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Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Subject-Matter
MORE CASES
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. 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.
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(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).
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(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).
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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).
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3. Control Over the Information
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[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).
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[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.
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[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. Bykovets [IP addresses]
In R. v. Bykovets (SCC, 2024) the Supreme Court of Canada considers an important case on Charter s.8 ["unreasonable search or seizure"] and the internet, specifically the police requesting IP addresses used in certain credit card transactions from third parties without a warrant:I. Introduction
[1] The Internet has shifted much of the human experience from physical spaces to cyberspace. It has grown to encompass public squares, libraries, markets, banks, theatres, and concert halls, becoming the most expansive cultural artifact our species has ever created. Along with our shopping mall and our town hall, for many of us, the Internet has become a constant companion, through which we confide our hopes, aspirations, and fears. Individuals use the Internet not only to find recipes, pay bills, or get directions, but also to explore their sexualities, to map out their futures, and to find love.
[2] These new realities have forced courts to grapple with “a host of new and challenging questions about privacy” (R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 1). In Spencer, this Court determined that a reasonable expectation of privacy attaches to subscriber information — the name, address, and contact information — associated with an individual Internet Protocol (IP) address. A request for this information by the state is a “search” under s. 8 of the Canadian Charter of Rights and Freedoms.
[3] This appeal asks whether an IP address itself attracts a reasonable expectation of privacy. The answer must be yes.
[4] An IP address is a unique identification number. IP addresses identify Internet-connected activity and enable the transfer of information from one source to another. They are necessary to access the Internet. An IP address identifies the source of every online activity and connects that activity (through a modem) to a specific location. And an Internet Service Provider (ISP) keeps track of the subscriber information that attaches to each IP address.
[5] But because IP addresses consist of numbers that can usually be changed by an ISP without notice, the Crown submits — and the majority of the Court of Appeal agreed — that an IP address does not attract a reasonable expectation of privacy. Here, the Crown contends that police were after no more than the collection of numbers that would ultimately allow them to obtain the production order contemplated by Spencer. Thus, the Crown reasons, the state did not infringe on the appellant’s right to privacy because Spencer sufficiently protected his personal information.
[6] I respectfully disagree. This analysis runs counter to this Court’s jurisprudence under s. 8 of the Charter. We have never approached privacy piecemeal, based on police’s stated intention to use the information they gather in only one way. The right against unreasonable search and seizure, like all Charter rights, must receive a broad and purposive interpretation, reflective of its constitutional source. Since Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, we have held that s. 8 seeks to prevent breaches of privacy, rather than to condemn or condone breaches based on the state’s ultimate use of that information. Privacy, once breached, cannot be restored.
[7] To that end, our Court has applied a normative standard to reasonable expectations of privacy. We have defined s. 8 in terms of what privacy should be — in a free, democratic, and open society — balancing the individual’s right to be left alone against the community’s insistence on protection. This normative standard 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 (R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 32).
[8] Informational privacy is particularly critical — and particularly challenging. Our jurisprudence recognizes that computers are unique and present privacy risks that differ from s. 8’s traditional objects. Thus, this Court has determined that s. 8 generally prevents police from seizing a computer without a warrant — even though the device itself provides no information without judicial permission to search its contents — because seizing the computer gives the state the means through which to access its content (R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 34).
[9] Casting the subject matter of this search as an abstract string of numbers used solely to obtain a Spencer warrant goes against these precedents. IP addresses are not just meaningless numbers. Rather, as the link that connects Internet activity to a specific location, IP addresses may betray deeply personal information — including the identity of the device’s user — without ever triggering a warrant requirement. The specific online activity associated with the state’s search can itself tend to reveal highly private information. Correlated with other online information associated with that IP address, such as that volunteered by private companies or otherwise collected by the state, an IP address can reveal a range of highly personal online activity. And when associated with the profiles created and maintained by private third parties, the privacy risks associated with IP addresses rise exponentially. The information collected, aggregated and analyzed by these third parties lets them catalogue our most intimate biographical information. Viewed normatively and in context, an IP address is the first digital breadcrumb that can lead the state on the trail of an individual’s Internet activity. It may betray personal information long before a Spencer warrant is sought.
