Requirements to engage right: recognized privacy interest, activities describable as "search and seizure," and search must be done by state agents
Reasonable searches allowed - those authorized by warrant (obtained prior to search, issued based on sworn evidence that discloses reasonable grounds for the search), or described in Chubak
Accused has burden to prove on balance of probabilities that s. 8 was breached and that the administration of justice would be brought into disrepute should the evidence be admitted
A search is reasonable if, on a balance of probabilities, the Crown can prove that the search was authorized by law, that the authorizing law was reasonable, and that the search was reasonably conducted
It is not reasonable to search someone on a mere unsubstantiated suspicion
3 requirements for s. 24(2) breach - applicant's Charter rights or freedoms have been infringed; evidence was obtained in a way that infringed Charter rights; and admission of evidence would bring administration of justice into disrepute
Disrepute occurs when the admission of evidence would preclude a fair hearing, or if it would amount to condoning unacceptable conduct by investigators and prosecutors, in light of the long-term consequences that admitting or excluding the evidence would have on the repute of the administration of justice (evaluated on a case by case basis, but with an eye to the question of what would happen if everyone did that)
Evaluated objectively - would the admission/exclusion of evidence bring the administration of justice into disrepute in the eyes of a reasonable and informed person?
Collins test:
Does the admission of evidence affect the fairness of the trial? (If so, then it should be excluded.)
How was the right violated, how serious was the Charter breach (was the accused conscripted, was it real evidence, was the evidence independently discoverable)?
Would the administration of justice be brought into disrepute through exclusion?
When the 2 versions of the Charter differ in scope, the version that protects the right better should be preferred (here, "could...disrepute" was broader than "would...disrepute")
Chubak
Warrantless searches are prima facie unreasonable, but can be permissible if they are done incidental to arrest in the interest of "ensuring public and police safety, protecting evidence from destruction, and the discovery of evidence to be used at trial," so long as they are not done abusively and are done for a valid objective in pursuit of the ends of criminal justice
Incidental searches are tested subjectively and objectively - whether the police had a valid purpose in mind and their belief that the purpose pursued is a reasonable one
There can be more than one reason for a police search, and as long as one of them is objectively legitimate the entire search is legitimate
On arrest, expectation of privacy is diminished so long as the search has a purpose related to the arrest, and police can search anything on the arrested person and their immediate surroundings (car, etc.)
Pretextual searches are not reasonable
Patrick
No reasonable expectation of privacy (objectively) for garbage put out for pickup that is easily accessible (i.e. accessible without significant trespass)
Abandonment: whether a presumed subjective privacy interest of the householder is one that an independent and informed observer, viewing the matter objectively, would consider reasonable in the totality of the circumstances, balancing the need to protect individual dignity and integrity, the long term consequences of the search, and whether the accused's conduct is consistent with a reasonable assertion of a continued privacy interest (so test - did the accused have a subjective belief in a continuing privacy interest? Was it objectively ascertainable?)
Reasonable interest in privacy disappears on abandonment - it's an issue of fact of whether the accused has acted in a way that would make an objective observer reasonably believe they've abandoned their reasonable interest (putting garbage out for pickup removes it from your control, and interest is basically gone; once it's taken away there is no more privacy)
Interest must be objectively reasonable - look at location, publicity, whether the item was found illegally, whether it breached confidentiality, whether the accused subjectively thought they still had a privacy interest
Privacy interest is not evaluated based on the thing being protected (beyond interest in protecting biographical core); rather, it's a formal analysis of the impact of the breach on the accused and their privacy
Cole
Diminished expectation of privacy is still expectation of privacy for s. 8, but a breach of it is less serious than a more robust expectation
Reasonable expectation of privacy exists for personal information on work computers ("meaningful, intimate, touching on the user's biographical core")
A copy of computer information made by someone other than the police, then handed to the police, is not a s. 8 search; seizing the computer itself for the information is
The closer that a search lies to the biographical core of a person, the stronger their privacy interest
Employers may have statutory authority to seize a computer (here, school board has duty to maintain safe school environment); this does not authorize a police seizure or police access without a warrant; for a third-party search to be valid, it must be allowed through a voluntary and informed decision
Standard of review for evidence exclusion is deferential
A good faith Charter breach by police can be treated leniently, especially if the law is unclear about what constitutes a breach in the circumstances; deliberate breaches are treated more seriously
Orders to exclude evidence should be final, to fix the parties' expectations and avoid prejudice to defendant
Dissent (Abella J.) - police knew that this was searching property, which required a warrant, and no effort was made to determine what private information Cole might want to protect; this was a serious breach, and there were no exigent circumstances that could justify including the evidence
