COURT OF APPEAL FOR ONTARIO
Zarnett, George and Copeland JJ.A.
BETWEEN
His Majesty the King
Respondent
and
L.T.
Appellant
Malcolm McRae and Paul Socka, for the appellant
Martin Heslop, for the respondent
Heard: February 18, 2026
On appeal from the conviction entered by Justice Kathryn L. McKerlie of the Ontario Court of Justice, on January 14, 2025.
Table of Contents
A. FACTUAL BACKGROUND. 6
B. REASONS OF THE TRIAL JUDGE ON THE CHARTER APPLICATION. 8
C. ANALYSIS. 11
- Was the complainant acting as a state agent when she recorded the conversations with the appellant?. 11
a. The positions of the parties. 11
b. The law in relation to state agency of private actors. 13
c. Application of the law on state agency to the circumstances of this appeal 19
- Did the warrantless receipt of the recordings and listening to them by police infringe the appellant’s s. 8 Charter rights?. 25
a. Positions of the parties. 25
b. Focusing the issue. 26
c. Whether s. 8 of the Charter is “engaged” turns on whether the appellant has a reasonable expectation of privacy in the subject matter of the search 28
d. The Scope of Duarte and Wong. 30
e. Legal principles applicable to determining if a claimant has a reasonable expectation of privacy. 35
f. The subject matter of the alleged search. 36
g. Whether the appellant had a direct interest in the subject matter of the alleged search. 37
h. Whether the appellant had a subjective expectation of privacy in the subject matter of the alleged search. 37
i. Whether the appellant’s subjective expectation of privacy was objectively reasonable. 38
i. Whether the information would tend to reveal intimate details of lifestyle or personal choices. 40
ii. Whether the information was already in the hands of third parties, and if so whether it was subject to an obligation of confidentiality. 41
iii. Whether the police technique was intrusive in relation to the privacy interest 43
iv. The appellant’s level of control over the subject matter of the search 45
v. Conclusion on whether the appellant’s subjective expectation of privacy in the recorded conversations is objectively reasonable. 51
- If there were a s. 8 Charter breach, should the recordings be excluded on the basis that their admission as evidence would bring the administration of justice into disrepute? 54
D. DISPOSITION. 57
Copeland J.A.:
1The appellant appeals from his convictions for two counts of sexual assault and one count of assault with choking, contrary to ss. 271 and 267(c) of the Criminal Code, R.S.C. 1985, c. C-46.2
2The only issues raised on appeal relate to the trial judge’s ruling dismissing the appellant’s application, under ss. 7 and 8 of the Charter, to exclude two recordings secretly made by the complainant of conversations with the appellant, using the voice memo app on her cell phone. The complainant made the recordings before she reported the allegations to police. After she reported the allegations to police, and participated in an interview with an officer, she told police about the recordings. She told police that the recordings contained statements by the appellant about the offences. Police officers provided the complainant with the ability to upload copies of the recordings to an evidence preservation website. She voluntarily did so. The police did not obtain a warrant prior to receiving the recordings or listening to them.
3The appellant argues that he has a reasonable expectation of privacy in the intimate conversations recorded by the complainant. He argues that, although the police were entitled to receive the recorded conversations from the complainant without a warrant, either pursuant to s. 489(2) of the Criminal Code or at common law, s. 8 of the Charter requires that they obtain a warrant prior to listening to the conversations. In the alternative, he argues that, although the complainant had not yet had any contact with the police when she recorded the conversations, because her purpose was to obtain evidence, she was a state agent when she made the recordings, and thus the recordings infringed his rights under s. 8 of the Charter.
4I would dismiss the appeal. I see no error in the trial judge’s finding that the complainant was not a state agent when she recorded the conversations with the appellant. The complainant had had no contact with the police at the time she made the recordings, nor had she been given any type of inducement by the police to make the recordings. Her primary purpose in making the recordings was to protect herself in case the appellant lost his temper. Although she agreed in cross-examination that, at the time she made the recordings, she also considered that they could be used as evidence if she made a police complaint, that purpose, in the absence of any type of police involvement with the complainant at the time the recordings were made, does not make her a state agent.
5I also agree with the trial judge’s conclusion that the appellant did not have an objectively reasonable expectation of privacy in the recorded conversations. I accept that the appellant had a direct interest in the recorded conversations and a subjective expectation of privacy in them. However, considering the totality of the circumstances, his expectation of privacy was not objectively reasonable.
