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Charter - Section 8 - Informational Privacy (2). R. v. Hosang
In R. v. Hosang (Ont CA, 2026) the Ontario Court of Appeal dismisses a criminal appeal, here brought against a "conviction for possession of a loaded restricted firearm contrary to s. 95(1) of the Criminal Code".
At paras 30-71 the court considers the Charter s.8 ['search and seizure'] aspects of a 'seizure' of "the appellant’s name and date of birth" to "conduct a database search based on that information before the s. 12(3) [SS: of the Cannabis Control Act] search of his person". The case is interesting for it's exploration of a use of information that is typically surrendered almost freely to police, much less requiring 'seizure'.
. Canada (Attorney General) v. Canadian Civil Liberties Association
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
Here the court considered whether "subsections 2(1) and sections 5 and 6 of the Economic Order contravened section 8 [SS: search and seizure] of the Charter". These Order provisions target financial institutions and their dealings with 'designated persons' and related, and thus involve 'informational' privacy interests:(3) Section 8 of the Charter
[383] Section 8 of the Charter provides that "“[e]veryone has the right to be secure against unreasonable search or seizure”".
[384] The Federal Court found that subsections 2(1) and sections 5 and 6 of the Economic Order contravened section 8 of the Charter and had not been justified under its section 1. The AGC submits that the Federal Court erred in finding that these provisions breached section 8 of the Charter, and that even if they did, the Court further erred in failing to find that any such breach was justified under section 1 of the Charter.
[385] Paragraph 2(1)(a) of the Economic Order directed specified classes of financial institutions to cease "“dealing in any property […] that is owned, held or controlled, directly or indirectly, by a designated person or by a person acting on behalf of or at the direction of that designated person”". Paragraph 2(1)(b) of the Economic Order required such financial institutions to cease "“facilitating any transaction related to a dealing referred to in paragraph (a)”", whereas paragraph 2(1)(c) of the Economic Order required financial institutions to cease "“making available any property, including funds or virtual currency, to or for the benefit of a designated person or to a person acting on behalf of or at the direction of a designated person”". Finally, paragraph 2(1)(d) of the Economic Order required financial institutions to cease "“providing any financial or related services to or for the benefit of any designated person or acquire any such services from or for the benefit of any such person or entity”".
[386] The term "“designated person”" was defined in section 1 of the Economic Order as being "“any individual or entity that is engaged, directly or indirectly, in an activity prohibited by sections 2 to 5 of the ""Emergency Measures Regulations""”".
[387] Section 5 of the Economic Order required financial institutions to disclose, without delay, to the Commissioner of the RCMP or to the Director of CSIS, "“the existence of property in their possession or control that they have reason to believe is owned, held or controlled by or on behalf of a designated person”". Financial institutions also had to disclose any information they may have had "“about a transaction or proposed transaction in respect of [that] property”".
[388] The types of finance-related institutions caught by the reporting requirements are listed in section 3 of the Economic Order. They included banks, crowdfunding platforms, and other such financial institutions and organizations. Section 3 of the Economic Order further provided that these institutions "“must determine on a continuing basis whether they are in possession or control of property that is owned, held or controlled by or on behalf of a designated person”".
[389] Section 6 of the Economic Order provided that the Government of Canada, as well as provincial or territorial institutions "“may disclose information to any entity set out in section 3, if the disclosing institution is satisfied that the disclosure will contribute to the application of this Order”".
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(c) Analysis
[409] The Supreme Court observed in Goodwin that section 8 of the Charter provides protection for individuals’ privacy interests, whether they be personal, territorial or informational. This protection "“is essential not only to human dignity, but also to the functioning of our democratic society”". At the same time, the Court observed that section 8 "“permits ""reasonable"" searches and seizures in recognition that the state’s legitimate interest in advancing its goals or enforcing its laws will sometimes require a degree of intrusion into the private sphere”": both quotes from Goodwin at para. 55 [emphasis in original].
[410] The purpose of section 8 of the Charter is thus to protect individuals’ reasonable expectation of privacy against unwarranted intrusions by the State: Hunter.
[411] The first question for determination is whether subsection 2(1), sections 5 and 6 of the Economic Order authorized searches or seizures.
(i) Did the Economic Order authorize searches or seizures?
[412] A "“search”" occurs when a government entity examines or inspects something belonging to a person who has a reasonable privacy interest in it: R. v. Tessling, 2004 SCC 67 at para. 18. It is well-established that individuals have a reasonable expectation of privacy in their financial information: R. v. Bykovets, 2024 SCC 6 at para. 38, citing R. v. Spencer, 2014 SCC 43 at para. 31.
