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Charter - s.8 Search and Seizure - Informational Privacy (5). R. v. Campbell [text messages]
In R. v. Campbell (SCC, 2024) the Supreme Court of Canada dismissed a criminal appeal, this from a dismissal of an Ontario Court of Appeal, and that from a trial judge's finding that convicted the defendant "of trafficking and possession offences under the CDSA and sentenced him to a term of imprisonment".
Here the engages in a Charter s.8 'reasonable expectation of privacy' inquiry:(2) Application
[40] I agree with the Crown that this Court has held that there is no “automatic” rule of standing for text messages. As McLachlin C.J. recognized in Marakah, text message conversations “can, in some circumstances, attract a reasonable expectation of privacy”, but this “does not lead inexorably to the conclusion that an exchange of electronic messages will always attract a reasonable expectation of privacy” (para. 5 (emphasis in original)). Whether an individual has a reasonable expectation of privacy in a text message conversation must be assessed based on the totality of the circumstances in each case.
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(a) What Was the Subject Matter of the Alleged Search?
[42] When the state examines text messages, the subject matter of the alleged search is properly characterized as “the electronic conversation between two or more people” (Marakah, at para. 19; see also Jones, at para. 14; R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, at para. 5). As noted in Marakah, “[t]his includes the existence of the conversation, the identities of the participants, the information shared, and any inferences about associations and activities that can be drawn from that information” (para. 20).
[43] Here, the subject matter of the alleged search was Mr. Campbell’s text message conversation with who he believed was Mr. Gammie.
(b) Did Mr. Campbell Have a Direct Interest in the Subject Matter?
[44] The Crown does not dispute that Mr. Campbell had a direct interest in his text message conversation. He participated in the conversation and wrote several of the texts at issue (see Marakah, at para. 21; Jones, at para. 15).
(c) Did Mr. Campbell Have a Subjective Expectation of Privacy in the Subject Matter?
[45] A claimant’s burden of establishing a subjective expectation of privacy in the subject matter of the alleged search “is not ‘a high hurdle’” (Marakah, at para. 22, quoting R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 37; see also Jones, at para. 20). The necessary evidentiary foundation is “modest”, reflecting how “s. 8’s normative import transcends an individual claimant’s subjective expectations” (Jones, at para. 21). “A subjective expectation of privacy can be presumed or inferred in the circumstances in the absence of the claimant’s testimony or admission at the voir dire” (para. 21).
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(d) Was Mr. Campbell’s Subjective Expectation of Privacy Objectively Reasonable?
[47] In determining whether a subjective expectation of privacy is objectively reasonable, courts must employ an approach that is both normative and content-neutral. Several interveners urge this Court to affirm these basic postulates of the s. 8 analysis. I agree that it is useful to do so.
(i) Section 8 Requires a Normative Approach
[48] Whether there is a reasonable expectation of privacy “is not a purely factual inquiry”; the inquiry “is normative rather than simply descriptive” (Spencer, at para. 18; see also Tessling, at para. 42). Although the inquiry must be sensitive to the factual context, it is inevitably laden with value judgments about the sort of free and democratic society that reasonable and informed Canadians expect to live in, based on concerns about the long-term consequences of tolerating state intrusion into individual privacy (Spencer, at para. 18; Patrick, at para. 27; Bykovets, at para. 52; see also H. Stewart, “Normative Foundations for Reasonable Expectations of Privacy” (2011), 54 S.C.L.R. (2d) 335, at pp. 342-47; S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (3rd ed. 2022), at ¶3.38).
[49] The normative approach to s. 8 “demands we take a broad, functional approach to the subject matter of the search and that we focus on its potential to reveal personal or biographical core information” (Bykovets, at para. 7 (emphasis in original), citing Marakah, at para. 32; see also R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 28; Tessling, at para. 42; Spencer, at para. 18; Stewart, at pp. 335 and 342-43).
(ii) The Approach to Section 8 Must Also Be Content-Neutral
[50] It is also settled that “the s. 8 analysis must be content-neutral” (Marakah, at para. 48). Thus, “the fruits of a search cannot be used to justify an unreasonable privacy violation” (para. 48). This Court’s precedents on the content-neutral approach hold that people do not deserve lesser privacy protection under s. 8 of the Charter because they were engaged in criminal activity at the time of the search or seizure.
[51] A leading authority on the content-neutral approach to s. 8 is R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36. This Court held that the accused had a reasonable expectation of privacy in a hotel room in which the police had installed a video camera without judicial authorization during an investigation of a “floating” gaming house. The Court emphasized that whether a person has a reasonable expectation of privacy “must be framed in broad and neutral terms” (p. 50). The question is not “whether persons who engage in illegal activity behind the locked door of a hotel room have a reasonable expectation of privacy” (a content-driven approach), but rather “whether in a society such as ours persons who retire to a hotel room and close the door behind them have a reasonable expectation of privacy” (a content-neutral approach) (p. 50).
[52] Under the content-neutral approach to s. 8, the existence of a reasonable expectation of privacy does not turn on “the legal or illegal nature of the items sought” (Spencer, at para. 36; see also Reeves, at para. 28; Patrick, at para. 32; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 39; D. Stuart, Charter Justice in Canadian Criminal Law (7th ed. 2018), at p. 307; Penney, Rondinelli and Stribopoulos, at ¶3.37). The question under s. 8 “is not whether the claimant broke the law, but rather whether the police exceeded the limits of the state’s authority” (Reeves, at para. 2).
