COMMENT
CHRONIQUE DE JURISPRUDENCE
The Inadequacy of Privacy: Hunter v. Southam and the Meaning of “un-
reasonable” in Section 8 of the Charter. R.T.H. Stone*
The author discusses the right of privacy un-
der section 8 of the Charter, and argues that
this right does not provide a sound basis for
determining the scope of “reasonable” search
and seizure. Indeed, emphasis on this right
has led to conflicting caselaw with respect to
administrative and personal searches, and
has prevented courts from developing gen-
eral principles of reasonableness. After crit-
icizing the caselaw, the author tentatively
suggests eight such principles.
L’auteur 6tudie le droit A la protection de Ta
’empire de ‘article 8 de Ta
vie privre sous
Charte canadienne et soutient que ce droit
n’est pas la bonne mesure pour determiner
quelles perquisitions et saisies ne sont pas
< abusives >>. De fait, l’insistance sur un tel
droit a men6 A une jurisprudence inconstante
dans les domaines des saisies administratives
et personnelles et a empch
les tribunaux
d’6tablir des principes grnraux sur le carac-
tare non-abusifdes saisies. Apr~s une critique
de ]a jurisprudence, l’auteur soumet huit
principes grnrraux sur les saisies et les per-
quisitions abusives.
*Dean of Law, Leicester University. The research for this article was started and largely
carried out during a visit to McGill University in January/February 1987. The visit was funded
by the British Academy and the Leicester University Research Board. Thanks are due to them,
and to the staff at McGill, particularly the Law Faculty Library staff. All the responsibility for
the content of this comment is, of course, my own.
McGill Law Journal 1989
Revue de droit de McGill
REVUE DE DROIT DE McGILL
[Vol. 34
I.
Introduction
A few years ago I attempted to catalogue all the powers of entry available
to the police and other officials under English law.’ It was with some surprise
that I discovered that the University Library had shelved my book in the
“Tort” section. On reflection, however, the library’s approach to what I
considered as essentially a “public law” text did have some merit. Indeed,
an alternate title might well have been “Trespass to Land: All Known De-
fences”. Since an entry is either lawful or it is a trespass, the main though
rarely effective remedy against abuse of entry powers by officials has been
the action for “trespass”. Moreover, if the British Parliament creates a sta-
tutory entry power, then there is automatically a defence to an action for
trespass, and the scope of the power is simply a matter for statutory
interpretation.
Such was the position in Canada prior to 1982. Now, however, section
8 of the Canadian Charter ofRights and Freedoms2 gives protection against
“unreasonable search or seizure”. Further, the Supreme Court of Canada
has suggested that the concept of “privacy”, as opposed to that of trespass,
should have the main role in determining what is, or is not, reasonable.
The purpose of this comment is to point out some ways in which this
approach, at least as it is currently being interpreted by the courts, is in-
appropriate when giving content to section 8.3 In particular, problems arise
from distinctions drawn between powers of inspection as opposed to powers
of search or seizure; “administrative” or “regulatory” powers, as opposed
to “criminal” procedures; and search of the person as opposed to search of
premises. Before addressing these issues, however, the state of the existing
law will be considered, and some general points made on the meaning of
“unreasonableness” in this context.
‘R. Stone, Entry, Search and Seizure (London: Sweet & Maxwell, 1985).
2Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
c. 11.3See K. Murray, “The “Reasonable Expectation of Privacy Test” and the Scope of Protection
against Unreasonable Search and Seizure Under Section 8 of the Charter of Rights and Free-
doms” (1986) 18 Ottawa L. Rev. 25. Murray also casts doubts on the value of the “privacy”
test as the basis for developing section 8.
1989]
CHRONIQUE DE JURISPRUDENCE
II. The Current Law: Hunter v. Southam
The starting point for any consideration of section 8 has to be the case
of Hunter v. Southam. 4 Although several earlier cases had considered this
section, the Supreme Court, in Hunter, had its first opportunity to deal
comprehensively with section 8 issues. The case, perhaps significantly, did
not arise from an ordinary criminal investigation conducted by the police,
but from the exercise of powers given to officials of the Combines Inves-
tigation Branch. 5 According to section 10 of the Combines Investigation Act,
R.S.C. 1970, c. C-23, the Director of Investigation and Research could au-
thorise his officials to enter premises in which the Director believed that
there might be evidence relating to an inquiry under the Act. In addition,
the Director could authorise officials to “examine anything on the premises”,
and to “copy or take away for further examination or cop[y] any book,
paper, record or other document” that, in the view of the official, might
constitute evidence relating to the inquiry.6 The Director was required to
obtain a certificate authorising such an entry from a member of the Re-
strictive Trade Practices Commission. 7
In April 1982, such a certificate was obtained in respect to the premises
of the Edmonton Journal, a newspaper in the Southam chain. The author-
isation was challenged as a breach of section 8. The Supreme Court agreed,
affirming the Alberta Court of Appeal, which unanimously held that section
10 of the Combines Investigation Act was unconstitutional.
In reaching this decision, the Court looked beyond the authorisation
contained in section 10 of the Act. First, Dickson J. (as he then was) com-
mented on the “breath-taking sweep” of the authorisation, which appeared
“tantamount to a licence to roam at large on the premises of Southam Inc.”,
not just on those of the Edmonton Journal. Given its scope, it is likely that
the authorisation in this case would have been struck down even if section
10 had been found constitutional. But the decision of the Alberta Court of
Appeal had been more broadly based. Following its lead, the Supreme Court
embarked on a general consideration of the proper method of interpreting
Charter rights, and specifically, section 8.
4Hunter, Director of Investigation and Research of the Combines Investigation Branch v.
Southam Inc., [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641 [hereinafter Hunter cited to S.C.R.].
51n England, a similar factual situation arose in I.R.C. v. Rossminster Ltd., [1980] A.C. 952,
[1980] 1 All E.R. 80 (H.L.), where the search powers of the Inland Revenue Commissioners,
rather than those of the police, were called into question. Given the origin of both these cases,
it is perhaps expected that the police will exercise draconian powers, but surprising when
government officials possess similar powers.
6s.10(1).
7S.10(3).
