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Canadian Criminal Procedure and Practice/Search and Seizure/Reasonable Expectation of Privacy

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Introduction

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A search can be unreasonable 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]

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."[3]

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."[4]

Courts interpret privacy in a "broad and liberal manner". [5]

Section 8 protects persons not places.[6] The Charter does not recognize regions of immunity.[7] 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.[8]

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.[9]

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

  1. ↑ see R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at paras. 33 and 39
  2. ↑ R v Tessling, 2004 SCC 67 at para. 42
  3. ↑ R. v. Patrick, 2009 SCC 17 (CanLII), [2009] 1 SCR 579 at para. 14
  4. ↑ R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 SCR 281
  5. ↑ R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417
  6. ↑ Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145 at pp. 158-9
  7. ↑ Hunter v Southam Inc. at pp. 158-9
  8. ↑ e.g. R v Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30: 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
  9. ↑ R. v. Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432 at para. 40
    R. v. Boersma, 1994 CanLII 99 (SCC), [1994] 2 S.C.R. 488
    R v Stillman, [1997] 1 S.C.R. 607, at para. 62, 226
    R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 SCR 8, at para. 50 (dissent)
    Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416, at p. 453
    R v Dyment, 1988 CanLII 10 (SCC), [1988] 2 SCR 417, at p. 435
    R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652, at para. 45

Factors

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Factors considered in R. v. Edwards[1]:

  1. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.[2]
  2. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: 
    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; 
  3. the existence of a subjective expectation of privacy; and 
    1. the objective reasonableness of the expectation. 

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.
  1. ↑ 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128 at para. 45
  2. ↑ See also R v Cole 2012 SCC 53 at para. 39
  3. ↑ R v Tessling 2004 SCC 67 and R. v. Patrick, 2009 SCC 17 at para. 27, per Binnie

Established Zones of Privacy

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Vehicles

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A driver has a reasonable expectation of privacy for the contents of his motor vehicle.[1] The reasonable expectation of privacy for a vehicle is low.[2] It is considered more limited than locations such as houses.[3]

Passengers however do not generally have a reasonable expectation of privacy.[4] 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.[5]

  1. ↑ R. v. Belnavis 1996 CanLII 4007, 107 C.C.C. (3d) 195 (Ont. C.A.); appeal dismissed 1997 CanLII 320, [1997] 3 S.C.R. 341 [1] at 19
  2. ↑ R. v. Alkins, [2007] O.J. No. 1348 (Ont. C.A.)
    R. v. Shankar, [2007] O.J. No. 1406 (Ont. C.A.)
    R. v. Rebelo, [2007] O.J. No. 1468 (Ont. C.A.)
  3. ↑ R. v. Wise, 1992 CanLII 125, [1992] 1 S.C.R. 527; R. v. Belnavis, 1997 CanLII 320, [1997] 3 S.C.R. 341
  4. ↑ See Canadian_Criminal_Procedure_and_Practice/Pre-Trial_Matters/Applications_and_Motions_Procedure#Standing
  5. ↑ R v Belnavis at 22
    R. v. Madore & Madeira, 2012 BCCA 160 at 55

Residences

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There is a high expectation of privacy in a house. Unlawful entry will be a serious intrusion on the person's privacy rights.[1]

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".[2]

A search of a dwelling is considered an invasion of a place with the "highest degree of privacy".[3]

A person will have a diminished expectation of privacy where legislation authorizes police intrusion.[4]

Police intrusion upon private property can only be permitted "only by powers granted in clear statutory language"[5]

  1. ↑ see R. v. Silveira 1995 CanLII 89 (SCC) at 463-4, 495-6 (the “historic inviolability of a dwelling-place”)
    R. v. Dhillon, [2010] O.J. No. 3749 (C.A.)
    R. v. Tessling, 2004 SCC 67 (CanLII), [2004] 3 S.C.R. 432, 189 C.C.C. (3d) 129 at 139
  2. ↑ R v Tessling 2004 SCC 67 at para. 144
  3. ↑ R. v. Sutherland 2000 CanLII 17034 (ON CA), (2000), 150 C.C.C. (3d) 231 (Ont. C.A.) 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")
  4. ↑ R. v. D.L.W., 2012 BCSC 1700 (CanLII) at para. 38
    ("A person has a restricted objective expectation of privacy when legislation authorizes the police’s intrusion into that person’s privacy.")
  5. ↑ R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3, 61 C.C.C. (3d) 207 at p. 218 per Dickson C.J.C. ("... 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.")

