Canadian Criminal Procedure and Practice/Search and Seizure/Reasonable Expectation of Privacy

Introduction
A search can be unreasonable where it intrudes on a person's reasonable expectation of privacy.

An "expectation of privacy is a normative rather than a descriptive standard"

The determination of privacy rights is made "from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy."

The rights are intended to protect "biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state." It further "include[s] information which tends to reveal intimate details of the lifestyle and personal choices of the individual."

Courts interpret privacy in a "broad and liberal manner".

Section 8 protects persons not places. The Charter does not recognize regions of immunity. Solicitor-client meeting rooms, for example, or confessionals are given no heightened expectation of privacy due to their intended use.

Privacy is held with respect to different parties. A person will hold a different expectation of privacy from an employer than from the police.

A person cannot have a reasonable expectation of privacy in what they knowingly expose to part or all of the public or abandons in a public place.

The accused must begin by establishing the existence of a s.8 right by showing there is was reasonable expectation of privacy.

Factors
Factors considered in R. v. Edwards :
 * 1) A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.
 * 2) The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:
 * 3) presence at the time of the search;
 * 4) possession or control of the property or place searched;
 * 5) ownership of the property or place;
 * 6) historical use of the property or item;
 * 7) the ability to regulate access, including the right to admit or exclude others from the place;
 * 8) the existence of a subjective expectation of privacy; and
 * 9) the objective reasonableness of the expectation.

When in the context of "informational privacy", the Edwards criteria were amended to include other considerations and factors:
 * 1) What was the nature or subject matter of the evidence gathered by the police?
 * 2) Did the appellant have a direct interest in the contents?
 * 3) Did the appellant have a subjective expectation of privacy in the informational content of the evidence?
 * 4) If so, was the expectation objectively reasonable?  In this respect, regard must be had to:
 * 5) the place where the alleged “search” occurred
 * 6) whether the informational content of the subject matter was in public view;
 * 7) whether the informational content of the subject matter had been abandoned;
 * 8) whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
 * 9) whether the police technique was intrusive in relation to the privacy interest;
 * 10) whether the use of this evidence gathering technique was itself objectively unreasonable;
 * 11) whether the informational content exposed any intimate details of the appellant’s lifestyle, or information of a biographic nature.

Vehicles
A driver has a reasonable expectation of privacy for the contents of his motor vehicle. The reasonable expectation of privacy for a vehicle is low. It is considered more limited than locations such as houses.

Passengers however do not generally have a reasonable expectation of privacy. However, in some cases they can. It will depend on the totality of the circumstances including the passenger's connection with the vehicle, the vehicle's owner, the passenger's use of the vehicle, and ability to control access to it.

Residences
There is a high expectation of privacy in a house. Unlawful entry will be a serious intrusion on the person's privacy rights.

It can "be presumed unless the contrary is shown in a particular case that information about what happens inside the home is regarded by the occupants as private".

A search of a dwelling is considered an invasion of a place with the "highest degree of privacy".

A person will have a diminished expectation of privacy where legislation authorizes police intrusion.

Police intrusion upon private property can only be permitted "only by powers granted in clear statutory language"

Non-dwelling Residences
Provided an expectation of privacy exists in a non-dwelling residence, the accused's standing may invoked where he has "an ownership interest in the premises" absence countervailing evidence.

Person
An individual who attends a hospital for medical treatment is entitled to expect that his clothing will be held by the facility until discharged. Hospitals have been identified as an area of concern for the protection of privacy.

Bodily Samples DNA samples taken as part of a previous sentence is not protected by a reasonable expectation of privacy.

Fingerprints Fingerprints taken as part of a previous sentence is not protected by a reasonable expectation of privacy.

Photographs Photographs taken as part of a previous sentence is not protected by a reasonable expectation of privacy.

Body Cavity Strip searches can be humiliating, embarrassing, and degrading for the accused. It is also one of the most extreme forms of search available to police.

Storage
School lockers have a reduced expectation of privacy with respect to teaching staff.

