Unreasonable Search and Seizure & Section 8 of the Charter: Cost-Benefit Analysis in Constitutional Interpretation
Errol Mendes and Stéphane Beaulac, eds. Canadian Charter of Rights and Freedoms, 5th ed. (Toronto: Lexis, 2013), Forthcoming
56 Pages Posted: 5 Sep 2013
Date Written: September 4, 2013
In this Chapter, the author describes and critiques the Supreme Court of Canada’s section 8 jurisprudence (which has generally been analyzed in doctrinal and deontological terms) through the lens of cost-benefit analysis. This approach involves two basic inquiries. In the first, the specific private and social costs and benefits of extending (or not extending) particular privacy protections in particular circumstances are identified. This cannot be done in a quantitative, formulaic, or technocratic fashion. Moral and political value judgments are unavoidable, and jurists will continue to disagree about reasoning and outcomes. But greater rigour and precision would (at a minimum) make the balancing process more transparent and (potentially) narrow the range of disagreement. The second inquiry involves the question of institutional capacity; that is, whether courts or legislatures are better equipped to regulate state intrusions into privacy in a particular realm. Legislatures and courts operate with differing incentives, biases, and information deficits. Greater awareness of these differences should help courts to avoid becoming more deeply involved in regulating privacy intrusions than their institutional capacities warrant. This methodology is then applied to explain and critique the two key elements of section 8: the definition of a "search or seizure" and the assessment of "reasonableness".
Keywords: Canadian Charter of Rights and Freedoms, charter, search and seizure, section 8, cost-benefit analysis, law and economics, public choice, constitutional interpretation
JEL Classification: D80, K00, K14
Suggested Citation: Suggested Citation