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Charter - Section 8 - Search and Seizure (3). R. v. Bykovets
In R. v. Bykovets (SCC, 2024) the Supreme Court of Canada considers an important case on Charter s.8 ["unreasonable search or seizure"] and the internet, specifically the police requesting IP addresses used in certain credit card transactions from third parties without a warrant.
In these quotes the court states the basics of a Charter s.8 ['unreasonable search and seizure'] analysis, here in a case involving electronic 'informational privacy' ('IP addresses' requests from third parties):A. Legal Framework
[29] Section 8 of the Charter guarantees “the right to be secure against unreasonable search or seizure”. Its principal object is the protection of privacy, or the individual’s “right to be left alone” (R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 67). Personal privacy is vital to individual dignity, autonomy, and personal growth (R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 38). Its protection is a basic prerequisite to the flourishing of a free and healthy democracy.
[30] 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. Only the first requirement — whether the request for the IP addresses was a search — is at issue here.
[31] 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 (Hunter, at pp. 159-60). Courts analyze an expectation of privacy by considering many interrelated but 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 (Spencer, at para. 18, citing Tessling, at para. 32).
[32] This case is about informational privacy, or “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” (Tessling, at para. 23, quoting A. F. Westin, Privacy and Freedom (1970), at p. 7). In other words, this aspect of privacy is concerned with “informational self-determination” (Jones, at para. 39).
[33] The parties agree that the appellant had a direct interest in the IP addresses and a subjective expectation of privacy in their informational content. In the next sections, I address the subject matter of the search and whether the appellant’s expectation of privacy in that subject matter was reasonable.
B. The Subject Matter of the Search
[34] Considering the subject matter of the alleged search allows the court to identify the privacy interests at issue (Spencer, at para. 22). A guiding question in defining the subject matter of the alleged search is “what were the police really after?” (Marakah, at para. 15, citing R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 67). A court must take a holistic view of the subject matter of the search. The approach must not be mechanical, and it must reflect technological reality (Spencer, at paras. 26 and 31; Marakah, at para. 17).
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[38] This Court has never described the constitutional right to privacy according to the state’s declared intention, or according to one particular use of the information. Rather, we have consistently taken a broad and functional approach to the subject matter of the search, “examining the connection between the police investigative technique and the privacy interest at stake” (Spencer, at para. 26). The subject matter is defined not only in terms of the information itself, but also “the tendency of information sought to support inferences in relation to other personal information” (para. 31). In Marakah, for example, the issue was whether the sender of a text message has a reasonable expectation of privacy in that text message on the recipient’s device. Writing for the majority, McLachlin C.J. determined that the subject matter of the search was not the recipient’s telephone, or even the text message itself, but an “electronic conversation” including “any inferences about associations and activities that can be drawn from that information” (para. 20). . R. v. Singh
In R. v. Singh (Ont CA, 2023) the Court of Appeal extensively considered Charter s.8 doctrine, here where police smelled the breath of a car accident victim in hospital:(i) The nature of the appellant’s s. 8 claim
[38] Section 8 of the Charter provides:Everyone has the right to be secure against unreasonable search or seizure. [39] It is important to begin by understanding the scope of the appellant’s argument. Police officers, when conducting roadside stops, at accident scenes, in ambulances, and in hospitals, routinely smell the breath of drivers for alcohol. Many cases have accepted or assumed that those interactions do not engage s. 8: e.g. R. v. McColman, 2023 SCC 8, 423 C.C.C. (3d) 423, at para. 6; R. v. Dersch, 1993 CanLII 32 (SCC), [1993] 3 S.C.R. 768, at p. 773; R. v. LaChappelle, 2007 ONCA 655, 226 C.C.C.(3d) 518, at para. 28, leave to appeal refused, [2007] S.C.C.A. No. 584; R. v. S.S., 2023 ONCA 130, 422 C.C.C. (3d) 277, at para. 14; R. v. Erickson, 1992 ABCA 69, 72 C.C.C. (3d) 75, at p. 78, aff’d 1993 CanLII 103 (SCC), [1993] 2 S.C.R. 649; R. v. Nagy, 2020 ONSC 203, at para. 18; R. v. Campbell, 2019 ONSC 710, 49 M.V.R. (7th) 117, at paras. 43-47; R. v. Daly, 2014 ONSC 115, 60 M.V.R. (6th) 156, at paras. 16-17; R. v. Kamalanathan, 2017 ONCJ 868, 22 M.V.R. (7th) 331, at paras. 13-17. The trial judge also accepted that those kinds of interactions will not necessarily engage s. 8 of the Charter. I do not understand counsel for the appellant to suggest otherwise.
