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Charter - Section 8 - Search and Seizure (2). R. v. Sureskumar
In R. v. Sureskumar (Ont CA, 2023) the Court of Appeal considered the Charter s.8 issue of 'search incident to arrest', here where the purpose of the arrest was for identification:(i) Search Incident to Arrest
(a) Section 8 Breach
[9] In effecting an arrest, peace officers have the power to search incident to arrest. This is an extraordinary power because it requires neither a warrant nor independent reasonable and probable grounds, but, instead, arises from the lawful arrest itself: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 13, citing Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158. This power permits a peace officer to “search a lawfully arrested person and to seize anything in their possession or the surrounding area of the arrest”: R. v. Stairs, 2022 SCC 11, 467 D.L.R. (4th) 579, at para. 34.
[10] The common law standard for a search incident to arrest requires that (i) “the individual searched has been lawfully arrested”; (ii) “the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest”; and (iii) “the search is conducted reasonably”: Stairs, at para. 35; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 27.
[11] The jurisprudence from the Supreme Court has identified three valid law enforcement purposes connected to a search incident to arrest: (i) police and public safety, (ii) preventing the loss or destruction of evidence, and (iii) discovering evidence that may be useful at trial: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 75. However, those categories are not closed, as the Supreme Court has left open the possibility that further valid law enforcement purposes may develop in subsequent case law. In Caslake, for example, the court stated, at para. 25, that “the police must be able to explain, within the purposes articulated in Cloutier… (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched.” [Emphasis added.]
[12] The requirement that the search be truly incidental to the arrest involves both a subjective and an objective component. Subjectively, the police officer must have one of the purposes in mind when searching. Objectively, the police officer’s belief that the search will serve the intended purpose must be reasonable: Caslake, at para. 19.
[13] This appeal raises the issue of whether a search incident to arrest for identification purposes can be considered a valid law enforcement purpose. There is no binding authority on this point. However, there is precedent in the Ontario Superior Court of Justice that supports the idea that a search to confirm an arrestee’s identity constitutes a valid law enforcement purpose because it is consistent with the proper administration of justice: R. v. Singh, 2015 ONSC 6312, 343 C.R.R. (2d) 127, at para. 35; R. v. Nunnery, 2006 CanLII 35002 (ON SC), [2007] 147 C.R.R. (2d) 325, at paras. 25-29. The issue was also raised in the Supreme Court in the context of a civil claim for unlawful arrest, but the court declined to determine the point: Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, at para. 100.
[14] It is unnecessary to rule whether a search incident to arrest for identification purposes can be considered a valid law enforcement purpose. That is because this case can be determined on the issue of reasonableness. As noted above, the jurisprudence is clear that a valid search incident to arrest must be carried out reasonably: Stillman at para. 27; Stairs, at para. 35. The same conclusion was reached in Cloutier. However, in the course of her analysis in Cloutier, at pp. 181-82, L’Heureux‑Dubé J. extended the notion of reasonableness beyond a consideration of how the search was carried out:In determining the exact scope of a police power derived from the common law, this Court often had recourse to considerations of principle, and the weighing of the competing interests involved (Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, and R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145). Competing interests are important factors in determining the limits of a common law power. When the power in question comes into conflict with individual freedoms, it is first necessary to decide whether the power falls within the general scope of the duty of peace officers. This duty, clearly identified, must historically have been recognized by the courts as tending to promote the effective application of the law. Secondly, the Court must determine whether an invasion of individual rights is justified. In this regard, Le Dain J. in Dedman defined what he meant by “justifiable use of the power” in question (at p. 35):The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [Emphasis added.] It is therefore necessary in this second stage to determine whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such an invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals. [15] It is apparent from the foregoing that in crafting an analytical approach to determining the validity of a search, the Supreme Court in Cloutier was taking a holistic view of whether the search was a justified intrusion into the rights of the accused. The court instructed that it was essential to consider whether the search was both necessary and reasonable. Somewhere in the development of the jurisprudence on search incident to arrest, the notion of necessity seems to have been lost. For example, in Stairs, the most recent examination of the law of search incident to arrest from the Supreme Court, there is no reference to necessity. However, nothing in the case law suggests that necessity is not a valid consideration.
