Criminal Law Notebook

Established Areas of Privacy

Revision as of 08:04, 23 October 2022 by Admin (talk | contribs) (→‎Person)
This page was last substantively updated or reviewed July 2021. (Rev. # 81504)

Introduction

See also: Reasonable Expectation of Privacy

Courts have set out specific rules and principles when dealing with certain situations where privacy interests have been found. Those circumstances include searches of persons, residences, vehicles, storage, and more recently electronic devices.

A person can have a reasonable expectation of privacy "related to contraband".[1]

  1. ↑ R v AM, 2008 SCC 19 (CanLII), [2008] SCJ No 19, per LeBel J, at para 73
    R v Butters, 2014 ONCJ 228 (CanLII), 311 CCC (3d) 516, per Paciocco J, at para 26

Person

Bags, Pockets, Purses

Bags and pockets are protected.[1]

An individual who attends a hospital for medical treatment is entitled to expect that his clothing will be held by the facility until discharged. Hospitals have been identified as an area of concern for the protection of privacy. [2]

Bodily Samples

DNA samples taken as part of a previous sentence is not protected by a reasonable expectation of privacy.[3]

Fingerprints

Fingerprints taken as part of a previous sentence is not protected by a reasonable expectation of privacy.[4]

Photographs

Photographs taken as part of a previous sentence is not protected by a reasonable expectation of privacy.[5]

Body Cavity

Strip searches can be humiliating, embarrassing, and degrading for the accused.[6] It is also one of the most extreme forms of search available to police.[7]

Inmates

A person convicted of a crime has a reduced expectation of privacy.[8] Accordingly, an inmate should have less expectation of privacy in their personal zone of privacy.[9]

Sound of Voice

There is no reasonable expectation of privacy in the "sound" of one's voice. [10]

Licences and registration

There is no intrusion on REP where a person is required to present documents proving compliance with a legal requirement in order to have a right of privilege.[11]

Upskirts and Down Shirts

Recording the cleavage area of a female using a hidden camera intrudes upon the female's expectation of privacy.[12]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachlin CJ and Charron J
  2. ↑ R v Pickton, 2006 BCSC 1098 (CanLII), 260 CCC (3d) 232, per Williams J, at para 38 citing R v Calarusso, 1994 CanLII 134 (SCC), [1994] 1 SCR 20, per Lamer C.J. and Cory, McLachlin and Major JJ, at para 70
  3. ↑ R v DeJesus, 2010 ONCA 581 (CanLII), OJ No 3744, per curiam
  4. ↑ R v Jackpine (Rodgers), 2006 SCC 15 (CanLII), [2006] 1 SCR 554, 207 CCC (3d) 225, per Charron J, at para 43 - anything taken under the Identification of Criminals Act has no REP
  5. ↑ Jackpine (Rodgers), ibid., at para 43 - anything taken under the Identification of Criminals Act has no REP
  6. ↑ R v Golden, 2001 SCC 83 (CanLII), [2001] 3 SCR 679, per Charron J, at para 89
  7. ↑ R v Flintoff, 1998 CanLII 632 (ON CA), 126 CCC (3d) 321, per Finlayson JA, at para 24
  8. ↑ R v Briggs, 2001 CanLII 24113 (ON CA), 157 CCC (3d) 38, per Weiler JA, at paras 33 to 35
  9. ↑ Briggs, ibid.
  10. ↑ R v Pelland, 1997 CanLII 502 (ON CA), 99 OAC 62, 34 WCB (2d) 356, per curiam - police surreptitiously record the accused voice in a public place
    R v Adam et al, 2006 BCSC 1430 (CanLII), per Romilly J, at paras 9 to 11 - use of voice may still violate s. 13 for incrimination.
  11. ↑ R v Hufsky, 1988 CanLII 72, [1988] 1 SCR 621, per Le Dain J
  12. ↑ R v Jarvis, 2019 SCC 10 (CanLII), [2019] 1 SCR 488, per Wagner CJ

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.")