6Although the circumstances of the recordings support that they would tend to reveal personal information, the complainant was entitled to reveal the conversations to whomever she chose and was under no obligation of confidentiality. The police receipt of, and listening to, the recordings when they were volunteered by the complainant was not an intrusive technique. The appellant had no control over the recordings. The factors that led to a finding of reasonable expectation of privacy in some cases even absent control by the claimant over the information are absent in this case. Although the fact that the complainant recorded the conversations without the appellant’s knowledge is a relevant factor in the reasonable expectation of privacy assessment, recording of individual conversations by a private actor, with no police involvement, does not raise the spectre of unfettered state intrusion into and recording of private conversations that animated the decision in R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30.
7Because the appellant did not have a reasonable expectation of privacy in the recorded conversations – the subject matter of the alleged search – his s. 8 Charter rights were not infringed by the police receiving and listening to the recordings.
8Further, although not essential to the disposition of the appeal, had I found a breach of the appellant’s s. 8 Charter rights, I would not exclude the evidence under s. 24(2).
A. Factual background
9The convictions under appeal relate to two incidents of sexual assault, in October and December 2020, and an incident of assault with choking in June 2022. However, as noted above, the focus of the appeal is the appellant’s Charter claims.
10The appellant and the complainant began dating in February 2020, when they were both in high school. In April 2020, the complainant moved into the appellant’s mother’s house, where she resided with the appellant and his mother. At that time, she was 16 years old and he was 18 years old.
11The relationship between the complainant and the appellant ended in July 2022. However, the complainant continued to reside at the appellant’s mother’s home until November 2022. Between July and November 2022, the complainant surreptitiously audio recorded several conversations between herself and the appellant using the voice memo function on her cell phone. The complainant’s evidence was that she would record her conversations with the appellant approximately once a week during this five-to-six-month period – in her words, “every time he was upset with me.” She would start recording conversations to “protect” herself when the tone of the conversations became heated.
12On November 7, 2022, after the complainant moved out, she contacted the police and reported allegations of sexual assault, assault, and choking regarding the appellant.
13On November 11, 2022, she attended at the police detachment and provided an audio-video recorded interview detailing the allegations. During that interview, she told the police that she had an audio recording of an October 23, 2022 conversation with the appellant in which they referenced the sexual assaults.
14The complainant participated in a second audio-video recorded interview with police on December 7, 2022. During that interview, she again discussed the October 23, 2022 audio recording of her conversation with the appellant. The complainant provided a digital copy of the October 23, 2022 recording to the police shortly after that interview by uploading it to Evidence.com, a website used by police to log evidence.
15In August and September 2023, the complainant twice reattended the police detachment and provided statements regarding an audio recording of a conversation between herself and the appellant made a year earlier, on September 5, 2022. She told police that this recording referenced the sexual assaults and choking. Following the September 2023 interview, the complainant provided a digital copy of the September 5, 2022 recording to the police by the same method as the first recording.
16The police officer who interviewed the complainant confirmed that he turned his mind to the issue of whether a search warrant was required to receive the recordings, discussed the question with other officers, and sought legal advice from Crown counsel (not Mr. Heslop).3 After receiving legal advice, the police decided to receive the recordings without obtaining a search warrant.
17The two recorded conversations were tendered by the Crown and admitted in evidence at trial. The Crown relied on the recordings as containing admissions by the appellant regarding the charged offences. It was not alleged that the content of the recordings itself constituted offences (for example, the recordings did not contain threats).
B. Reasons of the trial judge on the Charter application
18The appellant challenged the admissibility of the recordings on the basis that the complainant secretly recording their conversations and turning them over to police without a warrant infringed his rights under ss. 7 and 8 of the Charter. Specifically, he argued that the complainant was acting as a state agent when she made the recordings, thus infringing his s. 7 Charter right to silence. He further argued that, whether or not the complainant was acting as a state agent at the time she made the recordings, the police receipt of the recordings without a warrant infringed s. 8 of the Charter.
