Rethinking the Applicability of Section 8 of the Canadian Charter for the Information Age and Beyond

The Supreme Court of Canada’s interpretation of the right to be secure against unreasonable search and seizure guaranteed by section 8 of the Canadian Charter of Rights and Freedoms has remained fairly stable since the adoption of the Charter. Or at least, that is how the Court’s section 8 jurisprudence to date makes it seem. Yet, in some recent decisions dealing with digital communications and the internet—culminating in the 2024 case of R. v. Bykovets—the Court has, implicitly, brought into question the foundational principle based on which the right has historically been circumscribed. Or so I argue in this article, contending further that this development should be applauded and pave the way for a rethinking of the scope of applicability of the section. In section I, I explain the orthodox position about the applicability of section 8 and outline key controversies that arose in its development and have since remained unaddressed. I then seek to problematize the position further by identifying some questionable implications that the Court has held it to have over the years. In section II, I situate and review the recent decision in Bykovets and show how it invites a rethinking of the scope of applicability of section 8. In section III, I argue that the logic of the Bykovets majority opinion should lead the Supreme Court to expand the reach of 8 section to all non-accidental gatherings of information about individuals by the state. In an era in which, more than ever before, information is power, I argue that, for section 8 to protect us meaningfully against unjustified informational overreach by the state, all such collections should be subject to the rule of law and the attendant possibility of judicial control.