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Charter - s.8 - 'Reasonable Expectation of Privacy'. R. v. Salmon
In R. v. Salmon (Ont CA, 2024) the Divisional Court 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, as it bears on permitting "a condo board to waive its residents’ privacy interests":[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. Mohamed [standing to challenge warrant]
In R. v. Mohamed (Ont CA, 2024) the Divisional Court dismissed a criminal appeal against a court finding that the appellant did not have standing to challenge a search warrant:[7] Mr. Mohamed submits that the trial judge erred in finding that he did not have standing to challenge the search of Ms. Goodale’s house because he failed to follow the Supreme Court’s decision in R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696. Specifically, in deciding whether Mr. Mohamed had standing, the trial judge should have relied on the Crown’s theory of the case that Mr. Mohamed resided with Ms. Goodale at the house, as set out in the ITO.
....
[12] In advance of the trial, Ms. Goodale and Mr. Mohamed brought an application to challenge the search warrant under s. 8 of the Charter of Rights and Freedoms. ....
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[16] The trial judge granted Ms. Goodale’s application but found that Mr. Mohamed did not have standing to challenge the search warrant. Following the application, the trial judge gave a brief oral explanation for this conclusion, stating that, based on the Supreme Court’s decision in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, it was clear that Mr. Mohamed did not have standing to bring the Charter application and that he, therefore, could not challenge the admissibility of anything seized at the Leeming Street house.
....
[19] We are satisfied that the trial judge did not make any legal errors in his approach to the issue of Mr. Mohamed’s standing and that his conclusion on the issue was supported by the evidence before him. In Edwards, the Supreme Court considered the rights of an accused to challenge a warrant obtained to search the premises of a third party. Cory J. explained that, in order to establish a violation of s. 8 of the Charter and obtain relief under s. 24(2), an accused must (1) establish standing by showing a reasonable expectation of privacy, and (2) if such an expectation is established, demonstrate that the search was conducted unreasonably: at para. 45. In deciding whether an accused has established a reasonable expectation of privacy, trial judges are to consider the totality of the circumstances, including the following factors:(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation. ....
....
[21] Mr. Mohamed argues that Edwards must be applied in conjunction with Jones, and that the trial judge erred in failing to consider and apply Jones. In Jones, the Supreme Court dealt with the evidentiary burden on an accused challenging a search warrant under s. 8 of the Charter. The search in that case involved text messages. The Crown’s theory, as set out in the ITO, was that Mr. Jones had authored the text messages. For the purpose of challenging the search warrant, Mr. Jones sought to rely on the evidence in the ITO to argue that he had a reasonable expectation of privacy in the text messages. He wanted to avoid presenting his own evidence on the application. This strategy was intended to allow Mr. Jones to challenge the search warrant without admitting authorship, which otherwise would amount to admitting the actus reus of the offence with which he had been charged: at paras. 16, 23.
[22] Côté J., for the majority, held that Mr. Jones should be able to rely on the Crown’s theory to mount his s. 8 challenge and that he did not have to provide his own evidence on the application: at paras. 9, 32-33. She stated, at para. 32, that, despite the evidentiary burden being on the applicant to establish a breach of his Charter rights, “where the alleged Crown facts, if taken to be true, would establish certain elements of the applicant's s. 8 claim, he or she need not tender additional evidence probative of those facts in order to make out those same elements.” She reasoned that permitting applicants to rely on the evidence in an ITO to establish a reasonable expectation of privacy solves the dilemma that applicants like Mr. Jones would otherwise face when evidence supporting their position on the Charter application could subsequently incriminate them at trial. This is consistent with the principle against self-incrimination: Jones, at paras. 29-31. As this court stated in R. v. Labelle, 2019 ONCA 557, 379 C.C.C. (3d) 270, at para. 24, “[t]he overriding point of Jones is that an accused should not be placed in the position of being forced to compromise his or her substantive defence to criminal charges in order [to] assert standing to challenge the reasonableness of a search.”
