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Charter - s.8 Search and Seizure - Spatial-Territorial
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. 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. . 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. . 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. Ali
In R. v. Ali (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, this brought against convictions for "multiple firearms offences".
The court considered a Charter s.10(b) ['right to counsel'] issue, here where "police formed the intention of searching the rental car under s. 12 of the CCA, but did not advise Mr. Ali of his right to counsel":B. Should the evidence of Mr. Ali’s flight be excluded as a remedy for the breach of his s. 10(b) Charter rights?
[18] The Crown concedes that in light of this court’s decision in McGowan-Morris [SS: R. v. McGowan-Morris (Ont CA, 2025)], Mr. Ali’s s. 10(b) right to counsel was violated when the police formed the intention of searching the rental car under s. 12 of the CCA, but did not advise Mr. Ali of his right to counsel. We agree that the trial judge, who did not have the benefit of McGowan-Morris, erred by finding no s. 10(b) breach.
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[24] Evidence may be excluded under s. 24(2) when it was “obtained in a manner that” infringed the accused’s Charter rights. This requires a consideration of the “temporal, contextual and causal” connection between the breach and the obtaining of the evidence at issue: see e.g., R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 50-78. There was plainly a close temporal and contextual link between the breach of Mr. Ali’s s. 10(b) Charter rights that occurred when the search commenced, and his flight a few minutes later. Moreover, Mr. Rudnicki argues that there may also have been a causal connection, since if Mr. Ali had been advised of his right to counsel and had exercised this right, the advice he received from counsel might have led him to act differently and not run away when PC Bartlett found the handgun.
[25] The Crown disputes that Mr. Ali’s flight was sufficiently connected to the s. 10(b) breach to be subject to exclusion under s. 24(2), making two main arguments in support of this position. First, the Crown submits that it would be speculative to conclude that Mr. Ali would have chosen to call counsel if he had been given the opportunity to do so, or that advice from counsel would have changed his behaviour. Second, the Crown argues that even if the trial judge had found a s. 10(b) violation she might also have found that Mr. Ali’s flight was “spontaneous”, making the connection between the breach and his flight “tenuous and remote”: see e.g., R. v. Pearson, 2017 ONCA 389, 348 C.C.C. (3d) 277, at para. 31, leave to appeal refused, [2017] S.C.C.A. No. 465.
[26] The Crown’s arguments fail to account for the location of the burden of proof. In R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at pp. 209-10, Lamer C.J.C. held that although Charter applicants bear the overall burden of establishing that evidence should be excluded under s. 24(2), the burden of persuasion on specific issues can shift to the Crown. In particular, he held at p. 211:[T]he Crown should bear the legal burden (the burden of persuasion) of establishing, on the evidence, that the s. 24(2) applicant would not have acted any differently had his s. 10(b) rights been fully respected, and that, as a consequence, the evidence would have been obtained irrespective of the s. 10(b) breach.
Lamer C.J.C. added that “[i]f the state subsequently claims that there was no causal link between this breach and the obtaining of the evidence at issue, it is the state that should bear the burden of proving this assertion”: Bartle, at pp. 212-13. [27] In short, it is not Mr. Ali’s burden to demonstrate that he would have called counsel if he had been advised of his rights and given the opportunity to do so, nor is he required to show that the advice of counsel would have caused him to act differently. Rather, it is the Crown’s burden to disprove one or both of these things on a balance of probabilities. The trial judge, who found no Charter violations and thus did not conduct a s. 24(2) analysis, made no findings in favour of the Crown on these issues. . R. v. Leonard
In R. v. Leonard (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from a conviction for "possession of a loaded prohibited or restricted firearm without being the holder of an authorization or licence, contrary to s. 95(2) of the Criminal Code".
