The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

clear federal encroachment on its provincial powers, English Canada’s reaction to Quebec’s use of the NWC was strongly negative, and this facilitated the eventual rejection of the Meech Lake Accord, negotiated by then-Prime Minister Brian Mulroney, that would have granted Quebec special status in Canada as a distinct society. 130 In-spite of Meech Lake’s failure, Trudeau was successful in creating a system of Canadian judicial review for individual rights that arguably surpasses the current American framework. 131 In an early individual rights case following the Charter’s enactment, the Supreme Court of Canada invalidated key provisions of the Combines Investigation Act that authorized general warrants on media companies. 132 After a general search was authorized under the Act on the Edmonton Journal newspaper’s offices seeking to search every file in the building, the paper’s owners, Southam, Inc., brought suit, alleging that the Act violated Section 8 of the Charter of Rights and Freedoms that provides “[E]veryone has the right to be secure from unreasonable searches and seizures.” 133 The Supreme Court of Canada agreed and concluded that, as a general rule, police and other law enforcement searches require a warrant from a judge before a search can take place. 134 The Court concluded that in order to get a warrant, there must usually be “reasonable and probable grounds” to believe that an offence has been committed and that there is evidence to be found at the place of the search. 135 The Court has since expanded upon this line of jurisprudence to conclude that Canadians have a reasonable expectation of privacy in text messages on their own cell phones and in text messages sent to others. 136

129 Miller, supra note 60 at 55. 130 Id. 131 Calabresi, supra note 121 at 436. 132 Hunter v. Southam Inc., [1984] 2 SCR 145

133 Id. 134 Id. 135 Id. 136 R. v. Marakah, 2017 SCC 59

126