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Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Subject-Matter (2). R. v. Lye
In R. v. Lye (Ont CA, 2026) the Ontario Court of Appeal allows a criminal appeal, here where the "trial judge denied leave to cross-examine" the affiants in a search warrant challenge.
The court considers whether the appellant had standing to argue a Charter s.8 ['search and seizure'] challenge (here regarding 'reasonable expectation of privacy'), this in the context of deciding an appeal against a denial of leave to cross-examination the affiants to a search warrant:[43] Of course, the appellant could only invoke the Charter if he had standing to do so. The question of standing is co-extensive with an inquiry into whether the appellant enjoyed a reasonable expectation of privacy in the location searched, or the information seized, such that the surveillance impinged on his constitutional rights. This question is determined by reference to the totality of circumstances, grouped into four broad 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: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; see also R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 10-12; R. v. Bykovets, 2024 SCC 6, 489 D.L.R. (4th) 1, at para. 31.
[44] In this case, the Crown took no issue with the appellant’s standing to raise a claim relating to the residence or the motor vehicle. That served as an acknowledgement that the appellant could claim a reasonable expectation of privacy. The trial judge accepted this concession in his first ruling, finding that he was “satisfied that Mr. Lye has demonstrated a reasonable expectation of privacy based on the Crown theory that he was the occupant of the condominium unit and the operator of the motor vehicle in question”.
[45] However, in the second ruling, the trial judge came to a different view, finding that the appellant had neither a subjective, nor objectively reasonable expectation of privacy in either the use of a spot in the underground parking garage, or the information acquired by police (i.e. his municipal address). The trial judge noted that it was not clear whether the appellant was an owner of the unit, a tenant or a guest. The trial judge reasoned that because “this was a 12-storey condo building with common areas” the appellant’s “comings and goings would be observed by others.” Relying on R. v. Saciragic, 2017 ONCA 91, he further found that the appellant did not have a reasonable expectation of privacy in his municipal address, which was the information gleaned by police from the surveillance.
[46] With respect, I am of the view that the trial judge erred in his assessment of the appellant’s reasonable expectation of privacy. There was a sufficient basis on which the appellant could claim a reduced, yet reasonable, expectation of privacy in the parking garage. More specifically, as I will explain, the appellant had a reasonable expectation that outsiders to the building, including police, would not gain entry or access without permission from an authorized building official.
1. The Claimant’s Interest in the Subject Matter of the Search
[47] In this case, the surveillance implicated privacy in both the place of the search – the garage – and the content of the surveillance – the observations made by the police. Hence, it impinged on two zones of privacy: territorial and informational: see Spencer, at para. 35; Tessling, at para. 24. First, entry into a garage, or viewing surveillance of a garage implicates territorial or spatial privacy: privacy in a particular location or area: see R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at pp. 428-29. The question is whether the claimant can assert a privacy interest in the place of the search: see Tessling, at para. 24. The second zone concerns informational privacy: "This notion of privacy derives from the assumption that 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. This zone is concerned with the subject matter of the search.
[48] These zones of privacy find their correlates in elements of the standing test: the place of the search, and the subject matter of the search: see Marakah, at para. 24; Tessling, at para. 32; R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para 45. I will deal with each of these in turn when discussing whether the expectation of privacy was objectively reasonable.
2. Subjective Expectation of Privacy
[49] The trial judge found that the appellant did not have a subjective expectation of privacy in the garage or his municipal address. In addressing the subjective expectation, the trial judge considered factors that are more typically reserved for the objective assessment. The appellant did not testify that he had a subjective interest, but that is by no means fatal. A subjective expectation of privacy is often established through the operation of a presumption or inference: R. v. Campbell, 2024 SCC 42, 498 D.L.R. (4th) 195, at para. 45. The burden to establish a subjective expectation of privacy does not pose a significant hurdle. There is nothing in the record in this case to suggest that the appellant did not maintain a subjective privacy interest in the location of the garage, and the information acquired by Officer Dhillon.
3. Objectively Reasonable Expectation of Privacy
[50] Of course, the subjective expectation of privacy is only one part of the constitutional equation. The subjective expectation of privacy must be one that society would view as objectively reasonable. This turns on the place of the search, the content of the information acquired (whether it engages biographical core) and the level of control over the subject matter (which is no longer a determinative factor): Marakah, at para. 24.
a. The Place of the Search: Territorial Privacy
[51] The place of the search in this case is, from a territorial perspective, the parking garage. That is the location in which the appellant’s activities were recorded by the building and ultimately observed by police. The question is whether the appellant had a reasonable expectation of privacy in a shared-use parking garage in the underground of his condominium building.