[16] In any event, it may be simpler to view necessity as a component of the larger notion of reasonableness discussed in Cloutier (i.e., a reasonableness inquiry that considers more than how the search was conducted). The appellant submitted that it was unnecessary for the police to have undertaken a search for further identification because they already had ample proof of his identity. If the focus of the reasonableness inquiry was limited to the manner in which the search was conducted, I would be required to ignore this concern, even if meritorious, and the police would be free to conduct an unnecessary search even though the power to search is premised on promoting peace officers’ abilities to execute their duties. An analysis of the necessity of the search should be a component of the broader reasonableness analysis under the third branch of the search incident to arrest test, because it allows the court to determine whether the search is consistent with the underlying public policy imperatives.
[17] In the case at bar, I accept the trial judge’s finding that the arresting officer was genuinely attempting to confirm the appellant’s identity before he was transported to the police station and that she was not obliged to accept his self-identification. The trial judge then found that while other means were available to the arresting officer to confirm the appellant’s identity, the search was not unreasonable, stating: “I cannot and do not fault [the arresting officer] for wanting to confirm Mr. Sureskumar’s identity before transporting him to the station. While other avenues may have been available to her, it was not an unreasonable step to take in the circumstances of this case where identity theft was an allegation” (emphasis in original). The trial judge also determined that the way the search was conducted was reasonable.
[18] With respect, the trial judge erred in failing to analyze why a search that she found was one of many avenues to confirm identity was reasonable in the circumstances. Had she done so, it would have been clear that there were multiple equally convenient and expeditious means to obtain confirmation of identity. For example, the arresting officer could have confirmed the appellant’s identity by speaking with bank employees, including the bank investigator who was in the branch at the time of the arrest. I am also comfortable taking judicial notice of the fact that the arresting officer had an onboard computer in her police vehicle that would have provided her access to the driver’s licence database.
[19] The trial judge was required to consider why a search that was unnecessary for the arresting officer to carry out her stated police purpose of confirming the identity of the appellant was reasonably conducted. Had the trial judge done so, it would have been evident that it was not reasonable for the arresting officer to search the appellant’s vehicle and seize the wallet. Therefore, the search of the appellant’s vehicle to locate the wallet constituted a breach of his s. 8 Charter rights. . R. v. Whitfield
In R. v. Whitfield (Ont CA, 2023) the Court of Appeal considered a Charter s.8 search and seizure issue in an apartment building where they had obtained the building management's permission for a hidden camera:[15] The appellant also alleged, and the Crown conceded, certain breaches of the appellant’s Charter rights. The first was the warrantless installation of a covert camera on the third floor of 8 Lee Centre Drive. When the police installed the covert camera, they believed that the consent of building management was sufficient for the installation of such cameras, relying on Code J.’s decision in R. v. Brewster, 2016 ONSC 8038, 142 W.C.B. (2d) 637, aff’d in part, 2019 ONCA 942, 151 O.R. (3d) 244. On appeal, this court determined that the installation of covert cameras in an apartment building requires prior judicial authorization: R. v. Yu, 2019 ONCA 942, 151 O.R. (3d) 244, leave to appeal refused, [2020] S.C.C.A. No. 38. Since no prior judicial authorization was sought or obtained in this case, the Crown conceded that the camera had been unlawfully installed, that observations from the camera could not be relied upon as a basis for arresting the appellant, and that the arrest and search of the appellant was therefore also unlawful. The Crown also conceded that the police failure to file a Report to Justice in a timely manner violated the appellant’s rights under s. 8 of the Charter. However, the Crown took the position that the fentanyl should be admitted despite these Charter breaches, pursuant to s. 24(2) of the Charter, since its admission would not bring the administration of justice into disrepute. . Binance Holdings Limited v The Ontario Securities Commission
In Binance Holdings Limited v The Ontario Securities Commission (Div Court, 2023) the Divisional Court considers a Charter s.8 ['search and seizure'] argument against regulatory OSC summons and investigation orders:[57] The Summons Amounts to an Unreasonable Search and Seizure and Offends s. 8 of the Charter of Rights and Freedoms: Binance submits that the broad scope of documents described in the Summons, affecting its privacy interests and that of third parties, engages s. 8 of the Charter of Rights. To some extent, this argument relies on a finding that this search was not prescribed by law, where it falls outside of s. 13 of the Act by virtue of being made subject to an improper Investigation Order or by failing to meet the requirements of s. 13. This Charter argument requires a foundation from the previous arguments. As discussed, these are lacking in merit, thus weakening the seriousness of the Charter issue.
