Simon's Legal Resources

Contract - Subjects Table of Contents (S-Z)

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SEARCH AND SEIZURE [s.8]

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General
Charter - Search and Seizure (s.8) - Test
Charter - Search and Seizure (s.8) - Analytic Framework

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Reasonable Expectation of Privacy (REP)

The concept of 'reasonable expectation of privacy' (REP) is a threshold test to determine the application (or non-application) of Charter s.8 ['search and seizure']. Roughly, that means if the 'test' determines that the rights-claimant has such an 'expectation' - and the state breaches their privacy by 'searching' - then the rights-claimant may avail themselves of Charter s.8 'rights' (ie. Charter s.8 'applies') (note that some of the cases label what I describe as a threshold 'application' issue as one of 'standing', to the same effect). Of course if they had no such 'expectation', then they have no such rights. That's not to say that the 'rights' are always of the same degree, since there are many different types and degrees of privacy that Charter law protects - but those are the basics of the REP concept.

Building on the leading case of R v Edwards (SCC, 1996), which at para 45 sets out "certain principles pertaining to the nature of the s. 8 right to be secure against unreasonable search or seizure", the law respecting 'reasonable expectation of privacy' concept has been outlined recently as follows [R. v. Attard (Ont CA, 2024)]:

[61] At paras. 31-32 of El-Azrak, Fairburn A.C.J.O., writing for this court, summarized the legal framework - whatever the form of privacy is at issue – for whether someone has a reasonable expectation of privacy. That determination necessitates both a factual and a normative inquiry. The factual inquiry necessitates a command of all the circumstances in play in the case. The normative inquiry is broader in nature, with an eye to protecting that for which we ought to expect protection from a privacy perspective in a free and democratic society. The test for determining whether someone has a reasonable expectation of privacy asks the following:

1. What is the subject matter of the search?

2. Does the accused have a direct interest in that subject matter?+

3. Does the accused have a subjective expectation of privacy in the subject matter?

4. Would an expectation of privacy be objectively reasonable in the circumstances of the case?

General
Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - General
Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Purpose
Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Normative/Content Neutrality

Test and its Elements

General
Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Test
Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - 'Standing'

Test Elements
Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Subject-Matter (+)
Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Direct Interest
Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Subjective Expectation
Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Objective Expectation (+)

Exceptions
Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Exception for Illegal Acts

Evidence
Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Evidence

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Searches and their Categories

The court sets out the three main search categories of s.8 privacy interests (and thus searches) [R. v. Attard (Ont CA, 2024)]:

[60] Three broad categories of privacy interests have emerged over time: territorial, personal, and informational: R. v. El-Azrak, 2023 ONCA 440, at para. 30; R. v. Spencer, 2014 SCC 43, at para. 38.

General
Charter - s.8 Search and Seizure - Searches

Categories

Bodily
Charter - s.8 Search and Seizure - Personal Privacy (Bodily)
Charter - s.8 Search and Seizure - Strip Search

Informational
Charter - s.8 Search and Seizure - Informational Privacy (+)

Spatial-Territorial
Charter - s.8 Search and Seizure - Spatial-Territorial (+)
Charter - s.8 Search and Seizure - Chattel Property

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Areas of Law
Charter - s.8 Search and Seizure - Administrative
Charter - s.8 Search and Seizure - Border and Customs
Charter - s.8 Search and Seizure - Regulatory
Charter - s.8 Search and Seizure - Civil Orders
Charter - s.8 Search and Seizure - Professionals

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Common Law
Charter - s.8 Search and Seizure - Ancillary Powers

s.8 Search or seizure

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SELF-INCRIMINATION [s.11(c) and s.13]

Charter - Compellability [s.11(c)] (+)
s.11(c) Self-Incrimination - Compellability

Charter - Self-Incrimination (s.13)
s.13 Self-crimination

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STANDING
Charter - Standing

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STARE DECISIS (CHARTER)
Charter - Stare Decisis

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'SUSPENSION' OF RIGHTS
Charter - 'Suspension' of Rights

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TERRITORIES
s.30 Application to territories and territorial authorities

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TRIAL DELAY [s.11(b)]

General
Charter - s.11(b) Trial Delay - Basics
Charter - s.11(b) Trial Delay - Jordan Doctrine (+)

Types of Delay
Charter - s.11(b) Trial Delay - Court Delay
Charter - s.11(b) Trial Delay - Crown Delay
Charter - s.11(b) Trial Delay - Defence Delay

Exceptional Circumstances

Discrete Exceptional Circumstances
Charter - s.11(b) Trial Delay - Discrete Exceptional Circumstances
Charter - s.11(b) Trial Delay - COVID (+)

Complex Case Exceptional Circumstances
Charter - s.11(b) Trial Delay - Complex Case Exceptional Circumstances

Other
Charter - s.11(b) Trial Delay - Joint Prosecutions
Charter - s.11(b) Trial Delay - Residual Court Remedial Discretion
Charter - s.11(b) Trial Delay - Contempt
Charter - s.11(b) Trial Delay - Application
Charter - s.11(b) Trial Delay - Post-Verdict Delay
Charter - s.11(b) Trial Delay - Waiver
Charter - s.11(b) Trial Delay - Mistrial
Charter - s.11(b) Trial Delay - Direct Indictment

Supreme Court of Canada Cases
Charter - s.11(b) Trial Delay - Jacques-Taylor (SCC, 2026)
Charter - s.11(b) Trial Delay - Vrbanic (SCC, 2026)

Appeals
Charter - s.11(b) Trial Delay - Appeals

s.11(b) Trial Delay

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VALUES
Charter - Values (+)