Canada private property unreasonable search

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Duarte , [] 1 S.

Private Property and the Charter

Potash , [] 2 S. Dyment , [] 2 S. Colarusso , [] 1 S. This includes situations in which a person is required to produce a thing including information pursuant to a state compulsion R. McKinlay Transport Ltd.

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Branch , [] 2 S. White , [] 2 S. Fitzpatrick , [] 4 S. Dersch , [] 3 S. This is so whether the sample is provided pursuant to a police demand, request, or whether it is provided voluntarily. The fact that a person who has acquired lawful possession of information for their own purposes voluntarily discloses the information to the state does not vest in the state a delegated or derivative power to appropriate that information for the purposes of a criminal investigation R.

Cole , [] 3 S. The section 8 protection against seizure does not apply to government action merely because those actions interfere with property rights.

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Laroche , [] 3 S. Thus, a restraint order against property will constitute a seizure where it is issued for the ultimate purpose of investigation Laroche at paragraph Reeves , SCC 56 at paragraphs Where the state has seized records, the Supreme Court has indicated that disclosure of those records to individuals outside of those to whom, or for purposes other than for which, they were originally divulged may interfere with a reasonable expectation of privacy Mills at paragraph ; R. Quesnelle , SCC 46, [] 2 S. Whether or not state action has interfered with a reasonable expectation of privacy so as to constitute a search or seizure is to be determined on the basis of the totality of the circumstances.

Edwards , [] 1 S. Four lines of inquiry guide the application of the test Cole at paragraph 40; Tessling at paragraph 32 :. The totality of the circumstances test determines both the existence and extent of the reasonable expectation of privacy. If there is no reasonable expectation of privacy, the protections of section 8 are not engaged and the analysis ends there. If there is a reasonable expectation of privacy of any degree, section 8 will be engaged to prevent state interference except under the authority of a warrant or other reasonable law Cole at paragraph 9.

It is essential at the outset to identify the subject matter of the search. In many cases this will be a straightforward matter. In others, however, it will not. In such cases, the characterization of the subject matter can make a major contribution to the analysis see e. Spencer , [] 2 S. The nature of the privacy interest does not depend on whether, in the particular case, privacy shelters legal or illegal activity. The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought Patrick at paragraph 32; Spencer at paragraph The Supreme Court has identified three broad privacy interests protected by section 8: personal privacy, territorial privacy and informational privacy.

The distinction between these categories provides a useful analytical tool but is not determinative of the analysis as, in a given case, the privacy interest may overlap the categories Tessling at paragraph 24; see also Gomboc at paragraph Privacy of the person perhaps has the strongest claim to constitutional shelter because it protects, in particular, the right of individuals not to have their bodies touched or explored to disclose objects or matters they wish to conceal Tessling at paragraph 21 and is often at issue in criminal investigations when the state wishes to pursue invasive procedures such as drug testing and cavity searches.

The Supreme Court has repeatedly emphasized the close relationship between bodily privacy and human dignity see e. Golden , [] 3 S. Pohoretsky , [] 1 S. Stillman , [] 1 S. This has developed into a more nuanced hierarchy protecting privacy: in the home, being the place where our most intimate and private activities are most likely to take place Evans at paragraph 42; R. Silveira , [] 2 S. Feeney , [] 2 S.

Grant , [] 3 S. Wiley , [] 3 S. Wise , [] 1 S. Mellenthin , [] 3 S. Canada Attorney General , [] 2 S. In fostering the underlying values of dignity, integrity and autonomy, it is fitting that section 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual Plant at Informational privacy includes at least three conceptually distinct, though overlapping, understandings of what privacy is: privacy as secrecy; privacy as control and privacy as anonymity.

Privacy as secrecy encompasses the expectation that information disclosed in confidence will be held in trust and confidence by those to whom it is disclosed. Privacy also encompasses a wider notion of control over, access to, and use of information. Privacy as anonymity permits individuals to act in public places but to preserve freedom from identification and surveillance. This conception of privacy is particularly important in the context of Internet usage Spencer at paragraphs Because the Internet has exponentially increased both the quality and quantity of information that is stored about Internet users, and because users cannot fully control or even be fully aware of who may observe a pattern of online activity, it is by remaining anonymous that the user can in large measure be assured that the activity remains private Spencer at paragraph Marakah , SCC 59 at paragraph In the s.

In other cases, the Court appears to understand the issue of standing in the narrower sense described above, as a means of limiting arguments based on the constitutional rights of third parties see e. Ferguson , SCC 6 at paragraph Jones , SCC 60 at paragraphs Where a person is a third party in a location where a search or seizure takes place e. Belnavis , [] 3 S. For more discussion of standing under the Charter, see generally section 24 1 and section 52 1. The question is whether the claimant had, or is presumed to have had, an expectation of privacy in the subject matter of the search Patrick at paragraph 37; Jones at paragraphs This is not a high hurdle.

Similarly, a subjective expectation of privacy can be inferred in text messages sent to a known recipient Jones at paragraph The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded by section 8 to the values of a free and democratic society. A person who fears their telephone is bugged may no longer have a subjective expectation of privacy but does not necessarily forfeit the protection of section 8.

