What’s in a Name? What the malleable meaning of “reasonable expectation of privacy” means for the admissibility of “records” in the possession of the accused

  • January 15, 2020
  • Katie Doherty

Decades of jurisprudential effort has been spent examining the scope of what is covered by an individual’s “reasonable expectation of privacy” for the purposes of s. 8 Charter protection. As if the concept was not slippery enough, this term of art has been conscripted into other contexts as well. As a result, the kinds of materials (e.g. communications) that will be found to fall under the “reasonable expectation of privacy” umbrella have further diversified.

In Canadian law, what constitutes a “reasonable expectation of privacy” is necessarily determined on a case by case basis. Any such expectation must be both subjectively held and objectively reasonable.[1] Whether a specific individual has an objectively reasonable expectation of privacy depends on a consideration of the entirety of the circumstances.[2] It is therefore inherently difficult to speak in generalities regarding categories or varieties of material that will fall under or outside the “reasonable expectation of privacy” umbrella. 

No doubt this approach has its inherent benefits. It is capable of adapting to numerous situations that were unimaginable when the Charter was enacted.[3] However, it is by no means without its practical challenges. The safest answer to any question whether there is a reasonable expectation of privacy triggered in the subject matter of a specific search is always – “maybe.” “Do I need a warrant” calls keep Crown phonelines occupied. Crown and defence lawyers are also kept busy with litigation considering whether specific police actions offended an accused’s reasonable expectation of privacy.