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Charter - Section 8 - Search and Seizure
MORE CASES
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. Sakab Saudi Holding Company v. Saad Khalid S Al Jabri [for numbered case cites, see the main link]
In Sakab Saudi Holding Company v. Saad Khalid S Al Jabri (Div Court, 2023) the Divisional Court considered the application of Charter s.8 ['search and seizure'] to contempt enforcement of a civil Mareva injunction:[26] The motion judge found that the compelled production of information from Dr Saad was a lawful term of the Mareva order, in furtherance of the court’s civil jurisdiction over claims of civil fraud and related allegations. The authority to make such an order has not been contested on this appeal, and it is well established in our jurisprudence.[15]
[27] The court also has the jurisdiction to make an Anton Piller order[16] which sometimes has been described as a “civil search warrant.”[17] I address this point in more detail below but make the following initial observations about the relationship between Mareva and Anton Piller orders. It is a common feature of Mareva orders to direct production and information from a respondent. While this may be an extraordinary and intrusive order, it is less intrusive than an Anton Piller order, which authorizes a plaintiff to enter premises and seize the information and documents themselves. Other techniques that may be used in the context of cases involving Mareva and/or Anton Piller orders are orders for production from third parties such as banks and other financial institutions. In the absence of extraordinary orders such as Mareva and Anton Piller orders, parties to civil proceedings are obliged under the Rules of Civil Procedure to disclose and produce documents and to provide information during oral examinations for discovery. Compelled information is inherent to the civil litigation process. Then, of course, at a trial in the civil proceedings, compelled information may be used, and any witness who testifies may be compelled to answer questions and produce documents during the course of their testimony.
[28] These disclosure processes, in civil proceedings, are contrasted with the investigative powers of the state in criminal matters – and the protections afforded accused persons in criminal proceedings. The state may obtain warrants to search and seize materials in aid of a criminal investigation. This process is not available in civil proceedings, except to the extent that an Anton Piller order may be available and is seen in that way.[18] In a criminal case, the prosecution has substantial disclosure obligations[19] and the defence has very few obligations to disclose information and evidence to the prosecution.[20]
[29] To put the point generally, investigation of criminal matters is generally unilateral – the state has powers to obtain evidence, and they do not, generally, include compelling a person under investigation to provide information. Investigation of civil matters is generally a bilateral process of compelled disclosure – where the parties are required to provide information and documents to each other but are generally not permitted to exercise the investigative powers available to the state in investigation of criminal matters.
[30] The motion judge found that information and documents compelled from the appellants in the civil proceedings prior to commencement of the contempt motion could be used against the appellants in the contempt motion. Specifically, he concluded that such use would not violate the appellants’ right not to be compelled as a witness in the contempt motion. The motion judge reasoned as follows:a. Section 11(c) of the Charter provides: “any person charged with an offence has the right ... not to be compelled to be a witness in proceedings against that person in respect of the offence”.
b. The appellants cannot be compelled to testify in the contempt motion.[21]
c. There is some authority that evidence that could be tendered against an alleged contemnor may not be gathered in the civil proceedings after commencement of a contempt motion until that motion has been concluded. This principle does not apply to information compelled prior to commencement of the contempt motion.[22]
d. Information compelled under regulatory regimes may generally be used for enforcement proceedings in those regimes.[23]
e. Information obtained in this case prior to the contempt motion was compelled in aid of the civil fraud proceedings – the cause in respect to which the Mareva order was made. [31] The motion judge concluded that use of the Compelled Evidence did not compel the appellants to be witnesses in the contempt motion, and that this conclusion did not create a “gap” in the protection against testimonial compulsion that should be filled by s. 7 of the Charter (Decision, paras. 101 – 102):The protections afforded by a Mareva order would be seriously impaired and, in some cases, entirely undermined if, when the defendant purports to comply with the order by giving a sworn statement of assets and is examined, and the defendant discloses that assets allegedly stolen and ordered to be frozen are, in fact, being dissipated, the evidence so given is inadmissible on a subsequent motion for contempt because of the residual application of s. 7 of the Charter. The very purpose of the provisions of the Mareva order requiring the statement of assets and examination thereon is to facilitate enforcement. The defendant who is subject to the order is well aware that a failure to comply may attract severe sanctions through an order for contempt of court. I regard as significant the fact that when Dr. Saad’s affidavits were given, and when he was examined, he was not facing jeopardy through a contempt motion. When this evidence was given, Dr. Saad had not been charged with an offence, and his evidence was not given in respect of an offence. The protections against self-incrimination in s. 11(c) and s. 13 do not apply in this context.
