Chapter 2: Canada’s Legal Framework for Lawful Access
Special Report on the Lawful Access to Communications by Security and Intelligence Organizations

Canadian Charter of Rights and Freedoms

30. The Charter ^{Footnote 44} enshrines and protects Canadians’ individual rights against undue interference by the government. ^{Footnote 45} A part of the Constitution, the Charter reigns supreme: all laws in Canada must be consistent with the rules or principles it sets out. ^{Footnote 46} In the context of lawful access, one Charter right is particularly salient: section 8, which states that “Everyone has the right to be secure against unreasonable search or seizure.” Section 8 has been held to safeguard one’s reasonable expectation of privacy. ^{Footnote 47} Activities by law enforcement and security agencies must comply with section 8 or they may be subject to challenges in court. ^{Footnote 48} Section 8 requires that intrusions on an individual’s reasonable expectation of privacy have some form of legal authority, which is typically commensurate with prior judicial authorization. ^{Footnote 49}

31. Section 8 of the Charter protects Canadians and persons in Canada from unreasonable searches by government investigators. Soon after the coming into force of the Charter, the Supreme Court ruled that section 8 is meant to prevent unreasonable searches before they occur, making a warrantless search presumptively unreasonable. ^{Footnote 50} A few years later, the Supreme Court ruled that a search not authorized by law was unreasonable. ^{Footnote 51} Statutes that authorize electronic surveillance generally require government investigators to obtain judicial authorization prior to conducting the search; this is the case for the warrant powers in the Criminal Code and the CSIS Act. ^{Footnote 52} The threshold required to obtain judicial authorization generally depends on the level of intrusion into one’s reasonable expectation of privacy, with a higher threshold required for more serious intrusions.

32. A search is an investigative technique that infringes on an individual’s reasonable expectation of privacy. ^{Footnote 53} If an investigative technique does not infringe on a reasonable expectation of privacy, then it is not a search. ^{Footnote 54} A search is lawful if it is reasonable under section 8 of the Charter. ^{Footnote 55} According to the Supreme Court, “A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.” ^{Footnote 56}