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Charter - Section 8 - 'Reasonable Expectation of Privacy' (5). R. v. L.T. [recording of phone call disclosed by one party to it]
In R. v. L.T. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against "convictions for two counts of sexual assault and one count of assault with choking, contrary to ss. 271 and 267(c) of the Criminal Code".
The court considers a Charter s.8 ['search and seizure'], here regarding the criminal evidentiary use of a party-recording of a phone conversation:[64] As a result of the appellant’s concession that the police could receive the recordings without infringing his s. 8 rights, the following issue must be decided to resolve this appeal: Did the appellant have a reasonable expectation of privacy in the recordings the complainant secretly, but lawfully, made of their conversations, in circumstances where she voluntarily provided the recordings to police? If the appellant had a reasonable expectation of privacy, the court would also be called upon to decide whether the police receipt of, and decision to listen to, the recordings infringed the appellant’s s. 8 Charter rights in circumstances where the complainant volunteered the recordings, or whether it was a reasonable search applying the analysis from R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp. 277-78. However, as I conclude that the trial judge made no error in finding that the appellant did not have a reasonable expectation of privacy in the recorded conversations, it is not necessary to address the latter questions.
c. Whether s. 8 of the Charter is “engaged” turns on whether the appellant has a reasonable expectation of privacy in the subject matter of the search
[65] Before engaging in depth in the assessment of whether the appellant had a reasonable expectation of privacy in the two recordings, I address two preliminary issues.
[66] First, the Crown argues that s. 8 of the Charter is “not engaged” by the complainant voluntarily providing the recordings to the police. The Crown argues this as a distinct issue from whether the appellant has a reasonable expectation of privacy in the recordings. In making this argument, the Crown relies on the frequently cited dicta of Doherty J.A. in R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at para. 34 (as well as on several trial level decisions):I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative. On that approach, s. 8 would be engaged if a “whistleblower” took confidential documents belonging to her employer to the police to demonstrate the employer’s criminal activity. Must the police refuse to look at the documents to avoid violating the employer’s s. 8 rights? As Duarte teaches, it is one thing to say that Canadian values dictate that the state’s power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual’s private information is cloaked in the protection of s. 8 no matter how that information comes to the police. [67] Respectfully, the decisions of the Supreme Court and this court do not support the Crown’s position that there is a distinction between s. 8 being “engaged” and whether a Charter claimant has a reasonable expectation of privacy in the subject matter of a search. The Supreme Court has clearly stated that the threshold question in a s. 8 analysis is whether the claimant has a “reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access”: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 10; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 34; R. v. Campbell, 2024 SCC 42, 442 C.C.C. (3d) 275, at para. 39; R. v. Bykovets, 2024 SCC 6, 433 C.C.C. (3d) 423, at para. 31; R. v. Lambert, 2023 ONCA 689, 169 O.R. (3d) 81, at paras. 54-56, 65-74, and 77.
[68] If the claimant has a reasonable expectation of privacy in the subject matter of the search, then police action in relation to the subject matter of the search engages s. 8, and the next step is the application of Collins factors – whether the search was lawfully conducted, whether the law authorizing it is reasonable, and whether the manner of search was reasonable. If the claimant does not have a reasonable expectation of privacy in the subject matter of the search, then s. 8 is not engaged.
[69] There is no other test for when s. 8 is engaged than whether the claimant has a reasonable expectation of privacy in the subject matter of the search or seizure. I do not read Orlandis-Habsburgo as suggesting otherwise. As I explain in the analysis below, the concern raised in Orlandis-Habsburgo regarding how the information came into the hands of police is a factor to be considered under the last branch of the reasonable expectation of privacy analysis – whether the subjective expectation of privacy is objectively reasonable.
d. The Scope of Duarte and Wong
[70] The second preliminary issue I address is the scope of the Supreme Court’s decisions in Duarte and Wong. I do so because, based on Duarte and Wong, the appellant places significant weight in his s. 8 argument on the fact that the conversations at issue were recorded.
[71] In my view, while the fact that the conversations were recorded is relevant to the s. 8 reasonable expectation of privacy analysis in this appeal, a review of the decisions in Duarte and Wong shows that the appellant’s submissions seek to extend those decisions beyond their intended scope.
[72] I focus in particular on Duarte because it involved audio recorded conversations. Wong extended the principles from Duarte to video surveillance.
[73] Duarte involved an investigation into drug trafficking. The investigating police forces rented an apartment which was occupied by a police informer who was working with an undercover officer. The apartment was equipped with audio-visual recording equipment installed in a wall. Prior to the installation of the recording equipment, the informer and the undercover officer consented to the interception of their conversations, pursuant to then s. 178.11(2)(a) of the Criminal Code. The accused and others attended at the apartment and discussed a cocaine transaction with the informer and the undercover officer. The conversation was recorded. At his trial, the accused challenged the admissibility of the recordings, pursuant to s. 8 of the Charter.
