Concept 6: Unreasonable Search and Seizure, R. v. A.M.

Section 8

8. Everyone has the right to be secure against unreasonable search or seizure.

The purpose of Section 8 is to protect a reasonable expectation of privacy i. Simply stated, police and other government agents cannot, without sufficient reason, invade the personal privacy of individuals. What constitutes a 'reasonable' search depends on the surrounding circumstances. In most cases, those who act on behalf of the government, such as police officers, must obtain a pre authorized search warrant from a judge before they can enter private property to look for or seize items. Where the state obtains the warrant based on particular criteria, the search will almost always be considered 'reasonable', and the individual who was searched must convince a court the search was in fact unreasonable. In circumstances where a warrant is not obtained, searches are considered 'unreasonable' and the state must then justify the search to the court.

When deciding on the reasonableness of a search, the court will consider both the state's interest in conducting the search and the individual's interest in protecting personal privacy. In balancing these interests, the courts have looked to such factors as the intrusive nature of the search, the location of the search, impending safety concerns, and the information relied upon by the state agent conducting the search. Police, specifically, must have reasonable and probable grounds to believe a search will uncover criminal activity. Mere hunches will not suffice, nor will suspicion based on stereotypes or preconceptions.

The School Context

Searches in schools are not uncommon. They take place in one form or another as a means of maintaining rules and safety. Examples include less intrusive and, arguably, routine searches, such as rifling through desks for an annoying toy, looking into a student's mouth for gum, or asking a student to hand over the day's projectile of choice. More serious searches include school wide locker inspections, strip searches or emptying a student's school bag. The objective of school searches can range from discovering a violation of classroom rules, such as no eating during lessons, to searches intended to discover the commission of crime, such as possession of drugs or weapons.

  1. Based on the work of Sarah McCoubrey and Greg Sitch, The Charter in the Classroom, presented at the CAPSLE conference, St. Andrew's by the Sea, New Brunswick 2002. This material is intended for legal education and is not legal advice. The authors do not take any responsibility for reliance on this material.

Disclaimer - The resources presented in this learning tool, the Charter in the Classroom: Students, Teachers and Rights (CC: STAR) are included only to assist in the study of the Canadian Charter of Rights and Freedoms. They do not necessarily represent an endorsement of a position or issue, opinion or view of its contributors, the University of Ontario Institute of Technology, Inukshuk Wireless, the Ontario Justice Education Network, the Canadian Civil Liberties Education Trust or any of the people, organizations, or institutions affiliated with it.