The reasonable expectation of privacy test
Courts ask: given the subject matter, the claimant's relationship to the subject matter, the claimant's subjective expectation of privacy, and whether that expectation is objectively reasonable, does the claimant have a reasonable expectation of privacy?
Landmark cases
Key Supreme Court decisions include:
- Hunter v. Southam Inc. (1984): set out the modern framework for section 8 analysis.
- R. v. Spencer (2014): subscriber information linking an IP to a name requires a warrant.
- R. v. Marakah (2017): senders retain privacy in texts on the recipient's phone.
- R. v. Jarvis (2019): voyeurism can occur in public spaces where there is a reasonable expectation of privacy.
- R. v. Bykovets (2024): IP addresses themselves attract Charter protection.
Remedies for Charter breaches
If police obtained evidence through a section 8 breach, courts can exclude that evidence under section 24(2). The test considers the seriousness of the breach, its impact on Charter-protected interests, and society's interest in a trial on the merits.