R. v. Atkinson, 2012 ONCA 380 (CanLII)
[50] The right to be secure from unreasonable search or seizure protects only a “reasonable expectation of privacy”. The limiting term “reasonable” implies that, in each case, the court must assess whether, in the circumstances, the public’s interest in being left alone by the state must give way to the state’s interest in intruding on the individual’s privacy to advance its goals, such as law enforcement: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 30; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 159-160. The assessment must take into account all the circumstances of the case: Edwards, at paras. 31 and 45.
[51] Among the privacy interests that s. 8 protects are personal, territorial and informational privacy: R. v. Tessling,2004 SCC 67 (CanLII), 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 20. Personal privacy protects bodily integrity. Territorial privacy protects privacy in the home, as well as other places, albeit without the same rigour: Tessling, at paras. 21 and 22. Informational privacy has to do with “the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others”: Tessling, at para. 23.
[52] Not every scrap of information that an individual may wish to keep confidential falls within the sweep of s. 8. What is included is a biographical core of personal information that individuals in a free and democratic society might wish to maintain and control from dissemination to the state, such as information that tends to reveal intimate details about, and personal choices of, the individual:Tessling, at paras. 25-26; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293.
[53] The distinctions between personal, territorial and informational privacy provide useful analytical tools, but in many cases privacy interests may spill over from one category to another. In this case, for example, the privacy interest is informational. It concerns the appellant’s activities to the extent revealed by the material adhering to her shoes. But the interest also implicates territorial privacy because police entered the appellant’s home and observed the shoes there.
[54] Police conduct that interferes with a reasonable expectation of privacy constitutes a “search” for the purposes of s. 8 of theCharter: R. v. Law, 2002 SCC 10 (CanLII), 2002 SCC 10, [2002] 1 S.C.R. 227, at para. 15; Tessling, at para. 18; R. v. Wise,1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, at p. 533. Police conduct that amounts to a search, but is not authorized by a warrant, is presumptively unreasonable and shifts the burden of establishing reasonableness to the Crown. In this case, the respondent relies on the appellant’s consent to P.C. Van Dyke’s entrance into her home, and on the operation of the “plain view” doctrine to establish that the search was reasonable.
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