Charting New Territory? Fifteen Years of Search and Seizure Decisions by the Supreme Court of Canada, 1982–1997

Abstract

Introduction When the Charter of Rights and Freedoms became part of the Canadian Constitution there was a great deal of speculation over the effect it would have on legal rights in Canadian society. In the search and area, some questioned whether an individual's right against unreasonable search or seizure would be protected to a greater extent simply because the Charter placed limitations on such criminal procedures previously left to the discretion of government (Manfredi 1993). Conversely, others wondered whether the Supreme Court would fail to take a strong comprehensive approach to the s. 8 provision because Canadian society did not have a strong historical tradition of protecting individuals from unreasonable searches and seizures. In analyzing this question, one might turn to the theoretical paradigms of criminal justice first articulated by Herbert Packer (1968). Prior to the adoption of the Charter, the Canadian Court had historically adhered to the Crime Control Model (one of Packer's models) in the search and area (Manfredi 1993; Lipset 1990). According to Packer, this approach to criminal procedure is based on the belief that the repression of criminal activity is the most important function of the criminal system. Thus, societies that advocate the use of this model, such as Canada, tend to believe that strict law enforcement is critical in order to maintain public order and safety. By contrast, Packer argued that societies that value human freedom, such as the United States, are more likely to adhere to the Due Process Model, which is based on the belief that it is just as important to protect the innocent as to convict the guilty in the criminal justice system. Cultures that adhere to this doctrine demand that an individual be presumed innocent until proven guilty beyond a reasonable doubt and, thus, procedural safeguards are employed at every stage of the judicial process to help protect the criminally accused from unjust confinement. Having said this, it is important to realize that prior to the Charter's adoption the presumption of innocence was a hallmark of common-law doctrine, though it was not constitutionally enshrined. Still, Packer's two theoretical models provide a valuable interpretive framework for assessing how the Canadian Court has approached search and cases after the adoption of the Charter. Packer's two models of criminal justice highlight an ongoing debate over the extent to which Canada's political culture is truly more communitarian than that of the U.S. While some scholars have suggested that Canada's political ideology may be as liberal and individualistic as that found in the United States (Ajzenstat and Smith 1995; Bell 1991; McRae 1964), others have contended that communitarian values have played a critical role in shaping a unique Canadian political identity (Ostberg 1995; Glendon 1991; Lipset 1990; Monahan 1987; Horowitz 1966). For example, Lipset has argued that Canada's commitment to community values and the collective good can be traced to its founding counter-revolutionary traditions. Meanwhile, Horowitz has suggested that these same values are embodied in the socialist traditions that have been a political force in Canadian national politics (see also Monahan 1987, 92). Most notably for the purposes of this article, these communitarian strains are clearly reflected in Canada's traditional adherence to the Crime Control Model in the legal arena, which places heavy emphasis on the maintenance of public order through strict law enforcement (Manfredi 1993; Lipset 1990). In short, advocates of the communitarian hypothesis believe that Canadian politics has a rich and historic commitment to collectivist values, which in turn could have important implications for the nature of judicial review under the Charter. This paper addresses the fundamental question: How has the Supreme Court of Canada responded to the addition of constitutional safeguards in a society that many believe fits Packer's Crime Control Model? …