A Newspaper, a Certificate, and the Birth of Section 8

On April 13, 1982, government investigators with the Combines Investigation Branch entered the offices of the Edmonton Journal, owned by Southam Inc., to search for documents relating to alleged unfair trade practices. As Professor Tanguay-Renaud explains, the investigators arrived “armed with an authorization from a government board member, not a judge.” The certificate authorized them to search for “any book, paper, record, or other document” relevant to the inquiry, and, in his words, “the certificate also looks to be specific to one address, but then kind of spoils that limitation by saying, and elsewhere in Canada.”

The government’s position, Tanguay-Renaud notes, amounted to a “trust us” argument: that judicial oversight wasn’t necessary because the investigating agency would conduct itself properly. Had the Supreme Court accepted that argument, he suggests, “Section 8 would basically have been hollowed out or eviscerated.”

Before the Charter: Castles, Trespass, and Limited Remedies

To understand why Hunter v. Southam mattered, Tanguay-Renaud situates it in a much older common law tradition. The expression “a man’s home is his castle” captured strong historical protections against intrusion into one’s house or body, protections enforceable, before the Charter, only through narrow remedies like actions for trespass or suing the police in tort, neither of which was, as he puts it, “really available or cost effective for most people.” He traces this lineage back to the 1765 English case Entick v. Carrington, often cited as the origin of search and seizure thinking, and to the Fourth Amendment of the U.S. Bill of Rights, which guarantees “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.”

The Charter’s Section 24(2), the exclusion of evidence remedy, created something genuinely new in Canadian law, giving courts a tool that simply didn’t exist before 1982.

Katz v. United States and the Turn to Privacy

Before Section 8 could be interpreted, Tanguay-Renaud argues, Canadian courts needed the conceptual groundwork laid by Katz v. United States (1967). In that case, the FBI wiretapped a phone booth used by a bettor named Katz, and the U.S. Supreme Court held that the Fourth Amendment protects “people, not places”, meaning it protects reasonable expectations of privacy, even though, as Tanguay-Renaud points out, “the word privacy” doesn’t actually appear in the text of the Fourth Amendment.

This matters because the Supreme Court of Canada, in Hunter v. Southam, explicitly drew on Katz to frame Section 8 around the same concept. Tanguay-Renaud raises a pointed question: “why privacy? Why not say dignity or liberty or public confidence in the administration of justice?” He suggests the choice “seems to rest on nothing more… than an intuitive sense of appropriateness on the part of judges”, in both the American and Canadian decisions.

The Hunter v. Southam Framework: Warrants, Neutrality, and Probable Grounds

The Court held the search unreasonable because, in Tanguay-Renaud’s summary, “the government didn’t adequately balance the interest in effective law enforcement against the interest in privacy.” Writing for the Court, Justice Dickson drew on section 487 of the Criminal Code to establish the now-familiar framework:

A search must generally be authorized by a warrant obtained before the search,  guarding against what Tanguay-Renaud calls “fishing expeditions.” The warrant must come from someone “separate from the government agency seeking the warrant” and acting judicially, a judge or justice of the peace. And that neutral arbiter must ask not merely whether evidence of a crime is possible, but whether it is “reasonably probable.”

The Living Tree, Narrowly Read

Tanguay-Renaud offers a striking counter-reading of Hunter v. Southam. Justice Dickson invoked the “living tree” metaphor, the idea that the Constitution “needs to be interpreted in a way that ensures its continuing viability under varying social conditions.” But Tanguay-Renaud argues this could cut the other way: “precisely because Section 8 is hard to change because it’s part of the Constitution… it should be interpreted narrowly so as to allow it to grow in light of new problems… as opposed to a kind of a sudden growth explosion” centered entirely on privacy.

He notes that while “Justice Dickson in Hunter v Southam doesn’t say that it’s all about privacy” and explicitly leaves room for “other values”, subsequent jurisprudence “henceforth, only focuses on privacy.”

From Hunter and Collins to the Reasonable Expectation of Privacy Test

For searches without a warrant, the companion case R. v. Collins established that such a search can still be reasonable if it is authorized by law, the law itself is reasonable, and it is “carried out in a reasonable way.” Together, Tanguay-Renaud explains, “Hunter v Southam is an early landmark decision… that sets the basic principles [of] Section 8 for searches with a warrant. And Collins provides the basic framework for searches without a warrant.”

Subsequent cases, including Tessling, described privacy as “a protean concept,” with courts weighing factors like the place of the search, whether the subject matter was in public view, and whether it revealed “core biographical information.” As Tanguay-Renaud summarizes, “none of these factors in and of itself is determinative… the existence of a reasonable expectation of privacy… is a contextual fact-based inquiry.”

