Reasonable Expectation of Privacy and Police Surveillance in Ontario: R v Aubrey Takes a Step in the Right Direction
Isabelle Savoie, 3L, UTFLR Editor-in-Chief
In R v Aubrey, 2022 ONSC 635 (CanLII) (Aubrey), an Ontario Superior Court judge held that a covert camera installed on public property pointed at a private property without judicial authorization violates section 8 of the Canadian Charter of Rights and Freedoms. This judgment, though it is merely a pretrial application decision, is particularly significant because it is the first Ontario decision to follow R v Wong 2017 BCSC 306 (CanLII) (Wong 2017), a British Columbia decision which held that “three weeks of covert 24-hour video surveillance by the police creating a permanent electronic record of activities in the backyard of a private residence” violated an individual’s rights under s. 8 of the Charter. Aubrey provides an indication that the Ontario judiciary is willing to push back on law enforcement overreach by allowing the concept of a reasonable expectation of privacy to evolve in the face of technology-assisted surveillance.
Section 8 and the Reasonable Expectation of Privacy
Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures, which protects Canadians from state intrusion into matters over which the individual has a reasonable expectation of privacy (“REP”). A reasonable expectation of privacy has been found to exist in private communications (R v Duarte, [1990] 1 SCR 30, 1990 CanLII 150 (SCC) (Duarte)), cell phone activity and location (R v Rogers Communications Partnership, 2016 ONSC 70 (CanLII)), text messages (R v Marakah, 2017 SCC 59 (CanLII)), homes (R v Edwards, [1996] 1 SCR 128, 1996 CanLII 255 (SCC)), and hotel rooms (R v Wong, [1990] 3 SCR 36, 1990 CanLII 56 (SCC) (Wong 1990)). Whether there is a reasonable expectation of privacy involves balancing the public’s interest in being left alone and the state’s interest in advancing its goals (Hunter v Southam, [1984] 2 SCR 145, 1984 CanLII 33 (SCC)). If there is a REP, section 8 will prevent state interference except under a warrant or reasonable law.
In determining if a search occurred and whether it interfered with a reasonable expectation of privacy, courts apply the “totality of circumstances” test (R v Tessling, 2004 SCC 67 (CanLII)), which determines both the existence and extent of the REP. The test consists of four components:
1) Subject matter of the alleged search
The nature of the privacy interest turns on (a) the inherent privacy of the area or the thing being searched; and (b) the impact of the search on its target. The legal or illegal nature of the items sought or whether crimes are being committed is not relevant.
2) Claimant’s direct interest in the subject matter
To have standing, the state conduct must implicate the claimant’s personal privacy rights, and not merely those of a third party.
3) Claimant’s subjective expectation of privacy in the subject matter
This is a normative standard, and is not meant to be a high hurdle to overcome.
4) Objective reasonableness of the claimant’s subjective expectation of privacy
This is a highly contextual inquiry that will vary according to the nature of the subject matter.
Warrantless searches are prima facie unreasonable under s. 8, meaning that the party seeking to justify the search bears the onus of rebutting this presumption. In doing so, they must establish that (1) the search was authorized by law, (2) the law itself was reasonable, and (3) the manner in which the search or seizure took place was reasonable. This inquiry is highly contextual. Determining the constitutionality of a warrantless search or seizure is “a function of both the importance of the state objective and the degree of impact on the individual’s privacy interest” (R v Rodgers, 2006 SCC 15 (CanLII) at para 27).
Condemnation of Warrantless Video Surveillance
The Wong 2017 Decision
The BC court in Wong 2017 discussed the onus placed on police to obtain a general warrant prior to conducting electronic surveillance of a person’s property, holding that failure to obtain a warrant for covert video surveillance by the police in the backyard of a private residence resulted in a violation of an individual’s rights under s. 8 of the Charter. The court emphasized the “pernicious threat to privacy” raised by unauthorized surreptitious video surveillance, especially where the state is creating a “permanent electronic recording of one’s presence” (Wong 2017 at para 46).
Section 487.01 of the Criminal Code provides for the general warrant procedure required to engage in such surveillance:
487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property […]
[…]
Video surveillance
(4) A warrant issued under subsection (1) that authorizes a peace officer to observe, by means of a television camera or other similar electronic device, any person who is engaged in activity in circumstances in which the person has a reasonable expectation of privacy shall contain such terms and conditions as the judge considers advisable to ensure that the privacy of the person or of any other person is respected as much as possible.
The R v Aubrey Decision
After suspecting the applicant of being involved in criminal activity, Sudbury police installed a public view camera outside of his residence without obtaining a warrant. It was used for four months and “substantially replaced physical surveillance of the recorded area 24 hours a day, 7 days a week” (Aubrey at para 7). The purpose of the installation was to observe the applicant’s comings and goings as well as interactions between the applicant and targets of the broader investigation. It provided a limited view of the applicant’s driveway and the front of the applicant’s residence.
