Reasonable Expectation of Privacy

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General Principles

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.

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 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".

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 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."

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

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.

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

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.

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." The accused must begin by establishing the existence of a s.8 right by showing there is was a reasonable expectation of privacy.

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”.

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.

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". 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.

Informational Privacy

The right 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 permits "individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others".

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

"Totality of Circumstances" Test

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

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. 

The "totality of circumstances" has later been described as inquiring:

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

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.

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.

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.

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.

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

Established Areas of Privacy

• Established Areas of Privacy

See Also

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