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Part IV Bill of Rights problems

36    The New Zealand Bill of Rights Act 1990 section 21 states:

Unreasonable search and seizure – Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

These words were not altered during the course of the passage through Parliament of the measure, and do not differ from those proposed in clause 19 of the draft Bill contained in the preceding White Paper.²⁴

37  The draft published in October 1980 of the provision that was to become section 8 of the Canadian Charter of Rights and Freedoms read:

Everyone has the right not to be subjected to search or seizure except on grounds in accordance with procedures prescribed by law.

Because this lawfulness test would not have curbed the enactment of unreasonable search and seizure laws, there was substituted the present form of section 8 which reads:

Everyone has the right to be secure against unreasonable search or seizure.²⁵

It is clear, as the White Paper acknowledges, that the wording of the New Zealand provision derives from this less than ancient lineage. In the Charter, this wording was appropriate because of the power given by the Charter to the courts to strike down statutes, and such a wording was similarly appropriate to the Bill in the form proposed in the White Paper, which would have conferred on New Zealand courts a like power. The White Paper said:

Article 19 will empower the courts to review legislation which grants powers of search and seizure either of the person, property, correspondence or otherwise. They will be permissible only if they are not "unreasonable". Article 19 will also apply where the manner in which a search or seizure is carried out is challenged, rather than the statutory authorisation for it.²⁶

But it seems to have been overlooked that the first two sentences ceased to be relevant when the proposal to empower the courts to strike down statutes was abandoned, and the final sentence seems to have been written without an appreciation that even without the Bill of Rights (as the Court of Appeal later acknowledged in Wilson v Maihi²⁷ (a case concerning the execution of a search warrant issued under the Summary Proceedings Act 1957 section 198)) an unreasonable exercise of a power of search or seizure (in the sense of an exercise mala fide or with an ulterior motive or in a manner that fails properly to respect the rights of those affected by the exercise) is not a lawful exercise of such power.

38  The net effect of what the President described as "the regrettably diverse judgments"²⁸ of the seven judges who comprised the Court of Appeal in the case of R v Jefferies²⁹ seems to be that there is available to citizens the protection not only of a requirement that the search or seizure be lawful, but also of a separate requirement that the exercise of the power be reasonable. As discussed in that case, the tactical advantage to a defendant of establishing unreasonableness rather than unlawfulness is that different rules apply for excluding the evidence obtained. There is a presumption of exclusion if the search is held to be unreasonable but not if the search is unlawful. That difference will disappear if the Evidence Code is enacted in the form proposed by the Law Commission.³⁰

39  The difficulty with the reasonableness test (exacerbated by its lack of pedigree) is, of course, its uncertainty. As observed by Justice Dickson when delivering a judgment of the Supreme Court of Canada on the Canadian section which section 21 follows:

The guarantee is vague and open. The American courts have had the advantage of a number of specific prerequisites articulated in the Fourth Amendment to the United States Constitution, as well as a history of colonial opposition to certain Crown investigatory practices from which to draw out the nature of the interest protected by the Amendment and the kinds of conduct it proscribes. There is none of this in s. 8. There is no specificity in the section beyond the bare guarantee of freedom from "unreasonable" search and seizure; nor is there any particular historical, political or philosophic context capable of providing an obvious gloss on the meaning of the guarantee.³¹

40  Despite the absence of the factors referred to by Dickson J as underpinning the US Supreme Court decisions, the New Zealand Court of Appeal, faced with the obligation to give some meaning to the word "unreasonable", has chosen to follow the North American lead and to construe "unreasonable" as meaning not transgressing reasonable expectations of privacy. As an example of the reasonableness test in practice, we instance the Court of Appeal wrestling at length with the question of whether it is unreasonable for a constable lawfully within a dwelling to seize tinfoil packages containing drugs hidden beneath a flap of linoleum in a hole under the bath. The Court ruled that:

The householder's privacy interest in the space under the bath cannot be anywhere near as great as it would be, for example, in the case of the contents of a chest of drawers. Lifting a flap of linoleum cannot be placed on a par with opening the drawers of a chest.³²

It is, of course, good to have that settled, but the practicalities of police operations are impeded by dependence on such niceties.

41  It is notable that, although the Court of Appeal has chosen to adopt the North American privacy test, it has not adopted the US Supreme Court's wholehearted recognition of the need to pay proper regard to the needs of law enforcement. This recognition is illustrated by such cases as Dunaway v New York³³ (in which it is observed that a "single familiar standard is essential to guide police officers who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront") and New York v Belton.³⁴ In that case, the majority adopted an academic statement that:

Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be literally impossible of application by the officer in the field.

The statement pointed out the need for the availability to police of a set of rules "which, in most circumstances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interests of its enforcement".

42  The day-to-day consequences of uncertainty have been cogently discussed by Dr Scott Optican. He summarises the effect of Jefferies in these words:

In Jefferies, the Court of Appeal established balancing as the principal mechanism for determining the propriety of a search or seizure pursuant to s 21 of the Bill of Rights. Rather than create fixed categories of unreasonable police behaviour, or "bright line" tests of official misconduct, the Justices opted for a flexible, case-by-case approach weighing all "the relevant values and public interests involved". As in North America, such assessments compare individual demands for privacy against broader social interests in the enforcement of criminal law.

Then, in discussing the various problems that result from such balancing, he says this:

The last problem with balancing involves its effect on frontline police officers. Because it is a particularized, case-by-case approach, balancing "provides little guidance to police on the street". As a result, constables are required to make ad hoc determinations of reasonableness and are punished (through application of the exclusionary rule) if their judgement turns out to have been wrong. Moreover, because each case is different, a flexible standard of reasonableness encourages defendants to challenge the admissibility of evidence obtained in every police search. Trial courts, too, may find it hard to determine when the Bill of Rights has been breached.³⁵

43  Our Terms of Reference require us to consider "the appropriate balance between law enforcement agencies and the protection of individual rights", and "whether existing rules adequately protect civil liberties". At the forefront of that consideration must be the effect of the New Zealand Bill of Rights Act 1990 section 21. The imprecise wording of that section has led to much legal dispute, and seems likely to go on doing so for the foreseeable future. Does the section have a value as a protection against oppression that outweighs the disadvantages of such uncertainty? The statute that we contemplate will impose a new set of reasonably precise bright-line rules governing the exercise of powers of search and seizure. Might it be more efficient to define the manner in which the power is to be exercised as part of the definition of the power itself, leaving it to the Bill of Rights to impose the overarching rule that any search or seizure must be authorised by law? This is not a matter on which the Commission has formed even a tentative view. We invite comment on the possibility that, as part of the totality of the reform that we propose, section 21 should be modified to substitute a lawfulness for a reasonableness test. In considering this notion it should be kept in mind that (as discussed in paragraph 37) unlawfulness in this context embraces bad faith, improper purpose and other comparable oppressive misconduct.