Established Areas of Territorial Privacy

From Criminal Law Notebook
This page was last substantively updated or reviewed July 2021. (Rev. # 92431)

General Principles

See also: Established Areas of Privacy, Established Areas of Informational Privacy, Established Areas of Personal Privacy, and Reasonable Expectation of Privacy

Vehicles

A driver has a reasonable expectation of privacy for the contents of his motor vehicle.[1] Likewise, a person in possession of a vehicle, even if not the owner, will also have a reasonable expectation of privacy.[2]

The reasonable expectation of privacy for a vehicle is low or reduced.[3] It is considered more limited than locations such as houses.[4] This applies even on any public roadway.[5]

Police, however, are entitled to perform a visual examination of the interior of a vehicle, including with the use of a flashlight, for safety purposes incidental to a lawful vehicle stop.[6]

Passengers, however, do not generally have a reasonable expectation of privacy.[7] However, in some cases they can. It will depend on the totality of the circumstances including the passenger's connection with the vehicle, the vehicle's owner, the passenger's use of the vehicle, and ability to control access to it.[8]

Door-handle

Any residues on the doorhandle of a vehicle is protected by a lowered expectation of privacy when subject to an Ion Scanner swabbing to detect the presence of drug residue.[9] However, it will still require a judicial authorization to use.[10] It is unsettled whether a swab, rather than an Ion Scan, may be available without a warrant. By analogy to drug-sniffing dogs, the presence of reasonable suspicion may be enough to perform a swab without a warrant.

  1. ↑ R v Belnavis, 1996 CanLII 4007, 91 OAC 3 (CA), 107 CCC (3d) 195, per Doherty JA; appeal dismissed 1997 CanLII 320, [1997] 3 SCR 341, per Cory J at 19
  2. ↑ R v Ahmed, 2019 SKCA 47 (CanLII), 10 WWR 99, per Barrington-Foote JA, at para 18 ("Mr. Ahmed had possession of the vehicle with the permission of the owner. As such, he had a reasonable expectation of privacy in the vehicle: ...")
    Belnavis, supra, at para 33
  3. ↑ R v Alkins, 2007 ONCA 264 (CanLII), [2007] OJ No 1348, per Doherty JA
    R v Shankar, 2007 ONCA 280 (CanLII), [2007] OJ No 1406, per Gillese JA
    R v Rebelo, 2007 ONCA 289 (CanLII), [2007] OJ No 1468, per curiam
    R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, per Lamer CJ, at para 15
    R v Nicolosi, 1998 CanLII 2006 (ON CA), 127 CCC (3d) 176, per Doherty JA, at para 9
    R v Harflett, 2016 ONCA 248 (CanLII), 336 CCC (3d) 102, per Lauwers JA, at para 47
  4. ↑ R v Wise, 1992 CanLII 125 (SCC), [1992] 1 SCR 527, per Cory J, at para 6 ("although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one's home or office.")
    R v Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341, per Cory J
    R v Higgins, 1996 CanLII 5774 (QC CA), 111 CCC (3d) 206, per Otis JA, at p. 212
  5. ↑ Higgins, ibid.
  6. ↑ e.g. R v Bonilla-Perez, 2014 ONSC 2031 (CanLII), per Code J, at para 37
  7. ↑ See Standing
  8. ↑ Belnavis, supra, at p. 22
    R v Madore & Madeira, 2012 BCCA 160 (CanLII), 320 BCAC 65, per Finch CJ, at para 55
  9. ↑ R v Wong, 2017 BCSC 306 (CanLII), per Kent J
  10. ↑ R v Wawrykiewycz, 2020 ONCA 269 (CanLII), per Pardu JA - ("I would hold that taking samples of residue left by a suspect’s hands on the handles of a vehicle, and subjecting those samples to chemical analysis, is an intrusion for which a warrant should be required.")