Non-dwelling Residences

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Provided an expectation of privacy exists in a non-dwelling residence, the accused's standing may invoked where he has "an ownership interest in the premises" absence countervailing evidence.[1]

  1. ↑ e.g. R. v. Fankhanel, 1999 CanLII 19075 (AB QB)
    c.f. R v Pugliese (1992) 71 CCC (3d) 295 (ONCA) - no standing for owner of building who did not live in it

Person

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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. [1]

Bodily Samples
DNA samples taken as part of a previous sentence is not protected by a reasonable expectation of privacy.[2]

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

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

Body Cavity
Strip searches can be humiliating, embarrassing, and degrading for the accused.[5] It is also one of the most extreme forms of search available to police.[6]

  1. ↑ R v Pickton, 2006 BCSC 1098 at para 38 citing R v Calarusso, 1994 CanLII 134 (SCC) at para 70
  2. ↑ R. v. DeJesus, 2010 ONCA 581 (CanLII)
  3. ↑ R. v. Jackpine (2006), 207 C.C.C. (3d) 225 (S.C.C.), at para. 43 - anything taken under the Identification of Criminals Act has no REP
  4. ↑ R. v. Jackpine (2006), 207 C.C.C. (3d) 225 (S.C.C.), at para. 43 - anything taken under the Identification of Criminals Act has no REP
  5. ↑ R v Golden 2001 SCC 83 at 89
  6. ↑ R. v. Flintoff, 1998 CanLII 632 at 24

Storage

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School lockers have a reduced expectation of privacy with respect to teaching staff.[1]

  1. ↑ R. v. M. (M.R.), 1998 CanLII 770 (SCC), [1998] 3 SCR 393
    see also http://en.wikipedia.org/wiki/R._v._M._(M.R.)

Business Records

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Telephone records detailing contact between various persons has a reduced expectation of privacy, in comparison to personal medical records[1]

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. Generally they have sided on there not being privacy rights in "tombstone" information of a person since it is freely available to the public.[2] 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.[3]

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.[4]

  1. ↑ R. v. M.(B.) 1998 CanLII 13326 (ON CA), (1998), 42 O.R. (3d) 1 (C.A.), at para. 62
    See also, R. v. Hutchings 1996 CanLII 703 (BC CA), (1996), 111 C.C.C. (3d) 215 (B.C.C.A.), at para. 25
    R. v. Mahmood, 2011 ONCA 693 at 98
  2. ↑ No REP: R. v. Ward, [2008] O.J. No. 3116 (Ct. Jus.)
    R v Caza 2012 BCSC 525
    R. v. Friers, [2008] O.J. No. 5646 (Ct. Jus.)
    R. v. Verge, [2009] O.J. No. 6300 (Ct. Jus.)
    R. v. Vasic, 2009 CanLII 23884 (ON SC)
    R. v. Wilson, [2009] O.J. No. 1067 (Sup. Ct.)
    R. v. Spencer, [2009] S.J. No. 798 (Q.B.)
    R. v. McNeice, 2010 BCSC 1544
    R. v. Brousseau, 2010 ONSC 6753
    R. v. Ballendine, 2011 BCCA 221
    Yes, REP: R v Trapp, 2011 SKCA 143 R. v. Cuttell, 2009 ONCJ 471
  3. ↑ e.g. in R. v. Cuttell, 2009 ONCJ 471 at 57
  4. ↑ R v Quinn 2006 BCCA 255 - police were allowed to speak to bank to find out if accused had an account there and used that information for a search warrant.

Garbage

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Generally speaking, there is no expectation of privacy is materials found in a dumpster.[1]

  1. ↑ R. v. Sipes, 2008 BCSC 1500 and 2012 BCSC 1948 (CanLII)

Computers and Electronic Devices

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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.[1] According to the Morelli court, the level of privacy does not get much higher.[2]

Generally, all personal electronic devices similar to home computers have a high level of privacy.[3]

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: [4]

  • 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);

It is suggested that the degree of privacy is lessened where a personal computer has been brought to a repair shop.[5] In some cases, there is no expectation of privacy. In R. v. Piette,2009 QCCQ 14499 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.