McGILL LAW JOURNAL
[Vol. 34
Dickson J., having referred to the views of Viscount Sankey (in Ref-
erence Re Section 24 of the B.N.A. Act; Edwards v. A.G. Canada8) and Lord
Wilberforce (in Minister of Home Affairs v. Fisher9 ), regarding the need to
give constitutional documents a “large and liberal” or “generous” inter-
pretation, started his analysis of section 8 with the observation that the
Charter is a purposive document. It is, therefore, necessary to investigate
the purpose underlying section 8 to determine what interests it protects,
and thus what searches are “unreasonable”. At this point a short digression
on how the Court could have interpreted the concept of “unreasonableness”
is in order.
1. The Concept of “Unreasonableness”: Case Law pre-Hunter v. Southam
Section 8 uses the the concept of “unreasonableness” when prohibiting
“unreasonable” search and seizure. Reasonableness is, of course, often used
in the common law – most notably, perhaps, in the tort of negligence,
where the standard of “foreseeability” is based on what a “reasonable per-
son” would foresee. But the concept appears in many other areas. The
frequency with which it appears, and the comfortable familiarity of its phra-
seology, should not lull us into thinking that it is easy to define.
One possible approach would be to treat “unreasonableness” as mean-
ing simply “without reason”. In other words a search would only be “un-
reasonable” if it was totally arbitrary, and without any rational basis. This
approach would have left the law in its pre-Charter state. Thus, the existence
of a statutory power authorising a search would provide the “reason” for
it. Further, as long as the requirements of the statute itself were fulfilled,
the search would be “reasonable”. McDonald J. came close to this approach
in Re Reich and College of Physicians and Surgeons ofAlberta (No.2).10 In
Re Reich, which was decided prior to Hunter v. Southam, the Judge found
that demands for the prodhiction of documents by the College under section
37 of the Medical Profession Act, R.S.A. 1980, c. M-12 had a rational basis
in the protection of the public from incompetence in the practice of med-
icine. 1 Although McDonald J.’s approach drew on the Wednesbury ap-
proach, 12 later courts have given a wider interpretation to “reasonableness”.
It is clear, however, that the standard is objective. We are not concerned
with what a particular official exercising a search power, or a particular
victim of a search, considers reasonable. It is a general standard of “rea-
8(1929), [1930] A.C. 124 at 136-7, [1930] 1 D.L.R. 98 at 106-7 (RC.).
9[1980] A.C. 319 at 329, [1979] 3 All E.R. 21 at 26 (H.L.).
10(1984), 53 A.R. 325, 8 D.L.R. (4th) 696 (Q.B.) [hereinafter Re Reich cited to D.L.R.].
“Ibid. at 709.
121bid. at 706-7.
19891
COMMENTS
sonableness” that is in question. It is also clear that the issue is more cul-
turally “loaded” than the issue of reasonable foreseeability in tort, where
the perceptive abilities of the average person are key. While even that ques-
tion cannot be totally divorced from context, at some point the objective
capacity of the human brain is relevant, and imposes some framework on
the discussion. When looking at the “unreasonable search” there is no sim-
ilar core of scientific objectivity. All depends on the context. Thus, what is
reasonable within a particular society at a particular time is the standard.
Problems arise when one confuses the reasonableness of a search with
“reasonable grounds for suspicion” or belief. There is an obvious temptation
to use the “reasonableness” of belief approach as the starting point for a
discussion of section 8.13 Once again, however, the approach is misleading.
The issue in cases dealing with the exercise of police power upon reasonable
grounds is, primarily, the state of knowledge of the person making the de-
cision. Did he or she have sufficient information from which to infer that
it was likely that particular items might be found on particular premises?
This, again, refers to the intellectual capacity of the average individual. It
is a decision with little or no “moral” content. Yet the issue in section 8 is,
primarily, a moral one, and is based on the standards and expectations
operating within a society at a particular time. Of course, the answer might
still be given that the search is to be regarded as “reasonable” if the person
authorising the entry had reasonable grounds for a particular belief or sus-
picion. But the two issues have no necessary connection.
2. The “Privacy” Approach
In Hunter, the S.C. could have interpreted section 8 as doing little more
than giving added status to pre-Charter law. In other words, the Court might
have held that if a power was part of formally unimpeachable legislation,
it could not be regarded as unreasonable. Such a holding would be consistent
with Entick v. Carrington,14 which confirmed the need for proper legal au-
thorisation for any invasion of property rights. But Dickson J., without really
arguing the point, simply asserted that “in my view, the interests protected
by section 8 are of a wider ambit than those enunciated in Entick v. Car-
rington”.15 Further, these interests are not limited to the protection of
property.
13See, e.g., L. Paikin, “The Standard of’Reasonableness’ in the Law of Search and Seizure”,
in V. Del Buono (ed.), Criminal Procedure in Canada: Studies (Toronto: Butterworths, 1982)
at 94.
14(1765), 95 E.R. 807, [1558-1774] All E.R. Rep. 41.
15Hunter, supra, note 4 at 158.
REVUE DE DROIT DE McGILL
[Vol. 34
For further guidance, Dickson J. turned to the United States Consti-
tution, specifically, to the Fourth Amendment, which contains a similarly
worded “broad right”. American courts have interpreted this right as pro-
tecting “people not places”, 16 with the dominant principle being the pro-
tection of privacy. Dickson J. adopted the same approach when dealing with
section 8. In one of the key passages in his judgment, he set out this approach
as follows:
Like the Supreme Court of the United States, I would be wary of foreclosing
the possibility that the right to be secure against unreasonable search and
seizure might protect interests beyond the right of privacy, but for the purposes
of the present appeal I am satisfied that its protections go at least that far. The
guarantee of security from unreasonable search and seizure only protects a
reasonable expectation. This limitation on the right guaranteed by s. 8, whether
it is expressed negatively as freedom from “unreasonable” search and seizure,
or positively as an entitlement to “reasonable” expectation of privacy, indicates
that an assessment must be made as to whether in a particular situation the
public’s interest in being left alone by government must give way to the gov-
ernment’s interest in intruding on the individual’s privacy in order to advance
its goals, notably those of law enforcement.’ 7
The required assessment should be made by an impartial arbiter on the
basis of reasonable grounds for suspicion that relevant evidence will (as
opposed to “may”) be found. On both these points section 10 was too wide,
and was, therefore, struck down.
