Section 8 of the Charter guarantees the right to be secure against unreasonable search or seizure. Its principal object is the protection of privacy, including informational privacy, that is, the claim of individuals, groups, or institutions to determine for themselves when, how and to what extent information about them is communicated to others. Personal privacy is vital to individual dignity, autonomy, and personal growth. Its protection is a basic prerequisite to the flourishing of a free and healthy democracy.

Defining a reasonable expectation of privacy is an exercise in balance. In this case, the balance weighs in favour of extending a reasonable expectation of privacy to IP addresses. The intensely private nature of the information an IP address may betray strongly suggests that the public’s interest in being left alone should prevail over the government’s interest in advancing its law enforcement goals. The Internet has exponentially increased both the quality and quantity of information stored about Internet users, spanning the most public and the most private human behaviour.

The Internet has not only allowed private corporations to track their users, but also to build profiles of their users filled with information the users never knew they were revealing. By concentrating this mass of information with private third parties and granting them the tools to aggregate and dissect that data, the Internet has essentially altered the topography of privacy under the Charter. It has added a third party to the constitutional ecosystem, making the horizontal relationship between the individual and the state tripartite. Though third parties are not themselves subject to s. 8, they mediate a relationship which is directly governed by the Charter — that between defendant and police. This shift has enhanced the state’s informational capacity.

Weighed against these substantial privacy concerns is society’s sometimes conflicting but legitimate interest in the need for safety and security. Police should have the investigative tools to deal with crime that is committed and facilitated online. However, requiring that police obtain prior judicial authorization before obtaining an IP address is not an onerous investigative step. Where the IP address, or the subscriber information, is sufficiently linked to the commission of a crime, judicial authorization is readily available.

Recognizing that an IP address attracts s. 8 protection aims to make sure police investigations better reflect what each reasonable Canadian expects from a privacy perspective and from a crime control perspective. Judicial oversight narrows the state’s online reach and removes the decision to disclose information — and how much to disclose — from private corporations and returns it to the purview of the Charter.

Source: R. v. Bykovets, 2024 SCC 6 (CanLII)

The proposed rule is in no way analogous to the body of law protecting sexual assault complainants from myths and stereotypes, nor can it be justified as necessary to ensure fairness to the accused. It also treats any and all factual assumptions drawn in the course of testimonial assessments as errors of law and thereby represents an unjustified departure from well‑established principles governing testimonial assessment and appellate standards of review.

The faulty use of common‑sense assumptions in criminal trials should continue to be controlled by existing standards of review and rules of evidence. In some cases, a trial judge’s use of common sense will be vulnerable to appellate review because it discloses recognized errors of law. Otherwise, like with other factual findings, credibility and reliability assessments — and any reliance on the common‑sense assumptions inherent within them — will be reviewable only for palpable and overriding error. In the instant cases, assessing the trial judges’ credibility and reliability findings using the proper standard of palpable and overriding error, no such errors were made.

First, the proposed rule against ungrounded common‑sense assumptions is not a logical extension of the prohibition against myths and stereotypes about sexual assault complainants. It reflects a misunderstanding of the distinct body of law associated with myths and stereotypes in sexual assault cases, which has a unique history and a specific remedial purpose: to remove discriminatory legal rules that contributed to the view that women, as a group, were less worthy of belief and did not deserve legal protection against sexual violence.

Second,  the proposed rule is counterproductive to proper testimonial assessment and incompatible with the often inextricable role common‑sense assumptions play in credibility and reliability assessments. By prohibiting ungrounded common‑sense assumptions, the rule interferes with the necessary recourse to common sense as a part of testimonial analysis. It is effectively impossible to draw a clear boundary between using human experience to interpret evidence or draw inferences (which is permissible under the rule) and introducing new considerations into the evidence (which is not). The rule invites appellate courts to substitute their opinions about what generalizations are appropriate or instructive for those of trial judges, improperly transforming their strong opposition to a trial judge’s factual inferences into supposed legal errors, thus creating uncertainty and unfairness on appeal.

