Reasonable Expectation of Privacy

From Criminal Law Notebook

General Principles

See also: Rights Against Search and Seizure

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.[1]

An "expectation of privacy is a normative rather than a descriptive standard"[2] 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…"[3]

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".[4]

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".[5]

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."[6]

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."[7]

Courts interpret privacy in a "broad and liberal manner". [8]

Section 8 protects persons not places.[9] The Charter does not recognize regions of immunity.[10] 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.[11]

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.[12]

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

What constitute reasonableness is a “function of both the importance of the state objective and the degree of impact on the individual’sprivacyinterest”.[14]

  1. ↑ Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145 at pp. 159 to 160 - first acceptance of REP by SCC
    see R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, at paras 33 and 39
    R v Evans, 1996 CanLII 248 (SCC), [1996] 1 SCR 8, at para 11
    R v Pugliese, 1992 CanLII 2781 (ON CA) - referred to as the "true test" of rights under s. 8
  2. ↑ R v Tessling, 2004 SCC 67 (CanLII) at para 42
    R v Patrick, 2009 SCC 17 (CanLII) at para 14
  3. ↑ R v Ward 2012 ONCA 660 (CanLII) per Doherty J.A. at para 86
  4. ↑ R v Spencer, 2014 SCC 43 (CanLII) at para 18
  5. ↑ Patrick, supra para 38
  6. ↑ Patrick, supra at para 14
  7. ↑ R v Plant, 1993 CanLII 70 (SCC), [1993] 3 SCR 281
  8. ↑ R v Dyment, 1988 CanLII 10 (SCC), [1988] 2 SCR 417
  9. ↑ Hunter v Southam Inc., at pp. 158-9 [SCR]
  10. ↑ Hunter v Southam Inc. at pp. 158-9
  11. ↑ e.g. R v Buhay, [2003] 1 SCR 631, 2003 SCC 30 (CanLII): owner of locker allowed in locker but not police
    maid in a hotel can come into room but not the police
    bank clerk has a master key to safety deposit box
  12. ↑ R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432 at para 40
    R v Boersma, 1994 CanLII 99 (SCC), [1994] 2 SCR 488
    R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607
    R v Evans, at para 50 (dissent)
    Baron v Canada, 1993 CanLII 154 (SCC), [1993] 1 SCR 416, at p. 453
    R v Dyment at p. 435 (cited to SCR)
    R v Monney, 1999 CanLII 678 (SCC), [1999] 1 SCR 652, at para 45
  13. ↑ R v Wong, 1990 CanLII 56 (SCC), [1990] 3 SCR 36
  14. ↑ R v Rodgers, 2006 at para 27
    R v AM, at para 36 to 37

Zones of Protection

The Charter right protects a person's reasonable expectation of privacy. This is a protection of persons not places.[1]

The right manifests itself in protecting the zones of the person, territory, and information.[2] These zones will occasionally overlap and strict distinctions do not need to be made.[3]

  1. ↑ See Katz v US, 389 US 347 (1967) at p. 351
  2. ↑ R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432 at paras 20 to 23
    R v Gomboc, 2010 SCC 55 (CanLII), [2010] 3 SCR 211 at para 19
  3. ↑ R v Patrick, 2009 SCC 17 (CanLII) at para 42

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."[1] It is for that reason that it is considered the strongest of the forms of privacy.[2]

Unauthorized interference with bodily integrity is an "affront to human dignity".[3]

Section 8 is implicated by searches affecting "dignity, integrity and autonomy".[4]

This form of privacy is most often considered in a strip search[5] or a warrantless seizure of a bodily sample.[6]

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.[7]

  1. ↑ R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432 at para 21
  2. ↑ Tessling at para 21
  3. ↑ R v Stillman, [1997] 1 SCR 607, 1997 CanLII 384 (SCC) at para 42
  4. ↑ R v Plant 1993 CanLII 70 (SCC), (1993), 84 CCC (3d) 203 (S.C.C.) at para 17
  5. ↑ e.g. R v Golden, 2001 SCC 83 (CanLII), [2001] 3 SCR 679
  6. ↑ e.g. R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607
    R v Colarusso, 1994 CanLII 134 (SCC), [1994] 1 SCR 20
  7. ↑ R v Golden at para 104
    see also Manner of Search#Strip Searches