III. The Effects of Hunter v. Southam
The decision in Hunter v. Southam has affected both legislation and
litigation. The possibility of challenging evidence by means of section 24
of the Charter (as was the case in Hunter), has meant that in a large number
of criminal cases, alleged invasions of privacy in the course of obtaining
evidence have been used as the basis for excluding such evidence.18 Further,
the government has revised the powers of entry given to various officials,
to ensure that these powers meet the criteria laid down in Hunter v. Sou-
tham. What follows is a summary of the relevant legislation.
16Katz v. United States, 389 U.S. 347 at 351 (1967).
7Hunter, supra, note 4 at 159-60.
18See. e.g., R. v. Cameron (1987), 16 C.C.C. (3d) 240, 13 C.R.R. 13 (B.C.C.A.); R. v. Dom-
browksi (1985), 18 C.C.C. (3d) 164, 44 C.R. (3d) 1 (Sask. C.A.); Re Mandel & The Queen
(1986), 25 C.C.C. (3d) 461; R. v. James (1986), 55 O.R. (2d) 609, 55 O.A.C. 319 (C.A.); R. v.
Manuel (1986), 50 C.R. (3d) 47 (Que. C.S.P).
1989]
CHRONIQUE DE JURISPRUDENCE
1. Legislation
The main legislation is Bill C-27, most of which was proclaimed in
force on October 15, 1985, under the title of the Statute Law (Canadian
Charter of Rights and Freedoms) Amendment Act. It deals with powers of
entry given to government officials under acts as various as the Bankruptcy
Act and the Pesticide Residue Compensation Act. The powers are divided
into those concerned with entry and inspection, and those concerned with
entry and search. A slightly different approach is taken when interpreting
these two powers of entry.
Looking first at inspection powers, there is a fairly standard approach.
The inspector is given the power to enter premises without warrant if he
has reasonable grounds for believing that he will find objects which he is
entitled to inspect under the relevant act. If, however, he wishes to enter a
“dwelling-house”, he may not enter without the occupier’s consent, unless
he obtains a warrant from a justice of the peace. An information on oath
must be supplied to the justice, who must himself decide whether sufficient
grounds exist for the issue of a warrant.
This form is used, for example, in section 19 of the Canadian Dairy
Commission Act. The distinction between dwellings and other premises is
consistent with the use of “privacy” as the basis for “reasonableness”. A
person presumably has a greater interest in protecting the privacy of the
place where he or she lives, as opposed to the place where he or she carries
on business. Privacy does attach to business premises, of course. Indeed,
the premises in Hunter v. Southam were of this kind.19
Turning to powers of entry and search under Part II of the Statute Law
Amendment Act, the approach is narrower. Here, the general line is as fol-
lows: in order to enter premises of any kind to search for evidence of an
offence, a warrant will be needed, at least in the absence of exigent circum-
stances making it impractical for one to be obtained. 20 Again, though to a
more limited extent, the distinction is understandable in terms of “privacy”.
A “search” of premises is more likely to impinge on a person’s privacy than
a mere “inspection”. Conversely, it might be argued that if the purpose of
the search is to find evidence of criminal offences, the public interest in the
detection of crime should weigh heavily in any balancing of public interest
and personal privacy rights. Indeed, the detection of crime would tip the
balance far more than administrative inspection. Taking this argument one
step further, stricter controls should be expected over the “inspection” pow-
19See also Martin J.A. in R. v. Rao (1984), 4 O.A.C. 162 at 182, 40 C.R. (3d) 1 at 32 (C.A.):
“In my view, however, the individual’s legitimate expectation of privacy in contemporary
society extends equally to his office.”
20See, e.g., Canada Water Act, R.S.C. 1985, c. C-11, s. 26(a).
McGILL LAW JOURNAL
[Vol. 34
ers than over the “search” powers, yet this is the opposite of what is in fact
the case. This argument will be dealt with in greater detail in the analysis
of case law subsequent to Hunter v. Southam.
Section 443 of the Criminal Code reflects the same policy, in that it
requires the police to obtain a warrant before searching any premises for
evidence of criminal offences. The definition of evidence is extremely wide,
and includes the following: “anything on or in respect of which any offence
against this Act or any other Act has been or is suspected to have been
committed” (443(l)(a)), or anything that there is reasonable ground to be-
lieve will afford evidence with respect to the commission of such an offence
(443(1)(b)), or “anything that there is reasonable ground to believe is in-
tended to be used for the purpose of committing any offence against the
person for which a person may be arrested without warrant” (443(l)(c)).
2. Hunter v. Southam: Its Progeny
As a watershed decision, Hunter v. Southam has generated much case
law. Some of the decisions simply apply the case to criminal or quasi-
criminal searches where either the enabling statute, or the exercise of the
power in a particular case, fell foul of the need for “reasonable grounds”. 21
Such case law is not discussed here. Rather, the focus is on the ways in
which the general principles found in Hunter have been developed, in par-
ticular, in relation to administrative searches and personal searches.
(a) Administrative “Searches” and “Seizures” ’22
(i) Production Orders (pre-Hunter case law)
An issue which has generated a considerable body of case law is whether
an order for the production of documents comes within the scope of section
8. An analysis must start with the pre-Hunter case of Re Alberta Human
21See, e.g., M.N.R. v. Kruger Inc., [1984] 2 EC. 535, 13 D.L.R. (4th) 706, 55 N.R. 255, 12
C.R.R. 45, 84 D.T.C. 6478 (C.A.) and R. v. Print Three Inc. (1985), 51 O.R. (2d) 321,20 D.L.R.
(4th) 586, 47 C.R. (3d) 91, [1985] 2 C.T.C. 48, 10 O.A.C. 220, 20 C.C.C. (3d) 392 (C.A.), both
considering the Income Tax Act, S.C. 1970-71-72, c. 63, s. 231(4); Re Ontario Chrysler (1977)
Ltd. andRush (1987), 59 O.R. (2d) 724, 39 D.L.R. (4th) 100 (H.C.), considering the Business
PracticesAct, R.S.O. 1980, c. 55, s. 11(1); R. v. Belliveau (1985), 18 C.C.C. (3d) 554, 61 N.B.R.
