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Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Objective Expectation
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. Elementary Teachers Federation of Ontario v. York Region District School Board
In Elementary Teachers Federation of Ontario v. York Region District School Board (Ont CA, 2022) the Court of Appeal considered Charter basics of the reasonable expectation of privacy:The reasonable expectation of privacy
General principles
[46] The principles governing freedom from unreasonable search and seizure are well established. Whether a person has a reasonable expectation of privacy is a normative question: it requires the evaluation of a person’s legitimate interests to determine whether they should be given priority over competing interests. It is not a matter of describing what a person’s expectations are or predicting what they would be. The determination is necessarily a value-laden inquiry that is conducted in fact-specific circumstances.
[47] In R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, the Supreme Court instructed that a reasonable expectation of privacy is to be determined having regard to the “totality of circumstances”. The following questions are relevant:
1. What was the subject matter of the search?
2. Did the claimant have a direct interest in the subject matter?
3. Did the claimant have a subjective expectation of privacy in the subject matter?
4. If so, was the claimant’s subjective expectation of privacy objectively reasonable?
[48] The key question is whether an expectation of privacy is objectively reasonable, and that is informed by several non-exhaustive considerations:
• the location of the search;
• whether the subject matter was in public view;
• whether the subject matter was abandoned;
• whether the information was already in the hands of third parties, and if so, whether it was subject to an obligation of confidentiality;
• whether the investigative technique was intrusive in relation to the privacy interest;
• whether the investigative technique itself was objectively unreasonable; and
• whether the information exposed any intimate details of the claimant’s lifestyle, or information of a biographical nature.
See R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 32. . R. v. Campbell [text messages]
In R. v. Campbell (SCC, 2024) the Supreme Court of Canada dismissed a criminal appeal, this from a dismissal of an Ontario Court of Appeal, and that from a trial judge's finding that convicted the defendant "of trafficking and possession offences under the CDSA and sentenced him to a term of imprisonment".
Here the engages in a Charter s.8 'reasonable expectation of privacy' inquiry:(2) Application
[40] I agree with the Crown that this Court has held that there is no “automatic” rule of standing for text messages. As McLachlin C.J. recognized in Marakah, text message conversations “can, in some circumstances, attract a reasonable expectation of privacy”, but this “does not lead inexorably to the conclusion that an exchange of electronic messages will always attract a reasonable expectation of privacy” (para. 5 (emphasis in original)). Whether an individual has a reasonable expectation of privacy in a text message conversation must be assessed based on the totality of the circumstances in each case.
....
(a) What Was the Subject Matter of the Alleged Search?
[42] When the state examines text messages, the subject matter of the alleged search is properly characterized as “the electronic conversation between two or more people” (Marakah, at para. 19; see also Jones, at para. 14; R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, at para. 5). As noted in Marakah, “[t]his includes the existence of the conversation, the identities of the participants, the information shared, and any inferences about associations and activities that can be drawn from that information” (para. 20).
[43] Here, the subject matter of the alleged search was Mr. Campbell’s text message conversation with who he believed was Mr. Gammie.
(b) Did Mr. Campbell Have a Direct Interest in the Subject Matter?
[44] The Crown does not dispute that Mr. Campbell had a direct interest in his text message conversation. He participated in the conversation and wrote several of the texts at issue (see Marakah, at para. 21; Jones, at para. 15).
(c) Did Mr. Campbell Have a Subjective Expectation of Privacy in the Subject Matter?
[45] A claimant’s burden of establishing a subjective expectation of privacy in the subject matter of the alleged search “is not ‘a high hurdle’” (Marakah, at para. 22, quoting R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 37; see also Jones, at para. 20). The necessary evidentiary foundation is “modest”, reflecting how “s. 8’s normative import transcends an individual claimant’s subjective expectations” (Jones, at para. 21). “A subjective expectation of privacy can be presumed or inferred in the circumstances in the absence of the claimant’s testimony or admission at the voir dire” (para. 21).
....
(d) Was Mr. Campbell’s Subjective Expectation of Privacy Objectively Reasonable?
[47] In determining whether a subjective expectation of privacy is objectively reasonable, courts must employ an approach that is both normative and content-neutral. Several interveners urge this Court to affirm these basic postulates of the s. 8 analysis. I agree that it is useful to do so.