[58] Further, the Supreme Court of Canada in British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3, confirmed that documents demanded pursuant to securities regulation are subject to a reduced expectation of privacy. There, the majority rejected arguments challenging the power to demand documents in the context of a summons under comparable securities law in B.C. under ss. 7 and 8 of the Charter of Rights.
[59] In Branch, the regulator served summonses on two former officers of Terra Nova, seeking “all information and records […] relating directly or indirectly to Terra Nova and other named companies”.
[60] The majority in Branch confirmed the following general principles concerning the relationship between s. 8 and the reasonableness of searches carried out in this specific regulatory context:. The standard of reasonableness applicable in the criminal context is not the appropriate standard in the administrative/regulatory context (at para. 52, citing Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425);
. The primary goal of securities regulation is investor protection (at para. 54);
. Those who are involved in the business of trading securities do not have a high expectation of privacy with respect to regulatory requirements expressed in securities legislation. It is widely known and accepted that the industry is well regulated, and the reasons for that regulation are also well known (at para. 58);
. The demand for the production of documents by way of a summons is one of the least intrusive of the possible methods used to obtain documentary evidence (at para. 60);
. The important social purpose of securities legislation renders the summons power to obtain documents and things a justifiable intrusion into privacy rights (at para. 61); and
. Documents produced in a regulated, business context attract a diminished degree of privacy than do personal papers (at para. 62, citing La Forest, J. in Thomson Newspapers, at pp. 517-18). . R. v. El-Azrak
In R. v. El-Azrak (Ont CA, 2023) the Court of Appeal considered Charter s.8 ['search and seizure'] basics:(i) The Applicable Legal Principles
[27] Section 8 of the Charter does not exist to protect that which people want to keep private, solely because they want to keep it private. Nor does it exist to hide things that are incriminating, solely because they are incriminating. Rather, s. 8 exists for one purpose and one purpose only: to extend constitutional protection against unreasonable state intrusions to those individuals who have a reasonable expectation of privacy over the subject matter of a search: R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at para. 37; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 292; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 17-18; and Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 159-60.
[28] In determining any s. 8 issue, the court must start by considering whether s. 8 is even engaged, in the sense that there was a search or seizure within the meaning of s. 8 of the Charter. This turns on whether the accused has a reasonable expectation of privacy in relation to the subject matter of the search: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 16. It is the accused’s onus to establish a reasonable expectation of privacy, failing which, s. 8 protection is not extended. Conversely, success in establishing a reasonable expectation of privacy is what grants the accused standing to pursue the s. 8 claim.
[29] Where the accused gets over this hurdle, barring some well-known exceptions, state intrusion into the accused’s privacy interest will only be reasonable when it was authorized by law, the authorizing law was itself reasonable and the execution of the search was itself reasonable: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 34-37; Spencer, at para. 68; and Tessling, at para. 18.
[30] Three broad categories of privacy have emerged over time: territorial, personal and informational privacy. This case involves the latter, informational privacy, which in turn engages with three different concepts of privacy, namely, privacy as secrecy, privacy as control and privacy as anonymity: Spencer, at para. 38. Privacy as secrecy involves the ability to keep in confidence information that the individual wishes to be kept private. Privacy as control involves the ability to decide when, how and to what extent information about oneself will be shared. And privacy as anonymity involves the ability to act publicly while remaining anonymous: Spencer, at paras. 37-43.
[31] Whatever the form of privacy at issue, and in this case it is informational privacy in its various iterations, determining whether someone has a reasonable expectation of privacy necessitates both a factual and a normative inquiry. The factual inquiry necessitates a command over all of the circumstances at work in the case: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at paras. 31, 45; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 10; and R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 26. The normative inquiry is broader in nature, with an eye to protecting that for which we ought to expect protection from a privacy perspective in a free and democratic society. In this sense, s. 8 does not simply focus on the here and now but also concerns itself with the long-term consequences of government action on society as a whole. Properly viewed through a normative lens, privacy interests will rise to constitutional status when those interests reflect the “aspirations and values” of the society in which we live: Orlandis-Habsburgo, at para. 41. See also: Tessling, at para. 42; Spencer, at para. 18; Patrick, at paras. 14-20; and R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at paras. 60-74.
[32] The factors for consideration in determining whether there exists a reasonable expectation of privacy are well-known and grouped under four headings that allow for analytical convenience: Marakah, at paras. 10-11; Spencer, at paras. 16-18; and R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, at para. 13. The test asks the following:1. What is the subject matter of the search?
