Les principes à la base de la protection contre les fouilles, perquisitions et saisies abusives

R. v. Jones, 2011 ONCA 632 (CanLII)

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[18]         Section 8 of the Charter provides that “everyone has the right to be secure against unreasonable search or seizure.”  The general principles underlying that protection are well-established, but warrant repeating.

[19]         A search and seizure is only lawful if it is authorized by law and if both the law and the manner in which the search is carried out are reasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278; Law, at para 29.  The onus is on the person seeking to establish the breach to show that his or her s. 8 rights have been violated.  A warrantless search is prima facie unreasonable, however, and therefore a breach of s. 8, and the onus is on the Crown in such circumstances to prove that such a search was reasonable.

[20]         To give effect to the s. 8 right involves an assessment in each case of whether the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals – in particular, those related to law enforcement.  The Charter’s bias is in favour of the former and, accordingly, in order to prevent unjustified searches, a legally valid pre-authorization, such as a warrant, is a pre-condition to a lawful search and seizure, where it is feasible to obtain one.  See Hunter v. Southam Inc.,[1984] 2 S.C.R. 145 at pp. 159-161. 

[21]         As Hunter and its progeny tell us, the primary value underpinning the s. 8 right is the need to protect an individual’s reasonable expectation of privacy in the target of the proposed search against unreasonable intrusion by the State: see also, for example, R. v. Dyment 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at pp. 426-27; R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at paras. 30 and 32; R. v. Law, 2002 SCC 10 (CanLII), [2002] 1 S.C.R. 227, at paras. 15-16.  The privacy expectation encompasses not only property interests but personal and informational privacy too.  As Bastarache J. observed in Law, at para 16:

This Court has adopted a liberal approach to the protection of privacy.  This protection extends not only to our homes and intimately personal items, but to information which we choose ... to keep confidential. 

[22]         Here, we are concerned with the respondent’s reasonable expectation as to his informational privacy.  Sopinka J. defined the essential nature of this interest in R. v. Plant 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281.  At p. 293, he said:

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.  This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. [Emphasis added.]