The Canadian Charter of Rights and Freedoms guarantees several legal rights. Today we will focus on section 8 which sets out that “everyone has the right to be secure against unreasonable search or seizure” [1]. Searches include invasions of people’s bodily integrity, private property (items and land), vehicles, public surveillance, third party records, and communications [2].
The Magna Carta is not credited with inspiring this specific provision, yet the Charter as a whole is said to draw from the articles of the Magna Carta. Our Charter explicitly lists many rights which were not granted under the Magna Carta, such as the right to be protected from self-incrimination, and equality rights. Yet it is inaccurate to state that the Magna Carta played no hand in the development of our right to be free from unreasonable search and seizure.
When you consider that the right against unreasonable search and seizure is a limit on the government’s power, as explained by Justice Dickson (as he then was) in Hunter et al v Southam Inc [3], this provision’s relationship with the Magna Carta becomes more apparent. “Unreasonable” search or seizure is what section 8 prohibits. A search or seizure will be unreasonable if it does not comply with the law, if the law authorizing it is not reasonable, or the otherwise lawful search or seizure is carried out unreasonably [4]. So, a warrantless search is presumptively unreasonable unless the Crown demonstrates otherwise. The principles derived from Clause 39 of the Magna Carta -- rule of law and due process -- are foundations upon which the prohibition on unreasonable search or seizure is grounded.
Clause 28 of the Magna Carta states that “no constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this”. While this seems like the equivalent of section 8 of the Charter, section 8 is interpreted as protecting privacy rights, whereas the emphasis in Magna Carta Clause 28 is on the right not to be deprived of property without compensation [5]. Although the objective of section 8 is the protection of privacy, property is protected by the prohibition on the state from interfering with a person or his property without legal authority, making these two provisions very similar.
[1] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11
[2] Steven Penney, Vincenzo Rondinelli & James Stribopoulos, Criminal Procedure in Canada (Markham: LexisNexis Canada, 2013) at 149 - 173.
[3] [1984] 2 SCR 145, 55 AR 291.
[4] Supra note 2 at 183.
[5] Supra note 2 at 144; AE Dick Howard, Magna Carta: Text and Commentary (Charlottesville: University Press of Virginia, 1998).
