R. v. Wong

R. v. Wong
Collection
Supreme Court Judgments
Date
1990-11-22
Report
[1990] 3 SCR 36
Case number
20549
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; McLachlin, Beverley
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Evidence
Notes
SCC Case Information: 20549
Decision Content
R. v. Wong, [1990] 3 S.C.R. 36
Santiago Wong Appellant
v.
Her Majesty The Queen Respondent
‑ and ‑
The Attorney General of Canada and
the Attorney General for Alberta Interveners
indexed as: r. v. wong
File No.: 20549.
1990: May 2; 1990: November 22.
Present: Dickson C.J.* and Lamer C.J.** and Wilson, La Forest, L'Heureux‑Dubé, Sopinka and McLachlin JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Evidence obtained by electronic video surveillance conducted without authorization ‑‑ Videotape entered into evidence ‑‑ Whether surreptitious video surveillance of hotel room by police without prior judicial authorization infringes s. 8 of the Charter ‑‑ If so, whether or not it was justified by s. 1 of the Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 8 .
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Evidence obtained by electronic video surveillance conducted without authorization ‑‑ Videotape entered into evidence ‑‑ Whether surreptitious video surveillance of hotel room by police without prior judicial authorization infringes s. 8 of the Charter ‑‑ If so, whether admission into evidence of videotape would bring administration of justice into disrepute under s. 24(2) of the Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Evidence ‑‑ Admissibility ‑‑ Evidence obtained by electronic video surveillance conducted without authorization ‑‑ Videotape entered into evidence ‑‑ Admissibility of videotape ‑‑ Whether video surveillance without authorization infringes s. 8 of the Charter ‑‑ If so, whether or not it was justified by s. 1 of the Charter ‑‑ Whether or not admission of evidence, if obtained in breach of the Charter , would bring administration of justice into disrepute.
Criminal law ‑‑ Electronic video surveillance ‑‑ Evidence obtained by electronic video surveillance conducted without authorization ‑‑ Videotape entered into evidence ‑‑ Whether video surveillance infringed Charter right to freedom from unreasonable search and seizure ‑‑ If so, whether or not it was justified by s. 1 of the Charter .
Police installed a video camera without prior judicial authorization and monitored the activities in a hotel room registered to the appellant in the course of an investigation of a "floating" gaming house. They conducted a raid and found the appellant to be in possession of profit lists. They seized gaming paraphernalia and a large sum of money. The trial judge acquitted the appellant of keeping a common gaming house. He held that the video surveillance was a violation of s. 8 of the Canadian Charter of Rights and Freedoms and excluded the evidence thereby obtained under s. 24(2). The Court of Appeal allowed the appeal against acquittal and ordered a new trial on the ground that s. 8 was not violated.
The constitutional questions stated in this Court were: (1) whether surreptitious video surveillance by police of a hotel room without prior judicial authorization infringes s. 8 of the Charter ; (2) if so, whether it is justified by s. 1 of the Charter ; and (3) if those rights have been infringed, whether the admission into evidence of the videotape would bring the administration of justice into disrepute under s. 24(2) of the Charter .
Held (Wilson J. dissenting): The appeal should be dismissed.
Per Dickson C.J. and La Forest, L'Heureux‑Dubé and Sopinka JJ.: The degree of privacy reasonably expected in a free society would be seriously diminished by unrestricted video surveillance by agents of the state. A person who occupies a hotel room has a reasonable expectation of privacy, and a warrantless video search there constituted an unreasonable search and seizure. Whether persons who are the objects of an electronic search have a reasonable expectation of privacy does not depend on whether or not those persons were engaged in illegal activities. The protection of s. 8 of the Charter is meant to shield against warrantless video surveillance and the unauthorized video surveillance offended against the reasonable expectations of privacy protected by that section.