The rule also runs contrary to established standards of review and would unduly increase the scope of appellate intervention into the credibility and reliability assessments of trial judges.

Source: R. v. Kruk, 2024 SCC 7 (CanLII)

With a text message, the subject matter of the search is the electronic conversation between the sender and the recipient(s). This includes the existence of the conversation, the identities of the participants, the information shared, and any inferences about associations and activities that can be drawn from that information. The subject matter is not the copy of the message stored on the sender’s device, the copy stored on a service provider’s server, or the copy received on the recipient’s device that the police are after; it is the electronic conversation itself, not its components.

A number of factors may assist in determining whether it was objectively reasonable to expect privacy in different circumstances, including: (1) the place where the search occurred whether it be a real physical place or a metaphorical chat room; (2) the private nature of the subject matter, that is whether the informational content of the electronic conversation revealed details of the claimant’s lifestyle or information of a biographic nature; and (3) control over the subject matter.

Control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest. It is only one factor to be considered in the totality of the circumstances. Control must be analyzed in relation to the subject matter of the search, which in this case was an electronic conversation. Individuals exercise meaningful control over the information that they send by text message by making choices about how, when, and to whom they disclose the information. An individual does not lose control over information for the purposes of s. 8  of the Charter  simply because another individual possesses it or can access it. Nor does the risk that a recipient could disclose an electronic conversation negate a reasonable expectation of privacy in an electronic conversation. Therefore, even where an individual does not have exclusive control over his or her personal information, only shared control, he or she may yet reasonably expect that information to remain safe from state scrutiny.

In this case, M had a reasonable expectation of privacy in the text messages recovered from W’s iPhone. First, the subject matter of the alleged search was the electronic conversation between M and W, not W’s iPhone, from which the text messages were recovered. Second, M had a direct interest in that subject matter. He was a participant in that electronic conversation and the author of the particular text messages introduced as evidence against him. Third, he subjectively expected the conversation to remain private. M testified that he asked W numerous times to delete the text messages from his iPhone. Fourth, his subjective expectation was objectively reasonable. Each of the three factors relevant to objective reasonableness in this case support this conclusion. If the place of the search is viewed as a private electronic space accessible by only M and W, M’s reasonable expectation of privacy is clear. If the place of the search is viewed as W’s phone, this reduces, but does not negate, M’s expectation of privacy. The mere fact of the electronic conversation between the two men tended to reveal personal information about M’s lifestyle; namely, that he was engaged in a criminal enterprise. In addition, M exercised control over the informational content of the electronic conversation and the manner in which information was disclosed. The risk that W could have disclosed it, if he chose to, does not negate the reasonableness of M’s expectation of privacy. Therefore, M has standing to challenge the search and the admission of the evidence of the text messages recovered from W’s iPhone. This conclusion is not displaced by policy concerns. There is nothing in the record to suggest that the justice system cannot adapt to the challenges of recognizing that some electronic conversations may engage s. 8  of the Charter . Moreover, different facts may well lead to a different result.

The Crown concedes that if M had standing the search was unreasonable. The text messagesare thus presumptively inadmissible against him, subject to s. 24(2)  of the Charter . In considering whether this evidence should be excluded under s. 24(2) , society’s interest in the adjudication of M’s case on its merits is significant. The text messages offer highly reliable and probative evidence in the prosecution of a serious offence and their exclusion would result in the absence of evidence by which M could be convicted. This favours admission. However, the police conduct in accessing and searching the electronic conversation through W’s iPhone without a warrant two hours after his arrest was sufficiently serious to favour the exclusion of the evidence. This breached s. 8  of the Charter  not only because of the extent of the search, but also because of its timing. On the application judge’s findings, this simply was not a search incident to arrest. In addition, the police conduct had a substantial impact on M’s Charter ‑protected privacy interest in the electronic conversation. On balance, the admission of the evidence would bring the administration of justice into disrepute. It must therefore be excluded under s. 24(2) .