Buildings

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

Storage

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

Business Records

Business records found in the accused's place of business will be protected.[1]

Telephone records detailing contact between various persons has a reduced expectation of privacy, in comparison to personal medical records[2]

Several lines of cases have developed on the issue of whether there is a reasonable expectation of privacy in subscriber information associated with business accounts, in particular IP addresses.[3]Generally they have sided on there not being privacy rights in "tombstone" information of a person since it is freely available to the public.[4] In certain cases this will turn on the service contract. Where a contract is not in evidence a court is more likely to find in favour of there being a expectation of privacy.[5]

Whether a person has a bank account with a particular bank does not have a reasonable expectation of privacy because that information does not reveal any core biographical information.[6]

Employment Records

Employment records generally are considered private and confidential, containing personal information about an individual's "employment terms and conditions, performance evaluations, salary and benefits paid or payable, seniority standing, discipline, commendations or reprimands, all of which directly impact the individual’s identity or self worth."[7]

Records Produced in Ordinary Course of Business

Those records produced during the ordinary course of business of regulated activities will have a diminished expectation of privacy.[8]

Documents Seized During a Regulatory Inspection

Documents seized during a regulatory inspection are not subject to a REP.[9]

Utility Records

Utility records specifically have been found not to hold a high degree of expectation of privacy.[10]

  1. ↑ E.g. Hunter v Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson CJ
  2. ↑ R v M(B), 1998 CanLII 13326 (ON CA), OR (3d) 1, per Rosenberg JA, at para 62
    See also, R v Hutchings, 1996 CanLII 703 , per McEachern JA, at para 25
    R v Mahmood, 2011 ONCA 693 (CanLII), 282 CCC (3d) 314, per Watt JA, at para 98
  3. ↑ R v Graff, 2015 ABQB 415 (CanLII), 337 CRR (2d) 77, per Neilsen J - No REP on IP when it doe not divulge personal information<br
  4. ↑ No REP: R v Ward, 2012 ONCA 660 (CanLII), 97 CR (6th) 377, per Doherty JA
    R v Thomas, 2013 ABQB 223 (CanLII), per Jerke J
    R v Caza, 2012 BCSC 525 (CanLII), BCJ No 725, per Powers J
    R v Friers, [2008] OJ No 5646 (Ct. Jus.)(*no CanLII links)
    R v Verge, [2009] OJ No 6300 (Ct. Jus.)(*no CanLII links)
    R v Vasic, 2009 CanLII 23884 (ON SC), per Thorburn J
    R v Wilson, [2009] OJ No 1067 (Sup. Ct.)(*no CanLII links)
    R v Spencer, 2009 SKQB 341 (CanLII), [2009] S.J. No 798 (Q.B.), per Foley J appealed to 2014 SCC 43 (CanLII), per Cromwell J
    R v McNeice, 2010 BCSC 1544 (CanLII), BCJ No 2131, per Meiklem J
    R v Brousseau, 2010 ONSC 6753 (CanLII), 264 CCC (3d) 562, per Croll J
    R v Ballendine, 2011 BCCA 221 (CanLII), 271 CCC (3d) 418, per Frankel JA
    Yes, REP:
    R v Trapp, 2011 SKCA 143 (CanLII), 377 Sask R 246, per Cameron JA
    R v Cuttell, 2009 ONCJ 471 (CanLII), 247 CCC (3d) 424, per Pringle J
  5. ↑ e.g. in Cuttell, ibid., at para 57
  6. ↑ R v Quinn, 2006 BCCA 255 (CanLII), 209 CCC (3d) 278, per Thackray J - police were allowed to speak to bank to find out if accused had an account there and used that information for a search warrant.
  7. ↑ R v Musselwhite, 2004 BCPC 443 (CanLII), per Dhillon J, at para 63
  8. ↑ R v Jarvis, 2002 SCC 73 (CanLII), [2002] 3 SCR 757, per Iacobucci and Major JJ, at para 72
    e.g. 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 p. 507
  9. ↑ Thomson newspapers ltd, ibid.
  10. ↑ R v Tran, 2007 ABPC 90 (CanLII), 416 AR 109, per Van de Veen J
    R v Cheung, 2007 SKCA 51 (CanLII), 219 CCC (3d) 414, per curiam

Service Providers

An account holder with an internet service provider has a expectation of privacy over the Customer Name and Address (CNA) records that are associated with an assigned IP address.[1]

There is no expectation of privacy with the CNA records associated with a telephone or cellphone number.[2]