In the course of explaining why the trial judge's reasons were inadequate, the court explains an aspect of Charter s.8 ['search and seizure'] law, here in a Cannabis Control Act, 2017 context:[9] The s. 8 application turned on whether the search of the vehicle, and in particular the search of the trunk, was lawful under s. 12(3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (the “CCA”). Although arguments were made at trial (and on appeal) about the initial grounds to trigger the right to search, I will focus on the scope of the search, as that was the most contentious issue. There was a contested legal issue at trial as to whether, assuming there were grounds to search the vehicle, the lawful right to search extended to the trunk. This argument turns on whether the scope of the right to search in s. 12(3) of the CCA is limited by the fact that the prohibition in the CCA (as it relates to the facts of this case) only applies to cannabis that is “readily available to any person in the vehicle”: s. 12(2)(b). This is a question of statutory interpretation informed by the Charter.
[10] There are conflicting trial level decisions on this issue in Ontario in relation to s. 12(3) of the CCA and the analogous provision in s. 32(5) of the Liquor Licence Act, R.S.O. 1990, c. L.19 (the “LLA”): R. v. Sappleton, 2021 ONSC 430, at paras. 53, 57-62; R. v. Byfield, 2023 ONSC 4308, at paras. 110-120; R. v. Houssein-Hassan, 2024 ONCJ 290, at paras. 37-48; R. v. J.F., 2015 ONSC 3068, at para. 64; R. v. Graham, 2018 ONSC 6718, at paras. 78-82, aff’d 2020 ONCA 692;[4] R. v. Moulton, 2023 ONCJ 140, 524 C.R.R. (2d) 168, at paras. 235-47. This court recently left this issue open in R. v. Guerrier, 2024 ONCA 838, at para. 19.[5] . R. v. Hoang [pole cameras]
In R. v. Hoang (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal against convictions under the Controlled Drugs and Substances Act, here involving a Charter s.8 search and seizure application regarding the use of a 'pole camera':[19] The application judge found that the use of the pole camera, on public property and capturing only the outside area of the appellant’s residence, was not an illegal search.[2]
[20] Applying the test set out in R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 32, the application judge held that there was no reasonable expectation of privacy in the circumstances. The recordings, although surreptitiously made, were taken from a device situated on public property, did not record audio, and captured activity at the front of the house that was visible to the public eye.
[21] Although the appellant had a direct interest in the subject matter of the recording, there was no evidence that he had a subjective expectation of privacy in the subject matter of the recording. Even if he had asserted a subjective expectation of privacy, the application judge held that the expectation was highly diminished given the nature of the recordings. They captured only what was “plain view” in front of his home, did not use any enhanced recording devices or tools, and did not capture any core biographical information.
[22] The application judge distinguished this from cases involving recordings of common areas that attracted a higher expectation of privacy, such as a common area within a private condominium building, or the enclosed backyard of a private home: see e.g., R. v. Yu, 2019 ONCA 942, 383 C.C.C. (3d) 260, leave to appeal refused, R. v. Mai, [2020] S.C.C.A. No. 38; R. v. Wong, 2017 BCSC 306.
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(1) The application judge did not err in finding that the use of the pole camera was not a search under s. 8 of the Charter
[36] The Supreme Court of Canada has recently summarized the law on s. 8 in R. v. Bykovets, 2024 SCC 6, at paras. 30-31:To establish a breach of s. 8, a claimant must show there was a search or seizure, and that the search or seizure was unreasonable ...
A search occurs where the state invades a reasonable expectation of privacy. An expectation of privacy is reasonable where the public’s interest in being left alone by the government outweighs the government’s interest in intruding on the individual’s privacy to advance its goals, notably those of law enforcement. Courts analyze an expectation of privacy by considering many interrelated by often competing factors, which can be grouped together under four categories: (1) the subject matter of the search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy; and (4) whether the subjective expectation of privacy was objectively reasonable. [Citations omitted.] [37] See also Tessling, at para. 32.
[38] This case concerns the appellant’s expectation of privacy of information, described in Tessling, at para. 23, as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” (quoting A. F. Westin, Privacy and Freedom (1970), at p. 7).
