Computers and other digital devices have been searched and seized by police for some

time. But given the capabilities of modern technology, there are fresh questions about how to

interpret and apply s. 8 of the Canadian Charter of Rights and Freedoms (Canadian Charter of

Rights and Freedoms, 1982), which ensures everyone's "right to be secure against unwarranted

search or seizure." Digitalization is seen by some as a serious danger to the socio-legal system.

Law enforcement professionals demand that legislators and judges reinstate the pre-digital status

quo because they claim that criminals' use of technology has outpaced police's ability to conduct

investigations. Privacy advocates likewise long for restoration, but they argue that digitization

has facilitated state surveillance (Conrad, 2019).

There is disagreement about whether s. 8 doctrine needs to undergo a fundamental

conceptual revision in order to fit the digital revolution, or whether it is actually capable of doing

so. I support the second response. There is little reason to believe that s. 8 has to be drastically

reinterpreted in light of digitalization. The interpretation and execution of the Constitution are

necessarily impacted by technological advancement, but the conceptual and doctrinal tools

required to reach reasonable compromises between opposing privacy and law enforcement

interests in the digital era are provided by the Supreme Court of Canada's (SCC) precedent set in

digital s. 8 cases during the last two decades.

The interpretive framework of s. 8 is clearly established (Curie, 2015). Claimants must

first show that a government action constituted a "search or seizure," then they must show that

the action was "unreasonable" in order to establish a breach (Canadian Charter of Rights and
Freedoms, 1982). In order to determine whether the act violated the claimant's "reasonable

expectation of privacy," the "search or seizure" question must be answered. If no technique

limited by statute or the Charter is employed, the investigative technique can be used without

legal restriction (Penney, 2014). If the method does involve invasion of a reasonable expectation

of privacy, courts can regulate it under s. 8. Courts may require that specific requirements, such

as obtaining a warrant based on probable cause, be met by the state actor conducting the search

in order for it to be deemed a "reasonable" search.

The first and most fundamental docterine, as demonstrated by R. v Morelli and R. v Vu, is

that digital devices' capacities differ significantly from their analogue equivalents, frequently by

many orders of magnitude (Penney, 2014). Compared to its analogue equivalents, computers

often hold a much greater quantity and variety of personal data. For instance, they have

substantial recordings of conversation content (text messages, e-mail). While personal

communications (including letters, diary entries) may be kept in non-digital containers (filing

cabinet, notebooks), the quantity and variety of information they store cannot compare to that on

digital devices. The amount of communications content that can be gleaned from digital devices

may, in some circumstances, be greater than what can be gleaned from prospective

communications surveillance (i.e., wiretaps), which must be carried out under strict guidelines

that go beyond those imposed by "ordinary" search warrants. Nevertheless, it might be risky to

attribute abilities to digital search technology that they do not actually have (Penney, 2014).

Judges must work to comprehend the actual capabilities of the privacy-invading technology in

front of them, not just hypothetical or speculative capabilities based on fear or misinformation.
 The second doctrine is that legitimate privacy expectations may endure the revelation of

personal information to third parties, as demonstrated by R. v Plant and R. Gomboc (Penney,

2014). This claim is neither unique nor debatable, but it is not at all obvious. While a person may

disclose confidential information to another for certain, practical reasons, Plant argues that the

state should not be completely allowed to conscript the knowledge for its own (R. v. Plant,

1993). As more and more personal data is digitised, recorded, and kept in databases, this idea

becomes crucial. People may lose trust in institutions, withdraw from socially helpful (but

potentially stigmatising) exchanges, or use inefficient non-legal techniques to safeguard their

privacy if they are not confident that part of this information is kept private (Michaelson, 2008).

Even if a third party's ownership of a person's personal information does not disqualify it from

Charter protection, the nature of the connection between the parties (including any governing

legal or contractual requirements) may lessen or eliminate privacy expectations (Haggerty,

2009). In Plant, s. 8 protection was undermined by the commercial character of the data and the

absence of contractual clauses limiting disclosure. In Gomboc, the court found that the claimant's

expectation of privacy was unwarranted and applied the legislative default disclosure rule

(Penney, 2014). In Cole, the court determined that the school board's ownership and control over

the claimant's computer data did not violate his right to privacy given the sensitive nature of the

information and the board's consent to personal use of its computers (R. v. Cole, 2012). Even

though these situations can be separated from one another, a consensus emerges.

S. 8 outlines normative restraints on governmental authority; as a result, the extent of s.

8's application cannot be solely determined by external standards such as statutes or contracts

(Conrad, 2019). It may not be determinative whether the party asserting a right to privacy in
information should have understood that the conditions controlling their connection with the

holder of that information permitted disclosure. The right question to ask is whether the

information is of the kind that society believes should be kept out of the hands of the government

given what it indicates about the subject, why it was gathered, and the conditions under which it

was meant to be utilized (Penney, 2014). Second, expectations of privacy with regard to material

that is inherently personal are less likely to be suppressed by legislation or contract (Michaelson,

2008). Legislation is one aspect to take into account when assessing whether a reasonable

expectation of privacy exists, but it might not be enough to override a compelling expectation of

privacy. Think about the repercussions of failing to acknowledge a reasonable expectation of

privacy in the context of frequent personal usage of employer-issued digital devices (R. v. Cole,

2012). Unrestricted state access to data from such devices could have a variety of negative

effects, including discouraging people from engaging in activities that are personally fulfilling

and socially productive, as well as pushing them to take precautions to protect their privacy

(Bailey, 2008). Recognizing a legitimate expectation of privacy in work-related gadgets has little

costs for law enforcement. Employers still have a lot of freedom to monitor equipment and look

into misconduct in the workplace. When a criminal inquiry turns up evidence, authorities won't

have any problem getting a warrant to seize the evidence or carry out additional searches.

