The Current Framework for Determining a Reasonable Expectation of Privacy: The Basics

The principal purpose of section 8 of the Charter is to protect an accused’s privacy interests against unreasonable intrusion by the State.  Accordingly, police conduct interfering with a reasonable expectation of privacy is said to constitute a “search” within the meaning of the provision.

R. v. Law, 2002 SCC 10 (CanLII), at para. 15.

A section 8 analysis consists of two steps:

 (1) whether the state action constitutes a search; and if so,

(2) whether the search was reasonable.

R. v. Law, 2002 SCC 10 (CanLII).

A search occurs when state conduct interferes with an individual’s reasonable expectation of privacy.

Hunter v. Southam Inc., 1984 CanLII 33 (SCC);

 R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 12;

R. v. Law, 2002 SCC 10 (CanLII), at para. 15.

The Doctrinal Framework for Determining a Reasonable Expectation of Privacy

Section 8 applies “where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access”.

 R. v. Cole, 2012 SCC 53 (CanLII), at para. 34;

R. v. Spencer, 2014 SCC 43 (CanLII), at para. 16;

R. v. Tessling, 2004 SCC 67 (CanLII), at para. 18. 

To claim s. 8 protection, a claimant must first establish a reasonable expectation of privacy in the subject matter of the search, i.e., that the person subjectively expected it would be private and that this expectation was objectively reasonable.

R. v. Edwards, 1996 CanLII 255 (SCC), at para 45;

Hunter v. Southam Inc., 1984 CanLII 33 (SCC), at pp. 159-60;

Katz v. United States, 389 U.S. 347 (1967), at p. 361, per Harlan J., concurring. 

Whether the claimant had a reasonable expectation of privacy must be assessed in “the totality of the circumstances”.

Edwards, at paras. 31 and 45; see also Spencer, at paras. 16-18;

R. v. Cole, 2012 SCC 53 (CanLII), at para. 39;

R. v. Patrick, 2009 SCC 17 (CanLII), at para. 26;

R. v. Tessling, 2004 SCC 67 (CanLII), at para. 19.

In considering the totality of the circumstances, four “lines of inquiry” guide the court’s analysis:

1.                  What was the subject matter of the alleged search?

2.                  Did the claimant have a direct interest in the subject matter?

3.                  Did the claimant have a subjective expectation of privacy in the subject matter?

4.                  If so, was the claimant’s subjective expectation of privacy objectively reasonable?

R. v. Cole, 2012 SCC 53 (CanLII), at para. 40;

R. v. Spencer, 2014 SCC 43 (CanLII), at para. 18;

R. v. Patrick, 2009 SCC 17 (CanLII), at para. 27;

R. v. Tessling, 2004 SCC 67 (CanLII), at para. 32.

Only if the answer to the fourth question is “yes” — that is, if the claimant’s subjective expectation of privacy was objectively reasonable — will the claimant have standing to assert his section 8 right. If the court so concludes, the claimant may argue that the state action in question was unreasonable. If, however, the court determines that the claimant did not have a reasonable expectation of privacy in the subject matter of the alleged search, then the state action cannot have violated the claimant’s section 8 right. He will not have standing to challenge its constitutionality.

R. v. Marakah, [2017] 2 SCR 608, 2017 SCC 59 (CanLII), at para. 12.

Stuart O'Connell, O'Connell Law Group (All rights reserved to author).