On April 15th, the Court of Appeal for Manitoba held that an accused had no reasonable expectation of privacy in information that a rental car agency provided to the police without a warrant.
The police were investigating a fatal shooting. The shooter was in a rental car that belonged to a specific agency, they knew. When the police asked, the agency identified the co-accused as the renter and the accused as an authorized driver. It also provided their cell phone numbers, drivers license numbers and credit card numbers.
The Supreme Court of Canada decision in Spencer dictates that the PIPEDA allowance for volunteering information to the police does not vitiate one’s expectation of privacy for the purpose of Charter analysis. The Court of Appeal acknowledged this, and as in Spencer, it also held that contract language allowing for the disclosure of personal information as “required or permitted by law” was “of no real assistance.”
However, the Court of Appeal distinguished Spencer on other grounds. Its decision turns on the following key factors:
- the rental agreement allowed the agency share information with law enforcement “to take action regarding illegal activities or violations of terms of service”
- section 22 of the Manitoba Highway Traffic Act requires agencies to keep a registry of renters that is open to public inspection (even though the registry is to include “particular’s of the [renter’s] drivers license”)
- the overall context – i.e., that driving is a highly regulated activity, with one’s identity as an operator of a vehicle being something that is widely known and ought to be widely knowable
Privacy advocates will take issue with the Court’s reliance on the rental agreement term, though the case does rest on two other significant factors, including a provision of Manitoba law that the accused did not challenge. On a quick look, I see that Saskatchewan has the same provision.
R v Telfer, 2021 MBCA 38 (CanLII).
On January 13th, the Court of Appeal for Ontario held that a convicted appellant did not have a reasonable expectation of privacy in “what could be seen and heard on [his] property from his neighbour’s [property].”
The police trespassed on an neighbour’s rural property to conduct surveillance, and they heard gunshots and saw two individuals with rifles outside of the appellant’s house. Based on these observations, the police obtained a warrant to search the appellant’s house. They ultimately secured one or more convictions on drug and weapons charges.
The Court held, that in the context, it did not matter that the police were trespassing. (The gunshots were loud, and the appellant’s property was abutted by a public road in any event.) It also held that the police did not obtain “personal information,” reasoning as follows:
What triggered the application for the first warrant was the sound of the discharge of a firearm – something that could scarcely be concealed – coupled with visual observations of persons outdoors either firing a rifle or holding a rifle. These were bare observations of physical acts. There was no personal information obtained.
This illustrates how the personal information concept is not as simple, and perhaps not as broad, as one might think. The facts observed clearly allowed the police to infer what was in the house and obtain, on the reasonable and probable grounds standard, a search warrant. Nonetheless, the Court held that the observations did not invite a collection of personal information.
R v Roy, 2020 ONCA 18 (CanLII).
On January 7th, the Ontario Superior Court of Justice overturned a trial decision that had recognized a Charter-protected expectation of privacy in the odour emanating from one’s breath. A doctor who had treated the accused following a motor vehicle accident told a police officer that the accused’s breath smelled of alcohol, following which the police obtained an warrant to seize a blood sample. The Court also noted that the doctor was not acting as a state agent in making his observation and reporting to the police.
R v Maureen Daly, 2014 ONSC 115 (CanLII).