[23] Mr. Mohamed relies on Jones to argue that, on his s. 8 application, the trial judge erred in not accepting as true the Crown’s theory that he was in a common law relationship with Ms. Goodale and that he resided with her on Leeming Street. We disagree. The trial judge did not err. Jones does not stand for the proposition that a trial judge must accept the Crown’s theory of the case in all circumstances when assessing an accused’s reasonable expectation of privacy. Rather, as explained by this court in Labelle, at para. 31:The point of Jones is that the accused can rely on the Crown theory to establish certain facts relevant to their s. 8 claim. The trial judge is still required to assess those facts in the “totality of the circumstances” to determine whether the accused had a reasonable expectation of privacy in a particular territorial space [Emphasis added.]
See also: R. v. Greer, 2020 ONCA 795, 397 C.C.C. (3d) 40, at para. 85. . R. v. Maric
In R. v. Maric (Ont CA, 2024) the Ontario Court of Appeal dismissed several merged criminal appeals, here on Charter s.8 'reasonable expectation of privacy' grounds:(b) There Was No Reasonable Expectation of Privacy
[105] The application judge applied the factors set out by the Supreme Court in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45, that should be considered in assessing whether there is a reasonable expectation of privacy:(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation. ....
[111] The application judge distinguished this case from R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, where this court found that an accused had a reasonable expectation of privacy in common areas of his building.
[112] In White, a police officer, surreptitiously and without a warrant, entered the common areas of a building where the accused owned a unit, which led to a seizure and drug charges. The officer entered the locked building through a defective door without any owners’ prior consent or knowledge, walked through the hallways, listened at the accused’s door, observed the comings and goings at the accused’s unit, and viewed the accused’s storage locker in the common storage area. The results of these observations were included in the ITO used to obtain a search warrant for the accused’s unit. The affiant of the ITO did not inform the issuing judge that the investigating officer had entered the locked building without permission. The accused applied successfully to exclude that evidence under s. 24(2) of the Charter on the basis that the police violated his rights under s. 8.
[113] On appeal, this court held that the trial judge did not err in finding that the accused had a reasonable expectation of privacy in the common areas of his condominium building. In its analysis, the court relied on the factors set out in Edwards, at para. 45.
[114] The court held, at para. 41, that there was no categorical rule for common areas in multi-unit buildings and that a nuanced, contextual approach is required. Relevant factors in White included that the building was small enough that a stranger’s presence would be noteworthy and that “[a]lthough the [accused] 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 several times without permission or invitation and investigating at their leisure”: at paras. 46-47.
[115] The application judge held that the situation before him, involving observations of the eighth-floor hallway, was distinct from the multiple police entries in common areas, observation of the inside of a storage locker and eavesdropping of conversations inside a condominium unit at issue in White.
[116] The application judge adopted the words of Huscroft J.A. in White, at para. 44, that the reasonable expectation of privacy analysis is contextual:[T]he lesson from Edwards is that a reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit that none of them is dispositive. The Edwards factors must be considered as a whole, having regard to the particular circumstances of each case. ....
(b) The application judge did not err in finding no reasonable expectation of privacy
[196] In his analysis of Mr. Eckstein’s reasonable expectation of privacy, the application judge referred to the following non-exhaustive factors set out by the Supreme Court in Edwards, at para. 45:(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation. [197] In Edwards, these factors were used to consider whether the subject of a search had a reasonable expectation of privacy in his girlfriend’s apartment, in which he was described as “just a visitor.” According to the Supreme Court, Mr. Edwards demonstrated no expectation of privacy in his girlfriend’s apartment since he contributed nothing to the rent or household expenses and had no authority to regulate access to the premises.
[198] In this case, Mr. Eckstein argues that the application judge erred in concluding that, as “an exceptionally privileged guest,” he had no reasonable expectation of privacy. He submits that the application judge erred in rejecting categorically that a guest could have an objectively reasonable expectation of privacy.
....
