Normative Foundations for Reasonable Expectations of Privacy

The right to be “secure against unreasonable search or seizure” in section 8 of the Canadian Charter of Rights and Freedoms applies only where the Charter applicant has a reasonable expectation of privacy in the place searched or the information obtained. The Supreme Court of Canada’s methodology for deciding whether an applicant has such a reasonable expectation appears well settled. The Court asks first whether the applicant had a subjective expectation of privacy, and second whether, in light of a long list of factors, that expectation was reasonable. But the Court’s decisions reveal at least two potentially incompatible ways of orienting the factors. According to what I call the “risk approach”, the focus of the inquiry is on the security of the place searched or the information obtained against the world at large; according to what I call the “surveillance approach”, the question is whether a reasonable person would anticipate that an agent of the state would be able to intrude into the place searched, or obtain the information in question, without legal authorization. I show how the court’s uncertainty about the appropriate approach helps to explain the complex split decision in R. v. Gomboc, and I argue that the surveillance approach provides better protection for the privacy interests that underlie the section 8 guarantee