Section 8 of the
Canadian Charter of Rights and Freedoms guarantees the right to be secure from
unreasonable search and seizure by government authorities, including the police. The protection applies to people, which
includes corporations (as legal persons), not to places. However, the location in which a search takes
place can be important in determining whether the government action was lawful
or not. A search has been defined by the
Courts as any state activity that interferes with a “reasonable expectation of
privacy”. An unlawful search is one
that unreasonably interferes with a person’s reasonable expectation of
privacy.
A search of a person’s body raises obvious privacy concerns (“personal privacy”) and attracts the highest level of protection under Section 8. Searches of geographic locations connected to a person may also raise privacy concerns (“territorial privacy” or “spatial privacy”), but not all locations will attract the same level of protection. Individuals have a high (and most often reasonable) expectation of privacy in places like the home, meaning that the standard of reasonableness required of a search there will be high. The expectation of privacy in a publicly-accessible commercial space will be comparatively much lower, meaning that the standard of reasonableness required of a search of that location will be comparatively lower than for a search of a private home.
Does a farmer or a farm corporation have any reasonable expectation of privacy on open farmland? Can a police search of a private field violate a person’s Section 8 Charter right by unreasonably interfering with an expectation of privacy? The Court of Appeal for Ontario recently heard the challenge of convictions related to production and possession of marijuana by a vegetable farmer, the Appellant, who argued that a police search of the farmland he rented infringed Section 8 of the Charter. The Trial Judge agreed that Section 8 had been infringed, but ruled that the infringement did not warrant exclusion of evidence subsequently obtained on the farm. That evidence led to the convictions.
The Appellant leased approximately 12 acres out of a 330-acre property based on a verbal agreement. A neighbour made a complaint to the police about marijuana being grown on the property and then accompanied a drug investigator to the site: “Both men briefly and unintentionally trespassed on the leased lands, although no marijuana was seen.” At a later time, an off-duty police officer was hunting on the property with the landowner’s permission and saw some marijuana plants. He passed that information onto drug enforcement. Another officer then attended at the property and saw 14 rows of marijuana plants. As with the visit of the original drug investigator, this officer too unknowingly trespassed onto the leased lands in making his observation.
Eventually the police obtained search warrants, carried out a search of the property, and discovered a large number of marijuana plants in the field, a processing operation in a barn, and other related evidence of drug offences. At trial, the Appellant applied under Section 8 of the Charter to exclude the evidence obtained under warrant because, in part, the warrants were based on information obtained through a trespass onto the leased land. The Trial Judge agreed that the police entries onto the leased land prior to the issuance of the warrants did breach the Appellant’s Charter right to be free from unreasonable search and seizure, but concluded the breach was in the “middle range of gravity” and not sufficiently serious to require the exclusion of the evidence later gathered. This finding was the focus of the appeal, and the Court of Appeal agreed with the Trial Judge and upheld the convictions.
The Court of Appeal also noted that the Trial Judge’s assessment of the Appellant’s privacy interest in the rented field as not measuring “high on the privacy scale” was well-supported by the factual record. The Appellant had a privacy interest that was more than “trifling” – he had made real and extensive use of the property over a number of years to farm vegetables, and the leased land was hidden from public view due to its precise location – but the fact that the leased area was accessible to persons visiting the overall farm property (the non-leased portion) and the fact that there were no signs or barriers erected to alert a visitor to the Appellant’s assertion of a privacy interest did not lend themselves to a high level of privacy protection from a police search. Under different circumstances, it would appear, a person’s privacy interest in farmland might warrant a higher level of protection.
It is important to note that not all government searches involve the police and criminal investigations. Regulatory inspections carried out by government agencies such as the Canada Revenue Agency or the Ontario Ministry of the Environment are also “searches” that must be conducted reasonably and in compliance with Section 8 of the Charter. While the bar for reasonableness of a regulatory inspection may be set lower than that for a criminal investigation, the inspection may still unreasonably interfere with a person’s reasonable expectation of privacy, including on farm properties. Whether an inspection has breached the Section 8 Charter right of an individual or a corporation will depend on the circumstances of each particular case.
Read the decision at: Ontario Court of Appeal.
