THE "REASONABLE EXPECTATION OF PRIVACY TEST" AND THE SCOPE OF PROTECTION AGAINST UNREASONABLE SEARCH AND SEIZURE UNDER SECTION 8 OF THE CHARTER OF RIGHTS AND FREEDOMS by Kate Murray*

 THE "REASONABLE EXPECTATION

OF PRIVACY TEST"

AND THE SCOPE OF PROTECTION

AGAINST UNREASONABLE

SEARCH AND SEIZURE UNDER

SECTION 8 OF THE

CHARTER OF RIGHTS AND

FREEDOMS

Kate Murray*

I. INTRODUCTION

The common law has long recognized the sanctity of the home as an

enclave protected from government intrusion.I This principle was graph-

ically described by William Pitt the Elder in 1763:

[T]he poorest man may in his cottage bid defiance to all the forces of the

Crown. It may be frail - its roof may shake - the wind may blow through it

- the storm may enter - the rain may enter - but the King of England

cannot enter - all his forces dare not cross the threshold of the ruined

tenement. 2

Until recently, Canadian courts had reflected this preoccupation with

a "property approach" in their treatment of the issue of search and seizure.

They had narrowly defined both search and seizure so as to require a

trespassory invasion of premises or other protected places and the taking of

tangible items. 3 The Supreme Court of Canada's decision in Southam Inc

Student-at-Law.

See, e.g., Entick v. Carrington, 95 E.R. 807 (K.B. 1765); Semayne's Case, 77

E.R. 194 (K.B. 1604).

2 Reference re Interception of Private Communications, 50 A.R. 1 at 7, 5 D.L.R.

(4th) 601 at 616 (C.A. 1983) (attributed to William Pitt, Earl of Chatham). For a discussion

of the natural law source of the nineteenth century definition of the individual's sphere of

constitutional rights vis-a-vis the state, see Note, 90 Harv. L. Rev. 945 (1976-77).

3 See, e.g., R. v. McGregor, 3 C.C.C. (3d) 200, 145 D.L.R. (3d) 489 (Ont. H.C.

1983), where the taking of fingerprints was held not to be a seizure because a seizure

required the taking of something tangible from the accused. See also R. v. Taylor

v. Hunter4 has changed this. By its adoption of the American "reasonable

expectation of privacy" test, first enunciated in Katz v. United States,5 the

Court has clearly grounded the concepts of search and seizure under

section 8 of the Canadian Charter of Rights and Freedoms6 in a broad

privacy doctrine.

However, the adoption of the Katz test by the Supreme Court of

Canada does not, of necessity, entail an adoption of the confusion and

chaos that have accompanied its interpretation in the United States: 

a

situation that has been described by one author as a "mess" .7 This is due to

the difference, in a number of important respects, between the search and

seizure provisions of the Canadian and American Constitutions:

Section 

8

Everyone has the right to be secure against unreasonable search or seizure.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.

(unreported, B.C.S.C., 30 Dec. 1983); R. v. Holman, 28 C.R. (3d) 378, 16 M.

In Katz the petitioner had been convicted of transmitting wagering

information in violation of a federal statute. The conviction was based, in

part, on evidence obtained by warrantless electronic surveillance of 

a

public telephone booth. On appeal, the Court abandoned much of the

doctrine that had hitherto governed Fourth Amendment interpretation. 

A

series of electronic surveillance cases had been the catalyst for the change.

The difficulties inherent in the earlier literal interpretation and limitation of

the scope of Fourth Amendment protection to tangible discoveries made

pursuant to physical trespass

12 had led to a judicial redefinition of protec-

tion, derived from property concepts, that emphasized the privacy of

certain places, constitutionally protected enclaves where individuals could

enjoy immunity from government interference. Foremost among these

enclaves was one's private home. Protection was also extended to areas

enjoying similar attributes, such as offices, 

13 apartments, 

1

4 hotel rooms

15

and cars. 

1

6 However, although it was recognized that intangible effects fell

8 may, in practice, lose all meaning. Fortunately, the Court in Therens, supra note 10,

appears to have rejected the "community shock" test originally formulated in Rothman v.

The Queen, [1981] 1 S.C.R. 640, 121 D.L.R. (3d) 578, preferring to adhere more closely to

the wording of sub. 24(2).