[52] Various cases have considered whether individuals can reasonably claim privacy in common areas of multi-unit buildings. There is no categorical answer to this question: R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, at para. 41; R. v. Yu, 2019 ONCA 942, 151 O.R. (3d) 244, leave to appeal refused, [2020] S.C.C.A. No. 38 at paras. 69, 81. As with many constitutional queries, it is fundamentally context and fact specific. Common areas, accessible by multiple tenants or occupants, attract less privacy than do residential units, but occupants do not lose all semblance of privacy the moment that they leave their residence. Locations such as garages, hallways, and other common areas outside of private units can attract constitutionally significant privacy interests: Yu, at para. 84. This is so even though this court has recognized that an underground parking garage is a common area to which a resident’s right to a reasonable expectation of privacy would not ordinarily attach: R. v. Salmon, 2024 ONCA 697, Yu, at paras. 78-80, and R. v. Drakes, 2009 ONCA 560, 252 O.A.C. 200, at para. 18, leave to appeal refused, [2009] S.C.C.A. No. 381. A host of factors are relevant to the determination.
[53] In one of the early cases to consider this question, White, at paras. 47-48, Huscroft J.A. observed the nuanced and highly contextual nature of this inquiry. He found that there was an expectation of privacy in the common hallway of a small building. From the stairwell, the police could overhear what was happening in the respondent’s unit. He offered that:Although the respondent did not have absolute control over access to the building, it was reasonable for him to expect that the building's security system would operate to exclude strangers, including the police, from entering the common areas of his building several times without permission or invitation and investigating at their leisure. It was reasonable for him to assume that although access to the building's storage area was not regulated, it was not open to the general public. And it was reasonable for him to assume that people would not be hiding in stairwells to observe the comings and goings and overhear the conversations and actions within his unit.
In any event, the fact that a relatively large number of people may have access to a building's common areas need not operate to eliminate a reasonable expectation of privacy. It is one thing to contemplate that neighbours and their guests, all of whom may be strangers to another resident, might be present in the common areas of a building, but another to say that a resident has no reasonable expectation of privacy as a result. An expectation of privacy may be attenuated in particular circumstances without being eliminated. [54] Since White, courts have applied various factors that bear on the question of privacy in common areas. These include: (1) degree of possession or control exercised by the claimant over the common area in question; (2) the size of the building; (3) security measures in place in the building; (4) ownership of the property; (5) whether the subject matter was in public view; (6) the intrusiveness of the police conduct; and (7) whether the information exposed intimate details of the claimant’s lifestyle or information of a biographic nature: see R. v. Unrau, 2025 ABCA 239, 449 C.C.C. (3d) 408, at para. 30; White, at para. 45; Yu, at para. 68; R. v. Boaheng, 2024 ONSC 781, 548 C.R.R. (2d) 329, at para. 96.
[55] One important factor is the extent to which the area in question is generally accessible to the public. For example, some parking garages are above ground and publicly visible, such that persons on the street can observe the area. Other garages may be underground, but have visitor parking areas that are freely accessible to the public. Visitors may have free access to the entire garage, or they may be able to observe the garage from their vantage point. If a garage can be entered by any random member of the public, at will, it will be difficult for the accused to claim that he or she expected privacy in that location: see e.g. R. v. Nguyen, 2025 ONCA 609, 6 C.R. (8th) 164, at paras. 24, 26, 34; Yu, at para. 80.
[56] The evidence in this case established that the public could not freely come and go from the underground garage as it pleased. The entrance to the building was enhanced by a fob-gated door, which also prevented general public access to the garage area. This was established through the testimony of Mr. Wickham, the defence articling student, who also testified that his requests for access to the garage, or to video surveillance of the garage, were denied because he was not a resident. This evidence was not dispositive of the privacy issue, but it did tend to rebut the notion of public access.