19The trial judge dismissed the appellant’s Charter application to exclude the recordings. The trial judge found that: (i) the complainant was not a state actor or agent of the state when she made the recordings; (ii) the complainant digitally providing the audio recordings to the police did not amount to a search or seizure by the state; (iii) the appellant did not have an objectively reasonable expectation of privacy in the recordings; and, (iv) even if the appellant’s Charter rights were violated, the evidence should not be excluded under s. 24(2).
20The trial judge found that the Charter protects the privacy interests of individuals from state interference and that the complainant was not a state actor or agent of the state. The recordings predated any contact between the complainant and the police. She did not speak to anyone about making the recordings. The recordings were made on the complainant’s own initiative for the primary purpose of protection. The complainant was entitled to surreptitiously record discussions with the appellant. The trial judge held that the fact that the complainant provided the audio recordings digitally rather than simply playing them for the police and/or recounting their content did not amount to a search or seizure by the state. The state did not intrude upon the appellant. The police received from a private citizen an audio recording made by her prior to and independent of the police investigation.
21The trial judge went on to find that, in the event she was wrong that there was no search or seizure, the appellant did not have a reasonable expectation of privacy in the recordings. The trial judge acknowledged that the appellant had a direct interest in the recorded conversations and a subjective expectation of privacy in them. He did not know that the conversations were being audio recorded, creating a subjective expectation that only he and the complainant would hear the words spoken. However, the trial judge found that from an objective standpoint, the appellant could not reasonably expect that the complainant would not share the content of those discussions with others, including the police.
22The trial judge considered s. 24(2) of the Charter in the alternative. She concluded that, if there was a Charter breach, the evidence should not be excluded. The first line of inquiry was neutral, not favouring exclusion. In this case, the police turned their minds to the issue of a warrant, sought advice, and acted in good faith. There was no intentional police misconduct or any systemic pattern of Charter infringing state conduct. The police did not initiate or direct the recording of the conversations by the complainant, nor did they search an electronic device. The police accepted two audio recordings that were recorded by the complainant on her own initiative and turned over to the police on her own initiative. The impact of the state's conduct in receiving the recordings on the Charter protected rights of the appellant favoured exclusion, but only slightly. This was not a scenario where the complainant initiated the discussions on the advice or direction of the police. The appellant's reasonable expectation of privacy could not realistically be described as a strong expectation. Infringements of ss. 7 and 8 rights were minor, and not “profoundly intrusive”. Finally, society’s interest in the adjudication of the case on its merits strongly favoured the admission of such evidence. The audio recordings are reliable evidence of what was said by the parties. The admission of the evidence of the recordings would safeguard the accuracy of viva voce trial evidence and better serve the truth-seeking function of the criminal trial process. The trial judge concluded that society’s interest in the adjudication on the merits outweighed the combined effect of the first two lines of inquiry. The appellant did not establish that, having regard to all of the circumstances, the admission of the evidence would bring the administration of justice into disrepute.
C. Analysis
1. Was the complainant acting as a state agent when she recorded the conversations with the appellant?
a. The positions of the parties
23The appellant argues that the complainant was acting as a state agent when she made the recordings and, as a result, the act of making them constituted an infringement of his s. 8 Charter rights. The appellant argues that, despite the fact that the complainant had not had any contact with the police at the time she made the recordings, she was a state agent because her purpose in recording the conversations was to elicit evidence from the appellant with the intention of giving it to police.
24The appellant advanced the state agency argument before the trial judge as a s. 7 Charter argument. On appeal, he advances essentially the same argument under s. 8 of the Charter. The reason for the change is the appellant’s concession that for the argument to be based in the s. 7 right to silence, he would need to have been detained at the time of the recordings were made. The Crown does not oppose this reframing of the argument. I accept that the record is sufficient to consider this argument under s. 8 of the Charter. The substance of the appellant’s argument is the same.
25The Crown argues that the complainant was not a state agent. She made the recordings on her own initiative, before any police involvement. Absent police direction or inducement, a person does not become a state agent solely because they had a subjective purpose of assisting law enforcement to gather evidence. In any event, the trial judge found that the complainant’s primary purpose in making the recordings was self-protection, in case the appellant lost his temper during their conversations.
26Although the appellant raises the state agency ground in the alternative to his other ground of appeal, I address it first because it provides important context to the ground alleging a s. 8 violation from the police listening to the recordings without a warrant.