It is for Parliament, and not the courts, to devise a code of procedure for judicial pre-authorization of the use by law enforcement agencies of electronic video surveillance for the purposes of criminal investigations. The courts' function is to assess the constitutionality of such procedures. Part IV.1 of the Criminal Code dealing with electronic interception of oral communications did not apply to electronic video surveillance.
The surreptious video surveillance was not justified by s. 1 of the Charter . However, the appellant did not establish that the admission of the evidence would bring the administration of justice into disrepute for the purposes of s. 24(2) of the Charter . The police acted in good faith and had reasonable and probable grounds to believe that the offence had been committed. The Charter breach stemmed from an entirely reasonable misunderstanding of the law by the police officers who had sought legal advice about the steps that could be taken to obtain evidence they could not otherwise obtain.
Per Lamer C.J. and McLachlin J.: Not every unauthorized electronic surveillance carried out by the agents of the state violates s. 8 of the Charter . R. v. Duarte stands for the proposition that the recording of a private communication, without the consent of all parties thereto, constitutes a search for the purpose of s. 8. Such a search may be reasonable only where prior judicial authorization has been obtained. Unauthorized surreptitious electronic surveillance will violate s. 8 where the target of the surveillance has a reasonable expectation of privacy. The consideration of whether an individual has a reasonable expectation of privacy can only be decided within the particular factual context of the surveillance. The appellant had no reasonable expectation of privacy as he had invited the public into the hotel room and, accordingly, no search took place within the meaning of s. 8.
Per Wilson J. (dissenting): The reasons of La Forest J. on the s. 8 violation were agreed with. The dissent was confined to the s. 24(2) issue.
The presence of the words "having regard to all the circumstances" in s. 24(2) of the Charter suggests that the context is vital in determining whether evidence obtained in violation of Charter rights should nonetheless be admitted. The videotape evidence existed purely as a result of the violation of s. 8. In this sense it was analogous to a confession and quite different from evidence which has an independent existence apart entirely from the Charter violation.
Fair trial considerations favoured the exclusion of the videotape evidence. Police could and should have sought an authorization for a wiretap under Part IV.1 of the Criminal Code , at which time they could have put to the authorizing judge their desire to use video surveillance independent from or in addition to audio surveillance. Instead, they proceeded in blatant disregard for the appellant's Charter rights. Their conduct was deliberate and was not based on a reasonable, or indeed any, misunderstanding of the law. The admission of this evidence would bring the administration of justice into disrepute given the nature of the evidence, the gravity of the Charter infringement and the fact the offence with which the appellant was charged did not fall into the more serious category. To extend the principle in Duarte to this case is to ignore completely the words "having regard to all the circumstances" in s. 24(2).
Cases Cited
By La Forest J.
Considered: R. v. Duarte, [1990] 1 S.C.R. 30; referred to: Olmstead v. United States, 277 U.S. 438 (1928); Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Rao (1984), 12 C.C.C. (3d) 97, leave to appeal refused, [1984] 2 S.C.R. ix; Stoner v. California, 376 U.S. 483 (1964); United States v. Agapito, 620 F.2d 324 (2d Cir. 1980); People v. Teicher, 395 N.Y.S.2d 587 (S.C. N.Y.Co. 1977); United States v. Biasucci, 786 F.2d 504 (2d Cir. 1986); R. v. Biasi (1981), 66 C.C.C. (2d) 566; Re Banque Royale du Canada and The Queen (1985), 18 C.C.C. (3d) 98, leave to appeal refused [sub nom. Procureur général du Québec c. Banque royale du Canada], [1985] 1 S.C.R. xii; R. v. Landry, [1986] 1 S.C.R. 145; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48, leave to appeal refused, [1986] 1 S.C.R. ix.
By Lamer C.J.
Referred to: R. v. Duarte, [1990] 1 S.C.R. 30.
By Wilson J. (dissenting)
R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Ross, [1989] 1 S.C.R. 3.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 8 , 9 , 10( b ) , 24(2) .
