Alexi N. Wood
Associate
McCarthy Tétrault LLP.
October 28, 2008
What does Section 8 of the Charter mean?
Section 8 protects against unreasonable searches and seizures. And when we talk about search and seizure law that brings in privacy law, which is a really difficult area and it's often hard to understand. But what we're looking at with Section 8 is the right to be free from state intrusion. The police can't come up to you and without any suspicion, search you. That's not allowed according to the Charter.
The Supreme Court has routinely held that the police have to have some form of reasonable suspicion. There has to be some basis for them to search you. Perhaps it's incident to arrest, or perhaps there's some other reason, but they can't just come up to you and search you. They can't go into your house. They can't just walk in and search through your belongings. They have to have something. Often times they have to have a warrant, and that's something that's issued by a judge. The police will go to a judge and say, "we have all of these reasons to believe that there's illegal activity going on in this house, so we need a warrant to search inside the house." And that, that's what's called having a warrant to go in to search a house.
But without some form of warrant or authorization, the police are prohibited by Section 8 of the Charter from searching you or your house or your possessions. And that's what came into play in the R. v. A.M. case, is to what extent the police can arbitrarily randomly search an entire student population.
How does Section 8 apply to schools?
Section 8 applies in schools to a similar extent as it would apply in the rest of the country, whether it's an office building or your home. The Court recognized the personal and private nature of the stuff that's in a student's backpack. They used a phrase of 'backpacks being a portable study and bedroom rolled into one'. If you think about all of the private information that you have in your backpack, it's not necessarily illegal, but it's private, it's personal. You don't want everybody in your class to see what you have in your backpack.
The Court recognized that in the R. v. A.M. case. They recognized the important, private, intimate nature of the information that you can have in your backpack. Section 8 really goes to protect that personal, private information, whether it's in your home, whether it's on your person, in your purse, in your backpack, we all have private information. It's not necessarily illegal, it's just private. And the state can't come in and look at it, pry through it, ruffle through it, without some justification, without some reasonable grounds, or a warrant, or something more. They can't just walk in and look at that information. And the Court in R. v. A.M. held that that same concept applies in a school just as it would in a house.
