Waiver of a Charter Right

A Charter right may be waived.



Thus, a search that would otherwise be unreasonable may be consented to in which case the reasonableness, or otherwise, is irrelevant.



All that said, waiver of a right will not be found by a Court except where the waiver is informed and clearly proven.



While not required, a videotape of the waiver being given is useful and any uncertainty of the giving of the waiver will enure to the benefit of the party denying giving the waiver.



Today's Court of Appeal decision in

R. v. Simon, 2008 ONCA 578 is helpful in summarizing this law. The Court rules:



[48] Section 8 of the Charter protects individuals against unwarranted state intrusions upon their privacy interests. One of the values animating the right protected by s. 8 is personal autonomy. Personal autonomy, however, also dictates that an individual must be able to waive his or her right to be left alone by the state and to consent to what, absent that consent, would be an unreasonable state invasion of personal privacy. If an individual provides that consent, what would otherwise be a search or seizure, is no longer a search or seizure. The reasonableness standard mandated by s. 8 has no application where the individual has consented to the state intrusion upon his or her privacy: R. v. Dyment (1988), 45 C.C.C. (3d) 244 at 257 (S.C.C.); R. v. Borden (1994), 92 C.C.C. (3d) 404 (S.C.C.); R. v. Wills (1992), 70 C.C.C. (3d) 529 at 540 (Ont. C.A. ).



[49] The quality of a purported s. 8 waiver must be commensurate with the importance of the right being relinquished. Courts will be slow to infer a waiver, particularly where the individual who is said to have waived his or her s. 8 rights is detained and is the target of a criminal investigation. The Crown bears the burden of demonstrating that any waiver relied on by the Crown is in all of the circumstances an effective and informed waiver of an individual's s. 8 rights.