NCJ Number
224703
Journal
Canadian Journal of Criminology and Criminal Justice Volume: 50 Issue: 3 Dated: June 2008 Pages: 307-330
Date Published
June 2008
Length
14 pages
Annotation
This article explores the judgmental biases that naturally arise in decisions regarding the application of section 8 of the Charter.
Abstract
The article argues that the interpretation of section 8 rights has taken place largely in the context of charges against an accused. Decisions about which government actions constitute a search identify the boundaries of privacy rights of all Canadians. After exploring the psychological literature, the article notes that the degree to which government actions are viewed as intrusive and thus privacy-compromising will be reduced to the extent that the decisionmaker takes a third-party perspective (search of other, not oneself) and to the extent that there is knowledge of irrelevant situational information including the results of the potential search (whether evidence was produced) and indication of the guilt or innocence of the subject of the search. In deciding the typical section 8 case, judges find themselves in exactly these positions, and they run the risk of attenuated perceptions of intrusiveness. The article points to empirical research that suggests strategies for minimizing this bias, including considering intrusiveness from a first-person perspective and adopting an explicitly analytical stance on the specific question of whether the actions in question constitute a search or seizure. References