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Section 8 of the Charter

Search and Seizure

What is your legal topic about?

Intro

My legal topic is Section 8 of the Canadian Charter of Rights and Freedoms, better known as Search and Seizure Laws. The purpose of Section 8 is to prevent unlawful searches before they occur, rather than simply determining after wards whether they should have happened in the first place. Section 8 serves to limit the search and seizure powers of the government, including the police and other government investigators. As the Supreme Court of Canada (SCC) noted in R v Genest, this restriction is intended to balance the privacy interests of individuals with the interests of the state in investigating and prosecuting crimes.

Importance

This right prevents people with authority, such as police officers, from targeting people because of their race, religion, etc. It makes it so they actually have a proper reason (ex. they have been accused of murder, suspected of a crime, or have been seen doing something suspicious) and warrant to search someone or detain them. Therefore, this right makes it so there are fewer discriminatory profiling.

Why is it worth knowing?

The values ​​underlying the privacy interest protected by Section 8 are dignity, integrity and autonomy. Section 8 states that privacy, personal, territorial and informational, is essential not only to human dignity but also to the functioning of our democratic society. As such, Section 8 protects an area of ​​individual autonomy where people have the right “to be left alone” and where the state cannot intrude without permission. At the same time, Section 8 permits reasonable searches and seizures, recognizing that the government's legitimate interest in furthering its ends or enforcing its laws sometimes requires some invasion of privacy.

Timeline of Canadian Human Rights

1988

1978

The federal government replaced the War Measures Act with the Emergencies Act, which required all government-authorized restrictions on civil liberties to meet the standards for restrictions on rights set out in the Charter of Rights and Freedoms.

1960

The Canadian Human Rights Act was passed in Canadian Parliament

Canada's Bill of Rights, introduced by John Diefenbaker, was passed in Canada's Parliament

Timeline

Ontario's Human Rights Code was enacted by the Ontario Legislative Assembly

Pierre Elliot Trudeau entrenched the Charter of Rights and Freedoms into the Constitution Act

1962

1982

What are the key ideas that shape Section 8?

Key Concepts, Theories Overview

The key idea of Section 8 of the Canadian Charter of Rights and Freedoms is that it protects people, not places, against unjustified intrusions on their privacy interests. This right constitutes our reasonable expectation of privacy. Yet in the digital era, the lines are blurred between what is and what is not private. Police wiretaps and searching cell phones without warrants bring into question what really is protected. We explore privacy in the digital age, and what we Canadians can reasonably expect from their rights and freedoms. A smartphone is an extremely personal device. It can contain anything from personal banking information to intimate communications. Despite this, one cannot expect much privacy from personal messaging on any of our devices. Personal messaging is not protected. Whether it’s an email, text, or DM, the Charter of Rights and Freedoms does not protect these personal communications.

R. v. Caslake

Case Brief

Facts

Facts

In the Caslake case (1998), a majority of the Supreme Court of Canada held that a search made for purposes of an inventory, conforming to police policy (RCMP) but without a search warrant or permission, constituted an abusive search. Caslake was arrested and accused of possession of narcotics (marijuana). Several hours after his arrest, an RCMP officer proceeded to search his vehicle in order to make an inventory and discovered a pound of marijuana, two bags with 1/4 grams of cocaine and $1400 in cash. Caslake was found guilty of possession of drugs with the intention of trafficking. He contended he was the victim of an abusive search. The Crown argued that it was simply a matter of a search incidental to an arrest.

Issues

The majority stated that as search incident to arrest is a common law power, there are no clear limits on its scope and thus the courts must set boundaries balancing the state pursuing justice and the privacy interests of the general public. The Court was reluctant to set to specific time period for when a search would still be incidental. As a general rule, searches that are truly incidental to arrest will occur within a reasonable period of time after the arrest. A substantial delay does not mean that the search is automatically unlawful, but it may cause the court to draw an inference that the search is not sufficiently connected to the arrest. The strength of that inference will depend on the length of the delay and can be defeated by a reasonable explanation for the delay. The restriction that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest, and there are both subjective and objective components to this test. The police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted and the officer's belief that this purpose will be served must be a reasonable one. Requiring that the search be truly incidental to the arrest further means that if the justification for the search is to find evidence, there must be a reasonable prospect of securing evidence of the offence for which the accused is being arrested. There must be some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable.

Decisions

Decision

Chief Justice Lamer held that the search was not linked to the arrest. Three of his colleagues agreed with him. Although the search was abusive, the evidence gathered was not ruled inadmissible as the police officers had acted in good faith and the search was not invasive as the evidence was not collected in a way that would antagonize the accused. Judge Bastarache, with the concurrence of Judges L'HeureuxDebé and Gonthier, found that the search was accompanied by an arrest and was consequently not abusive. The Court concluded that Caslake's rights under s.8 had been violated.

Opinion

Overall I think the court’s decision of finding Caslake's Section 8 rights violated is reasonable because without a search warrant an inventory search constituted as an abusive search. I agree with the courts decision because it is the RCMP officers own fault for not getting a search warrant as a safety plan just in case they found something else, which they did.

Current Issues

These days many cases are in the public's eye due to the unlawful and discriminatory motive behind each arrest. Racial profiling is different from criminal profiling. Racial profiling is stereotypical assumptions based on a person's race, color, ethnicity, etc. Criminal profiling, on the other hand, is based on an individual's actual behavior or information about suspicious activity that fits the description of a specific individual. Stereotypes become a particular problem when people act in ways that affect others because of their stereotyped beliefs. This leads to profiling. Although anyone can experience profiling, people of color, specifically black people, are most affected. Police brutality, hate crimes and fear of the other have been an integral part of our society for decades. The death of George Floyd has made the issue urgent in 2021. Recent Canadian Supreme Court decisions such as R v Le have highlighted the phenomenon of over-policing in certain communities. But even after this, erroneous arrests continue to occur on a regular basis. Even though s still no law in Canadian policing that specifically targets or prohibits arbitrary arrests and similar practices based on conventional stereotypes and prejudice, Section 8 of the charter aims to protect a persons right to be against unreasonable search and seizure.

What issue is controversial about this topic?

Controversial Issue Point & Counterpoint

As I mentioned in R. v. Caslake, a controversial issue is if evidence can be used in court even though it was obtained during a search without a warrant. Since there is no prior search warrant, warrantless searches must be based on statutes or common law in order to obtain a valid search warrant. If your situation does not fully meet the legal requirements for a search without a warrant, evidence that has been seized can be thrown out of courts. Warrantless searches have much greater potential for abuse than warrant searches because there is no supervisory tribunal to eliminate wrongful acts before the search is conducted. Warrant searches are subject to subsequent court approval (or disapproval) during a trial if the validity of a search is challenged.

Assessment

Link to my Kahoot:

https://kahoot.it/viewer/5e3bba7d-d26e-42c8-8432-16ceb67f812f

Assessment

Author Biography

Author Biography

Betelham, better known as Bete, was born on September 23, 2005. She is currently an 11th grade student at Bloor Collegiate Institute. She is currently taking the CLU3M course which gives her knowledge on how the Canadian legal system works.

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