27I do not accept that the complainant was a state agent when she made the recordings for the reasons that follow.
b. The law in relation to state agency of private actors
28The starting point in considering the state-agency argument is that, pursuant to s. 32, the Charter only applies to government actors: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 25. In the criminal investigative context, police officers are government actors. The complainant is not a government actor.
29However, the jurisprudence also recognizes that in some circumstances a non-government actor may act as a state agent such that the Charter applies. This issue has been considered by the Supreme Court of Canada in the context of the s. 7 Charter right to silence of detained individuals and searches conducted by non-state actors.
30In the right to silence in detention context, the Supreme Court described the analysis for whether an informer is a state agent as follows, in R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595, at p. 608:
… it is appropriate to focus on the effect of the relationship between the informer and the authorities on the particular exchange or contact with the accused. A relationship between the informer and the state is relevant for the purpose of s. 7 only if it affects the circumstances surrounding the making of the impugned statement. A relationship between the informer and the authorities which develops after the statement is made, or which in no way affects the exchange between the informer and the accused, will not make the informer a state agent for the purposes of the exchange in question. Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. I would accordingly adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents? [Emphasis added.]
31In Broyles, the Supreme Court drew a bright line that if the informer had no contact with the police before the conversation with the accused, they could not be a state agent, at p. 608: “If [this test] is applied to a conversation with a cell mate who has no contact with the authorities until after the conversation is concluded, it is equally clear that the actions of the authorities had no effect on the conversation, and that there would be no violation of the right to silence.”4
32In the result in Broyles, there was no question that the informer was a state agent because he was approached by police to meet with the accused. The meeting was set up and facilitated by police and the informer wore a recording device provided by police at the time he spoke to the accused: at p. 612. The court found a violation of the s. 7 right to silence because the informer actively elicited the statement from the accused and sought to exploit his relationship with the accused to elicit the statement.
33The Supreme Court considered state agency in the context of searches in R. v. M.(M.R.), 1998 CanLII 770 (SCC), [1998] 3 S.C.R. 393, and Buhay. M.(M.R.) involved a search of a student conducted by a school vice-principal. The vice-principal had received information from several students that the particular student was selling drugs on school property and would be carrying drugs on the evening of a school dance. Quite apart from the criminal law, this was prohibited by school policies. The vice-principal contacted the police prior to the search. An officer was present for the search, but the search was conducted by the vice-principal. The vice-principal found drugs, gave them to the officer, and the officer placed the student under arrest.
34The Supreme Court accepted the concession by the Crown that the Charter applied to the vice-principal as a state actor under provincial education legislation: at paras. 24-25. However, the court found that the vice-principal was not acting as an agent of the police when he conducted the search. The fact that the vice-principal cooperated with the police was not sufficient in itself to make him an agent of the police: at paras. 26-29. The court held that there was no evidence of police instructions to the vice-principal or an agreement to work together that could create an agency relationship. Applying the test from Broyles, Cory J. for the majority held, at para. 29:
Applying the test to this case, it must be determined whether the search of the appellant would have taken place, in the form and in the manner in which it did, but for the involvement of the police. The evidence, in my opinion, demonstrates that it would have taken place and was not materially different than it would have been if there had been no police involvement. Although [the vice-principal] knew that criminal charges might result, the primary motive for the search was the enforcement of school discipline, for which he was responsible. There is nothing in the evidence to suggest that the vice‑principal initiated the search or conducted it differently because of police intervention. It is thus apparent that the vice‑principal was not acting as an agent of the police.
35Buhay involved a search of a rented locker at a bus depot. Security guards employed by the depot smelled a strong odour of marijuana from the locker. They contacted other staff to open the locker. They found a duffel bag containing marijuana. They relocked the locker and contacted police. Two police officers attended. They also smelled marijuana. The staff member opened the locker and the police seized the marijuana without a warrant. The Supreme Court found that the initial search of the locker by the security guards did not engage s. 8 of the Charter because the security guards were not state agents: at paras. 25-31. However, the court found that the subsequent warrantless search by police infringed the s. 8 rights of the accused.
36In reaching the conclusion that the security guards were not state agents, the court in Buhay applied the analysis from Broyles and M.(M.R.). The court concluded as follows, at paras. 29-30:
Based on the test set out in Broyles, supra, and M. (M.R.), supra, the proper question is whether the security guards would have searched the contents of locker 135 but for the intervention of the police. On the facts here, it is clear that the security guards acted totally independently of the police in their initial search. … In the present case, the relationship between the police and the security guards developed after the security guards searched the appellant’s locker. The guards started an investigation on their own initiative, without any instructions or directions from the police.