(2d) 223, 158 A.P.R. 223 (Q.B.), considering the Tobacco Tax Act, R.S.N.B. 1973, c. T-7, s.
2.2(2); R. v. MacAusland (1985), 52 Nfld. & PE.I.R. 349, 153 A.R. 349, 14 C.R.R. 179, 19
C.C.C. (3d) 365 (RE.I. C.A.), considering the Liquor Control Act, R.S.P.E.I. 1974, c. L-17.
22See also A. Reid & A. Young, “Administrative Search and Seizure Under the Charter”
(1985) 10 Queen’s L.J. 392.
19891
COMMENTS
Rights Commission and Alberta Blue Cross Plan.23 There, the Alberta Court
of Appeal considered powers under the Individual’s Rights Protection Act,
R.S.A. 1980, c. 1-2, which allow the Alberta Human Rights Commission to
require production of documents. The court stated, without adducing au-
thority or discussing the issue, that
We accept the view that a forced production of documents in a civil proceed-
ings, or during an administrative inquiry, is a seizure.
The Court went on to hold that the procedures met the section 8 test of
“reasonableness”. 24
One implication of this argument is that “search” and “seizure” may
be treated separately. An order for the compulsory production of specified
documents might be a “seizure” but is certainly not a “search”. The fol-
lowing November, however, the Federal Court of Appeal, in Re Ziegler and
Hunter,25 was of the view that such a power did not constitute a “seizure”
within the meaning of section 8. In Re Ziegler, the Court considered section
17 of the Combines Investigation Act, which empowered the Director of
The Restrictive Trade Practices Commission to order persons to give evi-
dence and to bring documents with them. The majority of the Court (Mar-
ceau J. dissenting) followed case law on the U.S. 4th Amendment, and held
that the power did not amount to a seizure. 26 Marceau J., on the other hand,
thought that the Alberta approach was logically correct:
It is the taking hold by a public authority of a thing belonging to a person
against that person’s will that constitutes the essence of a seizure and the fact
that the person is or is not forced to hand over the thing himself appears to
me irrelevant.
Nevertheless, he held that the power was constitutional in this case because
it was “reasonable”.
23(1983), 48 A.R. 192, 1 D.L.R. (4th) 301 (C.A.) [hereinafter Alberta Human Rights Com-
mission cited to A.R.].
241bid. at 195-96.
25(1983), [1984] 2 EC. 608, 8 D.L.R. (4th) 648 (C.A.).
26See, e.g., Oklahoma Press Publishing Co. v. Walling, Wage and Hour Administrator, 327
U.S. 186 (1946); In Re Horowitz, 482 E 2d 72 (1973), cert. den. 94 S. Ct. 64; Dunham v.
Ottinger, 154 N.E. 298 (1926).
REVUE DE DROIT DE McGILL
[Vol. 34
(ii) Production Orders (post-Hunter case law)
In subsequent cases, the majority view in Ziegler and Hunter is gen-
erally the one that has been followed. 27 Indeed, in Gainers Inc. v. U.EC. W.,
Local 280-P,28 the Alberta Court of Appeal did not follow its earlier decision,
and was clearly of the view that the Labour Relations Act, which permitted
the Labour Relations Board to order that an individual present him or
herself before the Board, and bring any “document or other thing”, was not
a seizure. Even if it was, however, it was “reasonable” vis-a-vis the tests
laid down in Hunter v. Southam. The Court also drew a distinction between
“powers of testimonial compulsion” and powers to “administer, investigate,
and then prosecute complaints. ‘ 29
In Coast Tractor & Equipment Ltd v. Halliday,30 the same approach
was taken in respect of a “garnishee” order. Gibbs J. felt able to extract
some principles from earlier case law. He found that legislation which had
been successfully challenged had as constituent elements 3
the exercise of the coercive power of government, an invasion of privacy and
penalty provisions for non-compliance. If those cases are fairly representative
of the decisions of the appeal courts of the provinces, and of the Supreme
Court of Canada, it may be that it can now be said that unless all those elements
are present, the challenger cannot succeed under section 8.
The exceptions to this general trend begin with Re Reich and College
ofPhysicians and Surgeons, 32 which was decided after Ziegler and Hunter.33
Although McDonald J. in the Alberta Queen’s Bench, felt obliged to follow
his own Court of Appeal, and hold that a forced production of documents
under section 37(2) of the Medical Profession Act would be a seizure, he
distinguished the case before him. He stated that it involved a demand
under section 37(1), which could only be backed up by civil sanctions. 34
27See, e.g., K Mart Canada Ltd/K Mart Canada Lt~e v. Millmink Investments Ltd (1986),
10 CP.C. (2d) 109 (Ont. Master); Re Saskatchewan Human Rights Code: Cole v. EW. Woolworth
Co., [1985] 6 W.W.R. 759 (Sask. Q.B.); R. v. McKinlay Transport Ltd (1987), 58 O.R. (2d) 310,
37 D.L.R. (4th) 454, 32 C.C.C. (3d) 1, 27 C.R.R. 109 (H.C.).
28[1986] 5 W.W.R. 667, 75 A.R. 130 (C.A.) [hereinafter Gainers cited to W.W.R.].
291bid. at 670.
30(1987), 37 D.L.R. (4th) 316, 13 B.C.L.R. (2d) 66 (S.C.) [hereinafter Coast Tractor cited to
D.L.R.].
“3Ibid. at 320.
32Re Reich, supra, note 10 at 696.
“3But before the Supreme Court’s decision in Hunter, supra, note 4.
341f it were a “seizure”, McDonald J. would have found it reasonable because it had “a
rational basis” in the protection of the public from incompetence in the practice of medicine
(Re Reich, supra, note 10 at 709).