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[43] Counsel are correct to focus on the specific circumstances in which the alleged s. 8 violation occurred. Section 8 protects against state intrusions upon a person’s reasonable expectation of privacy in relation to the subject matter of the alleged search: see R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 19; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 16; R. v. El-Azrak, 2023 ONCA 440, 427 C.C.C. (3d) 149, at para. 28. A determination of whether a reasonable expectation of privacy exists is a fact-specific and contextual inquiry directed at the subject matter of the search or seizure: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 31; Nader Hasan et al., Search and Seizure (Toronto: Emond, 2021), at pp. 25-27.
[44] Counsel are also correct in their submission that the subject matter of the alleged search or seizure is not limited to the specific thing seized or place searched. As indicated in El-Azrak, at para. 38, “[i]n determining the subject matter of the search, we apply a functional and holistic approach, one that derives from the actual circumstances of the case.”
[45] In this case, it would be too formalistic to describe the thing seized as consisting only of the air exhaled from the appellant’s body. The police “seized” the exhaled air when they took that air into their nose. More significantly, they also seized certain information revealed by smelling that air. By smelling the appellant’s breath, the officers learned that the appellant may, at some time prior to the accident, have consumed some unknown quantity of alcohol. That information was the target of the police activity. The appellant claims a reasonable expectation of privacy in respect of that information: see Spencer, at paras. 30-31; R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at pp. 429-430, 431-432; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 14-15.
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(iii) The applicable s. 8 principles
[59] Section 8 of the Charter protects a claimant’s reasonable expectation of privacy against unreasonable state intrusions: Tessling, at para. 18. State conduct will amount to a search or seizure under s. 8 if that conduct infringes on the claimant’s reasonable expectation of privacy in the subject matter of the search or seizure: Dyment, at pp. 434-435; Spencer, at paras. 16-17; R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at para. 39; El-Azrak, at paras. 27-29; R. v. Lambert, 2023 ONCA 689, at para. 70.
[60] Privacy interests may relate to a place, a person’s body, information, or any combination of the three: Tessling, at paras. 22-23; El-Azrak, at para. 30. Insofar as the smelling of the appellant’s breath is concerned, the appellant claims an infringement of his personal privacy interests and his privacy interest in the information obtained by the officers as a result of smelling his breath.
[61] The determination of whether a claimant has a reasonable expectation of privacy involves a factual and a normative inquiry. The factual inquiry looks to the “totality of the circumstances”, including but not limited to the subject matter of the search, the claimant’s interest in the subject matter of the search, and the claimant’s subjective expectation of privacy, if any, in respect of the subject matter: Edwards, at paras. 31, 45; El-Azrak, at paras. 31-32.