Criminal Code, R.S.C. 1970, c. C-34, s. 178.13(2)(c) [ad. S.C. 1973-74, c. 50, s. 2; am. S.C. 1976-77, c. 53, s. 9], (d) [ad. S.C. 1973-74, c. 50, s. 2] (now R.S.C., 1985, c. C‑46, s. 186(4) (c), (d)).
Authors Cited
Amsterdam, Anthony G. "Perspectives On The Fourth Amendment" (1974), 58 Minn. L. Rev. 349.
APPEAL from a judgment of the Ontario Court of Appeal (1987), 19 O.A.C. 365, 34 C.C.C. (3d) 51, 56 C.R. (3d) 352, setting aside the accused's acquittal by Paris Prov. Ct. J. on a charge of keeping a common gaming house and ordering a new trial. Appeal dismissed, Wilson J. dissenting.
Alan D. Gold and Aimée Gauthier, for the appellant.
Casey Hill and Susan Chapman, for the respondent.
R. W. Hubbard, for the intervener the Attorney General of Canada.
Jack Watson, for the intervener the Attorney General for Alberta.
//La Forest J.//
The judgment of Dickson C.J. and La Forest, L'Heureux‑Dubé and Sopinka JJ. was delivered by
LA FOREST J. -- This appeal is concerned with the protection afforded by s. 8 of the Canadian Charter of Rights and Freedoms against the surreptitious video recording of hotel rooms by the police in the absence of judicial authorization.
Facts
During the summer of 1984 the Toronto Police commenced an investigation aimed at determining the location of "floating" gaming houses frequented by gamblers of Oriental extraction. As part of this investigation, police officers attended at various downtown hotels and asked the security officers in those establishments to inform them of "anything unusual as to Orientals attending hotels".
Some time after this request, in September of the same year, the security staff at a major downtown hotel contacted the police with information relating to the possible use of their premises for illegal gaming. On September 17, the officers in charge of the gambling investigation went to the hotel and attended at a recently vacated room. There the officers found that the occupants of the room had rearranged the furniture in order to form a long table suitable for gambling. In addition, on searching the garbage the occupants had left behind, the police found many slips of paper bearing Chinese characters. The slips bore the address and number of the hotel room, and the chief investigating officer was able to identify these notices as similar to some which he knew were distributed to potential Oriental gamblers in various restaurants in Toronto's Chinatown area.
The police checked the hotel register and discovered that the appellant, Santiago Wong, had booked this room for the 19th and 20th of the same month. On the basis of their findings of the 17th, the police concluded that the room booked by the appellant might be used for illegal gambling. After determining that it would not be feasible to see into the room from the roof of the other wing of the hotel, the officers in charge of the investigation concluded that only video surveillance would enable them to further their investigation by actually monitoring what transpired in the room booked by the appellant. Notably, the police rejected the idea of employing undercover officers. On the basis of past experience, they were certain that the gaming would be conducted behind locked doors, by and for Orientals alone. Since the identity of Oriental police officers was well known in the community, the investigating officers concluded it would be virtually impossible to infiltrate the gambling sessions with undercover operators.
Once it was determined that video surveillance was the only feasible way of monitoring what went on in the room, the officers contacted the Metro Police Intelligence Branch and a Crown Counsel to discuss the possibility of obtaining a warrant. These discussions left the police officers with the impression that it would not be possible to obtain judicial authorization to conduct the video surveillance. The investigators therefore decided to proceed without this authorization, and on September 19 the police installed a video camera in the drapery valence of the room that was registered to Mr. Wong. The camera had a lens about the size of the lead of a pencil and was attached to simultaneous recording equipment which the police monitored from an adjacent hotel room. The police installed this equipment with the permission and co‑operation of the hotel management.
The police monitored the activities in the rooms on five separate occasions. These observations left no doubt that illegal gambling sessions were being held in the hotel suite. This surveillance culminated in a raid in the early morning hours of October 1, 1984. The police entered the room with a key provided by management and found a large group of Oriental males in the suite. A search of these persons revealed numerous slips of the type seized in the initial search of September 17. The appellant was found to be in possession of profit lists, while debt lists were seized from some of the other occupants of the room. The police were also able to seize gambling paraphernalia and a large amount of money found lying on the gaming table.