(i) Section 8 Requires a Normative Approach
[48] Whether there is a reasonable expectation of privacy “is not a purely factual inquiry”; the inquiry “is normative rather than simply descriptive” (Spencer, at para. 18; see also Tessling, at para. 42). Although the inquiry must be sensitive to the factual context, it is inevitably laden with value judgments about the sort of free and democratic society that reasonable and informed Canadians expect to live in, based on concerns about the long-term consequences of tolerating state intrusion into individual privacy (Spencer, at para. 18; Patrick, at para. 27; Bykovets, at para. 52; see also H. Stewart, “Normative Foundations for Reasonable Expectations of Privacy” (2011), 54 S.C.L.R. (2d) 335, at pp. 342-47; S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (3rd ed. 2022), at ¶3.38).
[49] The normative approach to s. 8 “demands we take a broad, functional approach to the subject matter of the search and that we focus on its potential to reveal personal or biographical core information” (Bykovets, at para. 7 (emphasis in original), citing Marakah, at para. 32; see also R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 28; Tessling, at para. 42; Spencer, at para. 18; Stewart, at pp. 335 and 342-43).
(ii) The Approach to Section 8 Must Also Be Content-Neutral
[50] It is also settled that “the s. 8 analysis must be content-neutral” (Marakah, at para. 48). Thus, “the fruits of a search cannot be used to justify an unreasonable privacy violation” (para. 48). This Court’s precedents on the content-neutral approach hold that people do not deserve lesser privacy protection under s. 8 of the Charter because they were engaged in criminal activity at the time of the search or seizure.
[51] A leading authority on the content-neutral approach to s. 8 is R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36. This Court held that the accused had a reasonable expectation of privacy in a hotel room in which the police had installed a video camera without judicial authorization during an investigation of a “floating” gaming house. The Court emphasized that whether a person has a reasonable expectation of privacy “must be framed in broad and neutral terms” (p. 50). The question is not “whether persons who engage in illegal activity behind the locked door of a hotel room have a reasonable expectation of privacy” (a content-driven approach), but rather “whether in a society such as ours persons who retire to a hotel room and close the door behind them have a reasonable expectation of privacy” (a content-neutral approach) (p. 50).
[52] Under the content-neutral approach to s. 8, the existence of a reasonable expectation of privacy does not turn on “the legal or illegal nature of the items sought” (Spencer, at para. 36; see also Reeves, at para. 28; Patrick, at para. 32; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 39; D. Stuart, Charter Justice in Canadian Criminal Law (7th ed. 2018), at p. 307; Penney, Rondinelli and Stribopoulos, at ¶3.37). The question under s. 8 “is not whether the claimant broke the law, but rather whether the police exceeded the limits of the state’s authority” (Reeves, at para. 2).
(iii) Mr. Campbell’s Subjective Expectation of Privacy Was Objectively Reasonable
[53] There is no closed or definitive list of factors relevant to whether a claimant’s subjective expectation of privacy in the subject matter of a search is objectively reasonable (Bykovets, at para. 45; Cole, at para. 45; Marakah, at para. 24). The relevant factors include, but are not limited to:(i) whether the information would tend to reveal intimate or biographical details of the lifestyle and personal choices of the individual subject to the alleged search;
(ii) the place where the alleged search took place;
(iii) whether the subject matter of the alleged search was in public view;
(iv) whether the subject matter had been abandoned;
(v) whether the information was already in the hands of third parties, and if so, whether it was subject to an obligation of confidentiality;
(vi) whether the police technique was intrusive in relation to the privacy interest;
(vii) whether the individual was present at the time of the alleged search;
(viii) the possession, control, ownership, and historical use of the property or place said to have been searched; and
(ix) the ability to regulate access to the place of the search, including the right to admit or exclude others from the place (Plant, at p. 293; Tessling, at para. 32; Edwards, at para. 45). [54] The parties focussed their submissions before this Court on three factors: (1) the private nature of the subject matter; (2) the intrusiveness of the police technique in relation to the privacy interest; and (3) the level of control over the information.
1. The Private Nature of the Subject Matter
[55] The private nature of the subject matter is a critical factor in establishing a reasonable expectation of privacy. The purpose of s. 8 is “to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state” (Plant, at p. 293; see also Marakah, at para. 31; Bykovets, at para. 51). As this Court has recognized, “all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit” (Dyment, at p. 429, quoting the Task Force established jointly by the Department of Communications/Department of Justice, Privacy and Computers (1972), at p. 13; see also Spencer, at para. 40; Jones, at para. 39; Tessling, at para. 23). In this vein, s. 8 of the Charter has been described as protecting “informational self-determination” (Jones, at para. 39).
[56] In keeping with the normative, content-neutral approach to s. 8, a court must focus on “‘whether people generally have a privacy interest’ in the subject matter of the state’s search” (Bykovets, at para. 53, quoting Patrick, at para. 32). The question is whether the subject matter of the search at issue has the potential or tendency to reveal private information about the claimant (Marakah, at para. 31).