[413] A "“seizure”" is the "“taking of a thing from a person by a public authority without that person’s consent”": R v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, [1988] S.C.J. No. 82 at para. 26.
[414] Subsection 2(1) of the Economic Order empowered financial institutions to freeze the assets of "“designated persons”". The respondents say that this amounted to "“seizures”" within the meaning of section 8 of the Charter.
[415] As noted earlier, the AGC observes that the detention of property does not, by itself, amount to a "“seizure”" for Charter purposes: there must be a superadded impact upon privacy rights occurring in the context of administrative or criminal investigation for there to be a "“seizure”".
[416] Section 8 of the Charter protects privacy rights—it does not protect against restrictions on the enjoyment of property. While individuals whose accounts were frozen in accordance with subsection 2(1) of the Economic Order may not have been able to access their bank accounts for brief periods, their privacy rights were not affected, as their confidential financial information was not disclosed to anyone (including law enforcement), and the provision did not, in any way, contribute to the investigative process in the way that other sections of the Economic Order did. Consequently, we are not persuaded that subsection 2(1) of the Economic Order authorized "“searches”" or "“seizures”" for the purpose of section 8 of the Charter.
[417] Insofar as the information-sharing provisions of the Economic Order are concerned, section 5 required financial institutions to disclose private financial information regarding "“designated persons”" to the RCMP or CSIS, while section 6 empowered governments or their institutions to disclose private information belonging to "“designated persons”" to financial institutions.
[418] The AGC submits that sections 5 and 6 of the Economic Order did not place any property under the state’s control to further either an administrative or a criminal investigation. Rather, they authorized the collection and sharing of information to support temporary financial measures aimed at peacefully ending the illegal blockades across Canada and preventing them from re-forming to bring the public order emergency to an end.
[419] That said, the AGC concedes that sections 5 and 6 of the Economic Order authorized "“searches”", while submitting that any searches carried out under the authority of these provisions were reasonable, an issue that will be addressed further on in these reasons.
[420] Before considering whether the measures taken under the Economic Order were reasonable, however, it is first necessary to consider the nature of the government activity at issue in this case.
(ii) The nature of the government activity authorized by the Economic Order
[421] In assessing whether the disputed provisions of the Economic Order infringed section 8 of the Charter, it is necessary to determine the nature of the government activity at issue in this case. This is because "“the characterization of a search or seizure as either criminal or regulatory is relevant in assessing its reasonableness”": Goodwin at para. 60.
[422] That is, where the purpose of the law in question is regulatory (or administrative) and not criminal, it may be subject to less stringent standards: Goodwin at para. 60; see also R. v. McKinlay Transport Ltd., 1990 CanLII 137 (SCC), [1990] 1 S.C.R. 627, 72 O.R. (2d) 798 at pp. 641, 647, per Wilson J.
[423] As noted earlier, the AGC contends that to engage the provisions of section 8 of the Charter, actions taken under the information-sharing provisions of the Economic Order had to be carried out as part of an investigation, whether it be criminal, regulatory or administrative. Given that the sole purpose behind the enactment of the Economic Order was to discourage participation in activities prohibited by sections 2 through 5 of the Regulations, it follows that actions taken under these provisions did not amount to "“unreasonable searches”" for the purposes of section 8 of the Charter.
[424] However, in determining the appropriate characterization of the information-sharing provisions of the Economic Order and the nature and purpose of the scheme that it created, the Economic Order cannot be read in a vacuum. Sections 5 and 6 of the Economic Order interact with the Regulations in such a way as to engage penal sanctions and facilitate criminal investigations.
[425] The enabling legislation for the Economic Order is paragraph 19(1)(e) of the Emergencies Act. It creates summary conviction and indictable offences for the contravention of any order or regulation made under the provision. Persons convicted of summary conviction offences faced fines of up to five hundred dollars, terms of imprisonment not exceeding six months or both. Those convicted of indictable offences faced fines of up to five thousand dollars, imprisonment not exceeding five years or both. These offences are replicated in subsection 10(2) of the Regulations, which applies in relation to breaches of sections 2 to 5 of the Regulations.
[426] That is, as noted earlier, sections 2 to 5 of the Regulations create a series of prohibited acts, including prohibitions on participating in a public assembly that may reasonably be expected to lead to a breach of the peace (section 2), travelling to or within an area where such a public assembly is taking place (section 4) and providing property to facilitate or participate in such a public assembly or to benefit any person who is facilitating or participating in such an activity (section 5).