2. Does the accused have a direct interest in that subject matter?
3. Does the accused have a subjective expectation of privacy in the subject matter?
4. Would an expectation of privacy be objectively reasonable in the circumstances of the case? [33] Only where the answer to the fourth question is “yes” does the claimant have standing to assert a s. 8 right: Marakah, at para. 12. If the court determines that the answer is “no”, then the state action cannot violate s. 8. The answer here is no.
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[38] In determining the subject matter of the search, we apply a functional and holistic approach, one that derives from the actual circumstances of the case. Undoubtedly, this approach requires that we look beyond the actual information provided and ask whether, with that information in hand, something further is revealed about the individual to whom the information relates: Spencer, at paras. 26, 31 and 47; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at paras. 14-15, 35-39. This requires consideration of not only the raw data that the state came to possess, but also the nature of the information that could be inferentially derived from that raw data: Ward, at para. 93; Marakah, at paras. 14-15; Orlandis-Habsburgo, at para. 75; and Spencer, at para. 26.
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[49] The whole nature of a police investigation is to thread together investigative facts that eventually provide a window into what is undoubtedly private. Indeed, such investigative techniques would not be necessary could the picture be obtained from the outset. The subject matter of the search cannot be characterized based on what the police conclude at the end of their completed investigation; it must be considered solely from the perspective of what the raw data reveals and what, if any, inferences can be taken directly from that data.
[50] Respectfully, were it otherwise, society’s legitimate interest in privacy and being left alone, as balanced against society’s legitimate interest in “[s]afety, security and the suppression of crime”, would quickly become skewed: Tessling, at para. 17; Hunter, at pp. 159-60; and Edwards, at para. 30. Professor Steven Penney refers to this as the “privacy versus security” debate and calls it “a perpetually polarizing dialectic”: Steven Penney, “The Digitization of Section 8 of the Charter: Reform or Revolution?” (2014) 67 S.C.L.R. (2d) 505, at p. 506.
[51] The normative approach asks what a reasonable person would expect in a free and democratic society. That reasonable person undoubtedly has an interest in not only protecting privacy, but also in ensuring the effectiveness of law enforcement. If the subject matter of a search could be characterized by every inference that could be taken from the raw data, when placed against all other investigative facts, this would result in anything but effective and efficient investigations.
[52] This is not even to mention the fact that investigations evolve over time and the inferences that can be derived from raw data can morph with the evolution of further investigative facts. The police must be able to determine at the time they come into possession of information whether it is the subject of a reasonable expectation of privacy. If the subject matter of a search is constantly in flux and depends on the possibility that it may reveal important information after being combined with the results of other investigative steps – that may or may not be contemplated or even possible at the time of the original search – police cannot make informed decisions as to whether prior judicial authorization will be required. Such a procedure would be unworkable. Rather, the subject matter of the search must be fixed at the time of the search and the inferences that can be taken from the data must be ones that arise directly from that data. The court extensively considers the last s.8 criteria ['Would an expectation of privacy be objectively reasonable in the circumstances of the case?'] at paras 62-91.
. R. v. Nguyen
In R. v. Nguyen (Ont CA, 2023) the Court of Appeal considered s.8 ['search and seizure'] Charter privacy issues with respect to the common areas of an apartment (here, a condominium) building:(3) Analysis
[18] Respectfully, White and Yu do not stand for the principle that residents of a condominium building have a reasonable expectation of privacy in all common areas. The reviewing judge erred by failing to consider the factors identified in White and Yu, and to engage in the contextual analysis that White and Yu require, in order to determine whether Mr. Nguyen had an objectively reasonable expectation of privacy in the video taken of him in the publicly-accessible vestibule.
[19] Considering the relevant factors, and conducting the necessary contextual analysis, I conclude that Mr. Nguyen did not have an objectively reasonable expectation of privacy in the video of him in the vestibule.
(4) White and Yu
[20] White and Yu provide guidance in determining whether an individual’s subjective expectation of privacy in the common areas of a multi-residential building is objectively reasonable.
[21] In White, police suspected that the owner and occupier of a condominium in a small, ten-unit building was involved with dealing drugs. They surreptitiously entered the building, walked the hallways, entered the storage area and viewed the contents of the owner’s storage locker. They hid in the stairwell, observed the owner’s unit and listened to what was going on inside.
