The text and its scope
Section 8 says: 'Everyone has the right to be secure against unreasonable search or seizure.' It applies only to searches or seizures by the state, meaning police, border officers, regulatory inspectors, and other government actors.
Section 8 does not apply directly to private actors. However, private actors carrying out a state function (for example, bank employees acting as agents of police) may be subject to it.
The reasonable expectation of privacy test
A search or seizure only engages section 8 if you had a reasonable expectation of privacy in the place or item searched. The Supreme Court has outlined factors including the subject matter of the search, your direct interest, your subjective expectation of privacy, and whether that expectation is objectively reasonable.
Courts recognize stronger privacy expectations in the home (the highest), slightly lower in vehicles, and varying degrees for electronic devices depending on context.
Landmark cases
Key Supreme Court decisions shape section 8:
- Hunter v. Southam (1984): Established the general framework, requiring prior authorization by a neutral decision-maker on reasonable grounds for most searches.
- R. v. Edwards (1996): Set out the reasonable-expectation-of-privacy test.
- R. v. Spencer (2014): Held that there is a reasonable expectation of privacy in subscriber information tied to an IP address, and that police generally need a warrant.
- R. v. Marakah (2017): Text messages sent to a recipient can remain subject to the sender's reasonable expectation of privacy.
- R. v. Jarvis (2019): Reasonable expectation of privacy applies even in semi-public spaces (school hallway) against surreptitious recording.
- R. v. Bykovets (2024): Held that a reasonable expectation of privacy extends to IP addresses themselves, not only the subscriber information linked to them.
Warrants, warrantless searches, and exceptions
Section 8 generally requires prior authorization (a warrant) issued on reasonable and probable grounds. A warrantless search is presumptively unreasonable, and the state bears the burden of justifying it.
Recognized exceptions include search incident to arrest, exigent circumstances, consent, and certain regulatory contexts. Even in these cases, the scope of the search must be proportionate.
Remedies for Charter breaches
If your section 8 rights are breached, the most common remedy is exclusion of evidence under section 24(2) of the Charter. Courts apply the Grant test, balancing seriousness of the breach, impact on protected interests, and society's interest in adjudication.
You may also seek damages under section 24(1) for serious Charter breaches. See Vancouver (City) v. Ward, 2010 SCC 27.