'Objectively Reasonable' And Privacy: Recent Developments

The ubiquitous and rapidly-evolving nature of technology has recently necessitated serious consideration of our "reasonable expectation of privacy." This concept is at the core of Canadian privacy law. In particular, the concept is a key part of the Charter test for s. 8, the right to be secure against unreasonable search and seizure. The Supreme Court of Canada ("SCC") grappled with these questions in R v Cole1 and R v Vu2, and more recently, the British Columbia and Ontario Courts of Appeal applied these Charter principles to couriered packages and USB keys in R v Godbout3 and R v Tuduce4, respectively.

In R v Cole, the SCC found that employees can reasonably expect some level of privacy with regard to personal information stored on work computers, but the reasonableness of their expectation is impacted by the context in which personal information is placed on an employer-owned computer and the customs of the workplace, factors that the court called "operational realities."5

In R v Vu, the SCC took privacy rights on personal computers one step further, finding that police must obtain prior judicial authorization for a computer search. Police must be able to satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the evidence sought.

In R v Godbout and R v Tuduce, the court continues to grapple with finding the elusive limits of the "reasonable expectation of privacy" standard.

R v Godbout: Reasonable Expectations with respect to Couriered Packages

A reversal of the trend set by R v Cole and R v Vu occurred in the R v Godbout decision, wherein the British Columbia Court of Appeal ("BCCA") found that the consignee of a couriered package has no reasonable expectation of privacy with regard to its contents. Mr. Godbout was sent a package through the DHL courier company from a Mr. Calkins, who signed a shipping contract containing a term that the company or a government authority could search the package without notice. Mr. Godbout never interacted with DHL nor agreed to the terms of the shipping contract. The company opened the box and called the police, who searched it and found illegal drugs. They repackaged and delivered it to Mr. Godbout, who opened it and was subsequently arrested on drug charges. Mr. Godbout challenged the lawfulness of the search under s. 8 of the Charter, which protects the right to be secure against unreasonable search and seizure. In order to be...