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Privacy is a normative rather than descriptive standard Tessling , paragraph 42; R. Jarvis , SCC 10 at paragraph Buhay , [] 1 S. There is no definitive list of factors that must be considered in assessing the objective reasonableness of an expectation of privacy. The relevant case law, however, provides useful guidance in the form of a non-exhaustive list of factors that are potentially relevant Cole at paragraph Private dwellings, in contrast to other premises, carry heightened privacy expectations Kokesch at pages ; Feeney at pages ; see also R.

Landry , [] 1 S. The perimeter around these dwellings carries similar constitutional protection Plant at page ; Wiley at ; Grant ; Gomboc at paragraph Although police have an implied license to approach the door of a residence and knock for the limited purpose of communicating with the occupant, conduct going beyond the terms of the implied license e. MacDonald , [] 1 S. The public interest in maintaining an effective emergency response system i. Godoy , [] 1 S. Private offices also generally attract a high expectation of privacy R.

Rao , 12 C. Among commercial premises, the media are entitled to particularly careful consideration because of the importance of their role in a democratic society see e.

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Lessard , [] 3 S. New Brunswick Attorney General , [] 3 S. National Post , [] 1 S. Vice Media Canada Inc. Canada Attorney General ; R. Fink , [] 3 S. Richer , [] 3 S. Wong , [] 3 S. Motor vehicles carry a decreased expectation of privacy in contrast to a home or office, given that the use of public highways is a highly regulated activity Wise at ; Belnavis at paragraphs ; Nolet at paragraph Travellers using public transportation maintain a reasonable expectation of privacy in their luggage R.

Kang-Brown , [] 1 S.

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Chehil , [] 3 S. Students know that their teachers and other school authorities are responsible for providing a safe environment and maintaining order and discipline in the school, which may sometimes require searches of students and their personal effects and the seizure of prohibited items. Nevertheless, a personal search of a student i. Students also have a reasonable expectation of the contents of their backpacks on school premises A. There can be no reasonable expectation of privacy in something that is knowingly exposed to the public, or to a section of the public, or abandoned in a public place Tessling at paragraph 40; see also R.

Boersma , [] 2 S. Canada , [] 1 S. Monney , [ ] 1 S. However, the mere fact that a person enters a public space does not mean that the person expects to be personally identified and subjected to extensive surveillance Spencer at paragraph Privacy interests in modern society include the reasonable expectation that private information will remain confidential to the persons to whom and restricted to the purposes for which it was divulged Dyment at page ; Mills at paragraph Control over and ability to regulate access to the subject matter of the search are relevant factors in determining the objective reasonableness of a subjective expectation of privacy.

However, control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest Marakah at paragraph In the context of electronic conversations, individuals exercise meaningful control over the information they send by making choices about how, when and to whom they disclose the information Marakah at paragraph To accept this risk, however, is not to accept the risk of a different order that someone will consent to the police making an electronic recording of their words Duarte at page 48; Reeves at paragraph Similarly, to accept the risk that a participant in an electronic conversation could disclose its contents to police is not to accept the risk that the state will intrude upon the electronic conversation absent such disclosure Marakah at paragraph A reasonable expectation of privacy may persist in circumstances where the loss of control over the subject matter of the search is involuntary, such as where a person is in police custody, where the subject matter of the search is stolen by a third party, or where the person is restrained from accessing the subject matter of the search by court order Reeves at paragraph A person normally does not retain a reasonable expectation of privacy with respect to property or things, including informational content that have been voluntarily abandoned.

The determination of whether a thing has been abandoned — i. In the case of garbage, for instance, abandonment will be a function of both location where the garbage was left and the intention of the person abandoning the garbage Patrick at paragraphs , Discarded bodily samples cannot be said to have been voluntarily abandoned if the person concerned is in custody or detained Stillman at paragraphs An item that is stolen is not, by virtue of that fact alone, abandoned.

Although the owner would reasonably expect a certain degree of intrusion into the stolen item e. Although the reasonable expectation of privacy is not limited to trust-like, confidential, or therapeutic relationships, the nature of the relationship is a relevant part of the overall context Quesnelle at paragraph 27; see also Plant at page ; Tessling at paragraph The doctor-patient relationship is characterized by a high degree of confidentiality. Bodily samples collected for medical purposes are subject to a duty to respect the privacy and dignity of the person and cannot generally be shared with police absent prior judicial authorization Dyment at paragraphs ; Colarusso.

A client has a reasonable expectation of privacy in all documents in the possession of his or her lawyer, which constitute information that the lawyer is ethically required to keep confidential Lavallee at paragraph 35; Chambre des notaires at paragraph Records that are subject to inspection by members of the public at large cannot be said to be subject to an obligation of confidentiality Plant at paragraph The contractual and statutory framework, including any terms or provisions governing the disclosure of the information, may be relevant to whether there is a reasonable expectation of privacy.


When dealing with a contract of adhesion in the context of a consumer relationship, caution must be exercised in determining the impact of the contract on the reasonableness of an expectation of privacy Spencer at paragraph 54; Gomboc at paragraphs , , However, adults cannot reasonably expect privacy online with children they do not know. Whether the same conclusion would apply to other types of relationships remains to be determined in light of the nature of the relationship in question and the circumstances of the alleged search Mills at paragraph 26; see also the minority reasons of Karakatsanis J.

In the context of personal privacy, the level of invasiveness is a function of the circumstances, including the duration of the search technique, whether there is penetration into the body, whether the technique causes pain or discomfort, and whether the search involves the removal of substances from the body Stillman at paragraphs ; R. Beare; R.