[57] With respect to text messages in particular, “the focus is not on the actual contents of the messages the police have seized, but rather on the potential of a given electronic conversation to reveal personal or biographical information”; the focus is on whether the participants in the conversation “have a reasonable expectation of privacy in its contents, whatever they may be” (Marakah, at para. 32). The protection of s. 8 includes “information which tends to reveal intimate details of the lifestyle and personal choices of the individual” (para. 32, quoting Plant, at p. 293).
[58] This Court has recognized that few if any types of conversation or communication can “promis[e] more privacy than text messaging. There is no more discreet form of correspondence” (Marakah, at para. 35; see also TELUS Communications, at para. 1). “Electronic conversations can allow people to communicate details about their activities, their relationships, and even their identities that they would never reveal to the world at large, and to enjoy portable privacy in doing so” (Marakah, at para. 36).
....
2. Intrusiveness of the Police Technique in Relation to the Privacy Interest
[62] The intrusiveness of the police technique in relation to the privacy interest at issue can be important in assessing whether a claimant’s subjective expectation of privacy is objectively reasonable (Tessling, at paras. 32 and 50; Plant, at p. 295). This is a distinct consideration from whether the police acted lawfully, which is relevant to whether the state conduct was “unreasonable” at the second stage of the s. 8 inquiry (Edwards, at para. 33).
....
3. Control Over the Information
....
[66] .... As McLachlin C.J. emphasized in Marakah, “control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest” (para. 38; see also Reeves, at para. 37). “[A] person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it” (Marakah, at para. 41; see also para. 68). Sharing control of the information at issue may diminish without necessarily eliminating a person’s reasonable expectation of privacy. As a result, text message conversations may be protected by a “zone of privacy” that extends beyond one’s own mobile device to the recipient of the message, even when “one shares private information with others” (para. 37).
....
[68] The relevant question under s. 8 is not whether the individual reasonably expected the subject matter of the search to remain private from just anybody; what matters is whether they reasonably expected it would remain private from state intrusion (R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at p. 46; Wong, at pp. 43-44 and 47-48; Plant, at p. 291; Tessling, at para. 18; Marakah, at paras. 40-45). The “zone of privacy” protected by s. 8 of the Charter involves the right to keep “personal information . . . safe from state intrusion” (Marakah, at para. 37). In my view, in all the circumstances, Mr. Campbell had a reasonable expectation of privacy from state intrusion into his text message conversation.
....
[78] .... In my view, Marakah remains the governing authority on when a text message conversation attracts a reasonable expectation of privacy under s. 8. It is thus not necessary to decide whether Mills is properly characterized as creating an “exception” to Marakah or as departing from the content‑neutral approach to s. 8 of the Charter. . R. v. Hoang [pole cameras]
In R. v. Hoang (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal against convictions under the Controlled Drugs and Substances Act, here involving a Charter s.8 search and seizure application regarding the use of a 'pole camera':[19] The application judge found that the use of the pole camera, on public property and capturing only the outside area of the appellant’s residence, was not an illegal search.[2]
[20] Applying the test set out in R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 32, the application judge held that there was no reasonable expectation of privacy in the circumstances. The recordings, although surreptitiously made, were taken from a device situated on public property, did not record audio, and captured activity at the front of the house that was visible to the public eye.
[21] Although the appellant had a direct interest in the subject matter of the recording, there was no evidence that he had a subjective expectation of privacy in the subject matter of the recording. Even if he had asserted a subjective expectation of privacy, the application judge held that the expectation was highly diminished given the nature of the recordings. They captured only what was “plain view” in front of his home, did not use any enhanced recording devices or tools, and did not capture any core biographical information.
[22] The application judge distinguished this from cases involving recordings of common areas that attracted a higher expectation of privacy, such as a common area within a private condominium building, or the enclosed backyard of a private home: see e.g., R. v. Yu, 2019 ONCA 942, 383 C.C.C. (3d) 260, leave to appeal refused, R. v. Mai, [2020] S.C.C.A. No. 38; R. v. Wong, 2017 BCSC 306.
....
(1) The application judge did not err in finding that the use of the pole camera was not a search under s. 8 of the Charter
[36] The Supreme Court of Canada has recently summarized the law on s. 8 in R. v. Bykovets, 2024 SCC 6, at paras. 30-31:To establish a breach of s. 8, a claimant must show there was a search or seizure, and that the search or seizure was unreasonable ...
