Introduction: Section 8 of the Charter of Rights and Freedoms protects the right of citizens from

unreasonable search and seizure (Michaelson, 2008). But, we live in an age of consistent

technological evolution that proves advantageous and disadvantageous to both legal authorities

and persons involved in crimal activity (Haggerty, 2009). Looking at the advancements of

technology, the Charter does not include all forms of technology present and the ways in which

they can be legally used while protecting the rights discussed in Section 8. Incorporating all
forms of technology into legislation takes time, providing criminal acitivity a period of time to

perisist without legal authorities yet having the proper regulations to make lawful decisions and

arrests (Conrad, 2019). The Charter has not seen change in Section 8 since its establishment in

1982, and exponential growth in technology has occurred since that time. Is then the Charter, as

is currently is, a good refernce for Courts and legal authorities to make lawful and logical

decision?

Research Quesion: Does section 8 of the charter of rights and freedoms accommodate

technological advancements used by both legal authorities and individuals performing acts of a

criminal nature, and is change to Section 8 required if it is not accommodating to our current

digital age?

Thesis: Section 8 of the Charter does not require amendment in order to satisfy or keep up with

technological advancements in this digital age due to prominent Supreme Court of Canada

(SCC) setting juripresidence using cases relating to this matter and the existing legal doctrines.

These resources have defined digital devices as different, have stressed the privacy regarding

seeking information from third party sources, and instilled the Biologically Core test in relation

to which information is may and may not be infringing on privacy.

Argument 1: the distinctinveness of digital devices has been recongnized and understood.

Through the SCC cases of R. v. Vu and R. v. Morelli, it has been determined that “digital devices”

are far different in many aspects compared to that of non-digital resources for searches and

seizure (Penney, 2014). They contain a more diverse variety of personal information and a larger

amount of it. The two forementioned cases have set precedence in defining what digital

technology is and the importance of judges understanding the characteristics of used technology,
making sure that it isn’t defined as something it is not. This has become one key doctrine for the

foundation for future cases related to technological privacy rulings (Penney, 2014).

Argument 2: privacy in regards to information collected by third parties is stressfully defined

and maintained.

Another doctrine which has been formed in terms of aiding with digital privacy case decisions

came about through R.v. Plant. This case, regarding the search of Plant’s residence due to excess

usage of utilities leading to the belief that he was growing marijuana (Penney, 2014). The

outcome of the case emphasises that although individuals may allow for a third party to have

access to and share information obtained from the individual, it does not give legal authorities

the right to use and apply this information for their own purposes (Haggerty, 2009). This would

lead to only mistrust in activities individuals are encouraged to engage in and mistrust in

authorities (Penney, 2014). This doctrine provides enough details to allow for judges and legal

authorities to make decisions in rational and logical manners that coincide with Section 8

(Michaelson, 2008). R. v. Cole, although the decision opposite to R. v. Plant, also set precedence

for how information gained through third parties can be used lawfully and unlawfully under

Section 8 (Mendes et al., 2013). Section 8 also lays out information about the interaction with

third parties which can be well applied to digitally gathered data (Penney, 2014).

Argument 3: There are tests, such as the biological core test, which aids in determining which

information, including “low resolution information,” should and can be protected under Section

8 of the Charter, and which ones are not.

This doctrine established using R. v. Spencer, provides necessary and varying details regarding

the protection of certain personal information being used by legal authorities (Penney, 2014).

This test allows for judges and legal authorities to make decisions on what information may be

intimate or revealing of a person’s life style, whether this information hold validation in court

and how much relevance and validation it holds, especially if it considered “low resolution” (low

resolution being it may not seem like vital information, but paired with other information it may

be too revealing or intimate.) (Hunt and Rankin, 2015). This doctrine is well applied to digital

and privacy cases, and how information be used and to what degree while being complacent with

the already layed out protections in Section 8.

Counter Argument: Individuals such as Conrod in his 2019 article proposing a new spectrum of

protection in digital technology related cases due to the challenges with Section 8 of the Charter.

These challenges include vagueness in the categories of intrusiveness, specificity and accuracy,

as well as the types of details involved in the search aspect of the Section (Conrad, 2019).

Conrad mentions that this lack of specificity leaves legal authorities uncertainty on where the

line between lawful and unlawful searches of technology resides, and leaves Courts with the

inability to provide practical direction.

References

Conrod, L. (2019). Smart Devices in Criminal Investigations: How Section 8 of the Canadian Charter of
Rights and Freedoms Can Better Protect Privacy in the Search of Technology and Seizure of Information.
Appeal: Review of Current Law and Law Reform, 24, 115-134.

Haggerty, K. (2009). Methodology as a Knife Fight: The Process, Politics and Paradox of Evaluating
Surveillance. Critical Criminology, 17( 277).

Hunt, C., Rankin, M. (2015). R. v. Spencer: Anonymity, the Rule of Law, and the Shrivelling of the
Biographical Core. McGill Law Journal, 61, 193.
Mendes, E., Beaulac Stéphane, & Penney, S. (2013). Cost-Benefit. In The Canadian Charter of Rights
and Freedoms (5th ed., pp. 751–757). essay, LexisNexis Canada Inc.

Michaelson, C. (2008). The Limits of Privacy: Discussion of Section 8 of the Charter. The Supreme Court
Law Review, 40, 87-116.

Penney, S. (2014). The Digitization of Section 8 of the Charter: Reform or Revolution? The Supreme Court
Law Review, 67, 504-536.