Without the erroneously admitted evidence obtained from W’s iPhone, M would have been acquitted. He was convicted instead. To allow that conviction to stand would be a miscarriage of justice. Therefore, the curative proviso in s. 686(1) (b)(iii) of the Criminal Code  does not apply.

Source: R. v. Jones (SCC) https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16897/index.do

It is an essential element of the offence under s. 264.1(1)(a) of the Criminal Code that the accused intended his or her words to intimidate or to be taken seriously. The trial judge properly considered the words uttered in the context of the evidence of the recipient of the threats and concluded that the evidence left her with a reasonable doubt as to whether the accused had the requisite intent. There is no basis on which to conclude that the trial judge committed any error of law in concluding as she did.

Citation: R. v. O’Brien, 2013 SCC 2

Trial judges must retain as much flexibility as the Criminal Code permits in crafting individualized sentences that respect the principles and purposes of sentencing set out by Parliament in the Code.

Probation orders are intended to facilitate rehabilitation. An interpretation of the phrase “imprisonment for a term not exceeding two years” that includes all outstanding sentences would have the undesirable consequence of making probation orders unavailable to offenders who might well benefit from them. The sentencing objectives in the Criminal Code are best achieved by preserving non‑custodial sentencing options. Not infrequently, the offender and society will both benefit from a probation order that comes into force following imprisonment for an aggregate period of more than two years.

In assessing the appropriateness of a fresh probation order, however, unexpired prior sentences remain an important consideration. Sentencing courts cannot disregard existing probation orders. A sentence must take into account the particular circumstances of the offence, the character and needs of the offender, and the purpose and relevant principles of sentencing. A probation order that is manifestly inappropriate in itself or that renders a sentence unfit will be set aside on appeal. As well, a probation order that was appropriate when made may be rendered inappropriate by a lengthy intervening term of imprisonment.

Source: R. v. Knott, 2012 SCC 4

A court of appeal, upon setting aside a stay of proceedings, may in appropriate circumstances remit the matter to the trial court for continuation of the trial, pursuant to ss. 686(4) and 686(8) of the Criminal Code. In allowing an appeal and setting aside an acquittal or a stay of proceedings, the court exercises a power under s. 686(4). An appellate court need not order a new trial or enter a verdict of guilty in order to trigger the application of s. 686(8), which depends only on the exercise of any of the powers conferred by s. 686(4).

Source: R. v. Bellusci 2012 SCC 44

In order to satisfy the objective element of the defence, the evidence must be capable of giving rise to a reasonable doubt that an ordinary person in the accused’s circumstances would be deprived of the power of self‑control when hearing insults about his or her level of education.

The defence of provocation is set out in s. 232 of the Criminal Code:

     232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.

(3) For the purposes of this section, the questions

(a) whether a particular wrongful act or insult amounted to provocation, and

(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

The Court has held that a defence should only be put to the jury if it has an “air of reality” (R. v. Cinous, 2002 SCC 29 (CanLII), [2002] 2 S.C.R. 3, at para. 50).  The air of reality test imposes two duties on the trial judge: to “put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused”; and “to keep from the jury defences lacking an evidential foundation” (Cinous, at para. 51).  Whether a defence arises on the evidence of the accused or of the Crown, the trial judge must put the defence to the jury if it has an air of reality (Cinous, at para. 53;R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595).

In determining whether a defence has an air of reality, there must be an examination into the sufficiency of the evidence.  It is not enough for there to be “some evidence” supporting the defence (Cinous, at para. 83).  The test is “whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true” (Cinous, at para. 65).  For defences that rely on indirect evidence or defences like provocation that include an objective reasonableness component, the trial judge must examine the “field of factual inferences” that can reasonably be drawn from the evidence (Cinous, at para. 91).

Source: R. v. Mayuran, 2012 SCC 31.