In my view, having regard to the context in which Dr. Saad’s affidavits were given and his examinations were held, the interests of our justice system in ensuring that there is an effective civil remedy to protect against, as Myers J. put in in Pronesti, “a rogue flouting the civil process of the court”, and the fact that the evidence was given before any contempt motion was brought, there is no residual gap to be filled by s. 7 of the Charter. To give s. 7 of the Charter the effect urged by Dr. Saad would open the door to evasion by wrongdoers of their obligations under Mareva orders and introduce an obstacle to enforcement that could render ineffective or, in some cases, illusory, the protections of a Mareva order.[24] I agree with this analysis.
[32] I would draw an analogy to situations where there are parallel administrative and enforcement powers, such as the enforcement scheme in the Income Tax Act.[25] Taxpayers are required to provide information and documents in income tax returns. Tax authorities have administrative powers to compel information and documents, including, among other things, the power to audit books and records of a taxpayer. Where tax authorities pursue prosecution of an offence under the Income Tax Act, they may not use administrative enforcement powers, because they are conscriptive. Instead, they may have recourse to investigative powers associated with criminal prosecutions, such as search warrants. The taxpayer still has an obligation to file complete and accurate tax returns: these obligations are not suspended because of a nascent or actual prosecution.
[33] I note this point, not because it affects the disposition of this appeal, but to be clear that the motion judge’s decision does not open a pathway for use of compelled disclosure (whether pursuant to a Mareva order or pursuant to the Rules of Civil Procedure) for the purpose of obtaining evidence for a prosecution for contempt of court which is penal, rather than coercive, in nature. As is the case in enforcement of the Income Tax Act, compelled disclosure to ensure compliance with the Act is not inherently for the purpose of prosecution. The court has the power to restrain abuse of the civil justice process for the purpose of a penal contempt prosecution, and neither the decision below nor this decision on appeal holds otherwise.[26]
....
[46] In respect to further requests for production of documents, the motion judge considered a line of authorities[33] to the effect that documents compelled prior to criminal proceedings, for other lawful purposes, are not inadmissible in subsequent criminal proceedings. The motion judge then considered R. v. Jarvis, upon which the appellants relied, in support of the proposition that when an investigation shifts from administrative to criminal in nature, administrative powers may no longer be used to compel a taxpayer to provide documents and information, in violation of their right to remain silent.[34] The motion judge then concluded as follows (the “Production Ruling”):The Court in Jarvis did not provide for an exception to the taxpayer’s Charter rights where the documents required from the taxpayer exist independently of any state compulsion.
I do not agree that Branch[35] is authority for the proposition that where documents exist independently of any state compulsion, the principle against self-incrimination under the Charter does not apply. The plaintiffs have brought a contempt of court motion seeking remedies against Dr. Saad and Mohammed. The plaintiffs having done so, the Charter rights of Dr. Saad and Mohammed are engaged. The plaintiffs cannot conscript Dr. Saad and Mohammed to assist in the prosecution of the contempt motion against them by compelling them to assemble and produce documents which the plaintiffs reserve the right to use to convict them of contempt of court.
This conclusion applies to both Dr. Saad and Mohammed. Although the documents sought from Mohammed are sought under the Mohammed Mareva Order and the contempt motion against Mohammed is brought in respect of the Saad Mareva Order, the plaintiffs reserve the right to use any documents produced by Mohammed to aid in the prosecution of the contempt motion against him. In these circumstances, the principle against self-incrimination under the Charter is engaged in respect of Mohammed and Dr. Saad.
Mohammed is not required to produce the requested documents to the plaintiffs for use on the contempt motion. I agree with the motion judge’s analysis except for one core point: an allegation of contempt does not transform proceedings from civil to criminal unless the court also finds that the contempt allegation is predominately penal rather coercive. If the contempt motion is predominantly coercive, then the nature of the proceedings has not been “transformed” to criminal.