Although the pre-trial application dealt with several issues, the relevant issue for the purpose of this comment was whether warrantless video surveillance of the applicant’s residence engaged s. 8 of the Charter. More specifically, did the applicant have a reasonable expectation of privacy both in the area which was the subject of the surveillance (the front of his house and driveway), and in the information which was captured on the video images (his movements and interactions in the areas described)? Ultimately, the judge followed Wong 2017 and held that a covert camera installed on public property pointed at a private property without judicial authorization violates s. 8 of the Charter. The judge further held that s. 487.01 of the Criminal Code contemplated the “very circumstances present in this case” and therefore governed the police’s ability to surveil the applicant using surreptitious video recordings (Aubrey at para 45). She did not accept the argument that the applicant had no reasonable expectation of privacy on the basis that the observations made by the police could have been seen by any member of the public. The court chose deliberately forceful language to condemn the police’s conduct, finding it to be a “flagrant and egregious” breach of the applicant’s s. 8 rights (Aubrey at para 51).
Evolution of Section 8 Video Surveillance Jurisprudence
In what is certainly the more well-known R v Wong – Wong 1990 – the Supreme Court of Canada held that surreptitious video surveillance by law enforcement constituted a search within the meaning of section 8. Following and building upon the holding in Duarte, the Court emphasized the key difference between physical surveillance and video surveillance, noting that:
“There is an important difference between the risk that our activities may be observed by other persons, and the risk that agents of the state, in the absence of prior authorization, will permanently record those activities on videotape, a distinction that may in certain circumstances have constitutional implications.”
(Wong 1990 at para 15, underlining my own)
The facts of Wong 1990 differ from those in Wong 2017 and Aubrey. In Wong 1990, police installed a video camera in a hotel room booked by the accused, in which police suspected that he would be engaging in illegal gambling activities. The Court held that s. 8 protections are “meant to shield us from warrantless video surveillance when we occupy hotel rooms,” the same way we would be protected inside our homes (at p. 50, para g). Wong 2017 noted that it was possible to distinguish Wong 1990 on the facts but extended that holding to apply to backyards. The court in Aubrey translates this extension to front yards and driveways. Notably, the cameras in both Wong 2017 and Aubrey were installed on public property. These two cases contribute to the groundwork for a jurisprudence that recognizes a citizen’s reasonable expectation of privacy on and around their property – even if that area is visible to the general public.
The Path Forward
Technology-enabled law enforcement surveillance has recently been a source of much concern in Ontario due to its potential impacts, not only on privacy rights writ large but also on the disproportionate targeting of racialized and low-income communities [1]. Initiatives such as the Toronto Police Service’s covert use of Clearview AI in dozens of investigations, as well as the Ontario government’s Closed-Circuit Television (CCTV) grant program [2] have raised concerns that without appropriate safeguards, the law enforcement surveillance regime runs the risk of being abused.
R v Aubrey is significant in that it clearly articulates that law enforcement’s video surveillance of exterior private property – even from a public vantage point – is not allowed without a warrant, since the resident’s reasonable expectation of privacy is engaged. Such surveillance therefore violates s. 8 of the Charter. Although Aubrey is only a decision on a pre-trial application, it signals that the relevant constitutional safeguards do tangibly restrict police surveillance conduct, and that the direction of Ontario’s jurisprudence would lean towards expanding the circumstances under which a reasonable expectation of privacy will be recognized. Of course, this still leaves the question of unauthorized police video surveillance in public places, and whether increasingly commonplace technological features like AI-powered facial recognition and threat detection might further broaden circumstances in which a REP is recognized, similar to the way in which the permanence of a video recording pushed the Supreme Court in Wong 1990 to find that the accused had a REP in a quasi-public location.
Furthermore, while Charter claims cannot be made against non-state actors per se, this case also provides a useful lens through which to consider non-state video surveillance carried out by non-state individuals or private corporations. For example, Ring cameras or other smart doorbells might capture footage of neighbours’ driveways and porches without express permission. In cases where such footage may be shared with law enforcement, it could be argued that the recording constitutes state surveillance that engages the Charter [3].
Broader questions about which privacy rights are owed to whom in the face of technological advancements are continuously discussed by legal scholars with no wholly satisfying answers yet to be found. On the long and winding road to articulating privacy rights in an increasingly digital world, Aubrey is a small but hopeful step in the right direction.
[1] Law enforcement’s controversial use of Clearview AI’s facial recognition technology has been the subject of much scrutiny. In June 2021, Canada’s Privacy Commissioner ruled that the RCMP’s use of the technology to scrape online images of Canadians without their consent violated the federal Privacy Act. Reporting by the CBC, here.
[2] Ontario outlines its CCTV grant program and its recipients here. The Canadian Civil Liberties Association raised alarm bells about a lack of meaningful safeguards and community engagement here.
[3] In the United States, Ring is already working with law enforcement in some potentially alarming ways, raising concerns about covert police video surveillance. The Guardian reports here. Might this be a way for law enforcement to bypass warrant requirements?