Business Records
Telephone records detailing contact between various persons has a reduced expectation of privacy, in comparison to personal medical records

Several lines of cases have developed on the issue of whether there is a reasonable expectation of privacy in subscriber information associated with business accounts, in particular IP addresses. Generally they have sided on there not being privacy rights in "tombstone" information of a person since it is freely available to the public. In certain cases this will turn on the service contract. Where a contract is not in evidence a court is more likely to find in favour of there being a expectation of privacy.

Whether a person has a bank account with a particular bank does not have a reasonable expectation of privacy because that information does not reveal any core biographical information.

Garbage
Generally speaking, there is no expectation of privacy is materials found in a dumpster.

Computers and Electronic Devices
Home and personal computers are imbued with a high degree of privacy due to the frequency that it contains intimate correspondence, financial, medical, or personal information. In addition to our personal interests and tastes. According to the Morelli court, the level of privacy does not get much higher.

Generally, all personal electronic devices similar to home computers have a high level of privacy.

Any electronic device (computer, cell phone, etc) will contain information detailing a persons life that can be "deeply personal". Personal information can be found in:
 * Contact Information (detailing names, addresses, phone numbers, e-mail addresses and similar information);
 * Internet Browsing (history of websites, log-in information, passwords, form data);
 * Calendars;
 * Photographs and videos;
 * Messages (emails, texts, voicemails);
 * Phone Call Logs (dialled/received/missed calls, caller identification);

It is suggested that the degree of privacy is lessened where a personal computer has been brought to a repair shop. In some cases, there is no expectation of privacy. In R. v. Piette,2009 QCCQ 14499 a computer repairman makes copy of child abuse images found on computer onto a CD and gives it to police. The court found no REP on CD so no need for warrant.

There is conflicting case law on instances where a third party examines a computer system and discovers evidence of a criminal offence on it. In R. v. Cole, 2008 ONCJ 278 the school supervisor finds child abuse images on network directory of employee, he tells police who seize computer and send for a forensic analysis. The court found section 8 violated for search without warrant.

An accused loses their reasonable expectation of privacy to a household computer once they move out.

The search of a computer cannot always be precise. An investigating officer looking for a particular piece of evidence may need to diverge into several areas of the hard drive in the same way as a person searching a house would look into a number of draws of a bedroom before finding evidence.

Workplace computers are considered to have limited or no expectation of privacy. This will turn on the employer's privacy policy on whether the employees can keep personal things on work computers.

A computer seized as under plain view under s. 489 during the execution of a general residential search warrant is permissible. However, the search of its contents may require a warrant.

Peer-to-Peer Software
Software installed on a computer that enables other persons on a network to access information and files on a computer, such as Peer-to-Peer software, is relevant to the courts usually in a child pornography cases.

Some US cases have considered whether there is a privacy right in the computer's shareable files. Courts have concluded that files found on a computer that are accessible and transferable over a peer-to-peer do not have a reasonable expectation of privacy due to the

In Canada, there is a slow adoption of the same view. In R v Caza, 2012 BCSC 525, the court noted that the shared directory in a peer-to-peer network is much less private than a dwelling. It is not the same as a search through the entire hard drive of an entire computer because it is more restrictive. The search of shared files on peer-to-peer network does not engage s. 8 of the Charter.

Memory Sticks
In R. v. Tuduce, 2011 ONSC 2749, the court said that a search of a memory stick has a REP and so requires a search warrant.

Cell phones
There is a division in the case law on the level of privacy there is for cell phones.

A smart cellphone, as a digital device, is said to have a high expectation of privacy. It is like "an archive of social, family and business activities".

Several cases have stated that a complete forensic analysis of a cell phone, a so-called "data dump", without a warrant is impermissible.

There is limited authority stating no search of phones is permitted.

A limited warrantless search is permitted incident to arrest when the search is connected with the investigation. On arrest for drugs, the police may search the calling records on the cell phone.

In Giles, 2007 BCSC 1147, the court stated the police can search and download copies of emails on a blackberry incident to arrest.

Prisons
An inmate in a correctional facility has a very limited expectation of privacy over their phone calls.