Reasonable Expectation of Privacy

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The Current Framework for Determining a Reasonable Expectation of Privacy: The Basics

The principal purpose of section 8 of the Charter is to protect an accused’s privacy interests against unreasonable intrusion by the State.  Accordingly, police conduct interfering with a reasonable expectation of privacy is said to constitute a “search” within the meaning of the provision. R. v. Law, 2002 SCC 10 (CanLII), at para. 15. A section 8 analysis consists of two steps:  (1) whether the state action constitutes a search; and if so, (2) whether the search was reasonable. R. v. Law, 2002 SCC 10 (CanLII). A search occurs when state conduct interferes with an individual’s reasonable expectation of privacy. Hunter v. Southam Inc., 1984 CanLII 33 (SCC);  R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 12; R. v. Law, 2002 SCC 10 (CanLII), at para. 15. The Doctrinal Framework for Determining a Reasonable Expectation of Privacy Section 8 applies “where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access”.  R. v. Cole, 2012 SCC 53 (CanLII), at para. 34; R. v. Spencer, 2014 SCC 43 (CanLII), at para. 16; R. v. Tessling, 2004 SCC 67 (CanLII), at para. 18.  To claim s. 8 protection, a claimant must first establish a reasonable expectation of privacy in the subject matter of the search, i.e., that the person subjectively expected it would be private and that this expectation was objectively reasonable. R. v. Edwards, 1996 CanLII 255 (SCC), at para 45; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), at pp. 159-60; Katz v. United States, 389 U.S. 347 (1967), at p. 361, per Harlan J., concurring.  Whether the claimant had a reasonable expectation of privacy must be assessed

By |October 24th, 2019|Categories: Reasonable Expectation of Privacy, Stuart O'Connell Criminal Blog|Comments Off on The Current Framework for Determining a Reasonable Expectation of Privacy: The Basics

Subjective Expectation of Privacy

 Section 8 of the Canadian Charter of Rights and Freedoms protects an individual’s reasonable expectation of privacy from unreasonable state intrusion.R. v. Tessling, 2004 SCC 67 (CanLII) at para. 18; R. v. Orlandis-Habsburgo, 2017 ONCA 649 (CanLII), 352 C.C.C. (3d) 525, at para. 37.  State conduct that infringes on an individual’s reasonable expectation of privacy will be treated as a search for the purposes of section 8. R. v. Buhay, 2003 SCC 30 (CanLII), [2003] 1 S.C.R. 631, at para. 18; R. v. Spencer, 2014 SCC 43 (CanLII), [2014] 2 S.C.R. 212, at paras. 16-17.  In considering a reasonable expectation of privacy claim, the court begins by identifying the subject matter of the claim. It then asks first, did the claimant have a subjective expectation of privacy in the subject matter, and second, if so, was that expectation objectively reasonable, having regard to the totality of the circumstances?  R. v. Spencer, 2014 SCC 43(CanLII), [2014] 2 S.C.R. 212, at para. 18. A subjective expectation of privacy is an important factor to be taken into account when deciding whether in the totality of the circumstances the claimant had a reasonable expectation of privacy.  A subjective expectation of privacy cannot, however, be a prerequisite to a finding of a reasonable expectation of privacy.  Otherwise, the protection afforded to personal privacy by s. 8 would shrink in direct correlation to the pervasiveness and notoriety of state intrusions upon personal privacy:   Tessling, at para. 42; R. v. Orlandis-Habsburgo, 2017 ONCA 649, at para. 44; R. v. Ward, 2012 ONCA 660 (CanLII), at paras. 86-87. Section 8 protects the privacy interests that the citizen subjectively believes ought to be respected by the government and that society is prepared to

By |February 7th, 2018|Categories: Reasonable Expectation of Privacy, Stuart O'Connell Criminal Blog|Comments Off on Subjective Expectation of Privacy

Vindicated Charter Claimant or Very Privileged Visitor?

R. v. Edwards, 1996 CanLII 255 (SCC) is accepted authority for the proposition that whether a claimant possesses a reasonable expectation of privacy determines whether the claimant has legal standing to challenge the search/seizure under section 8 of the Canadian Charter of Rights and Freedoms.Identifying the type of privacy interest that may be at stake from among—territorial, informational, personal—potentially allows courts to focus on different privacy values engaged in differing circumstances.However, while the distinction between personal, territorial and informational privacy provides useful analytical tools, in a given case, the privacy interest may overlap the categories.   R. v. Tessling R. v. Edward also provides us with the standard legal test for determining a reasonable expectation of privacy situated in territorial/spatial interests. In R. v. Henry, 2016 ONCA 873, the Court of Appeal for Ontario agreed with the conclusion of the trial judge that the accused did not have standing under section 8 of the Charter to challenge the police search of a home·         In which he was not the tenant, ·         did not have his own house key, ·         lived elsewhere,·         used another address for mail, and ·         was not present when the search took place,·         further, the accused did not testify on the voir dire about any privacy interest he might have in relation to the subject property or its contents (a fact which may be relevant to (though is not determinative of) whether the accused possessed a subjective expectation of privacy in the home).The trial judge, in applying the Edward’s framework for reasonable expectation of privacy concluded thatThe cumulative effect of all the evidence leads me to conclude that Mr. Henry was a very privileged visitor. Mr. Henry has provided no evidence to indicate that he