The Reasonable Expectation of Privacy

• Author: David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan
• Pages: 23-66

23

The Reasonable

Expectation of

Privacy

2

I. Foundational Principles .................................... 24

II. The Edwards Test and the Totality of the Circumstances .......... 25

III. The Subject Matter of the Search ............................ 27

IV. The Privacy Spectrum ..................................... 28

V. A Uniquely Canadian Approach: Rejection of the Third-Party

Doctrine ................................................ 29

VI. Control Is Not Dispositive .................................. 32

VII. Using the Crown’s Theory to Establish a Reasonable Expectation

of Privacy ............................................... 34

VIII. Applying the Reasonable Expectation of Privacy Test ............. 35

A. Personal Privacy .................................... 35

B. Territorial Privacy .................................... 39

C. Informational Privacy ................................ 53

IX. Conclusion .............................................. 66

© [2021] Emond Montgomery Publications. All Rights Reserved.

24Search and Seizure

I. Foundational Principles

Section 8 of the Charter guarantees everyone the right against unreasonable search

and seizure by the state.1 In so doing, section 8 functions as “a shield against unjusti-

fied state intrusions on personal privacy.”2

Although section 8 is broad and its scope is ever growing,3 there are natural lim-

its to its growth. First, as with all Charter rights, section 8 provides protection only

against state action.4 A private actor might infringe another person’s privacy and run

afoul of the law in myriad ways, but the conduct of a private party, acting without any

state involvement, will not amount to an infringement of section 8 of the Charter.

Second, section 8 does not protect against all state searches and seizures, but only

against unreasonable ones. So not every investigatory technique used by the police or

other state agency will trigger the application of section 8 of the Charter.5 The touch-

stone of unreasonable searches and seizures is the reasonable expectation of privacy. A

search or seizure is unreasonable only if the section 8 claimant enjoyed a reasonable

expectation of privacy in relation to the place, thing, information, or body searched

or seized.6

Section 8 of the Charter thus protects a claimant’s reasonable expectation of pri-

vacy against unreasonable state intrusion.7 The crux of every section 8 problem there-

fore begins with the question of whether the individual has a reasonable expectation

of privacy in relation to the thing being searched or seized.

The diculty in defining privacy—to say nothing of a reasonable expectation

thereof—has proven challenging. In earlier times, one’s expectation of privacy was

co-extensive with one’s property rights. “If the rights of private property were

respected,” BinnieJ wrote in R v Tessling, “and the curtains of the home (or the draw-

bridge of the castle) were pulled, the King’s agents could watch from a distance but

would have no way of finding out what was going on inside.”8 But as technology de-

veloped, the protection aorded by property rights diminished. Seventeenth-century

notions of privacy have given way to 21st-century realities. One’s drawbridge and

1 See Hunter v Southam Inc, [1984] 2 SCR 145 at 159, 1984 CanLII 33.

2 R v Kang-Brown, 2008 SCC 18 at para 8.

3 See R v Tessling, 2004 SCC 67 at para 29 (noting that changes in technology may require the

readjusting of our reasonable expectations of privacy).

4 Charter s 32 (“[t]his Charter applies … (a) to the Parliament and government of Canada in

respect of all matters within the authority of Parliament including all matters relating to the

Yukon Territory and Northwest Territories; and (b) to the legislature and government of each

province in respect of all matters within the authority of the legislature of each province”).

5 R v Evans, [1996] 1 SCR 8 at para 3, 191 NR 327, SopinkaJ.

6 Hunter v Southam Inc, supra note 1 at 159-60 (emphasis added).

7 Tessling, supra note 3 at para 18. The test for “reasonable expectation of privacy” appears to

originate in Harlan J’s concurring opinion in Katz v United States, 389 US 347 at 360 (1967).

8 Tessling, supra note 3 at para 16.

© [2021] Emond Montgomery Publications. All Rights Reserved.

Chapter 2 The Reasonable Expectation of Privacy 25

castle will not protect you from wiretapping,9 from forward-looking infra-red (FLIR)

imaging,10 from third-party production orders,11 or from international mobile sub-

scriber identity (IMSI) catchers.12

Under the modern conception of privacy, ownership remains relevant but not de-

terminative of privacy rights.13 As DicksonJ noted in Hunter v Southam Inc, there is

“nothing in the language of [section 8] to restrict it to the protection of property or to

associate it with the law of trespass.”14 Section 8 of the Charter protects persons, not

places or property.15 It is, therefore, unnecessary to establish a proprietary interest in

the place searched or the thing seized.16

II. The Edwards Test and the Totality of the

Circumstances

How do we distinguish between information over which a reasonable expectation of

privacy attaches and information that does not attract section 8 protection? The rea-

sonable expectation of privacy analysis is fact-specific and contextual. The Supreme

Court of Canada has emphasized that the assessment of whether one enjoys a “reason-

able expectation of privacy” is to be made “in light of the totality of the circumstances

of a particular case.”17 The Supreme Court has identified a non-exhaustive set of

factors to be considered when assessing the totality of the circumstances:18

1. What was the nature or subject matter of the evidence gathered by the police?

2. Did the claimant have a direct interest in the contents?

3. Did the claimant have a subjective expectation of privacy in the informational

content?

9 R v Duarte, [1990] 1 SCR 30, 71 OR (2d) 575.

10Tessling, supra note 3 at para 16.

11R v Jones, 2017 SCC 60.

12 See Nader R Hasan, “Searching the Digital Device” in Chan and Hasan, Digital Privacy:

Criminal, Civil and Regulatory Litigation (Toronto: LexisNexis, 2018) at 3-5, citing Tamir Israel

and Christopher Parsons, “Gone Opaque? An Analysis of Hypothetical IMSI Catcher Over-

use in Canada” (Toronto: University of Toronto, 2016), online (pdf ): <https://citizenlab.ca/

wp-content/uploads/2016/09/20160818-Report-Gone_Opaque.pdf>.

13R v Cole, 2012 SCC 53 at para 51, citing Buhay, 2003 SCC 30 at para 22.

14 See Hunter v Southam Inc, supra note 1 at 158.

15Ibid at 158.

16Ibid; R v Dyment, [1988] 2 SCR 417 at 426-27, 1988 CanLII 10, La ForestJ; Katz v United States,

389 US 347 (1967).

17R v Edwards, [1996] 1 SCR 128 at para 31, 26 OR (3d) 736; see also e.g. R v Colarusso, [1994] 1

SCR 20 at 54, 110 DLR (4th) 297; R v Wong, [1990] 3 SCR 36 at 62, 120 NR 34.

18Edwards, supra note 17 at para 45, modified by Tessling, supra 3 at para 19, and R v Patrick, 2009

SCC 17at para 27. See also Cole, supra note 13 at para 40; R v Marakah, 2017 SCC 59 at para11.

© [2021] Emond Montgomery Publications. All Rights Reserved.