[10] And the Internet has concentrated this mass of information with private third parties operating beyond the Charter’s reach. In this way, the Internet has fundamentally altered the topography of informational privacy under the Charter by introducing third-party mediators between the individual and the state — mediators that are not themselves subject to the Charter. Private corporations respond to frequent requests by law enforcement and can volunteer all activity associated with the requested IP address. Private corporate citizens can volunteer granular profiles of an individual user’s Internet activity over days, weeks, or months without ever coming under the aegis of the Charter. This information can strike at the heart of a user’s biographical core and can ultimately be linked back to a user’s identity, with or without a Spencer warrant. It is a deeply intrusive invasion of privacy.
[11] Weighed against society’s legitimate interest in privacy is society’s legitimate interest in “[s]afety, security and the suppression of crime” (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 17). While the right to be left alone must keep pace with technological developments, the way in which crime is committed and investigated also evolves. Easy access to the Internet and user anonymity combine to facilitate the commission of crime and challenge effective law enforcement. Clearly, the particularly insidious nature of much online crime, including child pornography and luring, presents serious and pressing social harm. Police must have the tools to investigate these crimes. And when an IP address (or subscriber information) is clearly linked to a crime — as it obviously can be for child pornography or luring — prior judicial authorization is readily available. A production order for an IP address would require little additional information to what police must already provide for a Spencer warrant. Both society’s interest in effective law enforcement and its interest in protecting the informational privacy rights of all Canadians must be respected and balanced.
[12] On balance, the burden imposed on the state by recognizing a reasonable expectation of privacy in IP addresses is not onerous. This recognition adds another step to criminal investigations by requiring that the state show grounds to intrude on privacy online. But in the age of telewarrants, this hurdle is easily overcome where the police seek the IP address in the investigation of a criminal offence. Section 8 protection would let police pursue the Internet activity related to their law enforcement goals while barring them from freely seeking the IP address associated with online activity not related to the investigation. Judicial oversight would also remove the decision of whether to reveal information — and how much to reveal — from private corporations and return it to the purview of the Charter.
[13] As a crucial component inherent in the structure of the Internet, an IP address is the key that can lead the state through the maze of a user’s Internet activity and is the link through which intermediaries can volunteer that user’s information to the state. Thus, s. 8 ought to protect IP addresses. Doing so would safeguard the first “digital breadcrumb” and shroud the trail of an Internet user’s journey through cyberspace; it would further s. 8’s purpose of preventing potential infringements of privacy rather than circumscribe its scope according to the state’s stated intentions about how it will use this key.
[14] I would allow the appeal. There is a reasonable expectation of privacy in an IP address. A request by the state for an IP address constitutes a search.
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IV. Analysis
[28] This appeal raises a single issue: Does a reasonable expectation of privacy attach to an IP address? In my view, the answer is yes. As I will explain, an IP address is the crucial link between an Internet user and their online activity. Thus, the subject matter of this search was the information these IP addresses could reveal about specific Internet users including, ultimately, their identity. To find that s. 8 does not extend to an IP address because police collected it only to obtain a Spencer warrant ignores the information it can reveal without a warrant. Such an analysis reflects piecemeal reasoning based on how the state intends to use the information in a specific case, contrary to the broad, purposive approach required by s. 8’s constitutional status. Nor can the analysis be limited to the privacy interests affected by what the IP address can reveal on its own, without consideration of what it can reveal in combination with other available information, particularly from third-party websites. Viewed normatively, an IP address is the key to unlocking a user’s Internet activity and, ultimately, their identity, such that it attracts a reasonable expectation of privacy. If s. 8 is to meaningfully protect the online privacy of Canadians in today’s overwhelmingly digital world, it must protect their IP addresses. . R. v. Salmon [third party property manager authorizes release of videotape of common areas]
In R. v. Salmon (Ont CA, 2024) the Court of Appeal dismissed an appeal against a trial judge's finding that there was no Charter s.8 ['Search and Seizure'] violation.
