Unreasonable search and seizure under section 8 of the Charter is one of the most powerful legal protections available to individuals facing criminal charges in Canada. When police exceed their lawful authority, an experienced Charter lawyer can challenge the legality of the search and seek to have the evidence excluded. In many cases, this is precisely how the best criminal defence lawyer is able to significantly weaken—or entirely dismantle—the Crown’s case.
This article explains how section 8 works, what qualifies as an unlawful search, how courts assess privacy rights, and when evidence may be excluded.
What section 8 of the Charter protects
Section 8 of the Canadian Charter of Rights and Freedoms guarantees everyone the right to be secure against unreasonable search or seizure. In practical terms, police cannot search a person, vehicle, home, or digital device unless the search is:
– Authorized by law
– Conducted for a valid investigative purpose
– Carried out in a reasonable manner
The Charter does not prohibit all searches—it prohibits unreasonable ones. A top criminal lawyer in Vancouver will assess both whether police had lawful authority and whether that authority was properly exercised.
When a search is considered unreasonable
A search will often be found unconstitutional where:
– Police had no legal authority to conduct the search
– The law relied upon is itself unconstitutional
– The manner of the search was intrusive, abusive, or disproportionate
Even during traffic stops or arrests, police powers are limited. An experienced Charter lawyer will carefully analyze whether those limits were exceeded.
Vehicle searches
Police do not have a general right to search a vehicle simply because it has been stopped. While limited safety-related searches may be permitted in narrow circumstances, broader searches typically require reasonable grounds or a warrant.
Common unlawful vehicle searches include:
– Searches based solely on nervousness or vague suspicion
– Opening closed containers without lawful grounds
– Searching phones or digital devices found in the vehicle without authorization
These issues are frequently litigated by the best criminal defence lawyers, as vehicle searches are a common source of Charter breaches.
Searches of homes and private residences
A person’s home carries the highest expectation of privacy under Canadian law. Warrantless searches of a residence are presumptively unreasonable unless a recognized exception applies, such as exigent circumstances or valid consent.
Problematic home searches often involve:
– Police entering without a warrant or genuine emergency
– Consent obtained through pressure, misinformation, or implied authority
– Searches that exceed the scope of a warrant
A top criminal lawyer in Vancouver will scrutinize not only whether a warrant existed, but whether police strictly complied with its terms.
Digital devices and electronic privacy
Canadian courts consistently recognize that phones, laptops, and computers contain deeply personal and comprehensive information. As a result, searches of digital devices attract heightened Charter protection.
Unlawful digital searches often include:
– Searching a phone incident to arrest without meeting strict criteria
– Reviewing texts, photos, or apps without authorization
– Extracting or analyzing data beyond what a warrant permits
An experienced Charter lawyer understands how to challenge overbroad or unauthorized digital searches in this rapidly evolving area of law.
Reasonable expectation of privacy
At the core of every section 8 case is whether the accused had a reasonable expectation of privacy in the place or item searched. Courts consider factors such as:
– Ownership or control
– Presence at the time of the search
– Steps taken to maintain privacy
– The nature of the location or information
If a reasonable expectation of privacy exists, the burden shifts to the Crown to justify the search—often the decisive battleground for the best criminal defence lawyer.
Excluding evidence under section 24(2)
When a section 8 breach is established, the court must decide whether the evidence should be excluded under section 24(2) of the Charter. The question is whether admitting the evidence would bring the administration of justice into disrepute.
Courts examine:
– The seriousness of the Charter breach
– The impact on the accused’s Charter-protected interests
– Society’s interest in adjudicating the case on its merits
Serious or deliberate police misconduct—particularly involving homes or digital devices—significantly increases the likelihood that evidence will be excluded. In many cases, exclusion of key evidence leads to charges being withdrawn or dismissed.
Why section 8 litigation matters
Illegal search and seizure cases are highly fact-specific. Small details—how a stop began, what police knew at the time, how consent was obtained—often determine whether a Charter challenge succeeds.
Effective section 8 litigation requires deep experience in constitutional law and police powers. This is why retaining the best criminal defence lawyer with Charter expertise can make a decisive difference in the outcome of a case.
Contact Vayeghan Litigation today for a confidential consultation and take the first step toward protecting your future.
Call us at 778-653-3995 or email law@mvlitigation.com now to discuss your case.