[74] LaForest J., writing for 6 of 7 members of the court, held that the warrantless recording of the conversations with participant consent of the informer and the police officer infringed the s. 8 rights to be free from unreasonable search and seizure. LaForest J. rejected the “risk analysis”, which posited that a person who voluntarily confides wrongdoing to another person takes the risk that that person may disclose the conversation and thus cannot have a reasonable expectation of privacy in the conversation or it being recorded. In his view, the risk that the state will make a permanent electronic recording of a conversation is a qualitatively different risk than that a co-conversationalist will disclose the conversation: Duarte, at pp. 41-49, and 54-57.
[75] Two concerns animated the decision in Duarte: (1) allowing permanent electronic recording of private conversations in the sole discretion of the state – by state agents – is not consistent with expectations of privacy in a free and democratic society; and (2) allowing such warrantless recording by state agents based on consent of a police officer or other state agent would undermine the scheme of the wiretap provisions of the Criminal Code, by subverting the requirement of prior judicial authorization.
[76] A few extracts from the reasons of LaForest J. make this point clear:The real question, as I see it, is whether our constitutional right to be secure against unreasonable search and seizure should be seen as imposing on the police the obligation to see prior judicial authorization before engaging in participant surveillance, or whether the police should be entirely free to determine whether circumstances justify recourse to participant surveillance and, having so determined, be allowed unlimited discretion in defining the scope and duration of participant surveillance. This Court is accordingly called on to decide whether the risk of warrantless surveillance may be imposed on all members of society at the sole discretion of the police. [at p. 42]
....
The rationale for regulating the power of the state to record communications that their originator expects will not be intercepted by anyone other than the person intended by the originator to receive it (see definition section of Part IV.1 of the Code) has nothing to do with protecting individuals from the threat that their interlocutors will divulge communications that are meant to be private. No set of laws could immunize us from that risk. Rather, the regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.
The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. [pp. 43-44]
....
If privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself, a reasonable expectation of privacy would seem to demand that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence. [p. 46]
....
In summary, the question whether to regulate participant surveillance cannot logically be made to turn on the expectations of individuals as to whether their interlocutor will betray their confidence. No justification for the arbitrary exercise of state power can be made to rest on the simple fact that persons often prove to be poor judges of whom to trust when divulging confidences or on the fact that the risk of divulgation is a given in the decision to speak to another human being. On the other hand, the question whether we should countenance participant surveillance has everything to do with the need to strike a fair balance between the right of the state to intrude on the private lives of its citizens and the right of those citizens to be left alone. [p. 49] [7] [77] The concern in Duarte about risks to the right to privacy which would result from allowing warrantless electronic surveillance based on participant consent arose from the fact that the participants giving the consent were a police officer and an informer – i.e., two state agents. In other words, the state was giving itself permission to make electronic recordings. Where the state was the participant giving consent to the interception, if a warrant were not required, unlimited and unregulated police electronic surveillance would have been permitted so long as the police could insert an officer or an informer into a conversation.
[78] My point is not that the recording of a conversation by a private individual is irrelevant to the reasonable expectation of privacy analysis. It is rather, that the recording of a conversation by a private individual without any state involvement engages different considerations and may lead to a different outcome of the reasonable expectation of privacy analysis, particularly on the issue of whether a subjective expectation is objectively reasonable.
e. Legal principles applicable to determining if a claimant has a reasonable expectation of privacy
[79] The primary purpose of s. 8 of the Charter is to protect the right of privacy from unjustified state intrusion: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 160; Campbell, at para. 36. The right to privacy is a foundational value in a free and democratic society: Campbell, at para. 37.
[80] The jurisprudence under s. 8 of the Charter seeks to balance the sometimes competing aims of personal privacy and the public interest, in particular, the public interest in law enforcement: Campbell, at para. 38; Hunter, at pp. 159-60.
[81] Courts effect this balance by assessing whether a claimant has a reasonable expectation of privacy in the subject matter of an alleged search by the state. A claimant seeking standing to argue that their rights under s. 8 were infringed must show that they subjectively expected the subject matter of the search would remain private, and that their expectation was objectively reasonable, having regard to the totality of the circumstances. In making this assessment, a court must consider four lines of inquiry: (1) the subject matter of the alleged search; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether the claimant’s subjective expectation of privacy was objectively reasonable (Campbell, at para. 39; Cole, at para. 40; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18; Bykovets, at para. 31).
[82] The issue raised in this appeal – whether a participant in an electronically preserved conversation has a reasonable expectation of privacy in the conversation in circumstances where the other party to the conversation voluntarily provides it to police when they report allegations of criminal conduct by the claimant – has not been decided by the Supreme Court. Although the court has accepted in different contexts that a claimant may maintain a reasonable expectation of privacy, vis-à-vis the state, in electronically preserved conversations even when those conversations are not in the claimant’s control, the Supreme Court and this court have expressly flagged that circumstances where such conversations are voluntarily provided to police by a complainant in alleging criminal conduct may be subject to different considerations: R. v. Reeves, 2018 SCC 56, [2018], 3 S.C.R. 531, at para. 46; Marakah, at para. 5; Campbell, at para. 40; R. v. P.M., 2025 ONCA 208, 176 O.R. (3d) 193, at paras. 49-57; R. v. Amdurski, 2022 ONSC 1338, at paras. 27-29. At paras 83-134 the court applies this Charter s.8 'reasonable expectation of privacy' law to the case facts, making several additional useful legal points.