1989]
CHRONIQUE DE JURISPRUDENCE
In addition, the first instance decision in Thomson Newspapers v. Di-
rector of Investigation and Research35 also followed the Alberta Court of
Appeal. This case was, like Hunter v. Southam, concerned with a provision
of the Combines Investigation Act –
section 17 – which empowered the
Director to order the production of documents. J. Holland J., in the Ontario
High Court, took the view that since the power could be exercised without
an impartial arbiter having authorised it on the basis of reasonable grounds
for belief that an offence had been committed, it was inconsistent with
section 8. On appeal, however, the Ontario Court of Appeal reversed this
decision, and applied the Ziegler and Hunter approach. The Court held that
section 8
does not encompass an order requiring the production of documents so long
as the section authorizing the order (or the law apart from that section) gives
the person required to produce a reasonable opportunity to dispute the order
and prevent the surrender of the documents under section 17.36
Even if section 17 did involve a “seizure”, the court thought that it was
reasonable.
The prevailing trend in the case law is thus against using section 8 in
the area of production of documents. The cases do not, however, go so far
as to say that no production order could amount to a “seizure”. How would
section 8 apply in such a case? In line with the usual approach, where the
issue is discussed in cases post-Hunter, a production order is treated as a
potential or actual breach of privacy. To what extent does the compulsory
handing over of documents infringe a person’s privacy? Clearly there is less
infringement in surrendering, even under compulsion, a document or other
item, than in having someone search your premises, and perhaps remove
your files. But is privacy involved at all? This might depend on the nature
of the document. If it is a personal letter, privacy may well be a factor. But,
in the absence of section 8, and its related “privacy” slant, it is likely that
the discussion of this situation would centre on two different issues.
The first issue is confidentiality.37 Most obviously, lawyers or other
professionals might argue that items should not be handed over because
they are held “in confidence”. This has a close relation to privacy, but it is
the “privacy” of the person to whom the confidence is owed that is im-
portant, not the privacy of the person in possession of the item. Issues of
this nature were raised in Bishop v. College of Physicians of British Colum-
35(1986), 54 O.R. (2d) 143, 26 D.L.R. (4th) 507 (H.C.).
36(1986), 57 O.R. (2d) 257, 34 D.L.R. (4th) 413 (C.A.) [leave to appeal granted 25 June 1987,
23 O.A.C. 318n (S.C.C.)].
37This issue was discussed in Alberta Human Rights Commission, supra, note 23 at 197, but
independently of the issue of “reasonableness” under section 8.
McGILL LAW JOURNAL
[Vol. 34
bia,38 which involved a demand for the production of medical records. At
first instance the judge stressed the damage to the confidential relationship
between doctor and patient which would be caused by allowing the docu-
ments to be handed over. He also thought that the seizure was “unreason-
able”, and thus contrary to section 8. It is unclear, however, whether the
judge thought that it was the breach of confidentiality, or simply the dis-
ruption to the doctor’s ability to practise, which made it unreasonable. The
British Columbia Court of Appeal, while agreeing with the judge that the
Rule of the Medical Services Commission authorising the “seizure” was
ultra vires the section of the Act, refused to consider section 8.
The second issue which might be raised in relation to the compulsory
handing-over of material is the rule against “self-incrimination”. Courts
may have some hesitancy about compelling persons to hand over material
which might lead to their conviction for a criminal offence. This hesitancy
may lie behind the distinction between criminal and civil procedures, a
distinction to which the Alberta Court of Appeal referred in Re Alberta
Human Rights Commission. Indeed, this distinction seems to form some
basis for distinguishing between the various decisions in this area. It is true
that in Ziegler and Hunter, a “self-incrimination” argument based on section
2(d) of the Canadian Bill of Rights was specifically rejected by the court.
But the fact that there is no positive right against self-incrimination in
Canadian law does not necessarily prevent its use as a relevant principle in
determining reasonableness under section 8. Similarly, the fact that there is
no specific “right of privacy” under the Charter has not prevented its de-
velopment as a basis for interpreting section 8.
(iii) Inspection Powers
The distinction between criminal and civil procedures was also con-
sidered a relevant factor in Bertram S. Miller Ltd v. R. 39 There, the Federal
Court of Appeal was considering the exerci’seqf inspection and seizure
powers under the Plant QuarantineAct, R.S.C. 197,:l4-3. Ryan J. pointed
out that the actions of the officials in this case were a step in an adminis-
trative process, not part of a criminal law “search and seizure”. 40 In addition,
he argued that protection against unreasonable “seizure” was concerned
38[1985] 6 W.W.R. 234, 65 B.C.L.R. 315 (S.C.), aff’d [1986] 3 W.W.R. 377, 1 B.C.L.R. (2d)
36 (C.A.).
39[1986] 3 EC. 291, 31 D.L.R. (4th) 211 (C.A.) [hereinafter Bertram cited to EC.].
4Ibid. at 324.
1989]
COMMENTS
with the protection of property rights rather than privacy.4 1 But where there
was an emergency situation involving a threat to public health, the interest
in protection from unreasonable seizure of one’s property had to give way
to the public interest. “In such situations a warrant is not necessary for a
seizure if such a seizure is authorized by statute and the terms of that statute
are themselves reasonable.” 42 On the facts, there was no breach of section
8. Hugessen J. reached the same conclusion, but in more colourful language:
As to the context, it is my opinion that the test of what is “unreasonable” for
the purposes of applying section 8 of the Charter will vary from case to case.
Without attempting to be exhaustive, it seems to me that one will always have
to look to the purpose of the statutory scheme authorizing the search and
seizure, to the nature of the property or things seized, to the character of the
premises where the search and seizure may normally be expected to be carried
out and to the legitimate interests and expectations not only of the public at
large but also of the person who is subject to the search and seizure. What is
reasonable in terms of entry and inspection of a restaurant kitchen or com-
mercial dairy, or a factory, or a mine will differ radically from what is reasonable
for the search and seizure of private papers in a dwelling-house. By the same
token, there is a distinction between a statutory scheme which obviously en-
visages routine inspections and testing at reasonable times in the normal course
of business and one which is designed to permit, where necessary, armed and
forceable intrusion at three o’clock in the morning. In short, there is a difference
in kind between the tramp ofjackboots and the sniff of the inspector of drains. 43
In Bertram, officials would most likely exercise their powers out of doors
or in public commercial premises. “Indeed, the nature of the things to be
searched is by definition, plant material or parasites, in which there can be
no legitimate expectation of privacy.44 The search must be conducted at a
reasonable time and be based upon reasonable belief; if it is not, the citizen
has his recourse at law.” 45
It should be remembered that in the legislative changes referred to
above, different controls were thought appropriate for “administrative in-
spections” as opposed to investigation of offences. This distinction has also
appeared in the case law. Perhaps the clearest statement is found in the
Ontario Court of Appeal’s decision in Re Belgoma Transportation Ltd. and
41Ibid. at 241. Cf. Mackinnon A.C.J.O. in ReAllen and Hamilton (City o.] (1987), 59 O.R.