[210] The application judge’s reliance on White demonstrates his understanding that a reasonable expectation of privacy could arise over the common areas of an apartment building or condominium complex, but that context was important. While the application judge did not have the benefit of this court’s decision in Yu, we do not see the analysis in Yu as inconsistent with the application judge’s reasoning. In Yu, Tulloch J.A. (as he then was) described, at paras. 81-83 and 87, the privacy interests in common areas generally in these terms:The hallways are a different story. Under the White framework, in my view, the appellants had a reasonable expectation of privacy in the hallways of their respective buildings, although it was at the low end of the spectrum. White establishes that a contextual approach is required when applying the reasonable expectation of privacy analysis, and there is no categorical bar to a reasonable expectation of privacy in shared common areas.
Once inside an access-controlled condominium building, residents are entitled to expect a degree of privacy greater than what, for instance, they would expect when approaching the building from the outside. This results from the fact that anyone can view the building from the outside, but there is some level of control over who enters the building.
The level of expectation of privacy inside a condominium building will vary. The level of expectation of privacy is dependent on the likelihood that someone might enter a certain area of the building, and whether a person might reasonably expect a certain area to be subject to camera surveillance.
...
On balance, the factors listed above establish a low, but reasonable expectation of privacy in these common areas. The buildings had strict security features designed to exclude outsiders, and the condominium rules at Joe Shuster Way barred non-owners and non-occupants from accessing the common areas unless accompanied by an owner or occupant. It was thus reasonable for the appellants to believe that the buildings’ security systems would operate to exclude the police from entering the common areas of the building multiple times without permission. [Emphasis added.] ....
[213] We do not read the application judge’s reasons as requiring strict security measures in order to establish a reasonable expectation of privacy. Rather, he considered the type and quality of security measures and noted that there were no exceptional security measures that would heighten any expectation of privacy. In Yu, for example, the strict security measures were a key factor in finding that there was a reasonable expectation of privacy in the condominium hallways. Furthermore, the application judge took into account that police did not have permission from building management to enter the building but found that this did not provide Mr. Shahin with a reasonable expectation of privacy. . R. v. Gauthier
In R. v. Gauthier (Ont CA, 2024) the Ontario Court of Appeal dismisses an appeal from a first degree murder conviction.
Here the court considered whether there was "no reasonable expectation of privacy [SS: Charter s.8 'search and seizure'] in a voicemail that the trial judge described as threatening and harassing", and thus voicemail recordings could be admitted:[8] The appellant’s primary ground of appeal is that the trial judge erred by admitting the voicemail left for Dr. Morrison. The appellant argues that the police violated the appellant’s s. 8 Charter rights when they made and seized a copy of the voicemail without a warrant. He argues that the evidence should have been excluded from the trial.
[9] I do not accept the appellant’s submission. As I will explain below, the trial judge did not err in admitting the voicemail. There is no question that individuals have a reasonable expectation of privacy in private medical communications. But here, I agree with the trial judge that there was no reasonable expectation of privacy in a voicemail that the trial judge described as threatening and harassing. In this case, the appellant left a voicemail that was part of an overall pattern of harassment of Dr. Morrison and her staff. Indeed, the appellant was consequently charged with criminal harassment. Since the appellant had no reasonable expectation of privacy in the voicemail he left for the doctor, the Charter was not triggered and there was no violation of s. 8: R. v. Lambert, 2023 ONCA 689, (2023) 169 O.R. (3d) 81 (C.A.), at paras. 59 to 62.
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(d) The Appellant Did Not have a Reasonable Expectation of Privacy
[37] The applicable s. 8 principles are not controversial. Section 8 protects a claimant’s reasonable expectation of privacy against unreasonable state intrusion. State action will amount to a search and seizure under s. 8 if that conduct infringes on the complainant’s reasonable expectation of privacy in the subject matter of the search or seizure: see Lambert, at para. 70; and R. v. Singh, 2024 ONCA 66, 432 C.C.C. (3d) 527, at para. 43.
