Tuesday, October 2, 2012

Reasonable expectation of privacy

 R. v. Ward, 2012 ONCA 660 gives a useful answer to the question as to how to determine whether a claimant has "a reasonable expectation of privacy"? :

[81]       How then is one to determine whether a claimant has "a reasonable expectation of privacy"?  In Tessling, at para. 42, Binnie J. observes that "[e]xpectation of privacy is a normative rather than a descriptive standard."

[82]       By "normative", I understand Binnie J. to mean that in determining whether an individual enjoys a reasonable expectation of privacy, the court is making a value judgment more than a finding of fact in the traditional sense.  When the court accepts the contention that a person has a reasonable expectation of privacy, the court is in reality declaring that the impugned state conduct has reached the point at which the values underlying contemporary Canadian society dictate that the state must respect the personal privacy of individuals unless it is able to constitutionally justify any interference with that personal privacy.

[83]       The normative nature of the reasonable expectation of privacy inquiry has been underscored in several pronouncements from the Supreme Court of Canada beginning in Wong, at pp. 45-46, where La Forest J. described the inquiry in these terms:

[W]hether, by the standards of privacy that persons can expect to enjoy in a free and democratic society, the agents of the state were bound to conform to the requirements of the Charter when effecting the intrusion in question.

[84]       In Patrick, at para. 14, Binnie J. stressed the long-term consequences on personal privacy of the impugned state action in assessing the privacy claim:

Privacy analysis is laden with value judgments which are 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.

[85]       Most recently in Gomboc, Deschamps J., at para. 34, in her concurring reasons, captured the normative nature of the inquiry in these terms:

Thus, the fact that the person claiming an expectation of privacy in information ought to have known that the terms governing the relationship with the holder of that information allowed disclosure may not be determinative.  Rather, the appropriate question is whether the information is the sort that society accepts should remain out of the state's hands because of what it reveals about the person involved, the reason why it was collected, and the circumstances in which it was intended to be used.  [Emphasis added.]

[86]       The courts have approached the reasonable expectation of privacy inquiry by asking whether the claimant had a subjective expectation of privacy and, if so, whether in all of the circumstances that expectation was reasonable:  e.g. see R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 30.  While both questions help to focus the inquiry on the specific facts of the case and the values underlying s. 8, neither question captures the entirety of the reasonable expectation of privacy inquiry.  Section 8 is concerned with the degree of privacy needed to maintain a free and open society, not necessarily the degree of privacy expected by the individual or respected by the state in a given situation.  As Binnie J. put it in R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569 at para. 33, s. 8 protects the privacy interests that:

the citizen subjectively believes ought to be respected by the government and "that society is prepared to recognize as 'reasonable'"....  [Emphasis added; citation omitted.]

[87]       The fact that the paranoid target of a search has no expectation of privacy cannot negative his s. 8 rights: see Tessling, at para. 42.  Nor can ubiquitous state intrusions upon privacy render expectations of privacy unreasonable for the purposes of s. 8: see Patrick, at para. 14.  The ultimate question is whether the personal privacy claim advanced in a particular case must, upon a review of the totality of the circumstances, be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society: see James A. Q. Stringham, "Reasonable Expectations Reconsidered: A Return to the Search for a Normative Core of Section 8?" (2005) 23 C.R. (6th) 245.

[88]       As has repeatedly been said, the reasonable expectation of privacy inquiry is contextual and looks at the totality of the circumstances: Edwards, at paras. 31-45;Tessling, at paras. 19 & 31; and Patrick, at para. 26.  Importantly, this contextual examination has no regard to the product of the challenged search or seizure.  The inquiry is framed in "broad and neutral terms": Wong, at p. 50; see also Buhay, at para. 19; Patrick, at para. 32.  The question is not whether the appellant had a reasonable expectation that he could access and possess child pornography anonymously. The question is whether the appellant had a reasonable expectation that he could anonymously access the Internet on his computer without the state, with the cooperation of the appellant's ISP, being able to find out what he had accessed.


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