Testing the Limits: Duarte, Tessling, and Patrick

Three cases illustrate how counterintuitive the reasonable-expectation-of-privacy framework can become. In R. v. Duarte (1990), the Court held that a person has no reasonable expectation of privacy in conversations recorded by an informant wearing a wire, a result Tanguay-Renaud links to “the historical pedigree associated with oppressive regimes[‘] widespread use of informants,” citing the Soviet Union and East Germany. In R. v. Tessling (2004), aerial use of forward-looking infrared cameras to detect heat patterns from a home was held not to engage Section 8, a result that diverges from the comparable American case, Kyllo. And in R. v. Patrick, the Court held there is no reasonable expectation of privacy in garbage left at the edge of one’s property, “even though it contains a ton of information that could reveal so much about your life.”

The Digital Turn: Marakah and Bykovets

More recent cases suggest the framework is shifting. In R. v. Marakah (2017), the Court held that a person retains a reasonable expectation of privacy in text messages even after they’re sent and stored on someone else’s phone, because, as Chief Justice McLachlin reasoned, “it’s actually difficult to think of a type of conversation or communication that is capable of [containing] more privacy than text messaging.”

The 2024 decision in R. v. Bykovets pushed further still, holding, in a 5-4 split, that internet users have a reasonable expectation of privacy even in bare IP addresses, devoid of identifying information. Justice Karakatsanis for the majority described an IP address as “the first digital breadcrumb, the key to so much personal information scattered around the internet,” while Justice Côté’s dissent warned that “an IP address actually reveals nothing… It’s just a series of numbers.” Tanguay-Renaud connects this to the American “Mosaic Theory of Privacy,” under which courts examine whether a series of individually innocuous government actions amount, in aggregate, to a search.

Beyond Privacy: What Else Might Section 8 Protect?

Tanguay-Renaud closes by returning to his central claim: “trying to fit everything under the heading of privacy kind of clouds other values that are important and worthy of protection.” He lists liberty, dignity, anonymity, property, and “public confidence in the administration of justice” as values Section 8 might also serve, values he says Hunter v. Southam itself left room for, even if the Court “seem[s] to have forgotten” that possibility. Asked directly whether Hunter v. Southam was wrongly decided, he answers: “no, it wasn’t… But it was not if you read it properly.”

Landmark Decisions Discussed

• Hunter v. Southam Inc. (1984) –  Foundational Section 8 decision establishing the warrant requirement, prior judicial authorization, and the framing of search and seizure protection around reasonable expectations of privacy
• R. v. Collins (1987) — Establishes the framework for assessing the reasonableness of warrantless searches
• R. v. Duarte (1990) — Held that conversations recorded via consenting informants (“participant surveillance”) do not attract Section 8 protection
• R. v. Tessling (2004) — Held that aerial infrared imaging of a home’s heat emissions does not engage a reasonable expectation of privacy
• R. v. Patrick — Held that there is no reasonable expectation of privacy in garbage placed at the edge of one’s property 
• R. v. Spencer (2014) — Held that internet users have a reasonable expectation of privacy in subscriber information linked to an IP address
• R. v. Marakah (2017) — Held that a sender retains a reasonable expectation of privacy in text messages even after they are received and stored on another person’s device
• R. v. McGregor (2023) — Addressed the scope of computer searches and information encountered incidentally during a lawful search
• R. v. Bykovets (2024) — Held, in a 5-4 decision, that internet users have a reasonable expectation of privacy in bare IP addresses

Key Legal Concepts Explained

• Section 8 of the Charter — The constitutional guarantee that “everyone has the right to be secure against unreasonable search and seizure”
• Section 24(2) of the Charter — The remedy allowing courts to exclude evidence obtained in violation of Charter rights where its admission would bring the administration of justice into disrepute
• Reasonable expectation of privacy — The threshold test for whether Section 8 applies to a given state action; if no such expectation exists, the protection does not apply
• “Fishing expedition” — A search conducted without prior grounds, simply to see what might be found; the warrant requirement exists to prevent this
• Living tree doctrine — The principle that constitutional documents should be interpreted broadly to remain relevant as society changes
• Mosaic Theory of Privacy — An approach (discussed in U.S. jurisprudence) asking whether a series of individually non-invasive government actions, taken together, amount to a search

Resources and References

Decisions Mentioned 

• Hunter v. Southam Inc., [1984] 2 S.C.R. 145
• R. v. Collins, [1987] 1 S.C.R. 265
• R. v. Duarte, [1990] 1 S.C.R. 30
• R. v. Tessling, 2004 SCC 67
• R. v. Patrick, 2009 SCC 17 
• R. v. Spencer, 2014 SCC 43
• R. v. Marakah, 2017 SCC 59
• R. v. McGregor, 2023 SCC 4
• R. v. Bykovets, 2024 SCC 6
• Katz v. United States, 389 U.S. 347 (1967)
• Entick v. Carrington (1765)

Constitutional Documents

• Canadian Charter of Rights and Freedoms, Sections 8, 24(2), and 32
• Fourth Amendment, United States Bill of Rights

Learn More

• Supreme Court of Canada: scc-csc.ca
• Professor François Tanguay-Renaud, “Rethinking the Applicability of Section 8 of the Canadian Charter for the Information Age and Beyond”