scholarly journals Tessling, Brown, and A.M.: Towards a Principled Approach to Section 8

2015 ◽  
Author(s):  
William MacKinnon
Keyword(s):  
Supreme Court ◽  
Historical Development ◽  
Search And Seizure ◽  
Reasonable Expectation ◽  
Section 8 ◽  
Individual Privacy ◽  
The Supreme Court ◽  
Reasonable Expectation Of Privacy

This article analyzes the Supreme Court of Canada's search-and-seizure jurisprudence in anticipation of the Court's forthcoming decisions on the admissibility of evidence obtained by police dog searches in Brown and A.M. After reviewing the historical development of s. 8, the author then goes on to discuss the strengths and weaknesses of the Court's analysis of sense-enhancing aids and the reasonable expectation of privacy' in Tessling. The article ultimately argues that the Court ought to eschew a case-by-case model for establishing the existence of areasonable expectation of privacy, and go beyond the facts of Brown and A.M. in order to adopt a more principled approach to s. 8. The author maintains that a more principled approach is necessary because stale actors need clearer guidance if they are to successfully balance individual privacy with the use of sense enhancing aids.

scholarly journals Ce qui est abusif au sens de l'article 8 de la Charte canadienne lors de la recherche de preuves

2005 ◽  
Vol 27 (4) ◽  
pp. 965-982
Author(s):  
Bernard Auger
Keyword(s):  
Supreme Court ◽  
Search And Seizure ◽  
Supreme Court Of Canada ◽  
Section 8 ◽  
The Supreme Court ◽  
Liberal Approach ◽  
Compliance With The Law ◽  
The Individual ◽  
The Right ◽  
Minimum Criteria

In determining whether legislation permitting search and seizure properly meets the requirements of section 8 of the Canadian Charter of Rights and Freedoms, the courts have been obliged to balance the right of the individual to be secure against unreasonable search and seizure with the right of the state to ensure compliance with the law. In Hunter v. Southam, the Supreme Court of Canada established the minimum criteria of reasonable search and seizure for the purposes of section 8. The liberal approach adopted by the Supreme Court raises an important question : Should the same criteria apply to administrative statutes empowering bodies to conduct inquiries and inspections ? The author compares section 8 of the Charter with the American 4th Amendment, examining the requirement for search warrants in the light of Canadian cases. He then examines and discusses the case law concerning the applicability of section 8 to statutory provisions relating to the production of documents and the standard of reasonableness that should apply to these situations.

scholarly journals Consent Searches for Electronic Text Communications: Escaping the Zero-Sum Trap

2018 ◽  
pp. 1
Author(s):  
Steven Penney
Keyword(s):  
Supreme Court ◽  
Criminal Code ◽  
Electronic Text ◽  
Supreme Court Of Canada ◽  
Lower Court ◽  
Reasonable Expectation ◽  
Section 8 ◽  
The Supreme Court ◽  
Oral Communications ◽  
Zero Sum

In R. v. Marakah, a majority of the Supreme Court of Canada decided that senders of electronic text communications maintain a reasonable expectation of privacy over their messages even after they are copied to recipients’ devices. The dissenters argued, in contrast, that any such expectation is objectively unreasonable given senders’ inability to control the messages after delivery. The Supreme Court did not settle the question, however, of whether this expectation can be defeated by a recipient’s voluntary decision to allow police to search his or her own device. Indeed, each side intimated that such a consent would be difficult, if not impossible, to obtain.This article argues, nonetheless, that courts can and should use consent doctrine to avoid the “zero-sum” model of section 8 adjudication that characterizes the majority and dissenting reasons in Marakah. Properly interpreted, that doctrine preserves Marakah’s core holding — that senders do not reasonably expect unfettered state access to their received text communications — while also giving effect to recipients’ autonomous decisions to assist police.However, as with oral communications, a recipient’s consent to disclose a sender’s text communications to police should only defeat the sender’s expectation of privacy over preexisting messages. Contrary to several lower court decisions, this article argues that the acquisition of future, incoming communications from recipients’ devices (with or without consent) invades senders’ reasonable expectations of privacy under section 8 of the Charter and constitutes an “interception” requiring judicial authorization under section 184.2 of the Criminal Code.

scholarly journals Discarding Reasonable Expectations of Privacy: A Critique of R. v. Patrick

