This paper provides an overview of the impact of the Canadian Charter of Rights and Freedoms on the law of search and seizure. Prior to 1982, there were few remedies available if the state authorities failed to comply with the law regarding searches and seizures. This situation changed with the passage of the Charter. Courts became empowered to strike down laws governing search and seizure if they did not comply with constitutional standards, in particular the protection against unreasonable search or seizure in section 8. Perhaps more important, there was now the possibility of excluding evidence obtained in the course of a Charter violation under section 24(2). The Supreme Court began the Charter era by making important pronouncements on the purpose behind section 8 — to protect privacy interests, rather than property — and by declaring a preference for a warrant issued by a judge as authorization for a search or seizure if it was feasible to obtain such prior authorization. Parliament and legislatures seemed to adapt reasonably easily to this regime. Unfortunately, after these initial principles were established and applied in some subsequent cases, the law of search and seizure began to revert to a more property-based approach and, in some other respects, to depart from the framework that was established in the beginning of Charter jurisprudence. This was accomplished through a narrowing of the class of persons who might claim a reasonable expectation of privacy and by holding that the Charter has no application to certain types of intrusions by state officials. Finally, the paper assesses the extent to which the admission or exclusion of evidence after a Charter violation has been proved has strengthened or weakened the constitutional protection afforded by section 8.
"The Impact of the Charter on the Law of Search and Seizure."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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