Residences

House

There is an exceptionally high expectation of privacy in a house. Unlawful entry will be a serious intrusion on the person's privacy rights.[1] It is recognized that "our most intimate and private activities are most likely to take place" in the residence. There are no other places as private.[2]

A police's authority to investigate at a residence without a warrant, barring the established exceptions, "ends at the door."[3]

It can "be presumed unless the contrary is shown in a particular case that information about what happens inside the home is regarded by the occupants as private."[4]

A search of a dwelling is considered an invasion of a place with the "highest degree of privacy", especially when the intrusion is at night.[5]

However, the privacy in a residence does not "cloak the home in an impenetrable veil of privacy."[6]

Illegality of Activities Not Relevant

The fact that illegal activities are being carried out within the residence doe not reduce the level of privacy.[7]

A person will have a diminished expectation of privacy where legislation authorizes police intrusion.[8]

Police intrusion upon private property can only be permitted "only by powers granted in clear statutory language"[9]

Non-residents Found Inside

A non-resident to a residence may have an expectation of privacy, although diminished, where evidence shows that they had personal property that was kept there. [10] However, it can vary depending on the application do the Edwards factors.[11]

A person who is merely related to the owner and possesses keys to the location may not have any expectation of privacy.[12]

Private Residences Used for Commercial Purposes

A residence that is "solely for the commercial trade in drugs" has a "diminished privacy interest."[13]

Apartment Buildings

There is a diminished, if any, privacy in the hallway of an apartment building.[14] Occupants of an apartment building are permitted to expect that the only people present would be other occuapnts or invitees, and that the public would be excluded.[15]

Filming the hallway of an apartment, whether or not the interior of the apartments are visible, without a warrant, will generally require a warrant.[16]

Covert surveillance of a hallway by an undercover officer requires a general warrant.[17]

Temporary Dwellings

A rented hotel suite has an expectation of privacy while the suspect is renting it.[18]Objects outside of plain view of the cleaner can be expected to be private despite the presence of cleaning staff.[19]

Each unit of a rooming-house will be protected by the REP of the tenant for that room.[20]

A tenant of a multi-unit building has the same expectation of privacy as a single dwelling unit. A search of a multi-unit building must set out "reasonable and probable grounds for each unit to be searched."[21]

  1. ↑ see R v Silveira, 1995 CanLII 89 (SCC), [1995] 2 SCR 297, per Cory J at 463-4, 495-6 (the “historic inviolability of a dwelling-house”) and ("There is no place on earth where persons can have a greater expectation of privacy than within their "dwelling‑house"")
    R v Dhillon, 2010 ONCA 582 (CanLII), [2010] OJ No 3749 (CA), per Simmons JA
    R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432, per Binnie J at 139
  2. ↑ Tessling, ibid., at para 22
    Silveira, supra, at para 140 (“[t]here is no place on earth where persons can have a greater expectation of privacy than within their ‘dwelling-house’.")
  3. ↑ R v Landry, 1986 CanLII 48 (SCC), [1986] 1 SCR 145, per Estey J, at para 85 ("At present the rule is clear. Absent well recognized and widely supported exceptions, they may not enter private homes. These exceptions apart, their authority ends at the door. That rule protects them and the public from violence.")
  4. ↑ Tessling, supra, at para 144
  5. ↑ R v Sutherland, 2000 CanLII 17034 (ON CA), 150 CCC (3d) 231, per Carthy JA, at para 239 ("search of a dwelling house must be approached with the degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected") see also para 23 citing US case of Gooding v US
  6. ↑ R v Gomboc, 2010 SCC 55 (CanLII), [2010] 3 SCR 211, at para 46
  7. ↑ Silveira, supra, at para 41
  8. ↑ R v DLW, 2012 BCSC 1700 (CanLII), per Romilly J, at para 38
    ("A person has a restricted objective expectation of privacy when legislation authorizes the police’s intrusion into that person’s privacy.")
  9. ↑ R v Kokesch, 1990 CanLII 55 (SCC), [1990] 3 SCR 3, 61 CCC (3d) 207, per Dickson CJ, at p. 218 ("... This court consistently has held that the common law rights of the property holder to be free of police intrusion can be restricted only by powers granted in clear statutory language.")
  10. ↑ e.g. R v Jones, 2013 BCPC 149 (CanLII), per Woods J
    R v Vi, 2008 BCCA 481 (CanLII), 239 CCC (3d) 57, per Finch CJ
  11. ↑ Edwards, supra - no REP in residence of accused girlfriend's home
  12. ↑ e.g. R v Edwardsen, 2019 BCCA 259 (CanLII), per Harris JA, at para 58
  13. ↑ R v Nguyen, 2011 ONCA 465 (CanLII), 273 CCC (3d) 37, per Blair JA, at para 61 R v Shin, 2015 ONCA 189 (CanLII), 322 CCC (3d) 554, per Gillese JA, at para 68
  14. ↑ R v Brar, 2008 MBQB 1 (CanLII), 222 Man R (2d) 243, per MacInnes J, at para 44
  15. ↑ R v Pipping, 2020 BCCA 104 (CanLII), 386 CCC (3d) 431, per Garson JA
  16. ↑ R v Batac, 2018 ONSC 546 (CanLII), 402 CRR (2d) 252, per Dambrot J
    R v Sandhu, 2018 ABQB 112 (CanLII), 404 CRR (2d) 216, per Antonio J
  17. ↑ Pipping, supra
  18. ↑ R v Mercer, 1992 CanLII 7729 (ON CA), 70 CCC (3d) 180, per Arbour JA - police were let into a hotel room by the owner after a cleaner found an amount of cash and drugs in a pillow case in closet
    see also US v Domenech, 6th Circuit Court of Appeals
  19. ↑ Mercer
  20. ↑ R v Campbell, 2011 SCC 32 (CanLII), [2011] 2 SCR 549, per Charron J
  21. ↑ Campbell, ibid.