[47] The problem with the Admissibility Ruling and the Production Ruling are their apparent inconsistency, in principle, with the motion judge’s decision respecting Issues 1 and 2. It is clear that the motion judge wrestled with this problem, and he correctly concluded that the weight of authority supported drawing a distinction between compelled evidence provided prior to an allegation of contempt and compelled evidence provided after an allegation of contempt. This context does matter, but it does not determine the issue.
[48] First, the motion judge is correct in finding that the Mareva order continues in force and the appellants’ obligations thereunder likewise continue. On the basis of the Mareva order, undertakings must be answered and information and documents provided.
[49] Second, until the respondents seek to rely on information and documents compelled from the appellants in support of the contempt motion, the court need not rule on the admissibility of that evidence.
[50] Third, if the respondents do seek to rely on information and documents compelled from the appellants and provided by them after commencement of the contempt motion, at that time the court should assess the “predominant purpose” of the contempt motion, by analogy to R. v. Jarvis.[36] If the court finds that the predominant purpose of the contempt motion is “coercive” rather than “penal” then the evidence may be compelled and will not be inadmissible because it is conscriptive.[37] If the court finds that the predominant purpose of the contempt motion is penal, then the moving party may pursue alternative approaches to obtain evidence for the contempt motion. . College of Physicians and Surgeons of Ontario v. Kilian
In College of Physicians and Surgeons of Ontario v. Kilian (Ont CA, 2023) the Court of Appeal considered a COVID-related stay pending application in an appeal of an RHPA investigation decision where patients objected to release to the College of Physicians and Surgeons of their medical records under Charter s.8 ['unreasonable search and seizure']:[11] The essence of the claim that there is a serious issue with respect to the appeal of the refusal of intervenor status rests on characterization of the patients’ privacy interests and whether they are placed at risk by the s. 87 proceeding against Dr. Kilian.
[12] Section 8 of the Charter provides as follows:Everyone has the right to be secure against unreasonable search or seizure. [Emphasis added.] [13] It is trite law that s. 8 protects against only unreasonable search and seizure. The applicants and Dr. Kilian argue that the absence of individual pre‑authorization of any individual breach of a privacy interest renders the intrusion unreasonable, relying heavily on criminal case law. Without the right to intervene, they submit, there will be no way of challenging the reasonableness of the search.
[14] I disagree. This is not the law as it applies in this situation.
[15] The applicants’ position rests on the premise that the patients of a physician have a reasonable expectation of privacy in health records which can be asserted as against a regulator seeking access to those records for purposes of investigating the physician. If this were true, no health regulator could ever access patient records for purposes of an investigation without patient notification and consent. It would stymie regulation of health professionals.
[16] In such a regulatory context, the protection against unreasonable search and seizure lies not in the requirement for individual warrant or pre-authorization, but rather within the context of the regulatory scheme which is there with the primary purpose of the protection of the public. The framework here includes strong confidentiality protections for individual medical information contained in patient files disclosed to the College in the course of any proceedings. Section 36 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 sets out the broad duty of confidentiality of investigators in relation to the information that comes within their knowledge in the course of their duties.
[17] The applicants’ position fails to take account of the long-established law that a person's reasonable expectation of privacy varies depending on the context. As Dickson J. explained in Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 159, the freedom to be protected from “unreasonable” search and seizure enshrined in s. 8 of the Charter can be expressed as an entitlement to a “reasonable” expectation of privacy. Depending on the context, reasonable expectations of privacy vary: Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420, at paras. 106, 118, leave to appeal refused, [2012] S.C.C.A. No. 549.
[18] In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, La Forest J. wrote a “less strenuous and more flexible standard of reasonableness” applies to regulatory searches, and one’s reasonable expectation of privacy has to be considered within the investigative scope of the Act: at pp. 506, 516. As he observed, at p. 507:It follows that there can only be a relatively low expectation of privacy in respect of premises or documents that are used or produced in the course of activities which, though lawful, are subject to state regulation as a matter of course. In a society in which the need for effective regulation of certain spheres of private activity is recognized and acted upon, state inspection of premises and documents is a routine and expected feature of participation in such activity. [19] In the regulated professional environment context, this subjects the patients’ expectation of privacy in their medical records to “the higher need to maintain appropriate standards in the profession”: Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546, 96 O.R. (3d) 241, at para. 24, citing College of Physicians and Surgeons of British Columbia v. Bishop (1989), 1989 CanLII 2674 (BC SC), 56 D.L.R. (4th) 164 (S.C.), at p. 171.