For a general discussion of standing under the Fourth Amendment, see M. Dambrot,

Section 8 of the Canadian Charter ofRights and Freedoms, 25 C.R. (3d) 97 at 101 (1982);

I. Mickenberg, Fourth Amendment Standing after Rakas v. Illinois: From Property to

Privacy and Back, 16 New Eng. L. Rev. 197 (1981). For a discussion of Rakas v Illinois,

see G. Ashdown, The Fourth Amendment and the "Legitimate Expectation of Privacy",

34 Vand. L. Rev. 1289 (1981); P. Dixon, Standing to Invoke the Exclusionary Rule

Narrowed by New Use of Privacy Expectation Standard, 64 Cornell L. Rev. 752 (1978-79);

M. Schabacher, Scope of Fourth Amendmzent Protection in Search and Seizure Cases to be

Determined byReference to One's Legitimate Expectation of Privacy, 10 Cum. L. Rev. 237

(1979-80); R. Williamson, Fourth Amendment Standing and Expectations of Privacy:

Rakas v. Illinois and New Directionsfor Some Old Concepts, 31 U. Fla. L. Rev. 831 (1979).

For an excellent discussion of recent developments under Fourth Amendment law,

see S. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am. Crim. L. Rev.

257 (1984). For a different view of the same events, see D. Harris, The Return to Common

Sense: A Response to "The Incredible Shrinking Fourth Amendment", 22 Am. Crim. L.

Rev. 25 (1984). See also P. Connelly, The Fourth Amendment and Section 8 of the

Canadian Charter ofRights and Freedoms: What has been Done? What is to be Done?, 27

Crim. L.Q. 182 (1985); E. Ewaschuk, Search andSeizure: Charter Implications, 28 C.R.

(3d) 153 (1982). A. Reid & A. Young, Administrative Search and Seizure Under tile

Charter, 10 Queen's L.J. 392 (1985); A. Reid, Some Constitutional Boundaries of

Adminstrative Search andSeizure (unpublished paper prepared for the Annual Department

of Justice Seminar on Administrative Law, 1986).

12 See, e.g., Olmstead v. United States, 48 S. Ct. 564 (1928).

13 Gouled v. United States, 41 S. Ct. 261 (1921).

14 Jones v. United States, 80 S. Ct. 725 (1960).

15 Lustig v. United States, 69 S. Ct. 1372 (1949).

16 Rios v. United States, 80 S. Ct. 1431 (1960).

Although the most immediate impact of the Supreme Court decision

in Southam has centered around its discussion of the requirements of a

valid warrant to safeguard the individual's expectation of privacy,55 the

significance of the case lies in the definition of the scope of protection

provided under section 8, upon which the safeguards depend.

Southam clearly extends the protection against unreasonable search

and seizure beyond trespass and the taking of tangible items to include a

violation of a reasonable expectation of privacy. But what are the param-

eters of this expection of privacy? Does the Court in Southam set any

objective standards to be applied in its use of the Katz test? It is suggested

that the Court acknowledged problems identified with the Katz test and

remedies suggested by those who have studied the Katz legacy. Southam

speaks of an entitlement to an expectation of privacy, thus, foreclosing the

possibility of unjustifiable government manipulation of subjective expec-

tations. The Supreme Court appears to have recognized the problems

inherent in a doctrine of assumed risk by identifying broader social values

that assist in the definition of "reasonable" expectations of privacy.

Finally, the Court appears to have given constitutional protection against

unreasonable search and seizure a minimum content, thus maintaining

continuity with traditional property and possessory concepts while extend-

ing protection to include "privacy", a concept which remains sufficiently

fluid to encompass future advances in methods of intrusion. 56

Burger court's identification of a "reasonable" expectation of privacy with one that is

"legitimate". The "reasonable" expectation of privacy formula requires an examination

of the individual's subjective expectation of privacy set against societal norms, always

keeping in mind the need to preserve a collective sense of security while, as Wasserstrom

points out:

[The word legitimate] will necessarily tempt courts to focus on the particular

intrusion at issue from the perspective of the guilty defendant with something to

hide. The Court is almost certain to rule, therefore, that no search has occurred.

After all, how can a criminal have a legitimate expectation of privacy when he

has concealed contraband or evidence of crime?

S. Wasserstrom, supra note 11 at 386.

55 As evidenced by the use of s. 443 of the Criminal Code, R.S.C. 1970, c. C-34 as

a substitute for the powers of s. 10 of the Combines Investigation Act, R.S.C. 1970, c. 23,

and the introduction to and passage by Parliament of the Statute Law (Canadian Charter of

Rights and Freedoms) Amendment Act, S.C. 1984-85, c. 26, which amends powers of

entry and inspection, and entry and search under numerous federal acts.

56 This concept echoes the original intention behind the adoption of the privacy test.