Section 8 - Search or Seizure

Canadian Charter of Rights and Freedoms

8 Everyone has the right to be secure against unreasonable search or seizure.

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24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13

28 (1) An animal welfare inspector may enter and search a place with the consent of the occupier if the inspector believes on reasonable grounds that an animal in distress is to be found there.

(2) On application without notice, a justice may issue a warrant authorizing an animal welfare inspector to enter and search a place if the justice is satisfied by information under oath or affirmation that there are reasonable grounds to believe that an animal in distress is to be found there.

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29 (1) An animal welfare inspector may enter a place, other than a place, or part of a place, that is being used as a dwelling, without a warrant and search for an animal if the inspector has reasonable grounds to believe that an animal in the place is in critical distress.

(2) An animal welfare inspector may enter a place, or a part of a place, that is being used as a dwelling without a warrant and search for an animal if the inspector has reasonable grounds to believe that,

(a) an animal in the place is in critical distress; and

(b) the time required to obtain a warrant under section 28 may result in serious injury or death to the animal.

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30 (1) An animal welfare inspector who has reasonable grounds to believe that an animal is in distress and who is able to promptly find the owner or custodian of the animal may order the owner or custodian to take such action as may, in the opinion of the inspector, be necessary to relieve the animal of its distress, which may include, without limiting the generality of the foregoing, having the animal examined and treated by a veterinarian at the expense of the owner or custodian.

(2) The order shall be in writing and shall have printed or written thereon the content of subsections 38 (1), (3) and (5).

(3) The order shall specify the time within which any action required by the order shall be performed.

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44 (1) An animal welfare inspector who is lawfully in any place may, without a warrant, seize any animal or thing that he or she has reasonable grounds to believe,

(a) has been obtained by the commission of an offence under this Act;

(b) has been used in the commission of an offence under this Act;

(c) will afford evidence of the commission of an offence under this Act; or

(d) is intermixed with a thing referred to in clause (a), (b) or (c).

R. v. Norway Insulation Inc., 1995 CanLII 7050 (ON SC)

Section 8 of the Charter is violated where the search or seizure is unreasonable. Where the search or seizure is aimed at detecting criminal activity, as in the case at bar, the more strict the test is to establish that the search or seizure was reasonable.

In McKinlay, supra, the court decided that s. 231(3) of the Income Tax Act did not violate s. 8 of the Charter, because the seizure was not "unreasonable". In considering the matter as to what constituted "reasonableness" under given circumstances and legislation, the court examined the authorities which distinguished the approach to be taken in criminal or quasi- criminal investigations and those which were merely administrative or regulatory. One such case referred to in McKinlay was that of Belgoma Transportation Ltd. v. Director of Employment Standards (1985), 1985 CanLII 1958 (ON CA), 51 O.R. (2d) 509, 20 D.L.R. (4th) 156 (C.A.). Madam Justice Wilson set out the distinction as articulated in Belgoma which is as follows (McKinlay, at p. 647 S.C.R., p. 544 C.C.C., quoting Belgoma at p. 512):

The standards to be applied to the reasonableness of a search or seizure and the necessity for a warrant with respect to criminal investigations cannot be the same as those to be applied to search or seizure within an administrative and regulatory context . . . The "search or seizure" in the instant case, if such it is, is not aimed at detecting criminal activity, but rather, as indicated, in ensuring and securing compliance with the regulatory provisions of the Act enacted for the purpose of protecting the public interest.

Hawley v. Bapoo, 2005 CanLII 36451 (ON SC)

[54] The Charter is part of Canada's Constitution, our supreme law. One of its essential functions is to demarcate the relationship between the individual and the state. The effective recognition and enforcement of Charter rights requires that individuals have unencumbered access to the courts. As Lamer J. noted in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, [1989] S.C.J. No. 86, at p. 196 S.C.R.:

When a person can demonstrate that one of his Charter rights has been infringed, access to a court of competent jurisdiction to seek a remedy is essential for the vindication of a constitutional wrong. To create a right without a remedy is antithetical to one of the purposes of the Charter which surely is to allow courts to fashion remedies when constitutional infringements occur. [page677]

There is no question that the legislature and the courts are competent to enact rules of procedure governing Charter litigation. As Professors Hogg and Monahan note in their text Liability of the Crown:

The general rule ... is that constitutional claimants are not liberated from the rules of practice and procedure of the Court in which the claim is made, despite the fact that failure to comply with the rules will often defeat proceedings. [See Note 16 at the end of the document]

However, where there is any doubt about the restrictive effect of those rules on Charter litigation, it should be resolved in favour of permitting the would be Charter litigant to bring their claim to a competent court. Applying these principles to s. 109(1)2 of the CJA, I must conclude that no notice of constitutional question is required where a remedy under s. 24(1) of the Charter is sought for reasons other than an act or omission of government. Acts or omissions of individual government agents are not necessarily the acts or omissions of the government under whose authority they are putatively acting. Thus, the failure of the officers to serve a notice of constitutional question does not bar them from seeking the constitutional remedies they seek as against Ms. Mackett and Mr. Richer.