Stuart O'Connell Criminal Law Blog

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 matt...

Children are especially vulnerable to sexual crimes and, without question, the Internet allows for greater opportunities to sexually exploit them. Protecting children from becoming victims of sexual offences is vital in a free and democratic society, and that need can inform the scope of one's reasonable expectation of privacy under section 8 of the Charter.  Most relationships between adults and children are worthy of s. 8’s protection, including, but in no way limited to, those with family, friends, professionals, or religious advisors. R. v. Mills , 2019 SCC 22, at paras. 23, 24 [plurality opinion; Moldaver J, concurring]. However, an adult does not have a reasonable expectation of privacy in online communications between himself and a person he believes to be child, where the person he believes to be a child is effectively a stranger to him, and where police are aware of this. Ibid. , at para. 30.  Thus, police did not need to obtain a warrant to c...

  Section 8 of the Canadian Charter of Rights and Freedoms protects an individual’s reasonable expectation of privacy from unreasonable state intrusion. R. v. Tessling , 2004 SCC 67 (CanLII) at para. 18; R. v. Orlandis-Habsburgo , 2017 ONCA 649 (CanLII), 352 C.C.C. (3d) 525 , at para. 37 .   State conduct that infringes on an individual’s reasonable expectation of privacy will be treated as a search for the purposes of section 8. R. v. Buhay , 2003 SCC 30 (CanLII), [2003] 1 S.C.R. 631 , at para. 18 ; R. v. Spencer , 2014 SCC 43 (CanLII), [2014] 2 S.C.R. 212 , at paras. 16-17 .   In considering a reasonable expectation of privacy claim, the court begins by identifying the subject matter of the claim. It then asks first, did the claimant have a subjective expectation of privacy in the subject matter, and second, if so, was that expectation objectively reasonable, having regard to the totality of the circumstances?  R. v. Spencer , 2014 SCC ...

Determining whether a search is constitutionally unreasonable under section 8 of the Charter involves a consideration of whether, in the circumstances, there is a reasonable expectation of privacy.   It is that expectation that triggers the application of section 8. Electronic communications in the modern world involve a degree of anonymity and easily permit either the sender or recipient of a message to give misleading or false information. When an individual shares information across electronic social media with a person or entity he does not know, and therefore with whom he is not in a position to trust, he risks the disclosure of that information.   This militates against the individual possessing a reasonable privacy expectation. R. v. Mills , 2017 NLCA 12, at para. 23. [In which the appellant communicated via social media with a police officer posing as a fourteen-year-old girl.   The Court of Appeal for Newfoundland and Labrador concluded that the app...

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 ...