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".[1] This has since been adopted into the common law of Canada and the Canadian Charter of Rights and Freedoms.[2]

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".[3]

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".[4] Lesser places include, in descending order, of "perimeter space around the home", "commercial space", "private cars", schools, and prison.[5]


  1. ↑ Semayne's Case at para 1
  2. ↑ Adopted in common law in Eccles v Bourque et al., 1974 CanLII 191 (SCC), [1975] 2 SCR 739,
    Adopted as applicable to Charter in Colet v The Queen, 1981 CanLII 11 (SCC), [1981] 1 SCR 2
  3. ↑ R v Tessling, 2004 SCC 67 (CanLII) at para 22
  4. ↑ Tessling at para 22
  5. ↑ Tessling, ibid. at para 22

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."[1] It permits "individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others".[2]

Privacy as Anonymity
Informational privacy includes the concept of "secrecy and confidentiality", "privacy as control", and "privacy as anonymity". [3]

  1. ↑ R v Plant, 1993 CanLII 70 (SCC), [1993] 3 SCR 281
  2. ↑ R v Gomboc, 2010 SCC 55 (CanLII), [2010] 3 SCR 211 at para 19
  3. ↑ R v Spencer, 2014 SCC 43 (CanLII) at para 38

Subject Matter of Search or Seizure

See also: Established Areas of Privacy

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."[1]

The defining of the subject matter of privacy must be "defined functionally, not in terms of physical acts, physical space, or modalities of transmission".[2] The Court must inquire "what the police were really after".[3]

Section 8 protects persons not places.[4]

Illegal Objects
The fact that the target of the search is illegal does not render the expectation of privacy eliminated. [5] The nature of privacy interests do not vary on whether they are masking legal or illegal activities.[6]

  1. ↑ R v Patrick, 2009 SCC 17 (CanLII), at para 29 - discussing the characterization of the privacy interest regarding detectable odours from a suitcase
  2. ↑ R v Marakah, 2017 SCC 59 (CanLII) at para 15
  3. ↑ Marakah, ibid. at para 15
  4. ↑ Hunter v Southham
  5. ↑ Patrick, supra at paras 32 to 34
  6. ↑ R v Spencer, 2014 SCC 43 (CanLII) at para 36

"Totality of Circumstances" Test

The "totality of the circumstances" test determines the existence of a reasonable expectation of privacy.[1]

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".[2] The test "needs to be tailored to the circumstances of the ...case."[3] In practice, the factual circumstances engaging s. 8 will vary greatly.[4]

A REP is a function of the nature of the information sought and the purpose for which it is made available.[5]

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."[6]

Presumptive Expectations
It is presumed, "unless the contrary is shown", that the information that exists in the home is regarded as private.[7]

  1. ↑ R v Buhay, 2003 SCC 30 (CanLII), [2003] 1 SCR 631 at para 18
    See also R v Cole 2012 SCC 53 (CanLII) at para 39
    R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128 at para 31
  2. ↑ R v Patrick, 2009 SCC 17 (CanLII), [2009] 1 SCR 579 at para 38, citing R v Colarusso, 1994 CanLII 134 (SCC), [1994] 1 SCR 20, at p. 53 and Buhay at paras 22, 23 and 24
  3. ↑ R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432 at para 31
  4. ↑ R v Finley, 2013 SKCA 47 (CanLII) at para 32: facts engaging s.8 will vary greatly.
  5. ↑ R v Finley at para 32
    see also R v Tessling, and R v Gomboc, 2010 SCC 55 (CanLII), [2010] 3 SCR 211
  6. ↑ Patrick, supra at para 14
    R v Gomboc per DesChamps J. at para 34 ("appropriate question is whether the information is the sort that society accepts should remain out of the state’s hands")
  7. ↑ R v Patrick, supra at para 19