A search occurs where the state invades a reasonable expectation of privacy. An expectation of privacy is reasonable where the public’s interest in being left alone by the government outweighs the government’s interest in intruding on the individual’s privacy to advance its goals, notably those of law enforcement. Courts analyze an expectation of privacy by considering many interrelated by often competing factors, which can be grouped together under four categories: (1) the subject matter of the search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy; and (4) whether the subjective expectation of privacy was objectively reasonable. [Citations omitted.] [37] See also Tessling, at para. 32.
[38] This case concerns the appellant’s expectation of privacy of information, described in Tessling, at para. 23, as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” (quoting A. F. Westin, Privacy and Freedom (1970), at p. 7).
[39] Like in Bykovets, in this case there was no real dispute that the appellant had an interest in the subject matter of the surveillance and a subjective expectation of privacy over the driveway and front entrance to his house. The core issue was whether his expectation of privacy in the subject matter of the recording was objectively reasonable.
[40] In Bykovets, at paras. 37-43, the Supreme Court warned against an unduly narrow description of the subject matter of the search. The court stated that the description should take a broad and functional view of the subject matter, examining not only the information itself but also how it may support inferences in relation to other personal information. In that case, the court held that a reasonable expectation of privacy existed with respect to IP addresses, which allowed whoever obtained such an address to collect a user’s Internet activity.
[41] In this case, the pole camera was pointed at the appellant’s house, monitoring and recording everyone who came and went at all times of the day for a period of 8 days between July 9-17, 2018. Police then summarized the surveillance information so as to document who was coming and going from the house, their licence plate and car model, the time and date they were present and what they were doing. The application judge concluded that “the recordings, although surreptitiously made, were taken from a device situated on public property, did not record audio, and captured activities and traffic (both pedestrian and vehicular) at the front of the house, visible to the public eye.”
[42] The application judge found that there was no objective expectation of privacy over this public space. She based this finding on the existing case law, and distinguished the circumstances before her from cases where similar surveillance cameras captured common areas in a private condominium building (Yu, at para. 26), or the backyard of a private home bordered by trees, retaining walls and a fence preventing a public view of the backyard area (Wong, at para. 33).
[43] The appellant does not contend that the application judge erred in her application of the Tessling factors in light of the existing case law. Rather, the appellant argues that the approach to the expectation of privacy in the wake of technological advances such as pole cameras should evolve. As the appellant explains in his factum:A pole camera has a Big Brother undertone to it. Undertone that becomes the very melody when you consider the contemporary availability of ubiquitous wireless networks and increased availability of miniature devices at nominal costs as well as the massive digital storage media now available. All this means entire streets, neighborhoods, cities could be continuously recorded. Unlimited amounts of information about what its citizens are up to could be gathered by the state authorities. The pole camera is truly “the camel’s nose under the tent.” [44] According to the appellant, while his driveway and front of the house were visible to the public, this does not mean that he had no reasonable expectation of privacy over that space from technologically enhanced 24/7 surveillance. In short, he had a “right to be left alone.”
[45] The appellant referred approvingly to the Fourth Amendment jurisprudence from the United States which has recognized the long-term use of pole camera surveillance as a search for purposes of the U.S. constitutional protection from unlawful search and seizure. In United States v. Moore-Bush, 36 F.4th 320 (1st Cir. 2022), pole camera surveillance lasting eight months was found to constitute a search for purposes of the U.S. Fourth Amendment analysis:Mindful of the brave new world that the routine use of such all-encompassing, long-term video surveillance of the front curtilage of a home could bring about, we are convinced that the government does conduct a search within the meaning of the Fourth Amendment when it accesses the record that it creates through surveillance of that kind ... . [46] As a general proposition, it may well be that pole camera surveillance could give rise to an objective expectation of privacy over the subject matter of the recording within the s. 8 Charter analysis, based on its duration, the scope and nature of its surveillance, the basis for its placement or because of other contextual or technological factors. This general proposition stems from the broad and functional view of the subject matter of such a recording, which could potentially capture information about an accused's comings and goings as well as who they associate with and what activities they take part in. In the circumstances of this case, however, where the pole camera captured only the public space that an individual police investigator would have seen from the same distance, without any additional capture of sound or close-up camera angles, and for a limited period of time, such broader concerns do not arise.
[47] I see no error in the application judge’s analysis of the pole camera. She carefully considered the Tessling factors and applied them to the facts before her. As the application judge found, if there was any expectation of privacy by the appellant over the public space in front of the house captured by the pole camera, it was “highly diminished” and did not constitute a search for purposes of s. 8 of the Charter.
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