Ratio
The Court held, with Wilson J dissenting, that the appeal should be dismissed. However, the majority disagreed on the reasoning.
Judgement of La Forest J
Writing for himself, Dickson C.J. and L'Heureux‑Dubé and Sopinka JJ, Justice La Forest held that the degree of privacy reasonably expected in a free society would be seriously diminished by unrestricted video surveillance by agents of the state. There was a reasonable expectation of privacy and a warrantless video search there constituted an unreasonable search and seizure. Whether persons who are the objects of an electronic search have a reasonable expectation of privacy does not depend on whether or not those persons were engaged in illegal activities. The protection of s. 8 of the Charter is meant to shield against warrantless video surveillance and the unauthorized video surveillance offended against the reasonable expectations of privacy protected by that section.
Judgment of Lamer CJ
Writing for himself and McLachlin J: Chief Justice Lamer held not every unauthorized electronic surveillance carried out by the agents of the state violates s. 8 of the Charter . ′"R. v. Duarte" stands for the proposition that the recording of a private communication, without the consent of all parties thereto, constitutes a search for the purpose of s. 8 . Such a search may be reasonable only where prior judicial authorization has been obtained. Unauthorized surreptitious electronic surveillance will violate s. 8 where the target of the surveillance has a reasonable expectation of privacy. The consideration of whether an individual has a reasonable expectation of privacy can only be decided within the particular factual context of the surveillance. Mr. Wong had no reasonable expectation of privacy as he had invited the public into the hotel room and, accordingly, no search took place within the meaning of s. 8 . The surreptitious video surveillance was not justified by s. 1 of the Charter . However, Mr. Wong did not establish that the admission of the evidence would bring the administration of justice into disrepute for the purposes of s. 24(2) of the Charter . The police acted in good faith and had reasonable and probable grounds to believe that the offence had been committed. The Charter breach stemmed from an entirely reasonable misunderstanding of the law by the police officers who had sought legal advice about the steps that could be taken to obtain evidence they could not otherwise obtain.
Judgment of Wilson J
Justice Wilson agreed with La Forest J. on the s. 8 violation but dissented on the s.24(2) issue, as she felt the presence of the words "having regard to all the circumstances" in s. 24(2) of the Charter suggests that the context is vital in determining whether evidence obtained in violation of Charter rights should nonetheless be admitted. The videotape evidence existed purely as a result of the violation of s. 8 and was analogous to a confession and quite different from evidence which has an independent existence apart entirely from the Charter violation.
Fair trial considerations favoured the exclusion of the videotape evidence. Police could and should have sought an authorization for a wiretap, at which time they could have put to the authorizing judge their desire to use video surveillance independent from or in addition to audio surveillance. Instead, they proceeded in blatant disregard for Mr. Wong's Charter rights. Their conduct was deliberate and was not based on a reasonable, or indeed any, misunderstanding of the law. The admission of this evidence would bring the administration of justice into disrepute given the nature of the evidence, the gravity of the Charter infringement and the fact the offence with which the appellant was charged did not fall into the more serious category. To extend the principle in Duarte to this case is to ignore completely the words "having regard to all the circumstances" in s. 24(2) .
The Fourth Amendment to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures. In addition, it sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must particularly describe the place to be searched and the persons or things to be seized.
California v. Greenwood, 486 U.S. 35 (1988), was a case in which the Supreme Court of the United States held that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home.
Email privacy is a broad topic dealing with issues of unauthorized access to, and inspection of, electronic mail, or unauthorized tracking when a user reads an email. This unauthorized access can happen while an email is in transit, as well as when it is stored on email servers or on a user's computer, or when the user reads the message. In countries with a constitutional guarantee of the secrecy of correspondence, whether email can be equated with letters—therefore having legal protection from all forms of eavesdropping—is disputed because of the very nature of email. As more communication occurs via email, as compared to postal mail, this is considered to be an important debate.
R v Collins [1987] 1 S.C.R. 265 1987 SCC 11 is a leading decision of the Supreme Court of Canada on section 8 and was a leading case on section 24(2) of the Constitution Act, 1982 which allowed for the exclusion of evidence upon infringing the Charter. The Collins test for section 24(2) was developed for determining if the administration of justice was brought into disrepute by the inclusion of the evidence. The test was later replaced in R. v. Grant.
Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure. This right provides those in Canada with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state. Typically, this protects personal information that can be obtained through searching someone in pat-down, entering someone's property or surveillance.
NSA warrantless surveillance — also commonly referred to as "warrantless-wiretapping" or "-wiretaps" — refers to the surveillance of persons within the United States, including U.S. citizens, during the collection of notionally foreign intelligence by the National Security Agency (NSA) as part of the Terrorist Surveillance Program. In late 2001, the NSA was authorized to monitor, without obtaining a FISA warrant, the phone calls, Internet activity, text messages and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lay within the U.S.
Warrantless searches are searches and seizures conducted without court-issued search warrants.
Expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. It is related to, but is not the same as, a right to privacy, a much broader concept which is found in many legal systems. Overall, expectations of privacy can be subjective or objective.
R v Belnavis, [1997] 3 S.C.R. 341, is a leading Supreme Court of Canada decision on the right against unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms. The Court held that there is no reasonable expectation of privacy in the backseat of a car.
R v Duarte, [1990] 1 SCR 30 is a leading case decided by the Supreme Court of Canada on the right to privacy under section 8 of the Canadian Charter of Rights and Freedoms ("Charter"). The Court held that a warrantless and surreptitious video recording of private communications violated section 8. Consent of only one party to a conversation is insufficient to be reasonable.
R v Grant, 2009 SCC 32 is a leading decision of the Supreme Court of Canada on section 9, section 10 and section 24(2) of the Canadian Charter of Rights and Freedoms ("Charter"). The Court created a number of factors to consider when determining whether a person had been detained for the purpose of sections 9 and 10 of the Charter. The Court also created a new test for determining whether evidence obtained by a Charter breach should be excluded under section 24(2) of the Charter, replacing the Collins test.
United States v. White, 401 U.S. 745 (1971), was a United States Supreme Court decision which held that recording conversations using concealed radio transmitters worn by informants does not violate the Fourth Amendment protection against unreasonable searches and seizures, and thus does not require a warrant.
R v Kang-Brown, [2008] 1 S.C.R. 456, 2008 SCC 18, is a constitutional decision by the Supreme Court of Canada on the limits of police powers for search and seizure. The Court found that police do not have the right to perform a sniffer-dog search of public spaces when such search is not specifically authorized by statute. In this case, a suspect's section 8 rights under the Canadian Charter of Rights and Freedoms ("Charter") were violated when a police officer stopped him at a bus station and sniffer-dog searched his bag finding drugs in his possession.
R v AM, [2008] 1 S.C.R. 569, 2008 SCC 19, is a constitutional decision by the Supreme Court of Canada on the limits of police powers for search and seizure. The Court found that police do not have the right to perform a sniffer-dog search of public spaces when such search is not specifically authorized by statute. In this case, a student's section 8 rights under the Canadian Charter of Rights and Freedoms ("Charter") were violated when a police officer sniffer-dog searched his unattended backpack in the gymnasium of his school finding drugs in his possession.
R v M (MR), [1998] 3 SCR 393 is a leading decision of the Supreme Court of Canada on search and seizure by teachers and principals in Canadian schools. In this case, a student's section 8 rights under the Canadian Charter of Rights and Freedoms ("Charter") were not violated by being searched by a school principal with a police constable present.
United States v. Jones, 565 U.S. 400 (2012), was a landmark United States Supreme Court case which held that installing a Global Positioning System (GPS) tracking device on a vehicle and using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment.
United States v. Graham, 846 F. Supp. 2d 384, was a Maryland District Court case in which the Court held that historical cell site location data is not protected by the Fourth Amendment. Reacting to the precedent established by the recent Supreme Court case United States v. Jones in conjunction with the application of the third party doctrine, Judge Richard D. Bennett, found that "information voluntarily disclosed to a third party ceases to enjoy Fourth Amendment protection" because that information no longer belongs to the consumer, but rather to the telecommunications company that handles the transmissions records. The historical cell site location data is then not subject to the privacy protections afforded by the Fourth Amendment standard of probable cause, but rather to the Stored Communications Act, which governs the voluntary or compelled disclosure of stored electronic communications records.
R v Tse, 2012 SCC 16 is a Supreme Court of Canada decision regarding the constitutionality of warrant-less wiretaps in emergency situations. The Court found that the emergency wiretap provisions found in section 184.4 of the Criminal Code infringes the search and seizure rights in section 8 of the Canadian Charter of Rights and Freedoms, and cannot be justified as a reasonable limitation under section 1 of the Charter due to the lack of accountability measures. In addition to the two parties to the case, the Court heard from the following interveners: the Attorney General of Canada, the Attorney General of Ontario, the Attorney General of Quebec, the Criminal Lawyers' Association (Ontario), the British Columbia Civil Liberties Association, and the Canadian Civil Liberties Association. The unanimous decision of the Court was the first Supreme Court of Canada decision written by Moldaver and Karakatsanis JJ.
R v Spencer is a Canadian constitutional law decision of the Supreme Court of Canada, concerning search and seizure law under section 8 of the Canadian Charter of Rights and Freedoms. At issue was whether the police could request subscriber information associated with an IP address from an Internet service provider, on a voluntary basis under the Personal Information Protection and Electronic Documents Act, and without prior judicial authorisation. The Supreme Court unanimously ruled that the request for internet subscriber information infringed the Charter's guarantee against unreasonable search and seizure.
R v Fearon, 2014 SCC 77 is a leading section 8 Canadian constitutional law case, concerning the constitutionality of warrantless law enforcement searches of the contents of a cell phone incident to arrest.
