Criminal Law Notebook

Reasonable Expectation of Privacy

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General Principles

See also: Rights Against Search and Seizure

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.[1] 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"[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 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."[4]

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."[5]

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”.[6]

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".[7]

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".[8]

Privacy is held with respect to different parties. A person will hold a different expectation of privacy from an employer than from the police.[9]

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."[10]

Section 8 protects persons not places.[11] The Charter does not recognize regions of immunity.[12] 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". [13]

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.[14]

  1. ↑ Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson J, at pp. 159 to 160 - first acceptance of REP by SCC
    see R v Edwards, 1996 CanLII 255 (CanLII), per Cory J, at paras 33 and 39
    R v Evans, 1996 CanLII 248 (CanLII), per Sopinka J, at para 11
    R v Pugliese, 1992 CanLII 2781 (ON CA), per Finlayson JA - referred to as the "true test" of rights under s. 8
  2. ↑ R v Tessling, 2004 SCC 67 (CanLII), per Binnie J, at para 42
    R v Patrick, 2009 SCC 17 (CanLII), per Binnie J, at para 14
  3. ↑ R v Ward, 2012 ONCA 660 (CanLII), per Doherty JA , at para 86
  4. ↑ Patrick, supra, at para 14
  5. ↑ R v Wong, 1990 CanLII 56 (CanLII), per La Forest J
  6. ↑ R v Rodgers, 2006 SCC 15 (CanLII), per Charron J, at para 27 ("Where the constitutional line of “reasonableness” will be drawn then becomes a function of both the importance of the state objective and the degree of impact on the individual’s privacy interest.")
  7. ↑ R v Spencer, 2014 SCC 43 (CanLII), per Cromwell J, at para 18
  8. ↑ Patrick, supra, at para 38
  9. ↑ e.g. R v Buhay, 2003 SCC 30 (CanLII), per Arbour J: owner of locker allowed in locker but not police
    maid in a hotel can come into the room but not the police
    bank clerk has a master key to safety deposit box
  10. ↑ R v Plant, 1993 CanLII 70 (CanLII), per Sopinka J
  11. ↑ Hunter v Southam Inc, supra, at pp. 158-9 [SCR]
  12. ↑ Hunter v Southam Inc, supra, at pp. 158-9
  13. ↑ R v Dyment, 1988 CanLII 10 (CanLII), per La Forest J and Lamer J
  14. ↑ Tessling, supra, at para 40
    R v Boersma, 1994 CanLII 99 (CanLII), per Iacobucci J
    R v Stillman, 1997 CanLII 384 (CanLII), per Cory J
    Evans, supra, at para 50 (dissent)
    Baron v Canada, 1993 CanLII 154 (SCC), [1993] 1 SCR 416, per Sopinka J, at p. 453
    Dyment, supra, at p. 435 (cited to SCR)
    R v Monney, 1999 CanLII 678 (CanLII), per Iacobucci J, at para 45

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), per Binnie J, at paras 20 to 23
    R v Gomboc, 2010 SCC 55 (CanLII), per Deschamps J, at para 19
  3. ↑ R v Patrick, 2009 SCC 17 (CanLII), per Binnie J, 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), per Binnie J, at para 21
  2. ↑ Tessling, ibid., at para 21
  3. ↑ R v Stillman, 1997 CanLII 384 (SCC), , [1997] 1 SCR 607, per Cory J, at para 42
  4. ↑ R v Plant, 1993 CanLII 70 (SCC), , 84 CCC (3d) 203, per Sopinka J , at para 17
  5. ↑ e.g. R v Golden, 2001 SCC 83 (CanLII), per Iacobucci and Arbour JJ
  6. ↑ e.g. R v Stillman, 1997 CanLII 384 (CanLII), per Cory J
    R v Colarusso, 1994 CanLII 134 (CanLII), per La Forest J
  7. ↑ Golden, supra, 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]

There may exist territorial privacy in semi-public places, such as school hallways, depending on the circumstances.[6]

  1. ↑ Semayne's Case, supra, at para 1
  2. ↑ Adopted in common law in Eccles v Bourque et al., 1974 CanLII 191 (SCC), [1975] 2 SCR 739, per Dickson J
    Adopted as applicable to Charter in Colet v The Queen, 1981 CanLII 11 (SCC), [1981] 1 SCR 2, per Ritchie J
  3. ↑ R v Tessling, 2004 SCC 67 (CanLII), per Binnie J, at para 22
  4. ↑ Tessling, ibid., at para 22
  5. ↑ Tessling, ibid., at para 22
  6. ↑ R v Jarvis, 2019 SCC 10 (CanLII), , [2019] 1 SCR 488, per Wagner CJ

