Pulling the Ivy Out of the Windows: Presumptions of Privacy in the Home and R. v. Gomboc

The law of search and seizure is like ivy growing on Canadians’ homes. It should both connect the home to the greater landscape, by providing a means of balancing the rights of individuals against the concerns of the state, and protect the rights of Canadians to enjoy privacy in their own homes. More than any other place, the home is where Canadians can be themselves. Section 8 of the Charter reads: “Everyone has the right to be secure against unreasonable search or seizure.” However, the jurisprudential ivy that has sprung from this seed has worked its way into the wood and walls of Canadian homes. Judicial analysis under s. 8 has grown more complex, and Canadians’ expectations that they will enjoy privacy in their own homes have been buried under a thicket of vines and leaves. Some pruning is in order. From the origins of the common law, the home has been a presumptively private place. Sir Edward Coke famously held that “the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.”2 This passage was quoted in R. v. Tessling, but ultimately it was not enough to sway the result of that case. Today in Canada the law of search and seizure presumes that nothing is automatically within the protection of s. 8. The power of the state to search the home is limited only by the existence of a reasonable expectation of privacy (“REP”). Where there is a REP, neither the government nor the police can search for either physical evidence or information without a warrant or some other form of prior judicial authorization. In other words, the law does not recognize that a search has taken place unless there was a REP. However, if there is a REP in a place or in certain information, then whatever was done by the state to gain the information was a search. A search without a warrant is presumptively unreasonable. From the seed of the REP has grown a tangled mass of factors and sub-factors for evaluating the reasonableness of expectations of privacy. A REP is determined by an analysis of all the circumstances. The subjective expectation of the person whose home is searched is only one factor in the analysis. However, the Supreme Court of Canada (“SCC”) has repeatedly held that it can be presumed that Canadians subjectively expect what goes on in their homes to be private. What Canadians actually expect to be private – their homes – and what the REP analysis says they can expect to be private are two very different things. The REP analysis as it stands gives Canadians less privacy than the jurisprudence says they expect. The ivy has come through the windows, but why? Various scholars argue that the REP analysis erodes Canadians’ privacy through circular reasoning, by protecting privacy in a post-facto, case-by-case fashion, and by taking too narrow an approach to the kinds of information that should be kept private. In R. v. Gomboc, a majority of the Alberta Court of Appeal held that the data gathered by placing a digital recording ammeter (“DRA”) on the accused’s power line was subject to a REP, with O’Brien J.A. dissenting. The Crown appealed to the SCC as of right, and the appeal will tentatively be heard on May 19, 2010. The majority of the Court of the Appeal implicitly presumed that there is a REP in the home. This presumption should be adopted as part of the law of search and seizure, because it answers each of the scholarly critiques and, more importantly, because it closes the gap between the privacy Canadians expect and the privacy the law gives them.

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