[62] The normative inquiry required by s. 8 is reflective of fundamental societal values. The value placed on an individual’s right to be left alone by the state, absent state justification for any intrusion, lies at the heart of the normative inquiry. Privacy is essential to an individual’s freedom, security and personal dignity, as well as to the maintenance of a dynamic, open and healthy democracy: Reeves, at para. 28; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250, at para. 55; R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, at para. 59. As described by Professor H. Stewart in “Normative Foundations for Reasonable Expectations of Privacy” (2011) 54 S.C.L.R. (2d) 335, at p. 342:Put another way, the ultimate normative question is whether, in light of the impact of an investigative technique on privacy interests, it is right that the state should be able to use that technique without any legal authorization or judicial supervision. Does our conception of the proper relationship between the investigative branches of the state and the individual permit this technique without specific legal authorization? [63] The normative nature of the determination of whether a reasonable expectation of privacy exists understandably focuses on the interests of the individual fostered by protection against unwarranted state intrusions into privacy. That focus is not, however, exclusive. Broader societal concerns, particularly public safety and security, must be factored into the reasonable expectation of privacy calculus: R. v. Chow, 2022 ONCA 555, 163 O.R. (3d) 241, at para. 34; Orlandis-Habsburgo, at paras. 41-47; Goodwin, at paras. 55, 63; Mills, at paras. 59-60. The need to consider those broader societal concerns when setting the boundaries of s. 8 has been recognized since the seminal decision in Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 159-160:The guarantee of security from unreasonable search or seizure only protects a reasonable expectation … an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interests in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement. [Emphasis in original.] [64] On the facts of this case, public safety concerns are central. The operation of motor vehicles on public streets is a highly regulated and inherently dangerous activity. Because of the nature of the activity, the community expects and accepts significant limitations on individual privacy. The dangers presented to the community increase exponentially when drivers choose to drink and drive. The community as a whole has a vital interest in identifying persons who are drinking and driving and removing them from the highways.
[65] The extended powers given to the police under federal and provincial legislation to require drivers to provide certain information, and participate in certain roadside investigative procedures, speaks to the legitimacy and importance of public safety concerns. Those societal concerns must also be taken into account when settling upon the proper relationship between state interests in effective law enforcement, and the individual’s interest in being left alone by the state: see e.g. Criminal Code, R.S.C. 1985, c. C-46, ss. 320.27, 320.28; Highway Traffic Act, R.S.O. 1990, c. H.8, s. 48(1).
[66] The reasonable expectation of privacy constitutionally protected by s. 8 of the Charter is intended to reflect and reinforce sometimes competing societal values. As Associate Chief Justice Fairburn eloquently said in El-Azrak, at para. 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. [Emphasis added; citations omitted] . R. v. Sadek
In R. v. Sadek (Ont CA, 2023) the Court of Appeal considered Charter s.24(2) evidence exclusion issues (here grounded in Charter s.8 'search and seizure'), here where police had 'sealed' vehicles, and as well entered into a residence and stayed there (without "informed consent" of the occupants), until a warrant was issued [called a 'freezing']:[29] Considering all of these factors together, admitting the evidence obtained in the searches of the vehicles would not bring the administration of justice into disrepute. The trial judge excluded the fruits of the search of the appellant’s apartment and expressed strongly that the conduct in relation to the apartment was an intrusive breach of Charter rights and was unjustified. We see no error in the conclusion that it would not bring the administration of justice into disrepute to admit the evidence seized from the vehicles. The exclusion of the items seized from the apartment, which had a close connection to the serious Charter breaches related to the apartment, was sufficient to express that the courts, as institutions responsible for the administration of justice, do not condone the intrusive Charter breaches by the police directly related to the apartment: Grant, at para. 72; R. v. O’Brien, 2023 ONCA 197, 424 C.C.C. (3d) 108, at paras. 31, 61. . R. v. Griffith
In R. v. Griffith (Ont CA, 2023) the Court of Appeal considers the extent of searches in various circumstances of detention:[24] A search incident to an investigative detention is not necessarily limited to the detainee’s person alone and may extend to other places where the police reasonably believe that a detainee could have access to a weapon that poses a risk to the safety of the officers and the public: Mann, at paras. 40-45. The precise extent of the search depends on the facts of each case: see R. v. Plummer, 2011 ONCA 350, 272 C.C.C. (3d) 172, at paras. 52-58; R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, at paras. 34-36, 44-56; and R. v. Buakasa, 2023 ONCA 383, at paras. 32, 48-49. . Binance Holdings Limited v. Ontario Securities Commission
In Binance Holdings Limited v. Ontario Securities Commission (Div Court, 2023) the Divisional Court considered a JR against a Capital Markets Tribunal (CMT) decision that it lacked jurisdiction to order the revocation of an "(i)nvestigation Order under s. 144(1) of the Securities Act" (which was initiated "under s. 11(1)(a) of the Securities Act, R.S.O. 1990, c. S.5").
