Reasonable Expectation of Privacy

This page was last substantively updated or reviewed January 2023. (Rev. # 96802)

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General Principles

The law imposes a spectrum of different levels of privacy depending on the circumstances. Where the the level is sufficiently low, police may be able to intrude on that privacy on a foundation of "reasonable suspicion". Where the privacy level is sufficient, the intrusion must be based on "reasonable belief".

A search can only be unreasonable and be in violation of s. 8 of the Charter where it intrudes on a person's reasonable expectation of privacy. The accused seeking to challenge a search or seizure must begin by establishing the existence of a s. 8 right by showing there is was a reasonable expectation of privacy.

Normative Standard

An "expectation of privacy is a normative rather than a descriptive standard" It is concerned "with the degree of privacy needed to maintain a free and open society, not necessarily the degree of privacy expected by the individual or respected by the state in a given situation…"

The determination of privacy rights is made "from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy."

The key question in the context of police surveillance is whether "unauthorized surveillance ... would see the amount of privacy and freedom remaining to citizens diminished to a compass inconsistent with the aims of a free and open society."

What constitutes reasonableness is a “function of both the importance of the state objective and the degree of impact on the individual’s privacy interest”.

Standard Varies on Facts, Subject-Matter, and Relationships

The standard is "factually-driven" and "laden with value judgments" from the "independent perspective of the reasonable and informed person" concerned "with the long-term consequences of government action for the protection of privacy."

What is the subject of a REP "can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion."

Privacy is held with respect to different parties. A person will hold a different expectation of privacy from an employer than from the police.

Purpose of Protections

The rights are intended to protect "biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state." It further "include[s] information which tends to reveal intimate details of the lifestyle and personal choices of the individual."

Section 8 protects persons not places. The Charter does not recognize regions of immunity. Solicitor-client meeting rooms, for example, or confessionals are given no heightened expectation of privacy due to their intended use.

Broad Interpretation

Courts interpret privacy in a "broad and liberal manner."

Abandonment

A person cannot have a reasonable expectation of privacy in what they knowingly expose to part or all of the public or abandons in a public place.

Zones of Protection

The Charter right protects a person's reasonable expectation of privacy. This is a protection of persons not places.

The right manifests itself in protecting the zones of the person, territory, and information. These zones will occasionally overlap and strict distinctions do not need to be made.

Personal Privacy

Personal privacy "protects bodily integrity, and in particular not to have our bodies touched or explored to disclose objects or matters we wish to conceal." It is for that reason that it is considered the strongest of the forms of privacy.

Courts have recognized the high value of personal privacy, including a person's body.

The connection between personal privacy and dignity is "especially palpable."

Unauthorized interference with bodily integrity is an "affront to human dignity."

Section 8 is implicated by searches affecting "dignity, integrity and autonomy."

This form of privacy is most often considered in a strip search or a warrantless seizure of a bodily sample.

As a result of the high degree of intrusion of strip searches, they have the added requirement of a reasonable belief that it was necessary.

Territorial Privacy

Privacy over personal territory traces back to the English common law with the maxim that "the house of everyone is to him as his castle and fortress." It prohibits authorities from intruding on dwelling houses as well as other recognized zones of privacy. This has since been adopted into the common law of Canada and the Canadian Charter of Rights and Freedoms.

The use of the concept of territoriality of certain privacy rights does not contradict the notion that privacy protect people and not places because territoriality is simply an "analytical tool to evaluate the reasonableness of a person's expectation of privacy."

The expectation of territorial privacy has been divided into a "hierarchy" with the home being at the top due to it being the place where "our most intimate and private activities are most likely to take place." Lesser places include, in descending order, of "perimeter space around the home", "commercial space", "private cars", schools, and prison.

There may exist territorial privacy in semi-public places, such as school hallways, depending on the circumstances.

Informational Privacy

The right to information relates to the rights of an individual to control when, how, and the extent of which information can be made available to others. It protects the "biographical core of personal information" that includes "information which tends to reveal intimate details of the lifestyle and personal choices of the individual." It also includes information that, if disclosed, would compromise their "dignity, integrity and autonomy." It permits "individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others."

It is said to be at its "strongest" when it relates to "identity" including "lifestyle", "intimidate relations", "political or religious options."

Privacy as Anonymity

Informational privacy includes the concept of "secrecy and confidentiality", "privacy as control", and "privacy as anonymity."

"Totality of the Circumstances" Test

The "totality of the circumstances" test determines the existence of a reasonable expectation of privacy.

The "totality of the circumstances" has been described as having four lines of inquiry:

1. what is the subject matter of the search?
2. did the accused have direct interest in the subject matter?
3. did the accused have a subjective expectation of privacy?
4. if so, was the expectation objectively reasonable?

The expectation will "vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion." The test "needs to be tailored to the circumstances of the ...case." In practice, the factual circumstances engaging s. 8 will vary greatly.

A REP is a function of the nature of the information sought and the purpose for which it is made available.

