Primacy to Privacy? The Supreme Court and the Privacy Threshold in Edwards

JULIA LAWN AND ANDREW BERNSTEIN

ABSTRACT

In the recent case of R. v. Edwards, the Supreme Court of Canada examined the law with respect to searches conducted against persons other than an accused. The Court, following both American Fourth Amendment jurisprudence and Canadian jurisprudence, beginning with Hunter v. Southam, held that the accused must meet a threshold requirement of a "reasonable expectation of privacy" to establish a s. 8 breach under the Charter. The authors argue that this threshold unnecessarily emphasizes property interests, and that such a requirement is not mandated either by precedent or by the text of the Charter. They conclude that a liberty-based analysis of s. 8 would allow courts to determine the "reasonableness" of all searches and seizures.

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Citation: (1997) 55(2) U.T. Fac. L. Rev. 341.
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