Here the court considers the 'reasonable expectation of privacy' doctrine, here as it bears on a "“senior property administrator” authorizing a "security guard to turn over CCTV footage from the building elevators and elevator vestibule."":[18] The appellant contends that in R. v. Yu, 2019 ONCA 942, 383 C.C.C. (3d) 260, leave to appeal refused, [2020] S.C.C.A. No. 38, this court recognized a “narrow carve-out” to the Reeves[2] expectation of privacy that permits a condo board to waive its residents’ privacy interests. He says that this carve-out must be interpreted narrowly, and that only a building employee who has the approval of the board of directors, as the persons authorized under the Condominium Act, 1998, S.O. 1998, c. 19, may waive a resident’s privacy interest. The appellant contends that Mr. McKensie Stone acknowledged in the voir dire that he did not think he had authority to release the CCTV footage, and there was no evidence that the condominium board had in fact approved its turnover to the police. When pressed by the panel to articulate exactly what was required of the police when, as here, a person with apparent authority co-operated with their request, the appellant’s counsel asserted that the police would have to ascertain in each case whether the condominium board in fact had authorized the release of the information they requested.
[19] I reject this argument. First, it proposes too narrow a reading of Yu. Second, it was a reasonable interpretation of the evidence as a whole that the building employees had the requisite authority to provide the requested information to the police, including the CCTV footage.
[20] Yu recognizes that the ability of a condo board and property management to co-operate with a police investigation by providing access to common areas of the building and other information is relevant to two issues: first, it will attenuate a resident’s reasonable expectation of privacy in common areas of the building; and second, it can provide lawful authority for a warrantless search and seizure: at paras. 72-75.
[21] It is not a question of “waiver” of a resident’s privacy interests, as suggested by the appellant, but whether an authorized person consents to entry and/or seizure on behalf of the residents of the building as a collective. In Yu, Tulloch J.A. (as he then was) referred to the duty of a condominium corporation under the Condominium Act to administer the common elements and to manage the property of the corporation on behalf of the owners, and he noted that it is the “condominium board and, by extension, property management” that is entrusted with security of the building and the residents: at paras. 91-92.
[22] Further, and contrary to the appellant’s argument, Yu does not require evidence in each case that the condominium board specifically authorized the turnover of information to the police. At para. 131, Tulloch J.A. concluded: “the board and property management have valid authority to cooperate with the police and to consent on behalf of the residents to allow police entry” (emphasis added). The case recognizes as “property management” the persons who, by reason of their position, have the authority and ability to regulate access to the building: at para. 93. . R. v. Nguyen
In R. v. Nguyen (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here from convictions for "possessing cocaine and methamphetamine for the purpose of trafficking and of possessing the proceeds of crime".
The court considered a Charter s.8 'reasonable expectation of privacy' issue, here regarding videotaping in common areas of apartment buildings:[25] There is a substantial body of case law on the reasonable expectation of privacy in shared areas of multi-unit dwellings. In R. v. Saciragic, 2017 ONCA 91, at paras. 32-34, leave to appeal refused, [2017] S.C.C.A. No. 106, this court concluded that the accused had no reasonable expectation that his movements to and from his unit – located in a relatively large apartment building equipped with video surveillance – would not be observed by others, including the police. In R. v. Yu, 2019 ONCA 942, 151 O.R. (3d) 244, leave to appeal refused, [2020] S.C.C.A. No. 38, when addressing an underground condominium parking garage, this court held at para. 79: “to put it in terms of the factors set out in [R. v. Spencer, 2014 SCC 43, 375 D.L.R. (4th) 255], unit owners could not have an objectively reasonable expectation of privacy in a garage shared with so many other owners and over which they had very little control”. And in R. v. Salmon, 2024 ONCA 697, 443 C.C.C. (3d) 110, at para. 39, this court reaffirmed the general principle that underground parking garages are common areas where a resident’s right to a reasonable expectation of privacy would not ordinarily attach.
[26] In line with this jurisprudence, and after applying the guiding principles to the facts as he found them, the application judge concluded that 1) anyone could access the public parking area, and 2) from there, anyone could see into the residential parking area. There is nothing unique about this case that sets it apart from Salmon and Yu.
[27] In my view, we must resist the appellant’s attempt to broaden the subject matter of this search to include intimate details of what was happening inside his apartment. The application judge found that the officers’ objective in making observations from the public parking area was to confirm the appellant’s presence at that location, his movements to and from that place, and who he was associating with. The police were not pursuing more intimate details, nor would what they were pursuing tend to reveal any.