(2d) 498 at 507, 38 D.L.R. (4th) 303 at 311 (C.A.): “It is agreed that the Charter is not directed
to the protection of property rights”; and Hugessen J. in Lagiorgia v. The Queen, [1987] 3 EC.
28 at 31, 42 D.L.R. (4th) 764 at 767 (C.A.): “Section 8 protects rights of privacy and property
against ‘unreasonable’ State intrusion”.
42Bertram, supra, note 39 at 331.
43Ibid. at 341.
4Cf. the “open fields” doctrine under the Fourth Amendment, discussed, infra, note 66 and
45Bertram, supra, note 39 at 343.
accompanying text.
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[Vol. 34
Director of Employment Standards.46 The court was considering section 45
of the Employment Standards Act, R.S.O. 1980, c.137. Under this section,
an employment standards officer may enter upon lands or premises at any
reasonable time to carry out an inspection, audit or examination. The court
took the view that even if this was a search and seizure, it was reasonable:
The standards to be applied to the reasonableness of a search or seizure and
the necessity for a warrant with respect to criminal investigations cannot be
the same as those applied to search or seizure within an administrative
context.4 7
The same line was taken by a differently constituted Court in R. v. Quesnel,48
in respect of a power to inspect farms.
The problem with this reasoning is that if “privacy” is the guiding
principle, it should probably lead to the opposite conclusion. Note that the
distinction the Court draws, as the above quote illustrates, is not between
“search” and “inspection”, but between “administrative” and “criminal”
searches. Surely if two searches, identical in physical terms, are carried out,
one for “criminal” and the other for “administrative” investigation pur-
poses, the infringement of privacy is the same in both cases. If there is a
difference it might well be that the public interest in the detection of crime
is greater than the public interest in ensuring compliance with administrative
regulations. If that is so, then it is the administrative searches which should
be subject to stricter controls.
It may well be that the various decisions are simply ad hoc reactions
to particular situations, rather than logical applications of principle. For
instance, in Re Ozubko and Manitoba Horse Racing Commission,49 “spot-
check” searches of property belonging to people holding licences (in this
case, as owners of racehorses) were approved. As Huband J.A. explains,
[All] licensees recognise that there must be procedures to ensure that the rules
are being obeyed and, consequently, spot checks to confirm compliance with
the rules are so manifestly reasonable that to argue otherwise on the basis of
section 8 of the Charter becomes unthinkable.50
This is a particularly clear example of assertion rather than argument form-
ing the basis for the application of section 8.
46(1985), 17 C.R.R. 78,20 D.L.R. (4th) 156 (Ont. C.A.) [hereinafterBelgoma cited to D.L.R.].
47Ibid. at 159.
48(1985), 53 O.R. (2d) 338, 12 O.A.C. 165 (C.A.) [leave to appeal denied 22 May 1986, 55
O.R. (2d) 543 (S.C.C.)].
49(1986), 33 D.L.R. (4th) 714,43 Man. R. (2d) 253 (C.A.) [hereinafter Ozubko cited to D.L.R.].
5 Ibid. at 720.
1989]
CHRONIQUE DE JURISPRUDENCE
(b)
Personal Searches
The courts have had no hesitation in applying section 8 to searches of
the person as well as to searches of premises. Though Canadian Courts are
less willing than English Courts to treat the two separately, surely there
should be differences of principle when the question of reasonableness is
considered. The kinds of issues which must be considered were raised by
R. v. Pohoretsky.5′ In this case, following a road accident, blood samples
were taken without consent. Urine which had been previously passed was
also seized. The Manitoba Court of Appeal took the view that a search or
seizure involving non-consensual intrusion into a person’s body (not au-
thorised by legislation) was illegal and unreasonable. Referring to the prin-
ciples involved, Philp J.A. argued as follows:
the dignity of the person is a criterion for assessing the unreasonableness of
an intrusion into the body. I would go further and say that it is the dominant
criterion. The right to privacy, although not the subject of a special protection
in the Charter, is well known to Canadian law, and is certainly an expectation
of the community. That should be our concern and, in my view, any search
and seizure involving an intrusion into the body would offend the community’s
sense of what is decent and fair.52
Once again, privacy is referred to as a relevant principle, but in con-
junction with the “dignity of the person”. Why this qualification? The an-
swer, presumably, is the feeling that to categorise what happened in this case
simply as an invasion of privacy would be inadequate. Indeed, the very
concept of privacy seems odd in this context. We do not condemn assaults
or stabbings because they offend our concepts of privacy. The violation of
an individual’s bodily integrity calls out for stronger language. Philp J.A.
seemed to sense this in his emphasis on the dignity of the person in the
first part of the quotation. Furthermore, it is arguable that the passage would
be just as effective, if not more so, were the reference to privacy removed.
But again, it seems that the shadow of Hunter v. Southam touches the
decision. Since the Supreme Court in Hunter used “privacy” as the guiding
principle in interpreting section 8, and since Hunter is the leading case,
lower courts have tended to feel that they must refer to the privacy argument,
51(1985), 17 D.L.R. (4th) 268, 45 C.R. (3d) 209 (Man. C.A.) [hereinafter Pohoretsky cited to
D.L.R.]; rev’d [1987] 1 S.C.R. 945, 39 D.L.R. (4th) 699.
52Ibid. at 284-85.
McGILL LAW JOURNAL
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despite the fact that Dickson J. emphasized that there might well be other
relevant principles. 53
Somewhat surprisingly, privacy was not considered at all in R. v.