Non-dwelling Premises

Provided that there is an expectation of privacy in a non-dwelling premises, the accused's standing may invoked where he has "an ownership interest in the premises" absence countervailing evidence.[1]

Workplaces and Businesses

The search of a private office will generally require a warrant.[2]

A works place has a "relatively low expectation of privacy" in respect to the premises and documents used and produced in the course of business.[3]

A business "open to the public" has an "implied invitation" for everyone to enter. As such, it has no reasonable expectation of privacy from police.[4]

Schools

The privacy interests of a student attending a school is "significantly diminished."[5]

Students have no expectations of privacy while engaged in common activites on the school premises.[6]

Public Washrooms

A public washroom where a person in engaging in sexual activity is not necessarily protected by a REP.[7] However, in some cases a bathroom stall will be considered private.[8]

  1. ↑ e.g. R v Fankhanel, 1999 CanLII 19075 (AB QB), 249 AR 391, per Veit J
    cf. R v Pugliese, 1992 CanLII 2781 (ON CA), 71 CCC (3d) 295, per Finlayson JA - no standing for owner of building who did not live in it
  2. ↑ R v Rao, 1984 CanLII 2184 (ON CA), 46 OR (2d) 80, 10 CRR 275, 12 CCC (3d) 97, per Martin JA ("I have, for the reasons which I have set forth, concluded that the search of an office without a warrant where the obtaining of a warrant is not impracticable, is unreasonable and, to that extent, s. 10(1)(a) (of the Narcotic Control Act) is of no force and effect.")
  3. ↑ Thomson Newspapers Ltd. v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 SCR 425, per La Forest J, at para 123
    R v Silveira, 1995 CanLII 89 (SCC), [1995] 2 SCR 297, per L'Heureux-Dube J in dissent, at para 117 ("I note that our Court has previously discussed, with respect to the reasonableness of searches and seizures under s. 8 of the Charter, the lower expectancy of privacy in a workplace.")
  4. ↑ R v Fitt, 1995 CanLII 4342 (NS CA), 96 CCC (3d) 341, per Hallett JJA aff'd (1996) 103 CCC (3d) 224, [1996] 1 SCR 70, 1996 CanLII 251 (SCC), per Lamer CJ
    R v Spindloe, 2001 SKCA 58 (CanLII), 154 CCC (3d) 8, per Jackson JA
  5. ↑ R v MRM, 1998 CanLII 770 (SCC), [1998] 3 SCR 393, per Cory J, at para 33
    Tessling, supra, at para 22
  6. ↑ R v Jarvis, 2017 ONCA 778 (CanLII), 356 CCC (3d) 1, per Feldman JA
  7. ↑ R v LeBeau, 1988 CanLII 3271 (ON CA), 41 CCC (3d) 163, per curiam
  8. ↑ R v Wegner, 2017 ONSC 1791 (CanLII), per Fairburn J

Holding Cells and Prisons

Generally, a prison inmate will not usually have any expectation of privacy in a correctional facility.[1]

There is a "substantially reduced level of privacy" in a prison setting.[2] The search of a prison cell or frisk of a prisoner and other practices are not subject to any expectation of privacy.[3]

An inmate in a correctional facility has a very limited expectation of privacy over their phone calls.[4]

An accused person being held in a police cell has an expectation of privacy over his own speech, absent a sign warning that there may be recording devices present.[5]