The remaining issue is how to determine whether some types of information are

sufficiently private to warrant constitutional protection (Curie, 2015). To address this issue, the

Court established the "biographical core" test in Plant (R. v. Plant, 1993). The test is generally

effective in most circumstances, like many other broadly defined, pragmatically based legal

criteria. Everyone would concur that data on people's political, religious, and sexual preferences
deserve more protection than data regarding sports teams loyalty. Most people also agree that

information about residential activity is more private than information about activities like

driving or shopping that take place in public places. However, as Plant and Gomboc

demonstrate, judges frequently disagree on how to categorise research methods that produce

"low resolution" data (R. v. Plant, 1993; Conrad, 2019). When viewed alone, such data might not

reveal anything about a person's behaviour. However, by integrating it with other information,

police may be able to recognise, or at least infer the existence of, more behaviour (Hunt and

Rankin, 2015). This kind of information is the subject of two interconnected debates. The

advantages of utilizing brighter or darker lines to distinguish protected from unprotected

information include, one, the nature of the inferences made from the data (whether police may

legitimately infer the presence of intimate behaviour), and two (whether information about

residential activity should be protected, even if it does not permit reliable inferences in the case

at hand) (Penney, 2012).

Those on the opposing side of this debate argue that although the wording of s. 8 is

simple, its use in legal analysis is complicated” (Mendes 2013). A reasonable expectation of

privacy" is the fundamental analytical idea for any s. 8 analysis, although there are several

legitimate, opposing views of what it means to be "reasonable." Due to the inherent ambiguity of

privacy, there is considerable latitude in how it is applied. Judgements on what constitutes

"reasonable expectation" and "privacy" have a significant influence on the level of protection

that s. 8 provides to all Canadians (Conrad, 2019). The facts in each case may determine whether

a search is permissible, but without more guidance, the search may be illegal. Over the last three

decades, the SCC has addressed the interaction between technological advancement and
informational privacy on a number of occasions, but have yet to even come to a consensus

regarding how reasonable it may be to obtain utility records. In previous cases, justices and

judges have opted against making a definitive declaration concerning computer searches and

omit to elaborate on the circumstances under which a general warrant may allow for future

private interactions with the police. Additionally, the police are not always required to get a

warrant before inspecting computers or mobile devices, but in earlier rulings, like the R. v

Fearon case, the chance to create a clear legal standard for cell phone searches that occur during

an arrest was lost (Conrad, 2019). A text message chat may or may not be subject to a reasonable

expectation of privacy depending on the situation. The trial judge must now determine if such an

expectation exists, and doing so through unclear precidence, jurisprudence, and text is a

challenging analysis.

Because the Court continues to accept caveats, there are no clear boundaries for police to

follow, and lower courts are left without any clear instructions on how to interpret s. 8 search

concerns on an individual basis (Bailey, 2008). The Gomboc split rulings show that there are still

significant disagreements and doubts on the SCC's part about how to handle s. 8 issues.

Considering the "biographical core" as a standard for figuring out whether there was a reasonable

expectation of privacy, the judgments also show a different split (Conrad, 2019). These situations

show reluctance to make decisions and refusal to provide law enforcement precise instructions.

This causes a decrease in case resolution and an increase in litigation, further burdening already

overcrowded courts. This presents as the SCC's legal precedent hasn't offered any assurance or

predictability, leaving those involved in the judicial system to speculate about the Court's

position on new legal challenges using cutting-edge technology. This argument is also then tied
to how it is difficult to strike a balance between law enforcement and privacy rights, and this

balance shifts over time. Therefore, a flexible interpretation of the Charter is necessary so that it

may be adjusted to changes throughout time, such as shifting social ideals, and that is something

s. 8 does not achieve to a reasonable extent (Bailey, 2008).

The ideas and evidences mentioned by the opposition, although it has its own validity and

truth, presents a harsh version of the difficulties that may be associated with s. 8. A dominant

part of the Charter has room to be read into in order to accommodate for different situations

which may arise, and this includes circumstances which emerge through dynamic and unstatic

technologies and societal views. It is up to judges and justices to go through rational, statutes,

and critically analyze individual situations to come to a decision regarding what would currently

benefit society the most through a legal lense. Justices and judges have enough resources and

rational at their disposal to be making such decisions and understanding whether breaches of

search and security have occurred.

The law governing search and seizure and s. 8 of the Charter must obviously change as

the digital era sets in. But overcoming this obstacle shouldn't need changing the SCC's current

digital s. 8 jurisprudence. The Court has expressed reluctance to undermine the normative

foundation of s. 8 by referencing extrinsic standards while also acknowledging the peculiarity of

digital devices and the significance of safeguarding privacy in third party information. The Court

should, however, reconsider its stance regarding the protection of only criminal information,

concentrate on the actual (and not hypothetical) capabilities of digital search and surveillance

technologies, and be aware of its own informational constraints in trying to regulate complex and
evolving technologies. The borderless nature of electronic data and the rapid evolution of

technology imply that Canada must have a solution to deal with this change, and through the

current doctrines, tests, and precedence, that is possible without requiring major changes to

current frameworks.
 References

Bailey, J. (2008). Framed by section 8: Constitutional Protection of Privacy in Canada. Canadian

Journal of Criminology and Criminal Justice, 50(3), 279–306.
https://doi.org/10.3138/cjccj.50.3.279

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.

Curie, R. (2015). Annotation: United States v Wakeling (Supreme Court of Canada 2014).
Criminal Reports, 15(1), 1012-1013. https://ssrn.com/abstract=2591934

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, and 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
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R. v. Cole, 2012 SCC 53.

R. v. Plant, 1993 SCR 281.

R. v. Vu, 2013 SCC 60.