Standing to Challenge Searches and Seizures Under the Charter: The Lessons of the American Experience and Their Application to Canadian Law

JONATHAN DAWE

ABSTRACT

Taken together, s. 8 and s. 24(2) of the Canadian Charter of Rights and Freedoms allow persons whose right to be secure against unreasonable searches and seizures has been infringed to prevent any evidence seized from being used against them. The following question then arises: what is the extent of the right protected by s. 8? While the Supreme Court has not conclusively answered this question, several provincial Courts of Appeal have followed the American case law in this area and adopted restrictive definitions of privacy accompanied by narrow rules of standing. In this paper the author argues that the American approach is theoretically flawed and badly suited for incorporation into Charter jurisprudence. Instead, the author suggests, adopting a broader conception of the interests protected by s. 8 would help Canadian courts avoid the confusion and inconsistency of the American doctrine. In addition, it is argued that a fully realized understanding of these interests would allow for a more coherent articulation of the principles of the s. 24(2) exclusionary remedy than is available under the existing doctrine.

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Citation: (1994) 52(1) U.T. Fac. L. Rev. 39.
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