Reasonable Expectation of Privacy

• Author: Susanne Boucher & Kenneth Landa
• Pages: 26-88

1Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.) [Hunter].

2R. v. Evans (1996), 104 C.C.C. (3d) 23 at 29 (S.C.C.) [Evans].

26

In chapter 2 we noted that issues of privacy are central to section 8 of the

Charter. The purpose of section 8 is the protection of privacy, and searches

are defined with reference to whether a government action intruded on a

reasonable expectation of privacy. This chapter will examine the concept of

a reasonable expectation of privacy by first providing definition and scope to

the concept. The bulk of the chapter will be devoted to the examination of

the importance of “context” in determining whether there exists a reason-

able expectation of privacy. We will illustrate the importance of the contex-

tual analysis by demonstrating the different levels of protection afforded by

the courts to state intrusion in a variety of different areas that are common-

ly subject to state intrusion.

A. A REASONABLE EXPECTATION OF PRIVACY IS

NECESSARY TO CHALLENGE A SEARCH

The fundamental objective of section 8 of the Charter is “to protect individ-

uals from unjustified State intrusion upon their privacy,”1by ensuring them

“a reasonable expectation of privacy.”2Accordingly, an individual can only

establish that a search or seizure breached his or her section 8 rights if the

individual can demonstrate that he or she had a reasonable expectation of

chapter 3

c

Reasonable Expectation of Privacy

privacy in the place searched, the thing seized, or both.3If the individual is

unable to demonstrate a reasonable expectation of privacy, and that the

expectation of privacy was (unjustifiably) intruded upon, then the state can-

not have violated the person’s rights under section 8.4

B. PERSONAL PRIVACY INTEREST, NOT PROPERTY

INTEREST

Although the expectation of privacy attaches to a place searched or a thing

seized, the guarantees in section 8 are actually a protection of the person’s

independent privacy interests as opposed to particular property rights over

those places and things. Historically, common law privacy protections were

tied to the home and the intrusions of government onto private property. In

Hunter v. Southam,5Dickson J. for the Supreme Court made clear that sec-

tion 8 of the Charter “protects people and not places,” and that concepts of

privacy were not necessarily tied to property rights:

In my view, the interests protected by s. 8 are of a wider ambit than those

[protected at common law]. . . . There is, further, nothing in the language

of the section to restrict it to the protection of property or to associate it

with the law of trespass. It guarantees a broad and general right to be

secure from unreasonable search and seizure.6

Accordingly, the analysis of whether a person has an expectation of pri-

vacy is not limited to factors such as an individual being “legitimately on the

premises”7or having a possessory or proprietary interest in the premises or

items seized.8Because the purpose of section 8 is the protection of a per-

son’s privacy interests, and not the protection of property, the person’s expo-

sure to the consequences of the search and the admission of the evidence

into his or her trial provides the access to and rationale for remedies under

the Charter.9However, note from chapter 2 that state interference with a

3Ibid.

4R. v. Edwards (1996), 104 C.C.C. (3d) 136 (S.C.C.) [Edwards] at 149–50. However,

see the section below on the interests of third parties and section 8, and the dis-

cussion in chapter 2, “What Constitutes a Seizure?” regarding seizures and expec-

tation of privacy.

5Hunter, above note 1.

6Ibid. at 107.

7Jones v. United States, 362 U.S. 257 (1960) at 267; Edwards, above note 4 at paras.

54, 551.

8R. v. Pugliese (1992), 71 C.C.C. (3d) 295 (Ont. C.A.) [Pugliese] at 300–1.

9Ibid.

Reasonable Expectation of Privacy • 27

possessory or proprietary claim in the context of a criminal or administra-

tive investigation may, in some circumstances, be sufficient to engage sec-

tion 8 protections.10

Because privacy is an abstract concept that can be divorced from prop-

erty rights, courts have sought to define the scope of the concept, and have

considered the ways in which privacy interests can be affected. In R. v.

Dyment,11 the Supreme Court confirmed that privacy interests are rooted in

the dignity and integrity of the individual, and exist apart from property

interests. Justice LaForest noted that there were three zones or realms in

which an individual has a privacy interest: territorial or spatial (which are

typically tied to places or things), personal (or bodily) claims to privacy, and

informational privacy (information about the individual).12

C. . v

v

. E

E

DWARDS: “TOTALITY OF CIRCUMSTANCES”

TEST

The leading case on establishing a reasonable expectation of privacy is the

Supreme Court’s decision in R. v. Edwards.13 The Court confirmed in

Edwards that the determination of whether a person has an expectation of

privacy requires a multifactor analysis on the “totality of circumstances” pre-

sented by the case.14

Justice Cory summarized the principles applicable to establishing “stand-

ing” or a privacy interest sufficient to challenge a search or seizure.15 This por-

tion of the judgment is worth reprinting at length, as it is a helpful review of

10 See chapter 2, “What Constitutes a Seizure?”

11 R. v. Dyment (1988), 45 C.C.C. (3d) 244 (S.C.C.) [Dyment].

12 Ibid. at 255–56.

13 R. v. Edwards (1996), 104 C.C.C. (3d) 136 (S.C.C.) [Edwards].

14 Ibid. at 150; Pugliese, above note 8 at 302.

15 In R. v. Belnavis (1996), 107 C.C.C. (3d) 195 (Ont. C.A.) [Belnavis] at 207, aff’d (1997),

188 C.C.C. (3d) 405 (S.C.C.), Doherty J.A. explained that although this initial inquiry is

sometimes referred to as establishing “standing,” the term is actually a misnomer:

Since the evidence produced by the search is being tendered against an

accused, that accused has standing to challenge its admissibility. However,

an accused can only gain access to the exclusionary remedy in s. 24(2) of

the Charter by showing a breach of his or her personal Charter rights: R. v.

Edwards, supra, at p.150; R. v. Wijesinha (1995), 100 C.C.C. (3d) 410 at

p.431, 127 D.L.R. (4th) 242, [1995] 3 S.C.R. 422. Where an accused relies

on an alleged breach of s. 8 of the Charter, the accused must show that his

or her reasonable expectation of privacy was breached by the state con-

duct. That inquiry goes, not to the question of standing, but to the sub-

stantive question of whether the accused person’s s.8 rights were

breached: Rakas v. Illinois, 99 S.Ct. 421 (1978) at pp. 424–25.

28 • Understanding Section 8: Search, Seizure, and the Canadian Constitution