Vindicated Charter Claimant or Very Privileged Visitor?


R. v. Edwards, 1996 CanLII 255 (SCC) is accepted authority for the proposition that whether a claimant possesses a reasonable expectation of privacy determines whether the claimant has legal standing to challenge the search/seizure under section 8 of the Canadian Charter of Rights and Freedoms.

Identifying the type of privacy interest that may be at stake from among—territorial, informational, personal—potentially allows courts to focus on different privacy values engaged in differing circumstances.


However, while the distinction between personal, territorial and informational privacy provides useful analytical tools, in a given case, the privacy interest may overlap the categories.   

R. v. Tessling

 R. v. Edward also provides us with the standard legal test for determining a reasonable expectation of privacy situated in territorial/spatial interests.

 In R. v. Henry, 2016 ONCA 873, the Court of Appeal for Ontario agreed with the conclusion of the trial judge that the accused did not have standing under section 8 of the Charter to challenge the police search of a home

·         In which he was not the tenant,

·         did not have his own house key,

·         lived elsewhere,

·         used another address for mail, and

·         was not present when the search took place,

·         further, the accused did not testify on the voir dire about any privacy interest he might have in relation to the subject property or its contents (a fact which may be relevant to (though is not determinative of) whether the accused possessed a subjective expectation of privacy in the home).



The trial judge, in applying the Edward’s framework for reasonable expectation of privacy concluded that



The cumulative effect of all the evidence leads me to conclude that Mr. Henry was a very privileged visitor. Mr. Henry has provided no evidence to indicate that he has a reasonable expectation of privacy and neither can such an inference be made from the evidence tendered. The evidence is silent on his subjective expectation.




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