[20] The fact that the patients did not initiate the complaints against Dr. Kilian does not change that reality or render the intrusion unreasonable, as they argue. As Morgan J. observed in College of Physicians and Surgeons v. SJO, 2020 ONSC 1047, at para. 46, the authority to override concerns about patient confidentiality is broad. For example, “where the College is engaged in an investigation prompted by a patient complaint, it is entitled to continue that investigation even if the patient subsequently wishes to withdraw the complaint”: SJO, at para. 46, citing Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 46. While I am not bound by SJO, I believe that it is correct.
[21] There is no policy reason for distinguishing these cases. The concern for the protection of the public remains the same regardless of the source of the information initiating the complaint.
[22] The fact that the applicants are not the target of any investigation by the College is also relevant to the assessment of the reasonableness of any intrusion into their privacy interests. At this point, the only issue in the application is whether Dr. Kilian can be required to cooperate by providing patient files. The applicants may be in a position to seek declaratory or injunctive relief if and when they or any of them are summoned. That would be the more appropriate procedural framework within which to assert their interests, whether it would be ultimately successful or not.
[23] This brings me to the judicial review decision of the Divisional Court in this matter. The moving parties argue that Chalmers J. erred by “grafting” the ruling of the Divisional Court judicial review application, which dealt with s. 75 of the Code, onto the s. 87 application. They submit that this raises a serious issue.
[24] I disagree.
[25] The Divisional Court found that the patients “do not have a direct legal interest in the proceedings between the CPSO and Dr. Kilian just because their medical records may be examined in the course of an investigation.” It emphasized that investigations of members by a professional regulator can involve some intrusion into physician-patient confidentiality and that the College can obtain all relevant evidence despite patient objections: Gore, at paras 23-24, College of Physicians and Surgeons of Ontario v. Kayilasanathan, 2019 ONSC 4350 (Div. Ct.), at para. 70. While those comments were made in the context of a judicial review of a s. 75 investigation, the point remains. It was relevant to the determination of the motion for leave to intervene in the s. 87 application.
[26] In short, I agree with the respondent College that the s. 8 Charter rights of the applicants will not be contravened by the denial of intervenor status. The applicants’ claim rests on the faulty premise that, as far as the s. 87 application is concerned, their privacy interests are at risk and that they therefore have the right to intervene to ensure that any intrusions are pre-authorized. I do not believe that this raises a serious issue on appeal. This is sufficient to dispose of the motion for a stay of proceedings: Haudenosaunee Development Institute, at paras 5-7. . R. v. S.S.
In R. v. S.S. (Ont CA, 2023) the Court of Appeal canvasses basics of s.8 Charter search and seizure law, here when an 'information privacy' claim is made. The Crown argued that privacy rights here were diminished by virtue of provincial privacy laws [PHIPA and MFIPPA] which allowed release of medical information to law enforcement officials in "aid in an investigation":[40] Naturally, S.S. did not claim any personal right in the seized information, nor did S.S. advance any territorial privacy claim. At its heart, S.S. was making an informational privacy claim relating to the communications exchanged during the medical examination. An “information privacy” claim is made where an individual asserts the right “to determine for themselves when, how, and to what extent information about them is communicated to others”: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 23; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para 66. In R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 34, Deschamps J. explained that “the appropriate question [where an informational right of privacy is being claimed] is whether the information is the sort that society accepts should remain out of the state’s hands because of what it reveals about the person involved, the reasons why it was collected, and the circumstances in which it was intended to be used.” It is helpful to begin with the latter two considerations – the reasons why the information was collected, and the circumstances in which it was intended to be used – before considering the impact of what the information revealed about S.S.
[41] In terms of the “reasons why [the information] was collected”, the trial judge concluded that this occurred as part of a medical examination being conducted to ensure S.S.’s health. This finding was supported by the evidence. The expectation of privacy in information exchanged for medical treatment is significant given that the patient “is forced to reveal information of a most intimate character to … protect his life or health”: R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at p. 433. In this case, S.S., a young person, just having been injured in a car accident, answered questions posed by a paramedic for the purpose of securing required medical attention, thereby creating communicated information that S.S. may well not otherwise have provided.