  1. ↑ R v Spencer, 2014 SCC 43 (CanLII), [2014] 2 SCR 212, per Cromwell J, at para 47
  2. ↑ R v Khan, 2014 ONSC 5664 (CanLII), OJ No 6488, per Code J
    R v TELUS Communications Company, 2015 ONSC 3964 (CanLII), 122 WCB (2d) 281, per Nordheimer J
    R v Lattif, 2015 ONSC 1580 (CanLII), 331 CRR (2d) 72, per Nordheimer J
    cf. Re Subscriber Information, 2015 ABPC 178 (CanLII), per Henderson J - asks whether this applies only to non-internet accessible phones

Personal Communications

Generally, the private conversations, including private telephone calls, are protected by a REP.[1] However, there exist communications that are not protected.[2]

The court may look at the contents of the communications to determine whether there is a subjective and objective expectation of privacy.[3]

Subject matter of Intrusion

In a communication by electronic means, the subject of the intrusion is not the device but rather the "conversation".[4]

The fact that the sender of a message in an the electronic conversation knows that there is as risk that the recipient may disclose the conversation is not the same as understanding of a risk that the state may intrude on the conversation.[5]

Control

Control as a factor in analysis of REP must be considered in relation to the subject matter of the search, which is, when talking about online communications is the "electronic conversation".[6]

Control over the electronic conversation is only one factor in the analysis of expectation of privacy.[7]

Awareness of lack of privacy

Where the conversation makes many references the lack of confidence in the privacy of the conversation may be sufficient to eliminate subjective expectations of privacy.[8]

  1. ↑ R v Duarte, 1990 CanLII 150 (SCC), [1990] 1 SCR 30, per La Forest J - face-to-face conversations
    R v Shayesteh, 1996 CanLII 882 (ON CA), OR (3d) 161, per Charron JA
    R v Deacon, 2008 CanLII 78109 (ON SC), [2008] OJ No 5756, per Trafford J
  2. ↑ e.g. see R v Moldovan, 2009 CanLII 58062 (ON SC), per R Clark J, at para 43
    Duarte, supra, at para 28
  3. ↑ R v Marakah, 2017 SCC 59 (CanLII), [2017] 2 SCR 608, per McLachlin CJ
    Moldovan, supra, at para 44
    R v McIsaac, 2005 BCSC 385 (CanLII), [2005] BCJ No 946 (SC), per Parrett J, at para 67 - re wiretaps on jail phone calls
    R v Bartkowski, 2004 BCSC 44 (CanLII), [2004] BCJ No 2950 (SC), per Macaulay J - re wiretaps phone calls
  4. ↑ Marakah, supra
  5. ↑ Marakah, ibid.
  6. ↑ Marakah, ibid.
  7. ↑ Marakah, ibid.
  8. ↑ e.g. Moldovan, supra - many statements such as "Listen, man, we shouldn’t talk about it on the phone."

Social Media and Text Messages

Telephone calls by accused in custody, often where there are signs indicating that the conversation is not private, will reduce or eliminate any subjective expectation of privacy.[1]

The text messages of the accused, present on a third-party's phone, may be subject to a reasonable expectation of privacy.[2]

Protections Upon "Electronic Conversations"

The protection of the "electronic conversation" includes "existence of the conversation, the identities of the participants, the information shared, and any inferences about associations and activities that can be drawn from that information".[3]

An electronic communication by Facebook messenger between romantic partners may or may not require a warrant, depending on the circumstances. Where the texts Between the complainant and accused corroborate the allegations made by the complainant, there a suggestion that there is no expectation of privacy.[4]

Depending on the "totality of circumstances", the sender of text messages that have been received by the recipient may still be able to retain privacy rights over the content of the messages.[5] This, however, does not mean that a sender always has an expectation of privacy, it will depend on the case-by-case analysis under Edwards.[6]

The existence of a REP will be case-specific. It will include consideration of the "nature of the communication".[7]

Loss of control over the communication is not determinative of the issue.[8]

Undercover Online Police

It seem communications with undercover police officers online would not engage a privacy protection.[9]

Facebook

An open facebook profile containing broadcast communications are not protected by a reasonable expectation of privacy.[10]