[38] I agree with the trial judge’s conclusion that the appellant did not have a reasonable expectation of privacy in the voicemail message he left for Dr. Morrison.
[39] The determination of whether a claimant has a reasonable expectation of privacy involves a factual and a normative inquiry. In R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 28, Karakatsanis J. put it this way:In assessing whether a claimant has a reasonable expectation of privacy in an item that is taken, courts must consider “the totality of the circumstances”. In particular, they must determine (1) the subject matter of the alleged seizure; (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 this subjective expectation of privacy was objectively reasonable. The reasonable expectation of privacy standard is normative, rather than descriptive. The question is whether the privacy claim must “be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society”. Further, the inquiry must be framed in neutral terms — “[t]he analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought”. [Citations omitted.] [40] In a recent decision in Singh, at para. 63, Doherty J.A. observed that broader societal concerns, particularly public safety and security, must be factored into the reasonable expectation of privacy calculus.
[41] I accept the appellant’s argument that the jurisprudence supports a broad grant of protection to two-way electronic communications, and that the nature of the relationship between Dr. Morrison and the appellant (i.e., doctor and patient) was an important normative factor in assessing the reasonable expectation of privacy: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608. For example, in R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, four justices held that there should not be a reasonable expectation of privacy in communications between adults and children who are strangers to them. This decision was summarized by Trotter J.A. in Campbell, at para. 63, where he acknowledged that an analysis of the relationship between the parties to a communication, in determining whether normative factors negate a reasonable expectation of privacy, is generally an important consideration.
[42] However, there is another competing normative consideration in this case, namely that the evidence before the trial judge established that the appellant was committing the act of criminal harassment in the communication he now claims to have been private. In Campbell, the police arrested an individual. An officer looked at the arrestee’s cell phone, and saw notifications for incoming text messages that were indicative of a drug transaction in progress. The police took the arrestee’s phone, and texted in-character to arrange to meet, surprise, and arrest the person texting with them, who turned out to be Mr. Campbell. At trial, Mr. Campbell asserted a reasonable expectation of privacy in his text exchange with the arrestee’s phone. The Crown argued that under Mills, there was no reasonable expectation of privacy. Trotter J.A. disagreed. He found that the facts were very similar to the Supreme Court of Canada’s decision in Marakah, and so presumptively there was a reasonable expectation of privacy. Ultimately, Trotter J.A. concluded that Marakah sets out a broad presumption of reasonable expectation of privacy over text messages, but that “Mills carved out an exception in circumstances where the electronic communications themselves constitute a crime against the recipient – in that case, the victimization of children”: Campbell, at para. 62.
[43] In Lambert, Paciocco J.A. also recognized that a Charter claimant may have no reasonable expectation of privacy “where electronic messages sent by the Charter claimant to the victim are used as the means of committing the offence charged, such as the offence of threatening to cause death or bodily harm, or criminal harassment”: Lambert, at para. 60.
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[50] I conclude that s. 8 of the Charter was not triggered because the appellant had no reasonable expectation of privacy in the voicemail. My conclusion is fortified by the British Columbia Court of Appeal’s decision in R. v. Pelucco, 2015 BCCA 370, 327 C.C.C. (3d) 151. There the court considered whether a person who sends a threatening text message has a reasonable expectation of privacy in that message. The court held that they do not. The court noted that the reasonable expectation of privacy is a normative standard and the court reasoned that on a normative perspective, “a person who threatens another has no right to expect that the person who has been threatened will keep the threat private”: Pelucco, at para. 61. The same holds true with harassing messages.
[51] In sum, the appellant had no reasonable expectation of privacy in the knowledge that Dr. Morrison had regarding the details disclosed in the message, and he had no reasonable expectation of privacy in a voicemail sent to Dr. Morrison that was the means of committing an offence with which he was charged in this case: criminal harassment: Lambert, at para. 60.[7] The reason why boils down to this: a reasonable person in Canada ought not to expect privacy in leaving a voicemail for a recipient that itself constitutes a crime.
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