R. v Molyneaux, 2020 PECA 2
[35] The very thought that police would require judicial authorization before interviewing witnesses because that witness might provide information which could in turn lead to the police obtaining personal information is counter-intuitive if not absurd. In drug cases, for example, informants are critical. Informants provide the police with very personal and private information about their targets: where they live, details of conversations overheard, phone numbers, with whom they associate, their habits, their plans, and other very personal information. Police do not obtain prior judicial authorization before speaking to informants. The Charter protection for individuals arises when the police act on the information received and conduct a search and seizure. A search and seizure requires prior judicial authorization, speaking with informants does not. Nonetheless Molyneaux urges us to “read the cases” and we will see matters as he does.
[36] Section eight of the Charter is only engaged when the claimant has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access (R. v. Cole, 2012 SCC 53, at para.34). The burden is on the claimant on a balance of probabilities to show a reasonable expectation of privacy (R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Edwards, 1 S.C.R. 128, at paras.39, 45(3); R. v. Marakah, 2017 SCC 59, at para.10). Whether a person has a reasonable expectation of privacy must be assessed in the “totality of the circumstances” (Marakah, at para.16; Edwards, at paras.31 and 35; Spencer at paras.16 and 18).
[37] In considering the totality of the circumstances, there are four lines of inquiry;
(1) what is the subject matter of the search;
(2) did the claimant have a direct interest in the subject matter;
(3) did the claimant have a subjective expectation of privacy in the subject matter;
(4) if so, was the claimant’s subjective expectation of privacy reasonable (Spencer, para.18; Marakah, at para.11).
[38] Only if the answer to question four is “yes” will the claimant have standing to assert his s.8 right (Marakah, para.12).
[39] The reasonable expectation of privacy is fact-sensitive and fact-specific. The specific circumstances are crucial (Orlandis-Habsburgo, paras.39 and 41). Nonetheless, the reasonable expectation of privacy standard is normative rather than simply descriptive (Spencer, para.18). That is, the facts and circumstances must be considered in conjunction with the applicable norms. Thus in Orlandis-Habsburgo Docherty J.A. at para.42 cites a paragraph from Hamish Stewart’s article, “ Normative Foundations for Reasonable Expectations of Privacy” (2011, 54 S.C.L.R. (2d) 335, at para.10), as follows:
Put another way, the ultimate normative question is whether, in light of the impact of an investigative technique on privacy interests, it is right that the state should be able to use that technique without any legal authorization or judicial supervision. Does our conception of the proper relationship between the investigative branches of the state and the individual permit this technique without specific legal authorization?
[40] The relevant facts in this case are that after having observed the photographs, K. was too embarrassed to tell anyone. She made the first reveal to CFS who were investigating an unrelated matter. CFS then passed the information on to the police. The police have a duty to investigate. The police contacted K. and asked her to come for an interview. There was no compulsion. K. attended the interview and told them what she saw. These are the relevant facts to consider in order to ascertain whether or not the actions of the police in requesting an interview with K. constituted a search. The decision by the Crown not to adduce C-1 was, no doubt, a tacit admission that what the police did after interviewing K. contravened Molyneaux’s s.8 Charter rights.
Aucun commentaire:
Publier un commentaire