With the rapid evolution of technology, courts remind us that privacy protection must evolve at the same pace. Thus, section 8 of the Canadian Charter protects everyone against unreasonable search and seizure. This protection now applies to any electronic search, whether it targets a phone, text messages, or online data. Here are the essentials.

Electronic surveillance : a very strict framework

Electronic surveillance (wiretaps, recordings, interceptions) heavily infringes on privacy. This is why it is governed by Part VI of the Criminal Code.

To obtain authorization, the police must demonstrate :

• That an offence listed in s. 183 C.C. is involved;
• That the wiretap is necessary because no other effective investigative technique exists;
• That it serves the administration of justice—meaning there are grounds to believe an offence was committed and the interception will provide evidence.

Video surveillance : same logic

The Supreme Court has held that it is unthinkable for the State to secretly film citizens without authorization.

Thus, the use of hidden cameras also requires a specific warrant. This warrant must be based on the impact of the electronic search on privacy.

Text messages : a strong expectation of privacy

In R. v. Marakah, the Supreme Court ruled that private text messages are protected even when located on the recipient’s phone.

The object of the search is not the device, but the conversation itself. This often reveals intimate information.

Thus, police must obtain authorization before accessing text messages.

Exceptions: undercover operations

In R. v. Mills, the Supreme Court concluded that an adult chatting online with someone they believe to be a minor has no reasonable expectation of privacy. Undercover officers therefore do not need a warrant to preserve the conversation in this context.

Computer searches : the highest level of protection

Courts consider the search of a personal computer to be one of the most intrusive forms of search.

Why? Because a computer contains a complete portrait of a person’s life : photos, histories, documents, communications, etc.

Consequences :

• The police must demonstrate very strong grounds to obtain a warrant.
• A computer is treated as a distinct “place” : even if a warrant targets a house, a second warrant may be required to search digital content (R. v. Vu).
• The fact that the computer is shared or employer-provided does not eliminate the expectation of privacy (R. v. Cole; R. v. Reeves).

Internet data and IP addresses : unmasking identity = search

A user’s identity is protected. According to R. v. Spencer, a request to identify a subscriber linked to an IP address constitutes a search because it potentially reveals their online activities.

In 2024, the Court reaffirmed in R. v. Bykovets that the IP address itself is protected by privacy rights. Thus, the police must obtain judicial authorization before requesting an IP address from a company. This rule expands the regulation of electronic searches in the digital space.

Cell phone searches during an arrest : allowed, but limited

In R. v. Fearon, the Supreme Court recognized that in certain circumstances, police may quickly search a phone during an arrest, but only if :

• The arrest is lawful;
• The search is truly related to an urgent police purpose (protection, preservation, or rapid discovery of evidence);
• The search is limited (recent messages, recent photos, call logs);
• Police keep detailed notes.

In summary

Courts strongly protect digital privacy, and electronic searches are examined with great seriousness. Many police techniques require prior authorization (a warrant). They must also respect strict limits when the data reveals personal information. Thus, text messages, computers, and internet data carry a high expectation of privacy.

When police conduct an electronic search, any procedural error may lead to the exclusion of evidence. Furthermore, exceptions allowing a search without a warrant remain rare and tightly regulated. If you are facing an investigation, electronic seizure, or a challenge based on section 8, we can help. Indeed, our team can assist you at every step to protect your rights.