The appellant and ten other accused were later charged with the offence of keeping a common gaming house. At trial, all the accused pleaded not guilty. On September 11, 1985, the trial judge dismissed the charges against all those concerned. He held the video surveillance of the accused to be a violation of s. 8 of the Charter , and excluded the evidence thereby obtained under s. 24(2) of the Charter . On March 20, 1987, the Crown's appeal to the Court of Appeal against the acquittal of the appellant and the other accused was allowed, and a new trial ordered ((1987), 19 O.A.C. 365). In a judgment to which I shall later have occasion to refer, Cory J.A., as he then was, writing for a unanimous court, held that surreptitious video surveillance would constitute a search and seizure within the meaning of s. 8 of the Charter in circumstances where the person observed by the camera had a reasonable expectation of privacy. However, he went on to conclude that on the facts of this case the appellant could not be said to have had a reasonable expectation of privacy. Accordingly, the Court of Appeal held, s. 8 of the Charter had no application and the evidence of the video surveillance was therefore admissible.
The Issues
I note at the outset that the pronouncements of this Court in R. v. Duarte, [1990] 1 S.C.R. 30, make it superfluous to enter into a lengthy discussion as to whether surreptitious video surveillance by agents of the state constitutes a search and seizure within the meaning of s. 8 of the Charter . In Duarte, this Court held that unauthorized electronic audio surveillance violates s. 8 of the Charter . It would be wrong to limit the implications of that decision to that particular technology. Rather what the Court said in Duarte must be held to embrace all existing means by which the agencies of the state can electronically intrude on the privacy of the individual, and any means which technology places at the disposal of law enforcement authorities in the future.
In his prophetic dissent in Olmstead v. United States, 277 U.S. 438 (1928), Brandeis J. foresaw that the progress of science in furnishing government with the means of "espionage" could not be expected to stop with wiretapping. One may speculate, however, that even Brandeis J. could not have envisaged the vertiginous pace at which eavesdropping technology would develop in the latter half of this century. But in concluding, at p. 472, that clauses that guarantee to the individual protection against specific abuses of power must have a capacity of adaptation to a changing world, Brandeis J.'s words have lost none of their relevance. They find an echo in the pronouncement of Dickson C.J. observed in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155, that constitutional provisions aimed at protecting individual rights and liberties must be interpreted as providing a continuing framework for the legitimate exercise of government power. These observations remind one that the broad and general right to be secure from unreasonable search and seizure guaranteed by s. 8 is meant to keep pace with technological development, and, accordingly, to ensure that we are ever protected against unauthorized intrusions upon our privacy by the agents of the state, whatever technical form the means of invasion may take.
Reasonable Expectations of Privacy
I noted above that the Court of Appeal, while not taking issue with the proposition that video surveillance could, in appropriate circumstances, constitute a search within the meaning of s. 8 of the Charter , held that that result would only follow where the person who was the object of the intrusion had a reasonable expectation of privacy. On the facts of this case, the court concluded that there was no such expectation. It is on this question as to what constitutes a reasonable expectation of privacy that I part company with the Court of Appeal for I am unable to reconcile its conclusion on this point with the approach since taken by this Court in R. v. Duarte, supra.
