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Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Evidence. R. v. Singer [meaning of 'search']
In R. v. Singer (SCC, 2026) the Supreme Court of Canada allowed a Crown appeal, this brought against a Saskatchewan CA decision which "acquitted him of failing or refusing to comply with a demand to provide a breath sample".
Here the court considers what constitutes a 'search' within the meaning of Charter s.8 ['search and seizure']:A. Did Any of the Police Conduct Constitute a “Search” Under Section 8 of the Charter?
[35] Section 8 provides that “[e]veryone has the right to be secure against unreasonable search or seizure.” The purpose of this guarantee is “to protect individuals from unjustified state intrusions upon their privacy” (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 160).
[36] Whether a claimant has a reasonable expectation of privacy is assessed based on the “totality of the circumstances” (R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 10). The inquiry is both content-neutral and normative, driven by s. 8’s purpose of protecting individuals from unjustified state intrusions onto their privacy, no matter what evidence may be uncovered as a result (Hunter, at p. 160; see also R. v. Campbell, 2024 SCC 42, at para. 47; R. v. Mulligan (2000), 2000 CanLII 5625 (ON CA), 142 C.C.C. (3d) 14 (Ont. C.A.), at para. 34). Section 8 is concerned with preventing state intrusions on an individual’s reasonable expectation of privacy, not with validating them after the fact.
[37] The common law traditionally viewed privacy in territorial terms. It recognized that a person has a high expectation of privacy in their home, exemplified in the famous statement in Semayne’s Case (1604), 5 Co. Rep. 91a, 77 E.R. 194, at p. 195, that “the house of every one is to him as his castle and fortress” (cited in Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, at pp. 742-43; see also R. v. Stairs, 2022 SCC 11, [2022] 1 S.C.R. 169, at para. 49). The idea of territorial privacy has since developed “into a more nuanced hierarchy” that protects privacy in the home as the most protected area, but also protects in “diluted measure” the perimeter space around the home (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 22). In addition, an individual has a reasonable, though diminished, expectation of privacy in a private motor vehicle (R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, at p. 533; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615; Tessling, at para. 22). Thus, an individual has a reasonable expectation of privacy in their home, its perimeter, and in a vehicle in the driveway of their property.
[38] It is also settled that “not every investigatory technique used by the police is a ‘search’ within the meaning of s. 8” (Evans, at para. 10). A police investigatory technique is a search only if it intrudes upon a person’s reasonable expectation of privacy (para. 11; Tessling, at para. 18).
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