Because similar fact evidence is presumptively inadmissible, its probative value must exceed its prejudicial effect.

First, it is not uncommon for a trier of fact to be exposed to a prior conviction, in the form of a guilty plea, which stems from the similar fact evidence the Crown seeks to lead.  The trier of fact is made aware of the limited use that can be made of the similar fact evidence, and the accused can challenge or explain the prior conviction.

Second, while a prior conviction constitutes strong proof that the similar act conduct in question occurred, that does not make the conviction inadmissible.  The fact that a piece of evidence operates unfortunately for an accused does not render the evidence inadmissible or the trial unfair.

Third, an accused is entitled to a fair trial, not a trial in which the playing field is tilted in his or her favour.  Once an accused challenges his or her involvement in an earlier incident, the rules of evidence do not permit the accused to keep the best evidence linking him or her to that incident — the conviction — from the trier of fact.

While an accused should not be automatically foreclosed from challenging a prior conviction at the voir dire stage of a similar fact application, situations in which such a challenge may be launched will be rare because of the low evidentiary threshold (“some evidence”) required to link an accused to the similar act.  A challenge at the voir dire stage will not be appropriate if there is no reasonable likelihood that it will impact the admissibility of the evidence.  In deciding whether the conviction can be challenged, labels such as res judicata and abuse of process are unhelpful and inappropriate — neither of these doctrines can prevent an accused from challenging a prior conviction on a voir dire.  The decision to allow a challenge or not at the voir dire stage is a function of the trial judge’s right to control the proceedings.

Source: R. v. Jesse, 2012 SCC 21

However, the analysis must focus on first principles and recognize that these tools are analytical aids and do not alter the standard of legal causation or substitute new tests.  Even in cases where it is alleged that an intervening act has interrupted the chain of legal causation, the causation test remains whether the dangerous and unlawful acts of the accused are a significant contributing cause of the victim’s death.

The reasonable foreseeability approach questions whether it is fair to attribute the resulting death to the initial actor and posits that an accused who undertakes a dangerous act, and in so doing contributes to a death, should bear the risk that other foreseeable acts may intervene and contribute to that death.

The time to assess reasonable foreseeability is at the time of the initial unlawful act, rather than at the time of the intervening act as it is too restrictive to require that the precise details of the event be objectively foreseeable.  It is the general nature of the intervening acts and the accompanying risk of harm that needs to be reasonably foreseeable.  The intervening acts and the ensuing non‑trivial harm must be reasonably foreseeable in the sense that the acts and the harm that actually transpired flowed reasonably from the conduct of the accused.  If so, then the accused’s actions may remain a significant contributing cause of death.

Whether an intervening act is independent is sometimes framed as a question of whether the intervening act is a response to the acts of the accused.  In other words, did the act of the accused merely set the scene, allowing other circumstances to (coincidentally) intervene, or did the act of the accused trigger or provoke the action of the intervening party?  If the intervening act is a direct response or is directly linked to the accused’s actions, and does not by its nature overwhelm the original actions, then the accused cannot be said to be morally innocent of the death.

Source: R. v. Maybin, 2012 SCC 24

However, because driving is an inherently dangerous activity, the trier of fact must not infer simply from the fact that the driving was, objectively viewed, dangerous, that the accused’s level of care was a marked departure from that expected of a reasonable person in the same circumstances.  The fault component ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction.  Determining whether the fault component is present may in turn be done by asking two questions.

First, in light of all of the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible?

Second, was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances?  The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault, is a matter of degree, but the trier of fact must identify how and in what way the driver went markedly beyond mere carelessness.  This will generally be done by drawing inferences from all of the circumstances.

Furthermore, in answering these questions, personal attributes will only be relevant if they go to capacity to appreciate or to avoid the risk.  Of course, proof of deliberately dangerous driving would support a conviction for dangerous driving, but it is not required.

Source: R. v. Roy, 2012 SCC 26