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