What is a “Reasonable Expectation of Privacy?”

December 10, 2020

People often wonder what the phrase “reasonable expectation of privacy” means in terms of the law. In general, this term is used to describe how much privacy an individual can expect in a certain situation. For example, if you are at home and someone steps onto your property without your permission, you would likely expect them to leave once they realize they are not welcome. On the other hand, if you are out in public and someone takes a picture of you without your permission, you may not have as strong of a expectation of privacy. Same is true with surveillance cameras and Ring Doorbell cameras capturing your movements.

Understanding what qualifies as a “reasonable expectation of privacy” is important for both individuals and businesses alike. If you know your rights when it comes to privacy, you can protect yourself from intrusion into your personal life or confidential information. On the other hand, if you are aware of when an individual or company can legally collect or share data about you, it can help inform your decisions about whether or not to trust them with your information.

Whether you are looking to learn more about your own rights or hoping to better understand why a certain decision was made, this article will provide definitions and examples of privacy expectations in order to help make sense of it all.

In Canada, the Charter of Rights and Freedoms protects us with the right to a “reasonable expectation of privacy.” But just how far does protection extend in an era that is increasingly less private? Where personal information is required to gain access to services on the internet and that information is shared with third parties for marketing purposes.

Our bill of rights guarantees that “everyone has the right to be secure against unreasonable search or seizure.” This right constitutes our expectation of privacy. Yet in the digital era, the lines are blurred between what is and what is not private.

Police wiretaps and searching cell phones without warrants bring into question what really is protected. We explore privacy in the digital age, and what we Canadians can reasonably expect from their rights and freedoms.

How A Reasonable Expectation of Privacy is Altered by Technology

Personal Messaging – Person’s Reasonable Expectation

A smartphone is an extremely personal device. It can contain anything from highly sensitive personal information to intimate communications. Despite this, one cannot expect much privacy from personal messaging on any of our devices.

Personal messaging is not protected. Whether it’s an email, text, or DM, the Charter of Rights and Freedoms does not protect these personal communications. 

The Supreme Court of Canada has ruled that once a text has been sent and received, it is no longer private. In this specific instance, the judge excluded some of the other evidence gathered from the cell phone search. This was due, however, to the search violating the rights against unreasonable search and seizure. Yet, the text messages were not excluded. Based on their original statement, these texts were not considered to be private.

Surveillance – Subjective Expectation of Privacy

Today, civilian surveillance equipment is abundant. Even doorbell cameras can record evidence. Despite how intrusive this incessant surveillance may feel, it does not qualify as violating a reasonable expectation of privacy. 

If a recording device is clearly identifiable—and does not require trespassing or illegal activity to set up, record, or collect—you may not have a strong expectation of privacy. 

Reasonable Expectation of Privacy

Subjective expectation of privacy – person’s expectation of privacy.

Expectation of Privacy In a Public Place – Privacy Rights

In a public space, we have a much more limited expectation of privacy. You should not be specifically targeted without reason to have your privacy intruded upon, but you cannot expect complete privacy.

As an example, if you are in a park where a local news crew is doing a piece, they can broadcast a scene with you in it. However, they would be crossing a line in purposefully recording a private conversation you are having. This is because your conversation falls outside of their legitimate interests.

Reasonable Expectation of Privacy in the Home

With phones and surveillance removing any notion of privacy in public, the home remains the one place we can feel safe, secure, and private. Fortunately, the one place where strong expectations of privacy are still upheld is inside the home. This is true for homeowners, tenants, and renters alike. 

To search and seize evidence in your home, through physical means, a warrant is usually necessary. Even here, however, there are limitations.

Just because you’re in the home doesn’t mean you are free from monitoring or surveillance. While a person can’t creep into your backyard and look through the windows or sneak into your house without a warrant, you can still be watched and recorded. 

Any suspicious or illegal activity that is visible from outside your property has the potential to become valid evidence. For example, if a criminal activity is performed in front of a window, where it is visible from the street. So long as the means of collecting that evidence did not violate your rights and were in accordance with local laws and policies, that evidence is usable in court.

Consult With a Criminal Defence Lawyer

In a world full of technology that is making our lives increasingly public, determining what a reasonable expectation of privacy can be difficult to gauge. A criminal defence lawyer is familiar with your rights and freedoms, and whether evidence or its search and seizure have violated yours.

Your defence lawyer will help you understand your charges, your options, and their potential outcomes. Book a consultation with William Jaksa, a trusted Toronto defence lawyer, today.

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