[39] Like in Bykovets, in this case there was no real dispute that the appellant had an interest in the subject matter of the surveillance and a subjective expectation of privacy over the driveway and front entrance to his house. The core issue was whether his expectation of privacy in the subject matter of the recording was objectively reasonable.
[40] In Bykovets, at paras. 37-43, the Supreme Court warned against an unduly narrow description of the subject matter of the search. The court stated that the description should take a broad and functional view of the subject matter, examining not only the information itself but also how it may support inferences in relation to other personal information. In that case, the court held that a reasonable expectation of privacy existed with respect to IP addresses, which allowed whoever obtained such an address to collect a user’s Internet activity.
[41] In this case, the pole camera was pointed at the appellant’s house, monitoring and recording everyone who came and went at all times of the day for a period of 8 days between July 9-17, 2018. Police then summarized the surveillance information so as to document who was coming and going from the house, their licence plate and car model, the time and date they were present and what they were doing. The application judge concluded that “the recordings, although surreptitiously made, were taken from a device situated on public property, did not record audio, and captured activities and traffic (both pedestrian and vehicular) at the front of the house, visible to the public eye.”
[42] The application judge found that there was no objective expectation of privacy over this public space. She based this finding on the existing case law, and distinguished the circumstances before her from cases where similar surveillance cameras captured common areas in a private condominium building (Yu, at para. 26), or the backyard of a private home bordered by trees, retaining walls and a fence preventing a public view of the backyard area (Wong, at para. 33).
[43] The appellant does not contend that the application judge erred in her application of the Tessling factors in light of the existing case law. Rather, the appellant argues that the approach to the expectation of privacy in the wake of technological advances such as pole cameras should evolve. As the appellant explains in his factum:A pole camera has a Big Brother undertone to it. Undertone that becomes the very melody when you consider the contemporary availability of ubiquitous wireless networks and increased availability of miniature devices at nominal costs as well as the massive digital storage media now available. All this means entire streets, neighborhoods, cities could be continuously recorded. Unlimited amounts of information about what its citizens are up to could be gathered by the state authorities. The pole camera is truly “the camel’s nose under the tent.” [44] According to the appellant, while his driveway and front of the house were visible to the public, this does not mean that he had no reasonable expectation of privacy over that space from technologically enhanced 24/7 surveillance. In short, he had a “right to be left alone.”
[45] The appellant referred approvingly to the Fourth Amendment jurisprudence from the United States which has recognized the long-term use of pole camera surveillance as a search for purposes of the U.S. constitutional protection from unlawful search and seizure. In United States v. Moore-Bush, 36 F.4th 320 (1st Cir. 2022), pole camera surveillance lasting eight months was found to constitute a search for purposes of the U.S. Fourth Amendment analysis:Mindful of the brave new world that the routine use of such all-encompassing, long-term video surveillance of the front curtilage of a home could bring about, we are convinced that the government does conduct a search within the meaning of the Fourth Amendment when it accesses the record that it creates through surveillance of that kind ... . [46] As a general proposition, it may well be that pole camera surveillance could give rise to an objective expectation of privacy over the subject matter of the recording within the s. 8 Charter analysis, based on its duration, the scope and nature of its surveillance, the basis for its placement or because of other contextual or technological factors. This general proposition stems from the broad and functional view of the subject matter of such a recording, which could potentially capture information about an accused's comings and goings as well as who they associate with and what activities they take part in. In the circumstances of this case, however, where the pole camera captured only the public space that an individual police investigator would have seen from the same distance, without any additional capture of sound or close-up camera angles, and for a limited period of time, such broader concerns do not arise.
[47] I see no error in the application judge’s analysis of the pole camera. She carefully considered the Tessling factors and applied them to the facts before her. As the application judge found, if there was any expectation of privacy by the appellant over the public space in front of the house captured by the pole camera, it was “highly diminished” and did not constitute a search for purposes of s. 8 of the Charter.
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