G.(J.M.).54 The case concerned the search by a school principal of a 14 year
old pupil. Another teacher had alleged that the pupil had been seen placing
drugs in his socks. In his office, the principal informed the pupil of his
suspicion and asked him to remove his socks. The pupil refused. In cir-
cumstances which are not clear from the report, the principal then took
some tin foil from the student’s “right sock or pant leg”. 55 Marijuana was
found. At first sight, this looks like a case where there was an intrusion on
the pupil’s privacy, but the Ontario Court of Appeal did not deal with it in
those terms. The Court found that the search was reasonable because it was
“related to the desirable object of maintaining proper order and discipline”
and “was not excessively intrusive”. 56 Furthermore, it was often “neither
feasible nor desirable that the principal should require prior authorization
before searching his or her student and seizing contraband. ‘ 57 It would seem
that the Court took a very relaxed view of the principal’s action here, since
it is hard to believe that in any other context a non-consensual search inside
a person’s clothing would be so easily justified. 58 The age of the suspect and
the school situation may have carried more weight with the court than was
perhaps appropriate.
-3A situation similar to that in Pohoretsky arose in R. v. Katsigioris (1987), 62 O.R. (2d)
441, 23 O.A.C. 27 (C.A.). The accused was in hospital following a road accident, in which a
passenger in the car he had been driving was killed. The police suspected that the accused had
been drinking prior to the accident. They seized a blood sample which had already been taken
by the hospital staff, and a sample of urine which had been passed. The Crown argued that
the accused had given permission for both seizures. On this occasion, presumably because
there was no question of the samples having been taken without consent, the Court of Appeal
held that there was no unreasonable search or seizure. See, also, Re N and D (1985), 49 O.R.
(2d) 490, 13 C.R.R. 26 (sub nom. R.N. v. M.D.) (Fam. Ct.), holding that submission to a blood
test in a paternity suit involved no breach of section 8; and R. v. Alderton (1985), 49 O.R. (2d)
257, 44 C.R. (3d) 254, 17 C.C.C. (3d) 204, 12 C.R.R. 361, 7 O.A.C. 121 (C.A.), holding that
there was no breach of section 8 when a sexual assault suspect allowed police to take hair
samples.
[hereinafter cited to D.L.R.].
54(1986), 33 D.L.R. (4th) 277, 56 O.R. (2d) 705, 17 O.A.C. 107, 29 C.C.C. (3d) 455 (C.A.)
55sCf. R. v. Lerke (1986), 25 D.L.R. (4th) 403, 43 Alta L.R. (2d) 1 (C.A.); R. v. Mutch (1986),
47 Sask. R. 122, 26 C.C.C. (3d) 477 (Q.B.); Re Gaudreault and The Queen (1985), 17 C.R.R.
320 (Ont. Dist. Ct).
56Supra, note 54 at 282.
571bid. at 283.
581n the U.K., the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, s.l(9), and
paragraph 3.5 of the associated Code of Practice, lay down special procedures for searches other
than the “superficial examination of outer clothing.”
19891
COMMENTS
In Re C. UP W., Calgary Loc. 710 and Canada Post Corp.,59 Dixon J.
in the Alberta Queen’s Bench had to deal with the issue of privacy in the
context of a personal search. The Post Office was formulating rules under
which employees could be asked to submit for inspection any object carried
into or out of any postal facility. Lockers and vehicles would also be subject
to inspection. The judge recognised that the proposed procedures were
intrusions of privacy, but the real issue here is, is it a reasonable expectation
of postal employees that their carried items and lockers may only be searched
under a judicial warrant? I have concluded that it is not and that the inspection
procedures…will constitute a reasonable intrusion on [an employee’s] right to
be secure from unreasonable search or seizure.60
Although Dixon J. does refer to the right of privacy, the reference really
adds nothing to his argument. If he had simply asked himself the question
“are the rules reasonable”, he would undoubtedly have come to exactly the
same conclusion. For Dixon J., it would seem that the concept of privacy
has no substantive force in determining whether there has been a breach of
section 8.
Finally, the Supreme Court had the opportunity to consider the effect
of section 8 in the context of personal searches in R. v. Collins.61 The accused
was suspected of dealing in drugs, and was under observation in a pub. A
police officer seized her by the throat and brought her to the floor. Heroin
was found in her hand. In reaching the conclusion that the search was in
breach of section 8 the Court did not refer to principles of privacy. Instead,
Lamer J. argued that
[a] search will be reasonable if it is authorised by law, if the law itself is rea-
sonable and if the manner in which the search was carried out is reasonable. 62
The Supreme Court did not articulate any general principles as to how a
court should assess reasonableness, apart from the fact that where there is
a “warrantless” search, the burden is on the Crown to show that it is rea-
sonable. In Hunter, the Crown did not establish that the officer had rea-
sonable grounds for suspicion, as required by section 10(1) of the Narcotic
Control Act, before carrying out the search. The case, therefore, supports
the view that a search which is “illegal” under a statute is also “unreason-
able” under section 8, but the case does not otherwise help with the deter-
mination of general principles.
59(1987), 40 D.L.R. (4th) 67, 53 Alta L.R. (2d) 121 (Q.B.) [hereinafter C.UW. cited to
D.L.R.].
6Ibid. at 73.
61[1987] 1 S.C.R. 265, 38 D.L.R. (4th) 508 [hereinafter Collins cited to S.C.R.].
621bid. at 278.
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[Vol. 34
IV. Conclusion
In Hunter v. Southam the Supreme Court of Canada took a bold step,
and decided that section 8 of the Charter should receive a broad interpre-
tation. Later case law has suffered from two defects.
First, the reluctance to get away from “privacy” has led to decisions
which at best are unconvincing in their reasoning, and at worst incoherent.
Attempting to fit all situations into a “privacy” strait-jacket has resulted in
messy case law. Second, the failure to develop general principles from the
holding in Hunter v. Southam has effectively left the scope of “reasonable-
nesss” undefined. Courts do not even agree on the effect of an illegal search.