[22] In White, at paras. 41 and 44, Huscroft J.A. explained that a nuanced, contextual approach is required to determine whether residents of multi-unit buildings have a reasonable expectation of privacy in the common areas of those buildings, and whether police may conduct non-intrusive surveillance from these locations.…the 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.[1] [23] Huscroft J.A. then identified several factors, at paras. 45-47:. The degree of possession or control exercised over the common area by the claimant;
. The size of the building: it is reasonable to assume that the number of people that are present in the common areas of the building will vary in accordance with the size of the building and its population. The larger the building, the lower the degree of reasonable expectation of privacy may be in common areas;
. Whether a security system or locked doors function to exclude the public and regulate access; and
. The ownership of the unit. [24] Applying a nuanced and contextual approach, with regard to the factors he had identified, Huscroft J.A., at para. 52, concluded that in the particular circumstances of the case – involving a small building where the police surreptitiously entered common areas protected by a security system – the owner and occupier of the unit had a reasonable expectation of privacy.
[25] In Yu, the court considered whether the installation by police of hidden cameras without obtaining a warrant violated s. 8 of the Charter. Tulloch J.A. (as he then was) confirmed 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”: para. 81. He adverted to the factors identified in White, noting at para. 69 that “these factors lead to different conclusions, depending on the type of common area accessed by the police…”.
[26] In Yu, the police had accessed two underground parking garages and condominium hallways. Tulloch J.A. concluded that the appellants did not have a reasonable expectation of privacy in the two parking garages. They were large (each condominium building had over 300 units) and the appellants had limited control over them. In the case of one, police had obtained management’s consent before all prolonged surveillance. In the case of the other, the police had entered a visitor’s section that was accessible to the general public “to determine whether a target’s car was parked in the garage or not, which they were entitled to do as any visitor could do”: at para. 80. The appellants “had no reasonable expectation of privacy regarding observations made from a space accessible to the general public”: at para. 80.
[27] However, Tulloch J.A., at para. 87, concluded that the appellants did have a reasonable expectation of privacy – albeit low – in the hallways:The buildings had strict security features designed to exclude outsiders, and the condominium rules… barred non-owners and non-occupants from accessing the common areas unless accompanied by an owner or occupant. It was thus reasonable for the appellant to believe that the building security systems would operate to exclude the police from entering the common areas of the building multiple times without permission. (5) The subject matter of the search
[28] Before turning to the application of White and Yu in this case, it is necessary to properly define the subject matter of the search, which must be defined functionally by reference to the nature of the privacy interests potentially compromised by the state action: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 14-15. This requires a consideration of the nature of the information that the police obtained and how they obtained it: Saciragic, at para. 29.
[29] The reviewing judge did not make a clear finding about the subject matter of the search. What, then, was the subject matter of the search?
[30] The nature of the information sought, and ultimately revealed, was that Mr. Nguyen entered 25 Telegram Mews and used a key fob to do so. The video was recorded in the ordinary course, and not at the behest of police. DC Naccarato requested just to see the video for the public entrances. He viewed but did not seize the video.
[31] In Saciragic, the police obtained information from the apartment’s property manager, who had reviewed fob data and a video indicating that the applicant had attended at a particular floor in the building during the relevant time. This information from the property manager led police to believe that a particular unit was being used as a stash location. The trial judge concluded that the applicant did not have a reasonable expectation of privacy in the information obtained.
[32] On appeal, this court, at para. 32, rejected the argument that there is a categorical reasonable expectation of privacy in one’s physical address:A physical address does not, of itself, reveal intimate details about one’s personal choices or way of life, and, ordinarily, it is publicly available information to which many people have access. [33] Nor did the particular circumstances of that case reveal a reasonable expectation of privacy in the information revealed by the physical address, namely the appellant’s connection to the specific unit, as noted at para. 33:The appellant made use of an apartment unit in a relatively large apartment complex with common areas and video surveillance. There was no evidence to suggest a reasonable expectation that his comings and goings would not be observed by others or recorded digitally, or the fact of these observations divulged to police. [34] Here, similarly, no intimate or biographical details of Mr. Nguyen’s life were sought by police or revealed when they viewed the video. Police did not even obtain information about what unit Mr. Nguyen was attending at. The video revealed nothing about what Mr. Nguyen did once he was through the fob‑accessed door.
[35] The information obtained was less revealing than the information obtained in Saciragic. If the information obtained in Saciragic was analogous to one’s municipal address, the information obtained in this case was analogous to what neighbourhood one lived in. Applying Saciragic, I conclude that the subject matter of the search, properly defined, was narrow and did not significantly engage Mr. Nguyen’s informational privacy interests.
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