property. However, there are different rules for the different locations. There are also different rules based on who is doing the search and what item is being searched.

Can a student's school locker or desk be searched?

Generally, any item that is considered property of the school can be searched without letting the student or the parent know. School staff can also give permission to the police to look in your locker or desk, even though you use it. Schools may have a policy on this and must be provided to students upon request.

Can the school search my pockets, backpack, or other personal items?

When it comes to your body and property, there are rules that must be followed. Which rules apply depends on who is doing the search.

School staff may search a student if there are "reasonable grounds" that the search will turn up evidence that the student broke a school rule. This means that staff have more than a hunch that the student did something wrong before the search can happen. They must have specific reason to believe you broke a school rule. The search must be:

There are a couple of factors to be looked at to establish a reasonable search.

For example, if a student is accused of having aspirin, which violates the school drug policy, it is reasonable for school staff to have the student empty pockets and look in a backpack. But, if nothing is found, it is not ok to ask you to pull out your underwear band to look for aspirin there.

Can a police officer search my pockets, backpack and other personal items?

If a police officer is doing the search, a different set of rules apply.

The police must follow a higher standard to search you. The police must have either

"Probable cause," (Probable cause means a reasonable person believes a crime was, is, or will be committed.) or

a search warrant from a Court.

If the police do not have probable cause or a warrant, you can refuse to be searched. If you are searched and evidence of a crime is found, that evidence may be kept out of Court. This is something you can talk to a juvenile defense attorney about if you are charged in Court. But, that evidence will not be kept out of a school discipline hearing, like an expulsion.

Can a School Resource Office search my pockets, backpack, and other personal items?

School resource officers are a little trickier. Some courts in the country have said that school resource officers are like school staff and can follow the "reasonable grounds" rule. Other courts in the country have said that school resource officers are the police and must follow the "probable cause" standard. Maine courts have not ruled on this issue yet, so we do not know which rule must be followed by a school resource officer.

Can a student be questioned by school staff?

School staff have the right to question students. Maine law does not say anything about whether the school has to first contact your parent. The school district may have a policy that talks about this. Check the school's website or call the administration office to see if there is a policy.

It is important to know that anything a student says to school staff can be used against the student in either a school discipline case or in a juvenile court case.

If the police are involved in questioning the student at school, things change. If the point of questioning is to find out if the student committed a crime, the police have to follow the rules for any criminal investigation. If they do not follow those rules, what the student says to the police may be kept out of court if they are charged with a juvenile offense. The student first need to know if you were in a "custodial setting" when the police questioned them at school.

What is a custodial setting?

Generally, students are in a custodial setting when they are with the police and are not free to leave. If the police question the student when they are not free to leave, it is a "custodial interrogation." There are two factors to look at:

The student may not be told they are under arrest but still be in a custodial setting. If the interrogation or questioning is custodial (meaning they student do not feel free to leave), the police must give the student Miranda warnings BEFORE asking questions. Miranda warnings are:

The right to remain silent

To be warned that anything you say can and will be used against you

The right to an attorney

If you cannot afford an attorney, one will be provided to you

Do you understand your rights

Will you talk to me

If the student understands the student Miranda rights and still agrees to talk to the police, the student has waived those rights. That means what the student says to the police can be used against them.

Also, under Maine law, if the student is in a custodial setting, before the police can question them about crimes they think the student committed, their parent or legal guardian must be contacted. The parent must either be with you for the questioning or agree the police can question you without them being there.

Depending on what the student is accused of, they may be facing school disciplinary action, juvenile charges in Court, or both. The school disciplinary action will happen much faster than a juvenile court case. Anything you say in the school discipline case can be used against you in the court case.

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Students have an "expectation of privacy" that applies outside and on school property. However, there are different rules for the different locations. There are also different rules based on who is doing the search and what item is being searched.

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This video describes a case which violates the right to be secure against unreasonable search or seizure. The police were called to a house where they smelled marijuana so, without getting a warrant, they proceeded to search the house.

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Search and Seizure: Cases That Should Have Gone to the Supreme Court of Canada, But Didn't!

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This video is about a specific case in Quebec where a student was strip searched in school because someone blamed her for trafficking drugs. Although cases like these aren't very common, they still happen and they are a breach of privacy. It is an argument whether they violate section 8 because students don't have the same rights when they are on school property.

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Strip search in Quebec school prompts outrage

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In the movie Full Count, a police officer pulls over the main character because of their personal relationship. He then proceeds to search the car and arrest him for allegedly drinking and driving after finding a bottle of alcohol in the car. This is an example of an illegal search and seizure.