Analysis requires "value judgements" from the "perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy."

Presumptive Expectations

It is presumed, "unless the contrary is shown", that the information that exists in the home is regarded as private.

Subjective and Objective Components

When assessing the circumstances there should be a subjective expectation of privacy and an objective reasonableness of the expectation and does not require the testimony of the accused. The objective component considers whether one ought to expect privacy and if so to what level.

The accused must not have conducted himself in "a manner that was inconsistent with the continued (and customary) expectation of privacy that an independent and informed observer would reasonably expect."

Subjective Component

The subjective component asks whether the accused had or is presumed to have an expectation of privacy in the zone. It is not considered a "high hurdle." It is often presumed to exist in certain contexts such the contents of residences and computers, or the contents of a conversation.

Objective Component

The objective component considers whether the subjective expectation is reasonable and whether an "independent and informed observer, viewing the matter objectively would consider reasonable."

Reasonableness will vary depending on whether it is in a criminal or regulatory context.

The place of search is considered an "analytical tool" that is used to assess whether the expectation is reasonable.

Factors to consider reasonableness are listed below.

External heat patterns of a residence, detectable by FLIR technology, does not satisfy the reasonableness component of privacy.

Factors

Factors considered in assessing the "totality of the circumstances" includes (Edwards factors):

1. presence at the time of the search; 
2. possession or control of the property or place searched; 
3. ownership of the property or place; 
4. historical use of the property or item; 
5. the ability to regulate access, including the right to admit or exclude others from the place; 
6. the existence of a subjective expectation of privacy; and 
7. the objective reasonableness of the expectation. 

Considerations for "Informational Privacy" Only

When in the context of "informational privacy", the Edwards criteria were amended to include other considerations and factors:

1. What was the nature or subject matter of the evidence gathered by the police?
2. Did the appellant have a direct interest in the contents?
3. Did the appellant have a subjective expectation of privacy in the informational content of the evidence?
4. If so, was the expectation objectively reasonable? In this respect, regard must be had to:
   1. the place where the alleged “search” occurred
   2. whether the informational content of the subject matter was in public view;
   3. whether the informational content of the subject matter had been abandoned;
   4. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
   5. whether the police technique was intrusive in relation to the privacy interest;
   6. whether the use of this evidence gathering technique was itself objectively unreasonable;
   7. whether the informational content exposed any intimate details of the accused’s lifestyle, or information of a biographic nature.

Consideration for Communications

There are factors that are often considered where the subject matter is a communication:

1. the place where the search occurred, whether it be a real physical place or a metaphorical chat room;
2. the private nature of the subject matter;
3. control over the subject matter;
4. the nature of the investigative technique used by police,
5. the nature of the relationship between the communicants; and
6. policy considerations.

Subject Matter of the Protection

It is necessary, before analyzing the privacy right, to determine the subject matter of the search. The characterization of the subject matter will have a "major contribution to a different result."

The defining of the subject matter of privacy must be "defined functionally, not in terms of physical acts, physical space, or modalities of transmission." The Court must inquire "what the police were really after."

Section 8 protects persons not places.

Illegal Objects

The fact that the target of the search is illegal does not render the expectation of privacy eliminated. The nature of privacy interests do not vary on whether they are masking legal or illegal activities. Analysis of whether or not there is a REP should be content neutral.

Nature of the Information at issue

The analysis should not focus the "actual contents" of the information that is being considered for protection. It should be treated as an "opaque and sealed bag of information." The main question is whether the information "tends to reveal intimate details of the lifestyle and personal choices of the individual."

Control

When concerning "electronic communications" the factor of control is one amongst many factors and is not determinative.

Third Party Seizure

Where a non-state actor discloses evidence to police there may be an intrusion on privacy. The third party cannot waive on behalf of the privacy-holder.

A third party is legally entitled to inform police of discovery of a crime and police are entitled to receive the information without a warrant.

Whether the third party "stole" the property or not is of limited impact on the assessment of privacy interests.

Delivery of evidence to a police station by a third party will generally not invoke a reasonable expectation of privacy or breach of the Charter.

Other Circumstances Considered

Contracts of Adhesion

The mere signing of a contract setting out terms of use of a service and the circumstances disclosure does not necessarily eliminate privacy rights.

Terms of use policies will only be a factor in the analysis.

Disclosure by Medical Staff

Medical staff who inform the police of the existence of a blood sample taken from the suspect patient is not violating confidentiality of medical records.

Public Spaces

Privacy cannot be protected where it can only be preserved by whispering.

Text messages

The focus of analysis of a text conversation is whether there was "potential" that the accused would share personal information with the other persons in the conversation. The actual content is not relevant.

The risk that the recipient may disclose the communications does not mean the sender assumes the risk of the state intercepting the communication.

There are not many other types of conversations other than text messages that offer privacy.

Established Areas of Privacy

• Established Areas of Privacy

See Also

• Warrant Searches
• Warrantless Searches
  • Warrantless Search of Abandoned Property