In Duarte, this Court overturned the conclusion of the Court of Appeal that the risk that our interlocutor will electronically record our words is but a variant of the risk of having that person disclose our words to another. This Court accordingly rejected the notion that "risk analysis" provides an appropriate means of assessing whether a person who was the object of an electronic search had a reasonable expectation of privacy in the circumstances. As explained at p. 48 of that decision, this rejection rested on the conclusion that privacy would be inadequately protected if an assessment of the reasonableness of a given expectation of privacy were made to rest on a consideration whether the person concerned had courted the risk of electronic surveillance. In view of the advanced state of surveillance technology, this would be to adopt a meaningless standard, for, in the final analysis, the technical resources which agents of the state have at their disposal ensure that we now run the risk of having our words recorded virtually every time we speak to another human being. Professor Amsterdam, in his seminal comment on the Fourth Amendment to the American Constitution, drives the point home with a striking image when he suggests that in view of the sophistication of modern eavesdropping technology we can only be sure of being free from surveillance today if we retire to our basements, cloak our windows, turn out the lights and remain absolutely quiet; see "Perspectives On The Fourth Amendment" (1974), 58 Minn. L. Rev. 349, at p. 402.
In the place of "risk analysis", R. v. Duarte approached the problem of determining whether a person had a reasonable expectation of privacy in given circumstances by attempting to assess whether, by the standards of privacy that persons can expect to enjoy in a free and democratic society, the agents of the state were bound to conform to the requirements of the Charter when effecting the intrusion in question. This involves asking whether the persons whose privacy was intruded upon could legitimately claim that in the circumstances it should not have been open to the agents of the state to act as they did without prior judicial authorization. To borrow from Professor Amsterdam's reflections, supra, at p. 403, the adoption of this standard invites the courts to assess whether giving their sanction to the particular form of unauthorized surveillance in question would see the amount of privacy and freedom remaining to citizens diminished to a compass inconsistent with the aims of a free and open society.
When the intrusion takes the form of unauthorized and surreptitious electronic audio surveillance, R. v. Duarte makes it clear that to sanction such an intrusion would see our privacy diminished in just such an unacceptable manner. While there are societies in which persons have learned, to their cost, to expect that a microphone may be hidden in every wall, it is the hallmark of a society such as ours that its members hold to the belief that they are free to go about their daily business without running the risk that their words will be recorded at the sole discretion of agents of the state.
Accordingly, by the standards of privacy that prevail in a free and open society such as our own, Duarte was entitled to claim that judicially unauthorized participant surveillance did offend against his reasonable expectations of privacy when he engaged in what he had every reason to believe was an ordinary private conversation. To have held otherwise would have been tantamount to exposing any member of society whom the state might choose to target to the same risk of having his or her nominally private conversation become the subject of surreptitious recordings. As explained in R. v. Duarte, supra, at p. 48, on the logic of the Court of Appeal, despite the fact that we would have no way of knowing whether a given interlocutor was in fact a government informer bent on recording our words, we would be automatically presumed to waive any claim to be protected against this intrusion on our right to privacy if it should in fact eventuate that our words were being recorded. Such a result would fatally undermine the very tenet of a free and open society that I have just commented on, i.e., the notion that in a society such as ours the state cannot make it its business to record nominally private conversations at its sole discretion.
I am firmly of the view that if a free and open society cannot brook the prospect that the agents of the state should, in the absence of judicial authorization, enjoy the right to record the words of whomever they choose, it is equally inconceivable that the state should have unrestricted discretion to target whomever it wishes for surreptitious video surveillance. George Orwell in his classic dystopian novel 1984 paints a grim picture of a society whose citizens had every reason to expect that their every movement was subject to electronic video surveillance. The contrast with the expectations of privacy in a free society such as our own could not be more striking. The notion that the agencies of the state should be at liberty to train hidden cameras on members of society wherever and whenever they wish is fundamentally irreconcilable with what we perceive to be acceptable behaviour on the part of government. As in the case of audio surveillance, to permit unrestricted video surveillance by agents of the state would seriously diminish the degree of privacy we can reasonably expect to enjoy in a free society. There are, as R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 428‑29, tells us, situations and places which invite special sensitivity to the need for human privacy. Moreover, as Duarte indicates, we must always be alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilate privacy.