[57] In finding no reasonable expectation of privacy, the trial judge considered the fact that the appellant could be seen by others as he went about his business in the underground garage as it was a 12-storey building. This is a factor, but it is by no means dispositive of the privacy issue. First, privacy is not “all or nothing”. The fact that someone cannot expect complete privacy does not mean that they have lost all privacy. For constitutional purposes, the assessment depends on who is doing the looking, and why. The question is not whether an individual reasonably expected the subject matter of the search to remain private vis-à-vis the world, what matters is whether the individual reasonably expected it to remain private vis-à-vis state intrusion: R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 57; R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at p. 46; R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, at pp. 43-44, 47-48; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 291-93; Tessling, at para. 18; Marakah, at paras. 40-45.
[58] It follows that individuals can enjoy a semblance of privacy in places frequented or occupied by others, including public places: Jarvis, at para. 37. The fact that a person knows she will be observed by others, including by strangers, does not negate the right not to be subject to certain types of observations or recordings: Jarvis, at para. 61. The appellant risked being observed by other occupants of the building when he entered the garage, if other occupants happened to be present when he was. He may or may not have been aware that his activities were being monitored or recorded by video. In any event, it remains the case that the risk of being seen by an uninterested stranger is very different than the risk of being watched by a very interested police investigator. To reiterate the principle stated in White at para. 48, “[i]t is one thing to contemplate that neighbours and their guests, all of whom may be strangers to another resident, might be present in the common areas of a building, but another to say that a resident has no reasonable expectation of privacy as a result.”
[59] Third, while the appellant was unable to control access to the garage, control is no longer a definitive factor in defining the scope of privacy. The majority in Marakah clarified that privacy can exist, and persist, in the absence of control. As McLachlin C.J. emphasized at para. 38: “control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest”: see also R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 37.
[60] Fourth, a finding that there is an expectation of privacy in an underground garage does not mean that police cannot access such areas for investigative purposes. Nor does it necessarily mean that police require a warrant to enter or view video surveillance from a common area. What it does mean is that the police may require some type of lawful authority for warrantless access. Depending on the location and the information to be acquired it will usually suffice for police to obtain valid consent from an authorized building official: Yu, at paras. 70-75, 90, 94-96, 102; Salmon, at paras. 20-23. Whether a person has the authority to control access to a condo building, and to respond to police inquiries, is fundamentally a question of fact: Salmon, at para. 24; see also Yu, at paras. 98-99. To the extent that the authorities recognize the need for valid third-party consent, the law implicitly recognizes that some degree of privacy can attach to these locations.
[61] This also defines the nature of the reasonable expectation. Occupants in buildings with restricted access cannot expect that they will not be observed by others. What they can reasonably expect is that any strangers to the building – be they workmen, guests, or police investigators – will only enter if they are authorized to do so, if permission is granted by someone with the requisite authority: see e.g. Yu, at para. 87. Guests may enter with other occupants. Workmen may have to sign in and register their presence. When the strangers to the building are police, they will generally be required to obtain permission to enter by a property manager or other similarly situated official. . R. v. L.T. [recording of phone call disclosed by one party to it]
In R. v. L.T. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against "convictions for two counts of sexual assault and one count of assault with choking, contrary to ss. 271 and 267(c) of the Criminal Code".
The court considers a Charter s.8 ['search and seizure'], here regarding the criminal evidentiary use of a party-recording of a phone conversation:[64] As a result of the appellant’s concession that the police could receive the recordings without infringing his s. 8 rights, the following issue must be decided to resolve this appeal: Did the appellant have a reasonable expectation of privacy in the recordings the complainant secretly, but lawfully, made of their conversations, in circumstances where she voluntarily provided the recordings to police? If the appellant had a reasonable expectation of privacy, the court would also be called upon to decide whether the police receipt of, and decision to listen to, the recordings infringed the appellant’s s. 8 Charter rights in circumstances where the complainant volunteered the recordings, or whether it was a reasonable search applying the analysis from R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp. 277-78. However, as I conclude that the trial judge made no error in finding that the appellant did not have a reasonable expectation of privacy in the recorded conversations, it is not necessary to address the latter questions.
c. Whether s. 8 of the Charter is “engaged” turns on whether the appellant has a reasonable expectation of privacy in the subject matter of the search
[65] Before engaging in depth in the assessment of whether the appellant had a reasonable expectation of privacy in the two recordings, I address two preliminary issues.