[42] The Crown argues that any reasonable expectation of privacy in information exchanged in ambulances for health care purposes is diminished because of the combined effect of disclosure exceptions in provincial privacy legislation,[3] [SS: PHIPA s.43(1)(f) and MFIPPA s.32(g)] that together permit a health information custodian within a municipal service to disclose information to a Canadian law enforcement agency to aid in an investigation. In the Crown’s submission, this legislation would authorize the ambulance service to release the Ambulance Call Report containing the results of S.S.’s medical examination to the police, thereby undercutting S.S.’s claim to a reasonable expectation of privacy.
[43] I need not comment on the Crown’s interpretation of the legislation to reject this submission. Even if it can be said that the disclosure exception the Crown relies upon diminishes, in some measure, the relevant expectations of privacy, it does not do so materially. The legislation relied upon by the Crown applies solely to municipalities. Surely the reasonableness of S.S.’s expectation of privacy does not turn on whether the ambulance that attended happened to be municipally owned.
[44] More importantly, there are general problems with the Crown’s submission. In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 73, Cromwell J. recognized that the purpose of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5, a privacy statute, is to increase the protection of personal information, a proposition equally true of the statutes relied upon by the Crown in this case. It would defeat the operation of such statutes if law enforcement disclosure provisions were treated as equivalent to powers of search or seizure: Spencer, at paras. 71, 73. Yet that would be the effect of treating the law enforcement disclosure provision as defeating S.S.’s reasonable expectation of privacy, thereby permitting a search or seizure that may otherwise be unlawful.
[45] In order to prevent disclosure exceptions in privacy legislation from playing this kind of role, this court has cautioned that disclosure exceptions are not to be interpreted in a way that makes privacy legislation “‘virtually meaningless’ in the context of an ongoing police investigation”, nor should disclosure exceptions be taken as defeating the reasonable expectations of privacy recognized in the legislation as a whole: R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at paras. 103, 111. After all, disclosure exceptions exist not to deny privacy interests, but to protect persons who disclose private health care information pursuant to those exceptions from being prosecuted for breach of the statute.[4] In my view, the Crown is placing an importance on its claimed disclosure exception that such an exception would not properly bear.
[46] Moreover, even if the existence of a disclosure exception can be said, in some measure, to diminish an expectation of privacy, “a reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter”: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 9.
[47] I am therefore satisfied that the disclosure exemption that the Crown claims does not play a significant role in determining whether S.S. had a reasonable expectation of privacy. In my view, the trial judge was correct when assessing S.S.’s reasonable expectation of privacy in giving the weight that she did to the fact that the information seized by P.C. Sagl was provided as part of a medical examination being conducted to ensure S.S.’s health.
[48] With respect to the third Gomboc factor for consideration in assessing a reasonable expectation of informational privacy – “the circumstances in which [the information] was intended to be used” – the trial judge found that the information in question was intended to be used for the purpose of S.S.’s care. In this context, the trial judge’s finding, again supported by the evidence, that S.S. would not have known that P.C. Sagl was in the ambulance, takes on significance. S.S. had no reason to believe that the answers shared with the paramedic for health purposes were being captured by a police officer as part of a criminal investigation.
[49] This brings us to the remaining Gomboc consideration – what the information reveals about the person involved. I accept the Crown’s submission that information from S.S. about S.S.’s alcohol consumption and speed of driving does not relate to S.S.’s private medical conditions. I am also prepared to assume, for the sake of analysis, that such information is not core biographical information relating to S.S.’s life choices.[5] But that does not, in all of the circumstances, work against the trial judge’s finding that S.S. had a reasonable expectation of privacy. The information that S.S. shared was self-incriminatory, and individuals are entitled to make a meaningful and informed choice whether to share self-incriminating information with the police or exercise their right to silence: R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at pp. 23, 31; R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, at para. 97. The fact that SS. shared self-incriminatory information during a medical examination for medical purposes, not knowing that a police officer was present, underscores the importance of privacy in the circumstances of this case. In my view, the trial judge was correct in observing that S.S. lacked the knowledge required to choose whether to exercise the right to silence that would have operated had P.C. Sagl identified herself to S.S. . R. v. McGregor
In R. v. McGregor (SCC, 2023) the Supreme Court of Canada considers Charter s.8 search and seizure law in it's digital manifestations:(1) Digital Searches: General Principles
[26] Section 8 of the Charter guarantees “the right to be secure against unreasonable search or seizure”. A search is reasonable within the meaning of s. 8 “if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable” (R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278; see also R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 10; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 21‑23; Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549, at para. 41; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 12; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250, at para. 48; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 36; R. v. Tim, 2022 SCC 12, at para. 46). This Court has established a presumption that “a search requires prior authorization, usually in the form of a warrant, from a neutral arbiter” (R. v. M. (M.R.), 1998 CanLII 770 (SCC), [1998] 3 S.C.R. 393, at para. 44, referring to Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 160‑62; see also Vu, at para. 22; R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at pp. 238‑39).