R. v. Duarte was predicated on the notion that there exists a crucial distinction between exposing ourselves to the risk that others will overhear our words, and the much more pernicious risk that a permanent electronic recording will be made of our words at the sole discretion of the state. Transposing to the technology in question here, it must follow that there is an important difference between the risk that our activities may be observed by other persons, and the risk that agents of the state, in the absence of prior authorization, will permanently record those activities on videotape, a distinction that may in certain circumstances have constitutional implications. To fail to recognize this distinction is to blind oneself to the fact that the threat to privacy inherent in subjecting ourselves to the ordinary observations of others pales by comparison with the threat to privacy posed by allowing the state to make permanent electronic records of our words or activities. It is thus an important factor in considering whether there has been a breach of a reasonable expectation of privacy in given circumstances.
The Applicability of s. 8 of the Charter on the Facts of this Case
I turn from these general observations to the question whether, on the facts of this case, the appellant could be said to have had a reasonable expectation of privacy. The Court of Appeal, after stating, by way of an initial premise, that a person attending a function to which the general public has received an open invitation can have no interest in "being left alone", went on to draw the following conclusions from the facts of this case, at p. 373:
None of the respondents testified that they had a subjective expectation of privacy and it is difficult to believe that they could give such evidence. It may well be that they were in the same room with strangers. The occupants' only common interest was to gamble illegally for high stakes. All but Santiago Wong were no more than casual visitors to the rooms with no basis for challenging the legality of the search. Neither is it possible that Santiago Wong had any reasonable expectation of privacy. He was booking the room regularly and it was clear from police observation that the room had been used for gambling on other occasions. Wong had invited and accepted so many people into the room that there could not have been any reasonable expectation of privacy by anyone in the room, least of all Santiago Wong who benefited by the presence of the others.
Video surveillance of persons in a hotel room could in certain circumstances constitute a search of the most intrusive kind. However, in this case, as there was no reasonable expectation of privacy, s. 8 of the Charter cannot have any application.
I think, with respect, that the conclusions of the Court of Appeal cannot be reconciled with the implications of this Court's subsequent decision in R. v. Duarte. The Court of Appeal has, in effect, applied a variant of the risk analysis rejected by this Court in that case, for it has chosen to rest its conclusion on the notion that the appellant, by courting observation by the other persons in the room, has effectively relinquished any right to maintain a reasonable expectation of freedom from the much more intrusive invasion of privacy constituted by surreptitious video surveillance on the part of the state.
Moreover, it is clear from the excerpt cited above that the Court of Appeal, in assessing the constitutionality of the search, has allowed itself to be influenced by the fact that the appellant was carrying on illegal activities. By way of expansion on my earlier references to Duarte, I would note that that decision places considerable emphasis on the fact that the answer to the question whether persons who were the object of an electronic search had a reasonable expectation of privacy cannot be made to depend on whether or not those persons were engaged in illegal activities; see pp. 51-52. If reliance were to be placed on such ex post facto reasoning, and the courts to conclude that persons who were the subject of an electronic search could not have had a reasonable expectation of privacy because the search revealed that they were in fact performing a criminal act, the result would inevitably be to adopt a system of subsequent validation for searches. Yet it was precisely to guard against this possibility that this Court in Hunter v. Southam Inc., supra, at p. 160, stressed that prior authorization, wherever feasible, was a necessary pre-condition for a valid search and seizure. As noted in R. v. Dyment, supra, at p. 430, this is inherent in the notion of being secure against unreasonable searches and seizures.
Accordingly, it follows logically from what was held in R. v. Duarte that it would be an error to suppose that the question that must be asked in these circumstances is whether persons who engage in illegal activity behind the locked door of a hotel room have a reasonable expectation of privacy. Rather, the question must be framed in broad and neutral terms so as to become whether in a society such as ours persons who retire to a hotel room and close the door behind them have a reasonable expectation of privacy.