There is conflicting case law on instances where a third party examines a computer system and discovers evidence of a criminal offence on it. In R. v. Cole, 2008 ONCJ 278 the school supervisor finds child abuse images on network directory of employee, he tells police who seize computer and send for a forensic analysis. The court found section 8 violated for search without warrant.

An accused loses their reasonable expectation of privacy to a household computer once they move out.[6]

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.[7]

Workplace computers are considered to have limited or no expectation of privacy. [8] This will turn on the employer's privacy policy on whether the employees can keep personal things on work computers.[9]

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.[10]

  1. ↑ R. v. Morelli, 2010 SCC 8 at 105
  2. ↑ Morelli 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.”
  3. ↑ R. v. Choudry, [2009] O.J. No 84 (ONSC) R. v. Little, 2009 CanLII 41212 (ONSC) R. v. Polius, [2009] O.J. No 3074 (ONSC)
  4. ↑ see discussion in R. v. Polius, [2009] O.J. No. 3074 (Sup. Ct.)
  5. ↑ R. v. Graham, [2010] O.J. No. 146 (Sup. Ct.): ( 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, [2010] O.J. No. 281 (Sup. Ct.) 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.”)
  6. ↑ R. v. Pommer (2008), 58 C.R. (6th) 319, 2008 CarswellBC 1181, 2008 BCSC 423, (B.C. S.C.)
  7. ↑ R. v. Stemberger, 2012 ONCJ 31 (CanLII), <http://canlii.ca/t/fpqjb> at 99, 110
  8. ↑ R. v. Cole, [2009] CanLII 20699 (Sup. Ct.) rev'd 2011 ONCA 0218
    R. v. Ritter (2006), 402 A.R. 249 (Prov. Ct.)
  9. ↑ R v Cole, supra
  10. ↑ R. v. Little, 2009 CanLII 41212 (ON SC)

Peer-to-Peer Software

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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.

Some US cases have considered whether there is a privacy right in the computer's shareable files. 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 [1]

In Canada, there is a slow adoption of the same view. In R v Caza, 2012 BCSC 525, the court noted that the shared directory in a peer-to-peer network is much less private than a dwelling. It is not the same as a search through the entire hard drive of an entire computer because it is more restrictive. The search of shared files on peer-to-peer network does not engage s. 8 of the Charter.[2]


  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 at 90 to 97, 113

Memory Sticks

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In R. v. Tuduce, 2011 ONSC 2749, the court said that a search of a memory stick has a REP and so requires a search warrant.[1]


  1. ↑ R. v. Tuduce, 2011 ONSC 2749 at 41-45

Cell phones

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

A smart cellphone, as a digital device, is said to have a high expectation of privacy. It is like "an archive of social, family and business activities".[1]

Several cases have stated that a complete forensic analysis of a cell phone, a so-called "data dump", without a warrant is impermissible.[2]

There is limited authority stating no search of phones is permitted.[3]

A limited warrantless search is permitted incident to arrest when the search is connected with the investigation. On arrest for drugs, the police may search the calling records on the cell phone.[4]

In Giles, 2007 BCSC 1147, the court stated the police can search and download copies of emails on a blackberry incident to arrest.[5]


  1. ↑ R. v. Sheck, 2012 BCPC 39 (CanLII) at 17
  2. ↑ R v Schira, 2011 SKPC 140 (CanLII) at 57 to 59
    R. v. Hiscoe, 2011 NSPC 84 (CanLII), at para 7
    R. v. Dorey, 2011 NSPC 85 (CanLII) at 8 (follows Hiscoe)
  3. ↑ R. v. Sheck, 2012 BCPC 39 at 20
  4. ↑ R. v. Hiscoe, 2011 NSPC 84 at para 7, 8
    R. v. Otchere-Badu, 2010 ONSC 1059 at para 83
  5. ↑ R. v. Giles, 2007 BCSC 1147 (CanLII) at para 72

Prisons

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An inmate in a correctional facility has a very limited expectation of privacy over their phone calls.[1]

  1. ↑ R v Drader, 2012 ABQB 168
    R. v. McIsaac, 2005 BCSC 385
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