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.[1] The objective component considers whether one ought to expect privacy and if so to what level.[2]

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".[3]

Subjective Component
The subjective component asks whether the accused had or is presumed to have an expectation of privacy in the zone.[4] It is not considered a "high hurdle".[5] It is often presumed to exist in certain contexts such the contents of residences and computers, or the contents of a conversation.[6]

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."[7]

Reasonableness will vary depending on whether it is in a criminal or regulatory context.[8]

The place of search is considered an "analytical tool" that is used to assess whether the expectation is reasonable.[9]

Factors to consider reasonableness are listed below.[10]

External heat patterns of a residence, detectable by FLIR technology, does not satisfy the reasonableness component of privacy.[11]

  1. ↑ R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128 at para 45, citing United States v Gomez, 16 F.3d 254 (8th Cir. 1994) at p. 256
  2. ↑ R v Trapp, 2011 SKCA 143 (CanLII), [2012] 4 W.W.R. 648 R v Finley, 2013 SKCA 47 (CanLII) at para 32
  3. ↑ Patrick, supra at para 16
  4. ↑ R v Patrick, 2009 SCC 17 (CanLII), [2009] 1 SCR 579 at para 37
  5. ↑ Patrick, ibid. at para 17
    R v Jones, 2017 SCC 60 (CanLII), per Cote J, at para 20
    R v Marakah, 2017 SCC 59 (CanLII). per McLachlin CJ, at para 22

  6. ↑ e.g. see R v Gomboc, [2010] 3 SCR 211, 2010 SCC 55 (CanLII) at para 25 - home
    Tessling at para 42
    R v Morelli, [2010] 1 SCR 253, 2010 SCC 8 (CanLII) at para 2 - computers
    R v Cole, [2012] 3 SCR 34, 2012 SCC 53 (CanLII), at para 1 - computers
    R v Lam, 2004 ABQB 289 (CanLII), (2004), 355 A.R. 355, per Burrows J. at para 30 ("An accused has standing to challenge only those intercepted communications in which he had a reasonable expectation of privacy. Prima facie this will include those intercepted communications to which he was a party, though circumstances in which an expectation of privacy would not exist in those calls may exist")
  7. ↑ Patrick at paras 20, 37
  8. ↑ British Columbia Securities Commission v Branch, 1995 CanLII 142 (SCC), [1995] 2 SCR 3 at para 52
  9. ↑ Tessling at para 22
  10. ↑ see below reference to R v Tessling, at paras 32 and 43
  11. ↑ see Tessling at para 63

Factors

Factors considered in assessing the "totality of the circumstances" includes (R v Edwards factors):[1]

  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:[2]

  • 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:[3]

  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 appellant’s lifestyle, or information of a biographic nature.

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".[4] The main question is whether the information "tends to reveal intimate details of the lifestyle and personal choices of the individual".[5]

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.[6]

Terms of use policies will only be a factor in the analysis.[7]

Public Spaces
Privacy cannot be protected where it can only be preserved by whispering.[8]

  1. ↑ R v Edwards at para 45
    R v Felger, 2014 BCCA 34 (CanLII)
  2. ↑ Tessling, at para 31,32
  3. ↑ R v Tessling and R v Patrick at para 27, per Binnie
  4. ↑ R v Marakah, 2017 SCC 59 (CanLII) at para 32
    R v Patrick at para 32
  5. ↑ Plant at p. 293
    Marakah, supra at para 32
  6. ↑ e.g. see R v Gomboc, 2010 SCC 55 (CanLII) - divided court on whether REP in electricity use
    R v Ward, 2012 ONCA 660 (CanLII)
    R v Spencer, 2014 SCC 43 (CanLII)
  7. ↑ See R v Cole, 2012 SCC 53 (CanLII)
  8. ↑ R v Playford (1987), 1987 CanLII 125 (ON CA), 63 O.R. (2d) 289 (C.A.), at para. 47, Goodman JA

Established Areas of Privacy

See Also

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