Viewed in this light, it becomes obvious that the protections of s. 8 of the Charter are meant to shield us from warrantless video surveillance when we occupy hotel rooms. Clearly, our homes are places in which we will be entitled, in virtually all conceivable circumstances, to affirm that unauthorized video surveillance by the state encroaches on a reasonable expectation of privacy. It would be passing strange if the situation should be any different in hotel or motel rooms. Normally, the very reason we rent such rooms is to obtain a private enclave where we may conduct our activities free of uninvited scrutiny. Accordingly, I can see no conceivable reason why we should be shorn of our right to be secure from unreasonable searches in these locations which may be aptly considered to be our homes away from home. Moreover, R. v. Duarte reminds us that unless the question posed in the preceding paragraph is answered in neutral terms as I have suggested, it follows not only that those who engage in illegal activity in their hotel rooms must bear the risk of warrantless video surveillance, but also that all members of society when renting rooms must be prepared to court the risk that agents of the state may choose, at their sole discretion, to subject them to surreptitious surveillance; see again at pp. 51-52.
Nor, with respect, can I attach any importance to the fact that in the circumstances of this case the appellant may have opened his door to strangers, or circulated invitations to the gaming sessions. I am simply unable to discern any logical nexus between these factors, and the conclusion that the police should have been free to videotape the proceedings in the hotel room at their sole discretion. It is safe to presume that a multitude of functions open to invited persons are held every week in hotel rooms across the country. These meetings will attract persons who share a common interest but who will often be strangers to each other. Clearly, persons who attend such meetings cannot expect their presence to go unnoticed by those in attendance. But, by the same token, it is no part of the reasonable expectations of those who hold or attend such gatherings that as a price of doing so they must tacitly consent to allowing agents of the state unfettered discretion to make a permanent electronic recording of the proceedings.
We must be prepared to live with the first risk, but, in a free and open society, need not tolerate the spectre of the second. As I have intimated above, this seminal distinction between what is constitutionally acceptable and unacceptable follows inexorably from the point made in R. v. Duarte that it would be an error to equate the risk of having one's words overheard with the risk of having the state, at its sole discretion, make a permanent electronic recording of those words. At p. 48 of that decision, it was said that these threats to privacy are of a different order of magnitude and involve different risks to the individual and the body public. The same must be true of the risk of being the object of private scrutiny, and the risk of having a permanent electronic recording made of one's presence in a given location at the behest of the state.
I therefore conclude that the Court of Appeal erred when it held that the appellant did not have a reasonable expectation of privacy in the circumstances of this case. Were the reasonableness of unauthorized video surveillance to be gauged by the standard adopted by the Court of Appeal the state would be at liberty to train its hidden cameras on an extremely broad spectrum of the activities engaged in by members of society. In effect, we would be debarred from asserting a reasonable expectation of freedom from clandestine electronic scrutiny on the part of the state at any private function to which members of the public had received an invitation.
Moreover, it is also clear that those ordinary measures which persons in a free and open society believe suffice to shut out uninvited scrutiny would be of no avail if the police (and they would of course be the sole arbiters of the matter) entertained the suspicion that the persons in the location concerned were involved in illegal activity. Here, it must be remembered that while the appellant had rented a room in an establishment to which selected members of the public had access, he had seen to it that activities in the room were conducted behind locked doors and drawn drapes.
In effect, by application of the standard adopted by the Court of Appeal, members of society would be driven back to the confines of their homes if they wished to be sure of being able to escape the risk of unauthorized video surveillance. And even this ultimate refuge could be breached if the police formulated a suspicion with respect to gatherings in the home, for I think it must be conceded that on the reasoning of the Court of Appeal the appellant could have asserted no reasonable expectation of privacy if the gambling sessions had been conducted in his own home.
