The reasonable expectation of privacy (REP) is a fundamental principle in Canadian criminal law, protecting individuals from unjustified state intrusion under Section 8 of the Charter of Rights and Freedoms. It ensures that police searches and seizures must be lawful and justified, balancing personal privacy against legitimate law enforcement needs.
Think your privacy rights were violated during a search? Call (306) 994-9522 to speak with a criminal defence lawyer today.
What Is a Reasonable Expectation of Privacy?
At its core, a reasonable expectation of privacy exists when:
- You have a subjective expectation that your privacy is protected;
- That expectation is considered objectively reasonable in the circumstances.
Courts assess this using the “totality of the circumstances” approach. Factors include your relationship to the location or item, the nature of the information or space, the presence of others, and the purpose of the police action.
Importantly, privacy is not all or nothing. You may retain some privacy even in semi-public places like workplaces, schools, or shared dwellings.
The Three Zones of Privacy
- Personal Privacy: Your body is entitled to the highest level of protection. Strip searches and bodily samples, for example, require strict legal justification.
- Territorial Privacy: This applies to spaces such as your home, vehicle, or even your friend’s backyard. The more control you have over the space, the stronger your expectation of privacy.
- Informational Privacy: Includes control over personal information—emails, text messages, location data, and online activity. Even if you share information with another person or third-party service, you may still have a REP.
Facing charges involving search and seizure? Talk to a defence lawyer at (306) 994-9522 for a confidential consultation with a seasoned criminal lawyer.
How Courts Assess Privacy Rights
Courts use a “totality of the circumstances” test to determine whether an REP exists. Factors include:
- Subject Matter of the Search
- What was searched? (e.g., home, phone, body)
- Was it intimate or personal information?
- Control & Ownership
- Did the accused have control over the property?
- Was it a shared or private space?
- Subjective Expectation of Privacy
- Did the person believe their privacy was protected?
- Objective Reasonableness
- Would a reasonable person expect privacy in that situation?
How R. v. Jarvis and R. v. Le Shaped REP
1. R. v. Jarvis (2019)
Background: Mr. Jarvis, a high school teacher, secretly used a pen camera to record female students’ cleavage in school hallways. He was charged with voyeurism under s. 162(1)(c) of the Criminal Code, which requires the Crown to prove the recordings occurred in circumstances giving rise to a reasonable expectation of privacy for a sexual purpose.
Issue: Did the students have a reasonable expectation of privacy—even in a school hallway?
Court’s Decision: Yes. The Court convicted Mr. Jarvis, concluding that privacy is not lost simply because someone is in a public or semi-public place.
Key Takeaways: REP is not destroyed by the mere presence of security cameras or being in a public space. The fact that someone could observe you doesn’t mean you should expect to be secretly recorded, especially for sexual purposes. Voyeurism involves more than privacy—it’s about sexual autonomy and dignity.
Key factors:
- Location: Schools are quasi-public but still carry privacy expectations.
- Subject matter: Sexualized recordings heighten privacy concerns.
- Consent: The students did not know they were being recorded.
- Relationship: Teachers hold a position of trust.
Concerned your phone or home was searched illegally? Call (306) 994-9522 to consult with a criminal defence lawyer.
2. R. v. Le (2019)
Background: Tom Le was socializing in a friend’s backyard when police entered without a warrant. Le fled, and a search revealed drugs and a firearm. The Crown argued that Le had no REP in someone else’s backyard.
Key Differences from Jarvis:
- Le did not own or control the space.
- He could not exclude others from the property.
- The space was shared, with an open gate and no signs limiting access.
Court’s Decision: The Supreme Court found serious breaches of both Sections 8 and 9. Although Le was a guest and did not control the space, the Court held that he still had a reasonable expectation of privacy. Control was a factor, but not decisive; the police intrusion without cause or warrant was unreasonable and Charter-infringing.
What If Police Violated Your Privacy Rights?
If evidence was obtained through an unreasonable search, your criminal lawyer can argue for its exclusion under Section 24(2) of the Charter. Courts consider:
- Seriousness of the breach (Was it deliberate or accidental?)
- Impact on your rights (How invasive was the search?)
- Society’s interest in a fair trial (Would admitting the evidence harm justice?)
Possible outcome may include exclusion of evidence and a weakened or dismissed case if the charter challenge is successful.
Have You Been Charged with a Criminal Offence?
An experienced criminal defence lawyer is essential when facing criminal charges. A criminal defence lawyer can help you navigate the complexities of the legal system, protect your rights, and develop a strong defence strategy tailored to your case.
Need a Criminal Defence Lawyer? Get a Free Legal Consultation With Nicholas Robinson, Criminal Defence Lawyer
Don’t hesitate to reach out to us if you have been charged with a criminal offence. Call (306) 994-9522, and a skilled criminal defence lawyer will discuss your case with you and explore your options.