Unreasonable Search and Seizure: Section 8 of the Charter
Section 8 of the Charter is one sentence long, and it decides a very large share of criminal cases in Canada — particularly drug and firearms prosecutions, where the evidence is the case.
Section 8 of the Canadian Charter of Rights and Freedoms provides that everyone has the right to be secure against unreasonable search or seizure. A search is reasonable where it is authorised by law, the law itself is reasonable, and the search was carried out reasonably.
What Does Section 8 Say?
Section 8 reads, in full: 'Everyone has the right to be secure against unreasonable search or seizure.'
The protection engages where a person has a reasonable expectation of privacy in the place or thing searched. Where there is no such expectation, section 8 is not triggered at all — which is why the first question in these arguments is often about privacy rather than about police conduct.
A search conducted without a warrant is presumptively unreasonable. The burden then falls on the Crown to justify it, rather than on the accused to attack it.
When Is a Search Reasonable?
A search is reasonable where three conditions are met: it is authorised by law, the law authorising it is itself reasonable, and the manner in which the search was carried out was reasonable. A failure at any one of the three makes the search unreasonable.
Authorisation usually comes from a warrant, but the law recognises warrantless searches in defined circumstances — search incident to a lawful arrest, exigent circumstances, and valid consent among them.
Each of those has limits. A search incident to arrest must be genuinely incidental to the arrest and for a valid purpose connected to it. Consent must be informed and voluntary, which means the person must know what they are giving up.
How Does This Connect to Sections 9 and 10?
Section 9 provides that everyone has the right not to be arbitrarily detained or imprisoned. Section 10 provides that everyone has the right on arrest or detention to be informed promptly of the reasons, to retain and instruct counsel without delay and to be informed of that right, and to have the validity of the detention determined by habeas corpus.
These provisions work together in practice. An unlawful detention under section 9 often taints the search that follows under section 8, and a failure to give the right to counsel under section 10(b) frequently affects the admissibility of whatever was said or provided afterwards.
This is why a defence review of disclosure examines the whole sequence — the reason for the stop, the point at which detention began, when the right to counsel was given, whether it was facilitated, and only then the search itself.
What Happens If a Search Breaches Section 8?
A breach does not automatically exclude the evidence. Section 24(1) allows anyone whose Charter rights have been infringed to apply to a court of competent jurisdiction for a remedy that is appropriate and just in the circumstances.
The remedy usually sought in a criminal case is exclusion of the evidence, which is governed by section 24(2). A court considers the seriousness of the state conduct, the impact of the breach on the accused's Charter-protected interests, and society's interest in an adjudication on the merits.
Where the evidence is the case — a firearm, a quantity of drugs, a breath reading — exclusion is usually determinative. Where it is peripheral, a breach may be found and the prosecution continue.
None of this happens automatically. A Charter application has to be brought, with notice and a factual record, which is why disclosure review is where these cases are won.
Frequently asked questions
Browse every answer on this siteIt provides that everyone has the right to be secure against unreasonable search or seizure. It engages where a person has a reasonable expectation of privacy in what was searched.
A warrantless search is presumptively unreasonable, and the Crown must justify it. The law recognises exceptions including search incident to a lawful arrest, exigent circumstances and valid informed consent.
Three things together: the search is authorised by law, the authorising law is itself reasonable, and the search was carried out in a reasonable manner. Failing any one makes it unreasonable.
Not automatically. The usual remedy sought is exclusion of the evidence under section 24(2), which the court weighs against the seriousness of the breach and society's interest in a decision on the merits.
Consent must be informed and voluntary to be valid. Whether a particular search was lawful without consent depends on the circumstances, which is a question to raise with a lawyer rather than at the roadside.
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This page is general information about Canadian law, not legal advice, and reading it does not create a lawyer-client relationship. Statutes are amended; provisions are described as at the consolidation reviewed when this page was written.
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