By way of recapitulation on this important point, I think it can be seen that the approach taken by the Court of Appeal to the question of what constitutes a reasonable expectation of privacy simply cannot be reconciled with the conclusions that emerge from R. v. Duarte. That decision makes it clear that s. 8 of the Charter is meant to protect those expectations on which we rest our belief that our society is one in which we are not exposed to unauthorized clandestine electronic surveillance on the part of the state. I take it to be beyond dispute that just as we hold to the belief that a free and open society is one in which the state is not free to make unauthorized recordings of our conversations, so too it is no less an article of faith in a society that sets a premium on being left alone that its members presume that they are at liberty to go about their daily business without courting the risk that agents of the state will be surreptitiously filming their every movement. By simple analogy with R. v. Duarte, it must follow that unauthorized video surveillance will be found to offend against the reasonable expectations of privacy protected by s. 8 in the circumstances here. Certainly it is inconceivable to me that the police should enjoy the latitude to make surreptitious video recordings that is implicit in the conclusions of the Court of Appeal.
The respondent attempted to distinguish this case from Duarte on the ground that in Duarte, there was a statutory provision prohibiting electronic eavesdropping except as judicially authorized. This argument wholly misunderstands Duarte. It is the Charter , specifically s. 8, that protected the appellant there and it is the Charter that protects the present appellant. It is worth observing that the American legislation, on which the relevant provisions of our Criminal Code are modelled, was devised to meet the standards of the Fourth Amendment of the United States Constitution. The argument thus not only requires us to interpret the Constitution in the light of existing statutes, rather than the reverse; it effectively asks us to read history backwards. As I noted earlier, s. 8 was designed to provide continuing protection against unreasonable search and seizure and to keep pace with emerging technological development.
Nor can I accede to the arguments to the effect that the police, in installing the hidden camera, acted in the exercise of authority derived from their duties at common law. I have grave doubts as to whether the police could point to any common law authority under which they could act as they did. I would draw attention on this point to Martin J.A.'s observation in R. v. Rao (1984), 12 C.C.C. (3d) 97 (Ont. C.A.), at p. 120, (leave to appeal to this Court refused, [1984] 2 S.C.R. ix), that at common law there is no power to search premises without a warrant, except as an incident of a lawful arrest. And for reasons to be developed later, I do not think judicial development of new search powers should be encouraged. Moreover, even if the respondent were to be able to point to common law authority it is clear to me that such authority would not pass muster under the Charter . By way of reiterating the point I made above, R. v. Duarte makes it clear that unauthorized surreptitious electronic surveillance infringes on the right to be free from unreasonable search and seizure as guaranteed by s. 8 of the Charter .
I should perhaps observe that the conclusion I have arrived at is consistent with American experience. The courts there have held that a person who occupies a hotel room has a reasonable expectation of privacy and that the police cannot effect a warrantless search of the room; see Stoner v. California, 376 U.S. 483 (1964). While the courts in that country have been willing to hold that police eavesdropping from an adjoining room of "conversations ... heard by the naked human ear ... unaided by any artificial, mechanical or electronic device" does not violate the Fourth Amendment, they clearly view electronic eavesdropping as qualitatively different; see United States v. Agapito, 620 F.2d 324 (2d Cir. 1980), at p. 330. Similarly, video surveillance of such areas has been held to constitute a search, and so requires a warrant and such warrant must meet stringent standards borrowed from those required for electronic eavesdropping; see People v. Teicher, 395 N.Y.S.2d 587 (S.C. N.Y.Co. 1977); United States v. Biasucci, 786 F.2d 504 (2d Cir. 1986).
Can a Warrant Be Obtained to Permit Video Surveillance
Parliament has not yet seen fit to legislate in the matter of video surveillance, and I turn next to a consideration of the question whether, despite this fact, the police might nevertheless have obtained judicial authorization for their investigation. I will deal first with the respondent's submission that, in the absence of legislation specifically authorizing video surveillance, it might have been open to the police to obtain a warrant under Part IV.1 of the Criminal Code, R.S.C. 1970, c. C-34 [ad. S.C. 1973-74, c. 50] which governs the interception of oral communications.
The respondent advanced the hypothesis that video surveillance might have been authorized as an incident to an authorization issued pursuant to Part IV.1 of the Code. On this view of the matter, a judge, upon issuing an authoriz