  1. ↑ e.g. see R v McIsaac, 2005 BCSC 385 (CanLII), [2005] BCJ No 946 (SC), per Parrett J
    R v Bartkowski, 2004 BCSC 44 (CanLII), [2004] BCJ No 2950 (SC), per Macaulay J
    R v Ballantyne, 2008 BCSC 1566 (CanLII), BCJ No 2691, per Chamberlist J
  2. ↑ R v Marakah, 2017 SCC 59 (CanLII), [2017] 2 SCR 608, per McLachlin CJ
    R v Pelucco, 2015 BCCA 370 (CanLII), 327 CCC (3d) 151, per Groberman JA
    R v Craig, 2016 BCCA 154 (CanLII), 335 CCC (3d) 28, per Bennett JA
    cf. R v Lowrey, 2016 ABPC 131 (CanLII), 357 CRR (2d) 76, per Rosborough J - police access Facebook account of luring victim and seize text messages between victim and accused
  3. ↑ Marakah, supra, at para 20
  4. ↑ R v WM, 2019 ONSC 6535 (CanLII), per Davies J
  5. ↑ R v Marakah, 2017 SCC 59 (CanLII), [2017] 2 SCR 608, per McLachlin CJ, at para 4 ("...depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8 and that [the sender] had standing to argue that the text messages at issue enjoy s. 8 protection.")
  6. ↑ R v Vickerson, 2018 BCCA 39 (CanLII), 358 CCC (3d) 441, per Bennett JA, at para 54
  7. ↑ R v MS, 2019 ONCJ 670 (CanLII), per Chapman J, at para 68
  8. ↑ Marakah, supra
  9. ↑ R v Graff, 2015 ABQB 415 (CanLII), 337 CRR (2d) 77, per Neilsen J
    R v Kwok, [2008] OJ No 2414(*no CanLII links)
    R v Caza, 2012 BCSC 525 (CanLII), BCJ No 725, per Powers J
    R v Ghotra, [20015] OJ No 7253 (ONSC) (*no CanLII links) , per Durno J
    R v Vader, 2016 ABQB 309 (CanLII), per Thomas J - cell phone text messages obtained from ISP by production order after they have been sent
    R v Mills, 2017 NLCA 12 (CanLII), NJ No 55, per Welsh JA leave to appeal to SCC granted - involved active screen capture by the police officer
  10. ↑ R v Patterson, 2018 ONSC 4187 (CanLII), per Bawden J, at paras 6, 8, 21 and 33

Packages

The address and name of person with signing authority are not subject to a reasonable expectation of privacy and are obtainable without warrant.[1]

  1. ↑ R v PDC, 2021 ONCA 134 (CanLII), per Rouleau JA

Electronic Devices

Data found on electronic devices are generally protected by "informational privacy". However, the analysis often makes use of the metaphors with territorial privacy.[1]

  1. ↑ e.g. R v Marakah, 2017 SCC 59 (CanLII), [2017] 2 SCR 608, per McLachlin CJ, at paras 25 to 30

Computers

Generally

Any electronic device (computer, cell phone, etc) will contain information detailing a persons life that can be "deeply personal". Personal information can be found in: [1]

  • Contact Information (detailing names, addresses, phone numbers, e-mail addresses and similar information);
  • Internet Browsing (history of websites, log-in information, passwords, form data);
  • Calendars;
  • Photographs and videos;
  • Messages (emails, texts, voicemails);
  • Phone Call Logs (dialled/received/missed calls, caller identification);

A lack of exclusive control over the control over contents of the information is not a sole basis for finding a lack of expectation of privacy.[2]

Home and Personal Computers

Home and personal computers are imbued with a high degree of privacy due to the frequency that it contains intimate correspondence, financial, medical, or personal information. In addition to our personal interests and tastes.[3] According to the Morelli court, the level of privacy does not get much higher.[4]

The high expectation exists not only due to amount of intimate personal information is stored on the devices but also because of its high capacity to store data, the existence of a significant amount of information that the user is unaware of, such as metadata and tracking history, it also stores data after its deletion and may provide access to sources outside of the device.[5]

Generally, all personal electronic devices similar to home computers have a high level of privacy.[6]

It is suggested that the degree of privacy is lessened where a personal computer has been brought to a repair shop.[7] In some cases, there is no expectation of privacy.[8]

An accused loses their reasonable expectation of privacy to a household computer once they move out.[9]

The search of a computer cannot always be precise. An investigating officer looking for a particular piece of evidence may need to diverge into several areas of the hard drive in the same way as a person searching a house would look into a number of draws of a bedroom before finding evidence.[10]

