Appeared in the Toronto Star on August 23, 2014 as What’s a ‘Reasonable Expectation” of Privacy?

Canadian privacy law has long been reliant on the principle of “reasonable expectation of privacy.”  The principle is particularly important with respect to the Charter of Rights and Freedoms, as the Supreme Court of Canada has held that the right to be free from unreasonable search and seizure is grounded in a reasonable expectation of privacy in a free and democratic society.

The reasonable expectation of privacy standard provides a useful starting point for analysis, but the danger is that privacy rights can seemingly be lost with little more than a contractual provision indicating that the user has no privacy. Indeed, if privacy rights can disappear based on a sentence in a contract that few take the time to read (much less assess whether they are comfortable with), those rights stand on very shaky ground.

The limits of the reasonable expectation of privacy standard emerged in a recent British Columbia Court of Appeal case involving the search of a courier package that contained illegal drugs. The court rejected claims of an illegal search, concluding that the defendant had no reasonable expectation of privacy despite the fact that he had no commercial relationship with the courier company and had never agreed to, or even viewed, the terms of the contract.

The case, R. v. Godbout, involved the shipment of courier package from Calgary to Vancouver. The package looked from the outside like a child’s toy, but the customer service worker at the courier company was uncomfortable with the manner of the sender and decided to open the package, revealing both a toy and two bricks of drugs.  The police were contacted and after confirming the contents, arranged for a “controlled delivery” to Godbout, who was arrested after accepting and opening the package.

With strong evidence of illegal drugs, the only legal issue in the case was whether the opening, search, and seizure of the package was consistent with the Charter of Rights and Freedoms.  The court concluded that it was on the grounds that Godbout had no reasonable expectation of privacy.

The basis for that conclusion stemmed from the courier company’s contractual terms, which explicitly provided that “without notice, DHL may, at its sole discretion, open and inspect any shipment and its contents at any time. Customs authorities, or other governmental authorities, may also open and inspect any shipment and its contents at any time.”

That may sound clear-cut, but the problem is that Godbout was not a party to the contract. The sender may not have a reasonable expectation of privacy given the contractual terms, but should those terms also extend to the recipient who had not read or consented to them?

The court concluded that they should, ruling “the fact that the appellant may not have known of the terms of shipment does not make his subjective expectation objectively reasonable.”

The court seems to think that people know that courier packages are subject to inspection and therefore they should not expect any privacy in those packages. Yet it is difficult to reconcile an express acknowledgement that Godbout did not know the terms of the contract with the conclusion that he was nevertheless bound by them, particularly since this was a domestic shipment that would not typically involve customs agents or other authorities.

More broadly, the decision suggests that Canadians can lose their constitutional rights against illegal search and seizure on the basis of contractual terms to which they are not even a party. The court could have attempted to preserve privacy rights by concluding that the search was illegal but that the evidence was still admissible.  By upholding the legality of the search, however, it provided a troubling reminder about how Canadians should not expect much when it comes to the reasonable expectation of privacy standard.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.