In this quote the court cites a reduced Charter s.8 ['search and seizure'] privacy interest in the securities context:[58] The OSC further relies on British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3. There is no doubt that this is a key decision, setting out important general principles regarding the s. 8 Charter right in the securities context. However, the Supreme Court did not rule that there was no expectation of privacy. It ruled, at para. 58, that people involved in the business of trading securities “do not have a high expectation of privacy with respect to regulatory needs that have been generally expressed in securities legislation.”
[59] Binance accepts that the expectation of privacy is “undoubtedly lower” in the regulatory context but submits that there is a blurred distinction between business and personal records in the modern workplace. Again, the OSC submits that this is unsupported by evidence.
[60] Although Branch is very important to the s. 8 analysis, Branch does not rule that every summons in the securities industry, regardless of its breadth, does not engage s. 8 of the Charter. It therefore does not rule out the need for a balancing of interests under Doré/Loyola. . Power Workers' Union v. Canada (Attorney General)
In Power Workers' Union v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the seizure of bodily samples (here, "breath, saliva and urine") as a Charter s.8 ['search and seizure'] issue:[30] The non-consensual seizure of bodily fluids has been held to be highly intrusive, invading personal privacy essential to the dignity of the person (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 at para. 50 [Irving Pulp & Paper], citing R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, 55 D.L.R. (4th) 503 [Dyment]). This arises from the loss of control over personal information contained in the samples, and the use of the person’s body in the process by which that personal information is obtained (Dyment at para. 34). Here, the bodily samples are breath, saliva and urine.
[31] Compared to privacy interests in, for example, business documents, the privacy interests in bodily samples is “at the high end”. Accordingly, this type of seizure is subject to stringent standards and safeguards to meet constitutional requirements (Irving Pulp & Paper at para. 50, citing R. v. Shoker, 2006 SCC 44).
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[37] Other courts have concluded that invasions of privacy are not remediable with post-intrusion compensation (143471 Canada Inc. v. Quebec (Attorney General); Tabah v. Quebec (Attorney General), 1994 CanLII 89 (SCC), [1994] 2 S.C.R. 339 at 382, 167 N.R. 321). This includes decisions confirming irreparable harm from the taking of bodily fluids, on the basis that the harm cannot be undone or fully remedied through monetary compensation (Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc., 2012 ABQB 627 at para. 38, aff’d 2012 ABCA 373; Stay Decision at para. 104; Fieldhouse v. Canada, 1994 CarswellBC 2219 at para. 71, [1994] B.C.J. No. 740 (B.C. S.C.)). . R. v. Lambert
In R. v. Lambert (Ont CA, 2023) the Court of Appeal considers (and finds) that a breach of CCC 489.1 ['Restitution of thing or report'] constitutes a Charter s.8 'seizure' (not a 'search') violation:[2] Mr. Lambert also argues that s. 8 was violated by the failure of the police to file “as soon as [was] practicable” a return relating to the first seizure, as required by s. 489.1 of the Criminal Code.
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[8] Section 8 was violated relating to the first seizure by non-compliance with s. 489.1, since the first return to a justice was not filed “as soon as [was] practicable”. The trial judge did not recognize this breach because of his erroneous holding that s. 8 of the Charter was not engaged. I would not exclude the evidence obtained from the first seizure as a result of this Charter breach.
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B. DID THE TRIAL JUDGE ERR IN FAILING TO FIND A BREACH OF S. 8, ARISING FROM THE DELAY IN FILING A REPORT TO A JUSTICE BETWEEN THE HANDOVER OF COMPUTER 1 ON MAY 14, 2016, AND JULY 28, 2016, WHEN THE FIRST REPORT TO A JUSTICE WAS MADE?