2010 ◽  
pp. 1037
Author(s):  
William MacKinnon
Keyword(s):  
Supreme Court ◽  
Police Officers ◽  
Compelling Evidence ◽  
Reasonable Expectation ◽  
Drug Production ◽  
The Supreme Court ◽  
To Come ◽  
Court Of Appeal ◽  
Tremendous Impact ◽  
Reasonable Expectation Of Privacy

Patrick, the Supreme Court of Canada’s latest landmark privacy decision, will have a tremendous impact on policing in years to come. In Patrick, police officers sifted through the curbside garbage of Mr. Patrick, discovered compelling evidence of drug production in its contents, used the information to secure a warrant to enter his residence, and found an ecstasy lab once inside. The Supreme Court, in upholding the decision of the Alberta Court of Appeal, denied Patrick’s claim to a reasonable expectation of privacy in his garbage.

American Perspectives on Self-Incrimination and the Compelled Production of Evidence

2002 ◽  
Vol 6 (4) ◽  
pp. 218-242
Author(s):  
Mark Berger
Keyword(s):  
United States ◽  
Law Enforcement ◽  
Supreme Court ◽  
The United States ◽  
United States Constitution ◽  
Search And Seizure ◽  
Fifth Amendment ◽  
The Supreme Court ◽  
Intimate Relation ◽  
Government Authority

The Fifth Amendment of the United States Constitution provides that no person may be compelled in any criminal case to be a witness against himself. The Boyd decision in 1886 recognised an intimate relation between the privilege against self-incrimination and the restrictions on search and seizure in the Fourth Amendment and created a virtually impenetrable barrier to government demands that a suspect or defendant be compelled to produce evidence against himself. However, since that time the Supreme Court has progressively restricted the scope of Fifth Amendment protection in relation to the compelled production of evidence. This has been achieved by requiring all citizens to appear before grand juries; by denying Fifth Amendment protection to entities; by holding that the compelled production of evidence does not breach the Fifth Amendment unless the very act of production is self-incriminatory; and by denying the privilege in relation to required records. The Supreme Court's stance reflects a recognition of the complexity of contemporary law enforcement problems and may be seen as an attempt to balance the state's interest in the successful prosecution of crime against the citizen's interest in being free from state intrusion. The effect of the Supreme Court's reforms has been to broaden government authority to compel offenders to assist in their own prosecutions whilst limiting Fifth Amendment protection to incrimination through the accused's own testimony or its equivalent.

scholarly journals The new intrusion tort: The news media exposed?

2021 ◽  
Author(s):  
◽  
Thomas Levy McKenzie
Keyword(s):  
News Media ◽  
Common Law ◽  
Privacy Rights ◽  
Public Concern ◽  
Reasonable Expectation ◽  
Private Space ◽  
Individual Privacy ◽  
One Step ◽  
Formed Part ◽  
Reasonable Expectation Of Privacy

<p>In C v Holland, Whata J recognised that the tort of intrusion upon seclusion formed part of New Zealand’s common law. The tort protects against intentional intrusions into a person’s private space. This decision potentially exposes the news media to tortious liability when it engages in intrusive newsgathering practices. However, Whata J’s decision provides little guidance as to how the tort should be applied in later cases. In order to ascertain the meaning of the tort’s formulation, this essay draws upon the methods used, both in New Zealand and internationally, to prevent the news media from breaching individual privacy rights. It then suggests that the courts should replace the formulation with a one-step reasonable expectation of privacy test. It also argues that the legitimate public concern defence should be better tailored to the intrusion context. Finally, it briefly assesses how the intrusion tort should interact with the tort in Hosking v Runting. Ultimately, it concludes that, in future, the courts should reflect more carefully on the precise wording of the intrusion tort’s formulation so that it best vindicates the interests that it was designed to protect.</p>

Supreme Court view will shape data protection in India

2017 ◽  
Keyword(s):  
Supreme Court ◽  
Data Protection ◽  
Data Security ◽  
Search And Seizure ◽  
Same Sex ◽  
Biometric Data ◽  
Content Type ◽  
Individual Privacy ◽  
Civil Laws ◽  
Shape Data

Subject Supreme Court's verdict on the fundamental right to privacy. Significance A hearing that began in India’s Supreme Court on July 19 concerns petitions challenging the obligatory use of Aadhaar -- a unique national identity number anchored in biometric data. Following recent data breaches affecting telecoms companies, the Court’s approach to the question of individual privacy will have an effect on efforts to enhance data security in India. Impacts A new and large market will emerge for data protection consultancy. Criminal and civil laws on search and seizure operations will require amending. There may be renewed challenges to legislation criminalising same-sex relations.

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