There are cases which say that an unlawful search is ipso facto unreason-
able,63 while others hold that no such automatic link exists. 64
A step forward would be simply to adopt American jurisprudence on
the Fourth Amendment. However, the wording of section 8 is not identical,
and Canadian courts have tended to be selective in their reliance on Amer-
ican jurisprudence. As we have seen, Dickson J. (as he then was) made
reference to Katz in Hunter v. Southam. Moreover, cases on specific situ-
ations, such as interception of communications, have also relied on this
case. Yet there has been no wholesale importation of general principles. For
example, in Re Milton and The Queen,65 a case concerned with the seizure
of fishing nets, counsel invited the court to adopt the U.S. Supreme Court’s
“open fields” doctrine in relation to privacy. According to that doctrine,
“an individual may not legitimately demand privacy for activities conducted
out of doors and fields, except in the area immediately surrounding the
home.”‘ 66 Craig J.A., however, rejected this approach, preferring to base his
decision that there was no infringement of section 8 on the following ar-
gument: “[s]urely it is not unreasonable that a peace officer, or other person
charged with the enforcement of an Act, should be empowered to seize
something which, he believes on reasonable grounds, is being used in the
commission of an offence.” 67
63R. v. Noble (1984), 48 O.R. (2d) 643, 14 D.L.R. (4th) 216, 6 O.A.C. 11, 16 C.C.C. (3d) 146
(C.A.); R. v. Dombrowski (1985), 37 Sask. R. 259, 18 C.C.C. (3d) 164, 44 C.R. (3d) 1 (C.A.).
64R. v. Gibson (1983), 37 C.R. (3d) 175 (Ont. H.C.); R. v. Cameron (1984), 16 C.C.C. (3d)
240, 15 C.R.R. 282 (B.C.C.A.).
65(1986), 37 D.L.R. (4th) 694, [1987] 2 W.W.R. 622 (sub nom. Milton v. R. in Right of
Canada), 10 B.C.L.R. (2d) 1 (C.A.) [hereinafter cited to D.L.R.].
66Ibid. at 700, quoting Powell J.’s interpretation in Oliver v. United States, 466 U.S. 170 at
178 (1984), of the rule in Hester v. United States, 265 U.S. 57 (1924). See, also, Air Pollution
Variance Bd of Colorado v. Western Alfalfa Corp., 416 U.S. 861 (1974); United States v. Santana,
427 U.S. 38 (1976); United States v. Knotts, 460 U.S. 276 (1983); United States v. Dunn, 481
U.S. 1024 (1987).
67Supra, note 65 at 704.
1989]
CHRONIQUE DE JURISPRUDENCE
For the reasons outlined above, Canadian courts are probably correct
in refusing to follow Fourth Amendment principles. But Canadian courts
must, then, develop principles of their own. For the future, a pluralist ap-
proach to section 8 would seem desirable. The courts must recognise, as
Dickson J. did, that there is no one principle which can be used to determine
all questions of “reasonableness”. There is, rather, a collection of principles,
which differ in the way in which they are used. Further, the weight given
to each should vary from case to case. Recognition of this larger, but finite
group of principles, will make the law more certain and predictable than
the present reliance on “privacy”. Such reliance has had the effect of leaving
“reasonableness” effectively undefined, except in situations closely analo-
gous to Hunter v. Southam.
What then are these additional principles? Some of them have already
been hinted at. “Dignity of the person”, “confidentiality”, and the rule
against self-incrimination, should all have a part to play. Is it possible to
add to this list? Perhaps property rights should be included. Despite some
authorities to the contrary, it is submitted that any trespassory entry should
be regarded as unreasonable.
A problem remains, however, in that general principles themselves tend
to be based on “reasonableness”. The Hunter v. Southam privacy principle,
for example, is based on a “reasonable expectation” of privacy. The use of
“reasonableness” in this way makes predicting the outcome of any case
particularly difficult. What constitutes a “reasonable” expectation of pri-
vacy? The role for judicial discretion is enormous, as the subsequent case
law has shown. A way must be found to prevent all discussion of section
8 from collapsing into what a particular judge or court thinks is “reason-
able”. It should be possible to develop more specific “guidelines” from
general principles, guidelines which are not themselves framed in terms of
“reasonableness”. Although the case law is not very clear, the following
guidelines are tentatively suggested. The first is based on property rights;
the next three relate at least in part to privacy; the fifth and sixth stem from
the idea of dignity of the person; the seventh incorporates confidentiality
and self-incrimination; and the eighth relies on a principle that the law
should permit only the minimum necessary scope to non-consensual
searches and seizures:
1. Any trespassory entry (i.e., any entry not authorised by statute or
common law) is unreasonable.
2. Any forcible entry (i.e., without permission) to inspect or search
domestic premises or to search business premises is unreasonable, unless
an independent judicial authority has given permission (e.g., by issuing a
warrant).
McGILL LAW JOURNAL
[Vol. 34
3. Any entry to inspect business premises is unreasonable unless it takes
place within normal business hours, and is limited to a visual inspection.
Anything further should be justified by warrant.
4. Entry to any premises will be reasonable in an emergency, i.e., where
the entrant has reasonable grounds to believe that entry is necessary in order
to prevent personal injuries or serious damage to property.68
5. Any infringement of a person’s bodily integrity is unreasonable.
6. Personal searches are unreasonable, unless the person is suspected
on reasonable grounds of having committed a criminal offence.
7. A demand to deliver up or hand over any documents, if justified by
statute or common law, is reasonable, unless it would involve a breach of
confidence or self-incrimination. Even here, if a serious criminal offence is
the subject of investigation, confidential material may be demanded.
8. Any search will only be reasonable to the extent that it is necessary
for the purposes for which it is conducted.69
Any general approach based solely on broad concepts is bound to be
unwieldy and unpredictable. It is suggested that a range of narrower guide-
lines, such as those outlined, will enable courts to interpret section 8 in a
more coherent and intelligible fashion.
68The reference to “reasonableness” here, and in 6, below, is to its objective meaning. See,
supra, at 473-74.
69Students of English Law will note here, and in 4 above, the influence of the Police and
Criminal Evidence Act 1984 (U.K.), 1984, c. 60, sections 17 and 19.
