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Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Subjective Expectation. 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.
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(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. . 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. 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.
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