[96] In explaining his conclusion that the Charter was not breached as the result of the delay in filing the first report to a justice, the trial judge said that no “warrantless search” had occurred to trigger s. 489.1. I am satisfied that when the trial judge said “search” he misspoke. He knew this was a seizure case, and s. 489.1 speaks of items being “seized” and does not use the term “search”. As I read the trial decision, he appears to have found that since, in his view, no seizure occurred within the meaning of s. 8, s. 489.1 did not have to be complied with to satisfy the demands of the Charter.
[97] I am persuaded that regardless of the precise line of reasoning the trial judge employed, his failure to find a Charter breach relating to the delay in filing the first report to a justice was an error. Section 489.1 applies to all seizures, including warrantless seizures: R. v. Backhouse, (2005) 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.). Where a peace officer seizes “anything” they must report to a justice “as soon as is practicable”. I have considered the explanations that PC Cunning offered for the delays that occurred, but I can see no basis for holding that it was not practicable to file the first report to a justice before July 28, 2016, a delay of approximately two months after Computer 1 was seized on May 14, 2016. The failure to comply with s. 489.1 is a Charter breach: Garcia-Machado. This is because a seizure is an ongoing event. During the delay that occurred before the report to a justice was filed relating to Computer 1, the ongoing retention of the computer, a continuing seizure, was not authorized by law and was therefore unreasonable, contrary to s. 8 of the Charter. . R. v. Lambert
In R. v. Lambert (Ont CA, 2023) the Court of Appeal considered (and reversed on this point, but not on the result) an appeal as to whether Charter s.8 ['search and seizure'] operated ('was engaged') when a wife turned over a shared computer to the police with evidence of child pornography:[1] The appellant, Richard Lambert, appeals his convictions on three counts of accessing child pornography, contrary to s. 163.1(4.1) of the Criminal Code, R.S.C. 1985, c. C-46. He argues that the trial judge erred in finding that s. 8 of the Canadian Charter of Rights and Freedoms did not apply because it was not “engaged” when, on two occasions, Ms. Lecompte, the appellant’s wife at the time, turned family computers over to the police that contained evidence that he had been accessing child pornography. Mr. Lambert submits that, on both occasions, “seizures” occurred within the meaning of s. 8 that could not lawfully be undertaken by the police without a warrant.
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[4] During the Charter voir dire, the sole question that was litigated was whether s. 8 of the Charter applies if someone with a shared privacy interest in a computer, hands it over to the police of their own initiative. As indicated, the trial judge concluded that s. 8 was not “engaged” in these circumstances. He therefore dismissed the Charter challenges relating to the two computers. ...
[5] For the reasons that follow, I conclude that the trial judge erred in these determinations.
[6] As I will explain, s. 8 of the Charter is engaged for consideration if there has been a search or seizure within the meaning of s. 8. Where this has occurred and a Charter application has been brought, a trial judge must determine whether the search or seizure was reasonable. The trial judge did not inquire into the reasonableness of the seizures in this case because he erroneously determined that seizures had not occurred within the meaning of s. 8. In my view, seizures occurred within the meaning of s. 8 when the police took control over the computers in which Mr. Lambert had a reasonable expectation of privacy. The court extensively walks through it's Charter s.8 reasoning at paras 46-91.
. R. v. Tello
In R. v. Tello (Ont CA, 2023) the Court of Appeal noted a change in the law regarding text messages and s.8 ["search and seizure"] privacy:[66] The appellant seeks to raise a new issue on appeal. At trial, he did not challenge the admissibility of the PGP messages under s. 8 of the Charter. At the time, this court’s decision in R. v. Marakah, 2016 ONCA 542, 131 O.R. (3d) 561, held that the sender of a text message had no standing to challenge the admissibility of messages sent to another device.
[67] However, on the same day that the trial judge began his charge to the jury – December 8, 2017 – the Supreme Court of Canada reversed this court’s decision and held that the sender of text messages may have standing to challenge the admissibility of such messages under s. 8 of the Charter. The majority held that, “depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8” and “whether a reasonable expectation of privacy in such a conversation is present in any particular case must be assessed on those facts by the trial judge”: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 4-5.
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