 |
| Patrick Ducharme |
Reasonable expectation of privacy has emerged as the cornerstone test of the search and seizure process. Police activity will not be viewed as conduct requiring constitutional scrutiny under section 8 of the Charter unless a reasonable expectation of privacy has been violated. Based on the law of trespass our courts have stated that in each application the totality of circumstances must be considered to determine whether a reasonable expectation of privacy exists and whether or not there has been a breach of that reasonable expectation.
A fundamental issue in search cases is whether or not an individual has a reasonable expectation of privacy in relation to the property or premises searched. The Newfoundland Court of Appeal in Fry1 rather exhaustively canvassed the meaning of “reasonable expectation of privacy.” A number of cases have stressed that a reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances, which may necessitate a multifactor analysis. The Supreme Court of Canada’s decision in Edwards2 provided this non-exhaustive list of factors to be considered:
1. Presence at the time of the search;
2. Possession or control of the property or place searched;
3. Ownership of the property or place;
4. Historical use of the property or item;
5. The ability to regulate access, including the right to admit or exclude others from the place;
6. The existence of a subjective expectation of privacy; and
7. The objective reasonableness of that expectation.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
Subscribe to Patrick Ducharme's Youtube Channel