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 (CanLII), per Sopinka J
  2. ↑ R v Gomboc, 2010 SCC 55 (CanLII), per Deschamps J, at para 19
  3. ↑ R v Spencer, 2014 SCC 43 (CanLII), per Cromwell J, at para 38

"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), per Arbour J, at para 18
    See also R v Cole, 2012 SCC 53 (CanLII), per Fish J, at para 39
    R v Edwards, 1996 CanLII 255 (CanLII), per Cory J, at para 31
  2. ↑ R v Patrick, 2009 SCC 17 (CanLII), per Binnie J, at para 38, citing R v Colarusso, 1994 CanLII 134 (CanLII), per Lamer CJ and Cory, McLachlin and Major JJ, at p. 53 and Buhay, supra, at paras 22, 23 and 24
  3. ↑ R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432, per Binnie J, at para 31
  4. ↑ R v Finley, 2013 SKCA 47 (CanLII), per Jackson JA, at para 32: facts engaging s.8 will vary greatly.
  5. ↑ Finley, ibid., at para 32
    see also Tessling, supra, and R v Gomboc, 2010 SCC 55 (CanLII), per Deschamps J
  6. ↑ Patrick, supra, at para 14
    R v Gomboc, 2010 SCC 55 (CanLII), 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. ↑ 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 (CanLII), per Cory J, 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, per Cameron JA R v Finley, 2013 SKCA 47 (CanLII), per Jackson JA , at para 32
  3. ↑ R v Patrick, 2009 SCC 17 (CanLII), per Binnie J, at para 16
  4. ↑ Patrick, ibid., 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 SCC 55 (CanLII), per Deschamps J, at para 25 - home
    Tessling, supra, at para 42
    R v Morelli, 2010 SCC 8 (CanLII), per Fish J, at para 2 - computers
    R v Cole, 2012 SCC 53 (CanLII), per Fish J, 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, supra, at paras 20, 37
  8. ↑ British Columbia Securities Commission v Branch, 1995 CanLII 142 (SCC), [1995] 2 SCR 3, per Sopkina and Iacobucci JJ, at para 52
  9. ↑ Tessling, supra, at para 22
  10. ↑ see below reference to Tessling, supra, at paras 32 and 1j0wb43
  11. ↑ see Tessling, supra, at para 1j0wb

Factors

Factors considered in assessing the "totality of the circumstances" includes (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 accused’s lifestyle, or information of a biographic nature.
  1. ↑ R v Edwards, 1996 CanLII 255 (CanLII), per Cory J, at para 45
    R v Felger, 2014 BCCA 34 (CanLII), per Garson JA
  2. ↑ R v Tessling, 2004 SCC 67 (CanLII), per Binnie J, at paras 31, 32
  3. ↑ Tessling, supra and R v Patrick, 2009 SCC 17 (CanLII), per Binnie J, at para 27

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."[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]

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".[7] The main question is whether the information "tends to reveal intimate details of the lifestyle and personal choices of the individual".[8]

  1. ↑ R v Patrick, 2009 SCC 17 (CanLII), per Binnie J, at para 29 - discussing the characterization of the privacy interest regarding detectable odours from a suitcase
  2. ↑ R v Marakah, 2017 SCC 59 (CanLII), per McLachlin CJ, at para 15
  3. ↑ Marakah, ibid., at para 15
  4. ↑ Hunter v Southham, supra
  5. ↑ Patrick, supra, at paras 32 to 34
  6. ↑ R v Spencer, 2014 SCC 43 (CanLII), per Cromwell J, at para 36
  7. ↑ Marakah, supra, at para 32
    Patrick, supra, at para 32
  8. ↑ Plant, supra, at p. 293
    Marakah, supra, at para 32

Control

When concerning "electronic communications" the factor of control is one amongst many factors and is not determinative.[1]

  1. ↑ R v Marakah, 2017 SCC 59 (CanLII), per McLachlin CJ
    R v Pelucco, 2015 BCCA 370 (CanLII), per Groberman JA (2:1)
    R v Bennett, 2016 BCCA 154 (CanLII), per Bennett JA

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.[1]

Terms of use policies will only be a factor in the analysis.[2]

Public Spaces

Privacy cannot be protected where it can only be preserved by whispering.[3]

  1. ↑ e.g. see R v Gomboc, 2010 SCC 55 (CanLII), per Deschamps J - divided court on whether REP in electricity use
    R v Ward, 2012 ONCA 660 (CanLII), per Doherty JA
    R v Spencer, 2014 SCC 43 (CanLII), per Cromwell J
  2. ↑ See R v Cole, 2012 SCC 53 (CanLII), per Fish J
  3. ↑ R v Playford, 1987 CanLII 125 (ON CA), per Goodman JA, at para 47

Established Areas of Privacy

See Also

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