  1. ↑ R v Lamirande, 2002 MBCA 41 (CanLII), 164 CCC (3d) 299, per Scott CJ, at para 31 - no REP in documents held by inmate
  2. ↑ Weatherall v Canada (Attorney General), 1993 CanLII 112 (SCC), [1993] 2 SCR 872, per LaForest J, at p. 877 ("A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices.")
    R v Major, 2004 CanLII 12791 (ON CA), 186 CCC (3d) 513, 23 CR (6th) 294, per Rosenberg JA, denied leave [2005] SCCA No 106 - expectation of privacy in family visit trailer
  3. ↑ Weatherall v Canada (Attorney General), at p. 877 ("Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves.")
    R v Lamirande, 2002 MBCA 41 (CanLII), 164 CCC (3d) 299, per Scott CJ, denied leave [2002] SCCA No 203
  4. ↑ R v Drader, 2012 ABQB 168 (CanLII), 288 CCC (3d) 120, per Macklin J
    R v McIsaac, 2005 BCSC 385 (CanLII), 29 CR (6th) 274, per Parrrett J
  5. ↑ R v Mohamud, 2010 ONSC 6264 (CanLII), 263 CCC (3d) 350, per Pomerance J
    R v Simon, 2013 ABQB 95 (CanLII), per Moreau J

Airports and Border Crossings

Border crossings are an exceptional case to reasonable expectation of privacy.[1]

There is a lower expectation of privacy since people accept that foreign countries have a right to control who enters their country and can screen people for illegal goods. This permits physical searches of luggage and person "where there are grounds for suspecting that a person has made false declaration and is transporting prohibited goods."[2]

  1. ↑ R v Simmons, 1988 CanLII 12 (SCC), 45 CCC (3d) 296, [1988] 2 SCR 495, per Dickson CJ ("...the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny.")
    See also R v Monney, 1999 CanLII 678 (SCC), [1999] 1 SCR 652, 133 CCC (3d) 129, per Iacobucci J
    R v Jacques, 1996 CanLII 174 (SCC), [1996] 3 SCR 312, 110 CCC (3d) 1, per Gonthier J
  2. ↑ Simmons, supra, at pp. 528-29 [SCR]

Outdoor Areas

Trespasser growing marijuana in abandoned but secluded fields do not possess any REP.[1]

  1. ↑ R v Lauda, 1998 CanLII 804 (SCC), [1998] 2 SCR 683, per Cory J

Schools

School lockers have a reduced expectation of privacy due to school's authorities responsibility to provide a "safe environment and maintaining order and discipline in the school."[1]

  1. ↑ R v MRM, 1998 CanLII 770 (SCC), [1998] 3 SCR 393, per Cory J
    see also http://en.wikipedia.org/wiki/R._v._M._(M.R.)

Storage Lockers

A bus stop locker will be private despite emanations from the locker.[1]

  1. ↑ R v Buhay, 2003 SCC 30 (CanLII), [2003] 1 SCR 631, per Arbour J

Suit Cases

There is a reasonable expectation of privacy in a suit case.[1]

  1. ↑ R v Kang-Brown, 2008 SCC 18 (CanLII), [2008] 1 SCR 456, per LeBel J

Packages

Parcel accepted for delivery by a courier service can still have a reasonable expectation of privacy.[1] However, that objective expectation can be negated by circumstances such as search clause in the shipping contract.[2]

Where a package has been opened either unlawfully or inadvertently by a non-state agent, discovering evidence of an offence such as cocaine, there may still be a reasonable expectation of privacy requiring a warrant.[3]

  1. ↑ R v Fry, 1999 CanLII 18945 (NL CA), (1999) NJ No 352, 142 CCC (3d) 166, per Green JA
  2. ↑ R v Godbout, 2014 BCCA 319 (CanLII), 315 CCC (3d) 90, per Goepel JA - police open package without warrant
  3. ↑ R v Washington, 2007 BCCA 540 (CanLII), 227 CCC (3d) 214, per Ryan JA
    cf. R v Snow, 2005 NLTD 81 (CanLII), 741 APR 64, per Dymond J - opened package seizeable without warrant

Garbage

Garbage bags themselves contain information that "paint a fairly accurate and complete picture of the householder's activities and lifestyles."[1]

Generally speaking, materials found in a dumpster or left on the street curb for pickup are abandoned and so have no expectation of privacy.[2]

  1. ↑ R v Patrick, 2009 SCC 17 (CanLII), [2009] 1 SCR 579, per Binnie J, at para 30
  2. ↑ R v Sipes, 2008 BCSC 1500 (CanLII), per Smart J and 2012 BCSC 1948 (CanLII), per Smart J
    Patrick, supra
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