Volunteer participation in the detection of crime by private actors, or general encouragements by the police authorities to citizens to participate in the detection of crime, will not usually be sufficient direction by the police to trigger the application of the Charter. Rather, the intervention of the police must be specific to the case being investigated. In the case at bar, there is nothing in the evidence which supports the view that the police instructed the security guards to search locker 135 and therefore the security guards cannot be considered state agents. [Emphasis added. Citations omitted.]
37These cases make clear that the assessment of whether a private actor is a state agent requires a case-by-case analysis, which focuses on the actions of the private actor alleged to constitute a Charter breach and the relationship between the private actor and the state: Buhay, at para. 31.
38The findings in each of Broyles, M.(M.R.), and Buhay assist in delineating the circumstances in which the relationship between a private actor and a state actor will or will not support a finding of state agency. Also of assistance is the recent decision of the British Columbia Court of Appeal in R. v. Pham, 2025 BCCA 324, 455 C.C.C. (3d) 94, leave to appeal granted, 2025 S.C.C.A. No. 510 (May 21, 2026).
39In Pham, at para. 93, the British Columbia Court of Appeal adopted the following non-exhaustive factors enumerated in R. v. Norgan, 2024 BCPC 187, at para. 36, as relevant to considering whether the relationship between the police and a private actor is such that the private actor was a state agent: (i) whether there was a causal connection between the police and the actions of the private actor; (ii) whether the private actor was acting of its own independent authority or initiative; (iii) the degree and nature of any collaboration and cooperation between the police and the private actor; (iv) whether there were direct or implied instructions provided by the police to the third party; and, (v) the motives of the police and the third party.
c. Application of the law on state agency to the circumstances of this appeal
40The factual findings by the trial judge firmly close the door on the complainant being a state agent when she made the recordings. The trial judge found as follows on this issue:
Taken as a whole, the audio recorded conversations appear to be an attempt by two young people to process their prior interactions several months after the end of their relationship. The [appellant] offered up information and directed the conversation every bit as much as the complainant. At one point, the [appellant] reminded the complainant that he could get her “kicked out in a heartbeat”.
This is certainly not a scenario where the conversation would not have occurred in the form and manner but for the intervention of the state.
The totality of the complainant’s evidence establishes that her primary purpose was not directed at securing evidence for a police investigation. Her primary purpose was to protect herself. She was in a vulnerable position, continuing to live at the [appellant’s] mother’s residence after the breakdown in the intimate relationship.
The recordings predated any contact between the complainant and the police. The complainant did not speak to anyone about making the recordings. The recordings were made by the complainant on her own initiative for the primary purpose of protection.
41In short, the complainant had no relationship with the police – indeed had had no contact with the police – at the time she made the recordings. She was not a state agent. Because there was no involvement by the police at the time the recordings were made, there can be no question that the recorded conversations would have taken place in the same form and manner absent the involvement of the police.
42The appellant argues that the trial judge’s factual finding that, in making the recordings, the complainant was acting to protect herself constitutes a palpable and overriding error. The appellant points to places in the complainant’s evidence where she agreed that she was trying to get the appellant to admit he had assaulted her and that she wanted to be able to give the recordings to police to have him charged.
43I reject the appellant’s argument that the trial judge’s finding that the complainant’s primary purpose in making the recordings was to protect herself constituted palpable and overriding error. But in any event, as I address below, purpose alone does not make the complainant a state agent in this context.
44First, I explain my conclusion that the trial judge’s finding about the complainant’s purpose was sufficiently supported by the record.
45The trial judge found that the complainant’s primary purpose was not to elicit evidence, but rather to protect herself. In my view, there was ample evidence in the record to support the trial judge’s finding.
46The complainant testified that, in the time period after her relationship with the appellant had ended but while she was still living at his mother’s house, he yelled at her a lot when he was upset. She testified that she recorded their conversations about once a week, “every time he was upset with me”, because he was “unpredictable” and she wanted the recordings as “proof, in case he did something.”