[66] First, the Crown argues that s. 8 of the Charter is “not engaged” by the complainant voluntarily providing the recordings to the police. The Crown argues this as a distinct issue from whether the appellant has a reasonable expectation of privacy in the recordings. In making this argument, the Crown relies on the frequently cited dicta of Doherty J.A. in R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at para. 34 (as well as on several trial level decisions):I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative. On that approach, s. 8 would be engaged if a “whistleblower” took confidential documents belonging to her employer to the police to demonstrate the employer’s criminal activity. Must the police refuse to look at the documents to avoid violating the employer’s s. 8 rights? As Duarte teaches, it is one thing to say that Canadian values dictate that the state’s power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual’s private information is cloaked in the protection of s. 8 no matter how that information comes to the police. [67] Respectfully, the decisions of the Supreme Court and this court do not support the Crown’s position that there is a distinction between s. 8 being “engaged” and whether a Charter claimant has a reasonable expectation of privacy in the subject matter of a search. The Supreme Court has clearly stated that the threshold question in a s. 8 analysis is whether the claimant 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. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 10; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 34; R. v. Campbell, 2024 SCC 42, 442 C.C.C. (3d) 275, at para. 39; R. v. Bykovets, 2024 SCC 6, 433 C.C.C. (3d) 423, at para. 31; R. v. Lambert, 2023 ONCA 689, 169 O.R. (3d) 81, at paras. 54-56, 65-74, and 77.
[68] If the claimant has a reasonable expectation of privacy in the subject matter of the search, then police action in relation to the subject matter of the search engages s. 8, and the next step is the application of Collins factors – whether the search was lawfully conducted, whether the law authorizing it is reasonable, and whether the manner of search was reasonable. If the claimant does not have a reasonable expectation of privacy in the subject matter of the search, then s. 8 is not engaged.
[69] There is no other test for when s. 8 is engaged than whether the claimant has a reasonable expectation of privacy in the subject matter of the search or seizure. I do not read Orlandis-Habsburgo as suggesting otherwise. As I explain in the analysis below, the concern raised in Orlandis-Habsburgo regarding how the information came into the hands of police is a factor to be considered under the last branch of the reasonable expectation of privacy analysis – whether the subjective expectation of privacy is objectively reasonable.
d. The Scope of Duarte and Wong
[70] The second preliminary issue I address is the scope of the Supreme Court’s decisions in Duarte and Wong. I do so because, based on Duarte and Wong, the appellant places significant weight in his s. 8 argument on the fact that the conversations at issue were recorded.
[71] In my view, while the fact that the conversations were recorded is relevant to the s. 8 reasonable expectation of privacy analysis in this appeal, a review of the decisions in Duarte and Wong shows that the appellant’s submissions seek to extend those decisions beyond their intended scope.
[72] I focus in particular on Duarte because it involved audio recorded conversations. Wong extended the principles from Duarte to video surveillance.
[73] Duarte involved an investigation into drug trafficking. The investigating police forces rented an apartment which was occupied by a police informer who was working with an undercover officer. The apartment was equipped with audio-visual recording equipment installed in a wall. Prior to the installation of the recording equipment, the informer and the undercover officer consented to the interception of their conversations, pursuant to then s. 178.11(2)(a) of the Criminal Code. The accused and others attended at the apartment and discussed a cocaine transaction with the informer and the undercover officer. The conversation was recorded. At his trial, the accused challenged the admissibility of the recordings, pursuant to s. 8 of the Charter.
[74] LaForest J., writing for 6 of 7 members of the court, held that the warrantless recording of the conversations with participant consent of the informer and the police officer infringed the s. 8 rights to be free from unreasonable search and seizure. LaForest J. rejected the “risk analysis”, which posited that a person who voluntarily confides wrongdoing to another person takes the risk that that person may disclose the conversation and thus cannot have a reasonable expectation of privacy in the conversation or it being recorded. In his view, the risk that the state will make a permanent electronic recording of a conversation is a qualitatively different risk than that a co-conversationalist will disclose the conversation: Duarte, at pp. 41-49, and 54-57.
[75] Two concerns animated the decision in Duarte: (1) allowing permanent electronic recording of private conversations in the sole discretion of the state – by state agents – is not consistent with expectations of privacy in a free and democratic society; and (2) allowing such warrantless recording by state agents based on consent of a police officer or other state agent would undermine the scheme of the wiretap provisions of the Criminal Code, by subverting the requirement of prior judicial authorization.