[427] The Economic Order applied to "“designated persons”", which it defined as "“any individual or entity that is engaged, directly or indirectly, in an activity prohibited by sections 2 to 5 of the ""Emergency Measures Regulations""”". In other words, the Economic Order applied to individuals who faced prosecution for breach of the Regulations.
[428] That this was the focus of the Economic Order is borne out by the evidence of Denis Beaudoin. In 2022, Mr. Beaudoin was the Director of Financial Crime, Federal Policing Criminal Operations with the RCMP, and he was responsible for overseeing the use of the economic measures put in place under the Emergencies Act proclamation. Mr. Beaudoin developed the processes used by the RCMP for verifying and sharing information with financial institutions under the Economic Order.
[429] Mr. Beaudoin stated in his affidavit that the RCMP shared two main types of information with financial service providers during the eight days that the Economic Order was in effect. The first was information obtained from the OPP and the OPS with respect to individuals already identified as part of their criminal investigations into the illegal protests and blockades. The second type of information shared with financial service providers related to trucks and other vehicles located in downtown Ottawa.
[430] According to Mr. Beaudoin, the RCMP and other law enforcement agencies focused their efforts on identifying and disclosing information pertaining to individuals and entities who were actively involved in illegal actions, either by organizing or influencing illegal activities or by being present at the illegal protests.
[431] While the primary purpose of the Economic Order may have been to help discourage participation in activities prohibited by sections 2 through 5 of the Regulations, the Economic Order allowed RCMP officers to gather private financial information that constituted evidence of offences under the Regulations, and to turn that information over to provincial and local police. Nothing in the Economic Order placed any limit on what these police forces could do with that information, and it appears that they would have been free to use it to prosecute the offences created under the Regulations.
[432] Considerations such as the purpose and nature of the scheme and the mechanism of seizure suggest that the information-sharing authorized by sections 5 and 6 of the Economic Order requires relatively close scrutiny in assessing whether the law authorizing the seizure was reasonable, so as to ensure the state did not unreasonably interfere with protesters’ privacy interests: Goodwin at para. 63. At paras 433-450 the court walks through it's Charter s.8 'reasonableness' assessment [not a JR reasonableness review] on these issues, concluding:(iv) Conclusion on the reasonableness of sections 5 and 6 of the Economic Order
[451] As explained below, we are not persuaded that searches under sections 5 and 6 of the Economic Order were reasonable within the meaning of section 8 of the Charter.
[452] The information-sharing provisions of the Economic Order permitted financial institutions, CSIS and the RCMP to intrude on the privacy of individuals based on potentially unfounded, subjective beliefs.
[453] While such searches did not involve an encroachment on individuals’ bodily integrity in the way that the taking of a blood sample or an incursion into the homes of the affected individuals would, searches carried out under information-sharing provisions of the Economic Order nevertheless authorized intrusive searches into individuals’ personal financial information and the sharing of this information with others. This is information that has been described as forming part of the "“biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”": R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, [1993] S.C.J. No. 97 at p. 293; Schreiber v. Canada (Attorney General), 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841, [1998] S.C.J. No. 42 at para. 19. It is thus information in which account holders had a reasonable expectation of privacy.
[454] Moreover, as was noted earlier, this information potentially included evidence of criminal offences under the Emergencies Act and the Regulations committed by the "“designated persons”".
[455] We further find that the information-sharing provisions of the Economic Order failed to provide adequate procedural safeguards. Not only did section 5 only require satisfaction of the low "“reason to believe”" standard, neither section 5 nor section 6 provided for any form of review mechanism. This absence is particularly troubling given that searches under sections 5 and 6 of the Economic Order occurred without any form of prior authorization: R. v. Tse, 2012 SCC 16 at para. 84. While a less exacting level of review may be sufficient in a regulatory context, the availability and adequacy of a review process is nonetheless relevant to the reasonableness analysis under section 8 of the Charter: Goodwin at para. 71.
[456] Also problematic is the lack of rigour contemplated in identifying individuals who may have been subject to the information-sharing provisions of the Economic Order. The suggestion that financial institutions may have been expected to rely on information they obtained from news or social media reports or the internet as to who amongst their customers was subject to section 5 of the Economic Order is troubling in the extreme.
[457] As the Supreme Court observed in Goodwin, "“[t]he reliability of a search or seizure mechanism is directly relevant to the reasonableness of the search or seizure itself”": above at para. 67. Citing its earlier decision in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, the Supreme Court went on in Goodwin to observe that "“[a] method of searching that captures an inordinate number of innocent individuals cannot be reasonable”": Goodwin at para. 67, quoting Chehil at para. 51.