A computer seized as under plain view under s. 489 during the execution of a general residential search warrant is permissible. However, the search of its contents may require a warrant.[11]

It has been suggested that a search of a memory stick has a REP and so requires a search warrant.[12]

School and Workplace Computers

Workplace computers are considered to have limited expectation of privacy. [13] This will turn on the employer's privacy policy on whether the employees can keep personal things on work computers.[14]

The deleted internet browsing history of a school computer will still have a reasonable expectation of privacy. Deleted files represents an intent to keep potential private information hidden. [15]

  1. ↑ see discussion in R v Polius, 2009 CanLII 37923 (ON SC), [2009] OJ No 3074 (Sup. Ct.), per Trafford J
  2. ↑ Cole, supra, at para 54
  3. ↑ R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J, at para 105
  4. ↑ Morelli, ibid., at para 2: (“It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer.”
  5. ↑ R v Vu, 2013 SCC 60 (CanLII), [2013] 3 SCR 657, per Cromwell J, at paras 42, 43
  6. ↑ R v Choudry, [2009] OJ No 84 (ONSC)(*no CanLII links)
    R v Little, 2009 CanLII 41212 (ON SC), OJ No 3278, per Fuerst J
    Polius, supra
  7. ↑ R v Graham, 2010 ONSC 119 (CanLII), [2010] OJ No 146 (Sup. Ct.), per Desotti J: ( Defence argued a high degree of privacy in the computer at the repair shop, the judge said "I agree that in other factual situations that a court may have to consider, those other concerns [of Defence] might have a more prominent place. I do not have those facts before me.")
    R v Winchester, 2010 ONSC 652 (CanLII), [2010] OJ No 281 (Sup. Ct.), per Valin J, at para 36: (“while I am not prepared to find that the applicant had no expectation of privacy in the contents of the computer when he left it at the store, I do find that this expectation was significantly reduced.”)
  8. ↑ R v Piette, 2009 QCCQ 14499 (CanLII), per Bonin J a computer repairman makes copy of child abuse images found on computer onto a CD and gives it to police. The court found no REP on CD so no need for warrant
  9. ↑ R v Pommer, 2008 BCSC 423 (CanLII), CR (6th) 319, 2008 CarswellBC 1181, per D Smith J
  10. ↑ R v Stemberger, 2012 ONCJ 31 (CanLII), per Borenstein J, at paras 99, 110
  11. ↑ R v Little, 2009 CanLII 41212 (ON SC), OJ No 3278, per Fuerst J
  12. ↑ R v Tuduce, 2014 ONCA 547 (CanLII), 314 CCC (3d) 429, per Gillese JA
  13. ↑ R v Cole, 2009 CanLII 20699 (Sup. Ct.), 190 CRR (2d) 130, per Kane J rev'd 2011 ONCA 0218 aff'd 2012 SCC 53 (CanLII), per Fish J
    R v Ritter, 2006 ABPC 162 (CanLII), AR 249 (Prov. Ct.), per Fraser J
  14. ↑ Cole, supra
  15. ↑ R v McNeice, 2013 BCCA 98 (CanLII), 335 BCAC 35, per Finch JA

Online Data

Online Information

Activities online, even when in a public internet forum under a pseudonym, will retain a degree of privacy.[1]

  1. ↑ R v Ward, 2012 ONCA 660 (CanLII), 97 CR (6th) 377, per Doherty JA, at paras 71, 74
    R v Spencer, 2014 SCC 43 (CanLII), [2014] 2 SCR 212, per Cromwell J

Peer-to-Peer Software

Software installed on a computer that enables other persons on a network to access information and files on a computer, such as Peer-to-Peer software, is relevant to the courts usually in a child pornography cases.