[76] A few extracts from the reasons of LaForest J. make this point clear:The real question, as I see it, is whether our constitutional right to be secure against unreasonable search and seizure should be seen as imposing on the police the obligation to see prior judicial authorization before engaging in participant surveillance, or whether the police should be entirely free to determine whether circumstances justify recourse to participant surveillance and, having so determined, be allowed unlimited discretion in defining the scope and duration of participant surveillance. This Court is accordingly called on to decide whether the risk of warrantless surveillance may be imposed on all members of society at the sole discretion of the police. [at p. 42]
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The rationale for regulating the power of the state to record communications that their originator expects will not be intercepted by anyone other than the person intended by the originator to receive it (see definition section of Part IV.1 of the Code) has nothing to do with protecting individuals from the threat that their interlocutors will divulge communications that are meant to be private. No set of laws could immunize us from that risk. Rather, the regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.
The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. [pp. 43-44]
....
If privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself, a reasonable expectation of privacy would seem to demand that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence. [p. 46]
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In summary, the question whether to regulate participant surveillance cannot logically be made to turn on the expectations of individuals as to whether their interlocutor will betray their confidence. No justification for the arbitrary exercise of state power can be made to rest on the simple fact that persons often prove to be poor judges of whom to trust when divulging confidences or on the fact that the risk of divulgation is a given in the decision to speak to another human being. On the other hand, the question whether we should countenance participant surveillance has everything to do with the need to strike a fair balance between the right of the state to intrude on the private lives of its citizens and the right of those citizens to be left alone. [p. 49] [7] [77] The concern in Duarte about risks to the right to privacy which would result from allowing warrantless electronic surveillance based on participant consent arose from the fact that the participants giving the consent were a police officer and an informer – i.e., two state agents. In other words, the state was giving itself permission to make electronic recordings. Where the state was the participant giving consent to the interception, if a warrant were not required, unlimited and unregulated police electronic surveillance would have been permitted so long as the police could insert an officer or an informer into a conversation.
[78] My point is not that the recording of a conversation by a private individual is irrelevant to the reasonable expectation of privacy analysis. It is rather, that the recording of a conversation by a private individual without any state involvement engages different considerations and may lead to a different outcome of the reasonable expectation of privacy analysis, particularly on the issue of whether a subjective expectation is objectively reasonable.
e. Legal principles applicable to determining if a claimant has a reasonable expectation of privacy
[79] The primary purpose of s. 8 of the Charter is to protect the right of privacy from unjustified state intrusion: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 160; Campbell, at para. 36. The right to privacy is a foundational value in a free and democratic society: Campbell, at para. 37.
[80] The jurisprudence under s. 8 of the Charter seeks to balance the sometimes competing aims of personal privacy and the public interest, in particular, the public interest in law enforcement: Campbell, at para. 38; Hunter, at pp. 159-60.
[81] Courts effect this balance by assessing whether a claimant has a reasonable expectation of privacy in the subject matter of an alleged search by the state. A claimant seeking standing to argue that their rights under s. 8 were infringed must show that they subjectively expected the subject matter of the search would remain private, and that their expectation was objectively reasonable, having regard to the totality of the circumstances. In making this assessment, a court must consider four lines of inquiry: (1) the subject matter of the alleged search; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether the claimant’s subjective expectation of privacy was objectively reasonable (Campbell, at para. 39; Cole, at para. 40; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18; Bykovets, at para. 31).
[82] The issue raised in this appeal – whether a participant in an electronically preserved conversation has a reasonable expectation of privacy in the conversation in circumstances where the other party to the conversation voluntarily provides it to police when they report allegations of criminal conduct by the claimant – has not been decided by the Supreme Court. Although the court has accepted in different contexts that a claimant may maintain a reasonable expectation of privacy, vis-à-vis the state, in electronically preserved conversations even when those conversations are not in the claimant’s control, the Supreme Court and this court have expressly flagged that circumstances where such conversations are voluntarily provided to police by a complainant in alleging criminal conduct may be subject to different considerations: R. v. Reeves, 2018 SCC 56, [2018], 3 S.C.R. 531, at para. 46; Marakah, at para. 5; Campbell, at para. 40; R. v. P.M., 2025 ONCA 208, 176 O.R. (3d) 193, at paras. 49-57; R. v. Amdurski, 2022 ONSC 1338, at paras. 27-29. At paras 83-134 the court applies this Charter s.8 'reasonable expectation of privacy' law to the case facts, making several additional useful legal points.
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