[458] These considerations lead inexorably to the conclusion that the information-sharing provisions of the Economic Order were unreasonable. Sections 5 and 6 of the Economic Order failed to strike a reasonable balance between the interests of the state and those of individuals subject to searches under the Economic Order, thereby infringing their section 8 rights.
[459] The final question, then, is whether the information-sharing provisions contained in sections 5 and 6 of the Economic Order have been justified under section 1 of the Charter. This question will be addressed next.
(v) Was the infringement of section 8 of the Charter justified under section 1?
[460] As noted earlier, the onus is on the AGC to justify the violation of a Charter right under section 1 of the Charter. To do so, it must be demonstrated, on a balance of probabilities, that there was a pressing and substantial objective behind the information-sharing provisions of the Economic Order. It must also be demonstrated that the means chosen to achieve that objective were proportionate in that they were rationally connected to the objective, the law was minimally impairing of the violated right and the deleterious and salutary effects of the law were proportionate to each other: Oakes at para. 70; Goodwin at para. 79.
[461] The AGC submits that any limits on protesters’ privacy rights that may have been imposed by sections 5 and 6 of the Economic Order were a proportionate response to the situation as it existed on February 14, 2022. The AGC further contends that the information-sharing provisions of the Economic Order were structured to facilitate both the timely imposition of economic measures and the timely lifting of those measures.
[462] Given the unique urgency and circumstances of the crisis at hand, the AGC submits that Parliament had a reasonable basis for concluding that the perceived harms existed, and the measures chosen to address them were minimally impairing under the circumstances, with the result that they were justified under section 1 of the Charter. While other alternatives may have been conceivable, that alone does not establish a lack of proportionality or a Charter violation. The Economic Order fell within a range of reasonable alternatives, and its successful deterrent benefits outweighed any deleterious effects it may have had.
[463] The Federal Court did not agree, finding that the information-sharing provisions contained in sections 5 and 6 of the Economic Order did not minimally impair the right to be free from unreasonable searches and seizures.
[464] We agree with the Federal Court.
[465] Unlike other rights-creating provisions in the Charter, section 8 of the Charter itself includes a justificatory element, providing that people have the right to be secure against unreasonable searches or seizures.
[466] Because section 8 of the Charter requires that there be a robust and carefully tailored internal balancing analysis before a breach can be found, a finding that a search power is unreasonable under section 8 leaves little room for upholding the law under section 1: Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 at para. 46; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 at para. 58.
[467] As previously noted, minimal impairment requires that the measures in question affect the rights as little as reasonably possible: Frank v. Canada (Attorney General), 2019 SCC 1 at para. 66.
[468] In our view, the information-sharing provisions contained in sections 5 and 6 of the Economic Order fail the minimal impairment test because there were several less impairing alternatives available to the GIC.
[469] As explained in the previous section of these reasons, there were a number of deficiencies in the information-sharing scheme created by sections 5 and 6 of the Economic Order.
[470] The most egregious problem with the Economic Order, in our view, is that personal banking information belonging to individuals who were suspected of having committed offences under the Regulations could be shared with the RCMP and CSIS without a warrant or any form of prior authorization, which information could well have provided evidence of offences under the Regulations.
[471] There were several ways that the information-sharing scheme created by the Economic Order could have been made less impairing. In particular, the Economic Order could have specified that the information belonging to allegedly "“designated persons”" that was shared with the RCMP or CSIS by financial institutions could not subsequently be used by the RCMP or other police forces to investigate or prosecute individuals for breaching the prohibitions created by the Emergencies Act and the Regulations. Another way would have been to specify that such information could only have been used to investigate or prosecute individuals with leave of a court.
[472] The risk of innocent individuals being wrongfully identified as "“designated persons”" could also have been reduced by ensuring that financial institutions had a reliable source of information regarding the activities of their customers, such that they were not expected to rely on news stories and the internet to decide whether their disclosure obligations had been triggered.
[473] There were other procedural safeguards that could have been included in the Economic Order to make it less impairing, including the satisfaction of a higher standard of suspicion as a prerequisite to information-sharing, and the creation of a review mechanism to allow affected individuals to challenge actions taken under the Economic Order. Another procedural safeguard would have required prior authorization before sharing confidential financial information with financial institutions, the RCMP, CSIS or local police.
[474] In the absence of any such measures, the AGC has failed to establish that the infringement of section 8 of the Charter resulting from sections 5 and 6 of the Economic Order was justified under section 1 of the Charter.
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