. R. v. Suman
In R. v. Suman (Ont CA, 2026) the Ontario Court of Appeal allows a Crown appeal, this brought against acquittals when the trial court found that the respondent had "a reasonable expectation of privacy in his text messages to K.G. and excluded the messages from trial, along with evidence obtained as a result of those messages".
The court considers CCC 172.1 ['Disorderly Conduct - Agreement or arrangement — sexual offence against child'], here in a text message context where the issue was 'reasonable expectation of privacy':[48] In all of these circumstances, the respondent’s subjective expectation of privacy in his conversation with K.G. was not objectively reasonable.
The exception analysis
[49] A more straightforward route to the same conclusion is possible based on the exception recognized in Knelsen and in Gauthier.
[50] It is an offence pursuant to s. 172.1(1) of the Criminal Code, R.S.C. 1985, c. C-46, to communicate by means of telecommunications with a person under the age of 18 to facilitate the commission of an offence with respect to that person under s. 286.1(2) – specifically, obtaining for consideration, or communicating with anyone for the purpose of obtaining for consideration, the sexual services of a person under the age of 18. These offences reflect Canadian public policy, which among other things is designed to protect people from sexual exploitation, an approach Parliament adopted following the Supreme Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. As this court explained in R. v. N.S., 2022 ONCA 160, 169 O.R. (3d) 401, at para. 21, leave to appeal refused, [2022] S.C.C.A. No. 281:While some advocated for the decriminalization and regulation of the sex trade, Parliament adopted a variant of the so-called “Nordic Model”, which had been adopted in several other countries. The Nordic Model views the sex trade as a form of sexual exploitation. It targets those who create the demand for prostitution and those who capitalize on it. Parliament did not accept that persons who provide sexual services for consideration should be viewed as “workers” and that prostitution should be legal sex “work”[.] [Citation omitted]. [51] As in Gauthier, the communication is the means of committing the offence against the recipient, and as a result there can be no reasonable expectation of privacy in the communication. To conclude otherwise is, in effect, to conscript the recipient of an electronic message – the victim of the offence – into protecting the privacy of the person who seeks to shield their commission of the offence. . R. v. Suman
In R. v. Suman (Ont CA, 2026) the Ontario Court of Appeal allows a Crown appeal, this brought against acquittals when the trial court found that the respondent had "a reasonable expectation of privacy in his text messages to K.G. and excluded the messages from trial, along with evidence obtained as a result of those messages".
Here the court considered a Charter s.8 ['search and seizure'] standing issue, turning on whether the defendant has a 'reasonable expectation of privacy':Standing to challenge a search
[23] In order to have standing to assert a breach of s. 8, the burden is on the respondent to establish, on a balance of probabilities, that he has a reasonable expectation of privacy in the subject matter of the putative search or seizure. The court considers the subject matter of the search; whether the claimant has a direct interest in the subject matter; whether the claimant has a subjective expectation of privacy in the subject matter; and, if so, whether that expectation was objectively reasonable in all the circumstances: see e.g., R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 10-11. Only if the expectation of privacy was objectively reasonable will the respondent have standing to challenge the search on s. 8 grounds: Marakah, at para. 12.
[24] It is well established that the reasonable expectation of privacy is a normative concept: R. v. Bykovets, 2024 SCC 6, 489 D.L.R. (4th) 1, at para. 7; Mills, at para. 20; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 136-37; and R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 28. This means that it is an expectation of privacy that ought to be respected in particular circumstances because it deserves to be respected and, as a result, constitutionally protected. Whether an expectation of privacy deserves to be protected can be answered only following identification and careful consideration of the interests and values of a free and democratic society – the aspirational context in which normativity is determined.
[25] The analysis is content neutral in this sense: the existence of a reasonable expectation of privacy does not turn on what a search reveals. Searches are not to be justified after the fact: R. v. Campbell, 2024 SCC 42, 498 D.L.R. (4th) 195, at paras. 50-52 (“Campbell SCC”); R. v. Knelsen, 2024 ONCA 501, 439 C.C.C. (3d) 378, at para. 52, leave to appeal refused, [2024] S.C.C.A. No. 369.
[26] An accused individual’s dignity, integrity, and autonomy are important considerations in determining whether a reasonable expectation of privacy should be recognized but, as the Supreme Court has emphasized, so too are the goals of effective law enforcement: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 159-60; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293. As the court said in R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 17: “Safety, security and the suppression of crime are legitimate countervailing concerns.” This court has also affirmed the importance of public safety and security: see e.g., R. v. Chow, 2022 ONCA 555, 163 O.R. (3d) 241, at para. 34; R. v. Singh, 2024 ONCA 66, 432 C.C.C. (3d) 527, at para. 63. The question is not whether these competing goals should be balanced but how that balance is to be determined.
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