(iii) Mr. Campbell’s Subjective Expectation of Privacy Was Objectively Reasonable
[53] There is no closed or definitive list of factors relevant to whether a claimant’s subjective expectation of privacy in the subject matter of a search is objectively reasonable (Bykovets, at para. 45; Cole, at para. 45; Marakah, at para. 24). The relevant factors include, but are not limited to:(i) whether the information would tend to reveal intimate or biographical details of the lifestyle and personal choices of the individual subject to the alleged search;
(ii) the place where the alleged search took place;
(iii) whether the subject matter of the alleged search was in public view;
(iv) whether the subject matter had been abandoned;
(v) whether the information was already in the hands of third parties, and if so, whether it was subject to an obligation of confidentiality;
(vi) whether the police technique was intrusive in relation to the privacy interest;
(vii) whether the individual was present at the time of the alleged search;
(viii) the possession, control, ownership, and historical use of the property or place said to have been searched; and
(ix) the ability to regulate access to the place of the search, including the right to admit or exclude others from the place (Plant, at p. 293; Tessling, at para. 32; Edwards, at para. 45). [54] The parties focussed their submissions before this Court on three factors: (1) the private nature of the subject matter; (2) the intrusiveness of the police technique in relation to the privacy interest; and (3) the level of control over the information.
1. The Private Nature of the Subject Matter
[55] The private nature of the subject matter is a critical factor in establishing a reasonable expectation of privacy. The purpose of s. 8 is “to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state” (Plant, at p. 293; see also Marakah, at para. 31; Bykovets, at para. 51). As this Court has recognized, “all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit” (Dyment, at p. 429, quoting the Task Force established jointly by the Department of Communications/Department of Justice, Privacy and Computers (1972), at p. 13; see also Spencer, at para. 40; Jones, at para. 39; Tessling, at para. 23). In this vein, s. 8 of the Charter has been described as protecting “informational self-determination” (Jones, at para. 39).
[56] In keeping with the normative, content-neutral approach to s. 8, a court must focus on “‘whether people generally have a privacy interest’ in the subject matter of the state’s search” (Bykovets, at para. 53, quoting Patrick, at para. 32). The question is whether the subject matter of the search at issue has the potential or tendency to reveal private information about the claimant (Marakah, at para. 31).
[57] With respect to text messages in particular, “the focus is not on the actual contents of the messages the police have seized, but rather on the potential of a given electronic conversation to reveal personal or biographical information”; the focus is on whether the participants in the conversation “have a reasonable expectation of privacy in its contents, whatever they may be” (Marakah, at para. 32). The protection of s. 8 includes “information which tends to reveal intimate details of the lifestyle and personal choices of the individual” (para. 32, quoting Plant, at p. 293).
[58] This Court has recognized that few if any types of conversation or communication can “promis[e] more privacy than text messaging. There is no more discreet form of correspondence” (Marakah, at para. 35; see also TELUS Communications, at para. 1). “Electronic conversations can allow people to communicate details about their activities, their relationships, and even their identities that they would never reveal to the world at large, and to enjoy portable privacy in doing so” (Marakah, at para. 36).
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2. Intrusiveness of the Police Technique in Relation to the Privacy Interest
[62] The intrusiveness of the police technique in relation to the privacy interest at issue can be important in assessing whether a claimant’s subjective expectation of privacy is objectively reasonable (Tessling, at paras. 32 and 50; Plant, at p. 295). This is a distinct consideration from whether the police acted lawfully, which is relevant to whether the state conduct was “unreasonable” at the second stage of the s. 8 inquiry (Edwards, at para. 33).
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3. Control Over the Information
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[66] .... As McLachlin C.J. emphasized in Marakah, “control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest” (para. 38; see also Reeves, at para. 37). “[A] person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it” (Marakah, at para. 41; see also para. 68). Sharing control of the information at issue may diminish without necessarily eliminating a person’s reasonable expectation of privacy. As a result, text message conversations may be protected by a “zone of privacy” that extends beyond one’s own mobile device to the recipient of the message, even when “one shares private information with others” (para. 37).
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[68] The relevant question under s. 8 is not whether the individual reasonably expected the subject matter of the search to remain private from just anybody; what matters is whether they reasonably expected it would remain private from state intrusion (R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at p. 46; Wong, at pp. 43-44 and 47-48; Plant, at p. 291; Tessling, at para. 18; Marakah, at paras. 40-45). The “zone of privacy” protected by s. 8 of the Charter involves the right to keep “personal information . . . safe from state intrusion” (Marakah, at para. 37). In my view, in all the circumstances, Mr. Campbell had a reasonable expectation of privacy from state intrusion into his text message conversation.
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[78] .... In my view, Marakah remains the governing authority on when a text message conversation attracts a reasonable expectation of privacy under s. 8. It is thus not necessary to decide whether Mills is properly characterized as creating an “exception” to Marakah or as departing from the content‑neutral approach to s. 8 of the Charter. . 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]
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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]
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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]
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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.
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