Understanding Section 8: Search, Seizure and the Canadian Constitution

Windsor Review of Legal and Social Issues
March, 2006

Patrick Ducharme

Criminal Law Specialist Patrick Ducharme
Criminal Law Specialist Patrick Ducharme

Since April 17, 1982 when the Charter of Rights and Freedoms was proclaimed Canadian courts have developed certain principles pertaining to the nature of the Section 8 right to be secure against unreasonable search and This book effectively reviews and ultimately crystallizes those principles in a “reader friendly” manner that will prove valuable to any practitioner making or refuting a Section 8 Application.

The authors adopt a problem-solving approach to the issues surrounding searches and seizures. First, they discuss the fundamental principles of a Section 8 claim. After identifying the general principles applicable to all searches, they then address any exceptions to the general rules and the rationale for those exceptions.

They do not waste the reader’s time with many esoteric dissenting opinions (sometimes the favorite pastime of those dwelling in the less practical world of academia), preferring instead to focus on accurate statements of the law of search and seizure up to the moment of publication. And, with one minor exception, likely a result of a last-minute attempt to make the book as up-to-date as possible, they accomplish this goal. At pages 68-73 the authors discuss the Supreme Court of Canada’s 2004 decision in R. v. Tessling, but at page 82 the authors speculate on the possibility the Supreme Court of Canada might uphold the Court of Appeal for Ontario’s decision in that same case. The authors, of course, had earlier referred to the Supreme Court’s thundering rejection of the Court of Appeal’s decision. But, the mistake is minor and does not detract from the currency of the book.

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Understanding Section 8: Search, Seizure and the Canadian Constitution