US Courts have concluded that files found on a computer that are accessible and transferable over a peer-to-peer do not have a reasonable expectation of privacy due to the intention of the user.[1]

A shared directory in a peer-to-peer network has a lower expectation of privacy than a home.[2] The search of shared files on peer-to-peer network does not engage s. 8 of the Charter.[3] Equally, the text messages shared between users of the Gigatribe community are not protected either.[4]

  1. ↑ US v Ganoe, 538 F.3d 1117 (2008) ("although as a general matter an individual has an objectively reasonable expectation of privacy in his personal computer…we fail to see how this expectation can survive Ganoe’s decision to install and use file-sharing software, thereby opening his computer to anyone one else with the same freely available program.")
    State v Mahan, 2011 WL 4600044: the police internet investigation program "simply automated the ability to search information that had been placed in the public domain")
    US v Sawyer, 786 F. Supp. 2d 1352 (2011) suggested that once access is given to a “friend” the owner is giving up their right to privacy over those shareable files, simply because the police are not identifying themselves does not change things
  2. ↑ R v Caza, 2012 BCSC 525 (CanLII), BCJ No 725, per Powers J
  3. ↑ Caza, ibid., at paras 90 to 97, 113
  4. ↑ Caza, ibid.

Contents of Cell Phones

There is a division in the case law on the level of privacy there is for cell phones.

All cellphones, regardless of their capacity, is said to have a high expectation of privacy.[1]

There should be no distinction between cell phones and computers given the sophistication of phones.[2]

Where an accused suggests that he "found" a cell phone in his possession he cannot assert s. 8 Charter rights.[3]

The contents of a cell phone protected by s. 8, includes any information visible on the face of the locked screen after any button is pressed.[4]

  1. ↑ R v Fearon, 2014 SCC 77 (CanLII), [2014] 3 SCR 621, per Cromwell J
    see also R v Sheck, 2012 BCPC 39 (CanLII), per Bahen J, at para 17 (It is like "an archive of social, family and business activities")
  2. ↑ R v Vu, 2013 SCC 60 (CanLII), [2013] 3 SCR 657, per Cromwell J, at para 38
  3. ↑ R v Hebrada-Walters, 2013 SKCA 24 (CanLII), 409 Sask R 229, per Ottenbreit JA, at paras 35 to 38
  4. ↑ R v Millett, 2017 ABQB 9 (CanLII), AJ No 5, per Viet J

Closed Circuit Television

CCTV cameras recording public places outside do not have a reasonable expectation of privacy.[1]

Cameras found in common areas and hallways of apartment buildings are not protected by an expectation of privacy.[2]

CCTV footage from a commercial grocery store is not protected by an expectation of privacy.[3]

  1. ↑ R v Lebeau, 1998 CanLII 14635 (ON SC), 41 CCC (3d) 163, [1998] OJ No 51 (C. A.), per Ferrier J
    R v Shortreed, 1990 CanLII 10962 (ON CA), 54 CCC (3d) 292, [1990] OJ No 145 (CA), per LaCourciere JA
    Brown v Durham Regional Police, 1998 CanLII 7198 (ON CA), 43 OR (3d) 223, [1998] OJ No 5274 (CA), per Ferrier J
    R v Elzin, 1993 CanLII 3860 (QC CA), 82 CCC (3d) 455, per Chevalier J
    R v Bryntwick, 2002 CanLII 10941 (ON SC), [2002] OJ No 3618 (SCJ), per Dunn J
  2. ↑ R v Zekarias, 2018 ONSC 4752 (CanLII), per MF Brown J
    R v Law, 2017 BCSC 1241 (CanLII), per Law J, at para 94
  3. ↑ R v Merritt, 2017 ONSC 366 (CanLII), per F Dawson J, at para 115

Vehicle Data Recorders

There is some division on whether there is a warrant needed to examine the data recorders that exist within vehicles.[1]

It has been suggested that a lawful seizure of a vehicle under s. 489(2) is sufficient to extinguish any subjective expectation of privacy over the contents the vehicle including on-board data.[2]

  1. ↑ R v Hamilton, 2014 ONSC 447 (CanLII), 65 MVR (6th) 239, per MacDougall J - warrant required
    R v Glenfield, 2015 ONSC 1304 (CanLII), 321 CCC (3d) 483, per Hambly J - warrant required
    R v Fedan, 2016 BCCA 26 (CanLII), 89 MVR (6th) 188, per D Smith J, leave to SCC dismissed - warrant not required
  2. ↑ Fedan, ibid.

Other Electronics devices

A building fob containing logs entry and exit of holder does not have an expectation of privacy.[1]

  1. ↑ R v Law, 2017 BCSC 1241 (CanLII), at para 94
Retrieved from "https://criminalnotebook.ca/index.php?title=Established_Areas_of_Privacy&oldid=81504"