[27] In recent years, courts have grappled with the challenges posed by technological innovations in developing the law of search and seizure. This Court’s jurisprudence on digital searches has consistently highlighted the “unique and heightened privacy interests in personal computer data” (R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 35; see also Fearon, at paras. 74, 132 and 197; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 50; Vu, at paras. 40‑41 and 47; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 47; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 105‑6).
[28] In Vu, the Court recognized that the “particular nature of computers” (para. 39) warrants specific constraints under s. 8 of the Charter on both the authorization and the reasonable performance of digital searches. In unanimous reasons written by Cromwell J., the Court established a presumptive “requirement of specific, prior authorization” applicable to digital searches, as summarized at para. 3:In practical terms, the requirement of specific, prior authorization means that if police intend to search computers found within a place with respect to which they seek a warrant, they must satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. If, in the course of a warranted search, police come across a computer that may contain material for which they are authorized to search but the warrant does not give them specific, prior authorization to search computers, they may seize the device but must obtain further authorization before it is searched. This requirement, I add, extends to other electronic devices that have a “memory capacity akin to a computer” (para. 38). This broad category includes, for example, devices that store personal data, such as cellphones (Fearon, at para. 52).
[29] The fact that a search of an electronic device is expressly authorized by warrant does not mean that any file contained therein may be analyzed — even where no search protocol has been imposed. Cromwell J. stressed in Vu that police officers are “bound, in their search, to adhere to the rule that the manner of the search must be reasonable” (para. 61). Consequently, they cannot “scour the devices indiscriminately” (para. 61) but must limit their search to the types of files that are “reasonably necessary to achieve [the warrant’s] objectives” (para. 22). Should “the officers realiz[e] that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so” (para. 61; see also Fearon, at paras. 57 and 78; Reeves, at para. 35). . Elementary Teachers Federation of Ontario v. York Region District School Board
In Elementary Teachers Federation of Ontario v. York Region District School Board (Ont CA, 2022) the Court of Appeal considered Charter basics of the reasonable expectation of privacy:The reasonable expectation of privacy
General principles
[46] The principles governing freedom from unreasonable search and seizure are well established. Whether a person has a reasonable expectation of privacy is a normative question: it requires the evaluation of a person’s legitimate interests to determine whether they should be given priority over competing interests. It is not a matter of describing what a person’s expectations are or predicting what they would be. The determination is necessarily a value-laden inquiry that is conducted in fact-specific circumstances.
[47] In R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, the Supreme Court instructed that a reasonable expectation of privacy is to be determined having regard to the “totality of circumstances”. The following questions are relevant:
1. What was the subject matter of the search?
2. Did the claimant have a direct interest in the subject matter?
3. Did the claimant have a subjective expectation of privacy in the subject matter?
4. If so, was the claimant’s subjective expectation of privacy objectively reasonable?
[48] The key question is whether an expectation of privacy is objectively reasonable, and that is informed by several non-exhaustive considerations:
• the location of the search;
• whether the subject matter was in public view;
• whether the subject matter was abandoned;
• whether the information was already in the hands of third parties, and if so, whether it was subject to an obligation of confidentiality;
• whether the investigative technique was intrusive in relation to the privacy interest;
• whether the investigative technique itself was objectively unreasonable; and
• whether the information exposed any intimate details of the claimant’s lifestyle, or information of a biographical nature.
See R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 32.
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