[28] The appellant contends that observations in the parking area could reveal what was happening inside his home, and that the police specifically sought to determine whether his unit was being used as a stash house. While s. 8 requires us to consider what the subject matter of the search “tends to reveal” (Bykovets, at para. 53; Spencer, at para. 27), the analysis cannot rely on speculative inferences. In this case, it is difficult to see how observations in the underground parking area could be used to infer what goes on in an at-the-time unknown unit a considerable distance away. This court noted in Saciragic, at para. 30, that the use of an elevator did not yield any information about the nature of the activities inside a unit. Similarly, in this case, the use of an underground parking garage could not be expected to reveal much. I reject the appellant’s suggestion that this appeal is analogous to R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, where the police attempted to eavesdrop by hiding in the stairwell near a unit: see also R. v. Roy, 2020 ONCA 18, 386 C.C.C. (3d) 183, at paras. 15-16.
[29] I also reject appellant counsel’s characterization of the police activities in this case as “intensive scrutiny”, “extensive surveillance”, and “prolonged” tracking. The police activities did not reach this level. It appears as though the entire investigation lasted about six hours; of those six hours the appellant only appeared around the last two hours; and the video recordings were less than two minutes in total. As a comparison, in R. v. Hoang, 2024 ONCA 361, when confronted with a situation where the police recorded “everyone who came and went at all times of the day for a period of 8 days” (at para. 41), this court held that:As a general proposition, it may well be that police 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. [Emphasis added.] [30] The act of video recording does not create an expectation of privacy where one does not already exist and many of the cases the appellant relies upon in this regard are not helpful. For example, in both R. v. Duarte (1990), 1990 CanLII 150 (SCC), 71 O.R. (2d) 575 (S.C.C.), and R. v. Wong (1990), 1990 CanLII 56 (SCC), 60 C.C.C. (3d) 460 (S.C.C.), where the Supreme Court held that the recording of private communications and activities was more intrusive than just listening or watching, the recordings engaged s. 8 because the communications and actions in question were private. Here, the investigators did not observe or record anything that was private. The appellant was simply observed walking back and forth between an elevator and his car in a parking lot and loading bags into vehicles.
[31] Finally, the appellant places undue emphasis on the fact the police did not pay for a parking ticket. I accept that, by not paying for and displaying a parking ticket, the officers were likely trespassing. In this regard, the application judge erred by finding that the police had “an implied licence … to be on private property for investigative purposes where the public has a general invitation to be present.” The general invitation to the public was conditioned on the payment of a parking ticket, which the officers did not comply with. Nor does the doctrine of implied licence apply: The purpose of the officers’ entry onto the premises was not to communicate with, or to protect the interests of, the owner or the occupant; rather, it was to surveil one of the occupants: White, at paras. 56-57; R. v. Mulligan (2000), 2000 CanLII 5625 (ON CA), 142 C.C.C. (3d) 14 (Ont. C.A.), at para. 24.
[32] Nevertheless, the police conduct did not result in a s. 8 breach. Although the requirement to purchase a ticket and the limited use of the space for parking could reduce foot traffic and the length of anyone’s stay, the garage was shared with other buildings in a busy area of Toronto, with around 50 public parking spots on the same level. Given the nature of the space and the manner of the surveillance, what the officers observed while in the parking area could be observed by anyone who happened to be in the parking garage: see Roy, at paras. 15-18.
[33] In these circumstances, whether the observations were made after paying for a parking ticket or not has no material bearing on the reasonableness of the appellant’s expectation of privacy. What is important at this stage of the analysis is not whether the police were trespassing on common property, but their access to the appellant’s private activities and communications. Viewed in context, the physical intrusion or trespass by the police was peripheral to the s. 8 analysis: White, at para. 16; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at paras. 41-45.
[34] I see no error in the application judge’s ultimate conclusion that the appellant did not have a reasonable expectation of privacy when in the multi-condominium parking garage; a finding that sits comfortably with this court’s and the Supreme Court’s guidance on how to assess the reasonableness of a subjective expectation of privacy in similar locations.
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