47The complainant also gave evidence that, having started the recordings for the purpose of protecting herself in case the appellant got upset or started yelling during their conversations, she realized that if he admitted having assaulted her, she could bring this to police as evidence.
48Reading the complainant’s evidence as a whole, it was open to the trial judge to find that the complainant’s primary purpose in making the recordings was to protect herself in the event the appellant got upset or started yelling during their discussions.
49The fact that the complainant had mixed motives is not unusual, as a matter of human behaviour, particularly in the context of the end of an intimate relationship. It does not undermine the trial judge’s finding that the complainant’s “primary purpose” in making the recordings was to protect herself.
50In any event, even if the complainant’s purpose in making the recordings was solely to collect evidence, this did not make her a state agent.
51The appellant argues that the jurisprudence supports the proposition that where a person’s primary purpose is to fulfil a state function (here, to gather evidence for a criminal investigation), that alone makes the person a state agent. In support, the appellant relies on the decisions of the Supreme Court in M.(M.R.), the Alberta Court of Appeal in R. v. Chang, 2003 ABCA 293, 180 C.C.C. (3d) 330, leave to appeal refused, [2003] S.C.C.A. No. 548, and the trial level decisions in R. v. Ilmi, 2023 ONSC 5602, at paras. 15-16, and R. v. G.J., 2012 ONSC 5413, at para. 19.
52The jurisprudence does not support the proposition that a private actor being motivated by the purpose of collecting evidence, standing alone, can make the private actor a state agent. Several of the cases the appellant relies on are more supportive of the Crown’s position in this appeal. And to the extent that any of the trial level decisions suggest that a purpose of collecting evidence, standing alone, can make a private actor a state agent, they are wrongly decided.
53In M.(M.R.), the Supreme Court found that the vice-principal was not a state agent in conducting the search of the student. I note that this finding was made despite the fact that, unlike this appeal, the vice-principal, by virtue of his position, had coercive authority over the student. Similarly, in Chang, the Alberta Court of Appeal found that a security guard who conducted a search and then contacted police was not acting as a state agent. The court reached this conclusion for reasons which support the Crown’s position in this appeal. The security guard had mixed purposes in conducting the search – to protect herself and potentially use the results of the search as evidence if she contacted police. In the absence of police contact before the search was conducted, the Alberta Court of Appeal found that the security guard was not a state agent.
54The appellant’s argument that purpose alone can make a private actor a state agent seems to have its genesis in the reference in M.(M.R.), at para. 29, to the fact that “the primary motive” of the principal in conducting the search of the student “was the enforcement of school discipline”. The appellant’s argument, and some trial level decisions, would read this reference from M.(M.R.) as holding that if the primary motive of a private actor was to assist police, this alone would make them a state agent.
55Respectfully, read in the context of the decision as a whole and the court’s subsequent decision in Buhay, this reference from M.(M.R.) does not support the proposition that an individual’s purpose of collecting evidence for a criminal investigation, standing alone, can make them a police agent. A private actor’s purpose is a relevant factor in the state agency assessment. But purpose alone does not make a private actor a state agent. Buhay clearly holds that “volunteer participation in the detection of crime by private actors, or general encouragements by the police authorities to participate in detection of crime, will not usually be sufficient direction by the police to trigger the application of the Charter”: at para. 30.
56M.(M.R.), Broyles, and Buhay stand for the proposition that police involvement must have some impact on the actions of the private actor in order for the private actor to be a state agent. Where the private actor has had no contact with police of any kind, as in this case, they are not a state agent.
57The trial level decisions that suggest that a private citizen who records a conversation with an accused, in the absence of police involvement, is a state agent solely on the basis that their primary purpose in obtaining the evidence was to support criminal charges (see: G.J. at para. 19, and Ilmi, at para. 16), are inconsistent with Buhay, rest on a misreading of Broyles, and should not be followed.
58I would emphasize, as the Supreme Court did in Buhay, that these are fact-specific determinations. For example, in Pham, at paras. 94-109, the British Columbia Court of Appeal found that the trial evidence made available the conclusion that a courier company’s employees setting aside suspicious packages based on instructions from the police could be sufficient to make them state agents.5
59This case is not a close call on state agency. Given the complete absence of any communication between the complainant and the police at the time she made the recordings, the trial judge did not err in finding that the complainant was not a state agent at the time she made the recordings. As she was not a state agent, the making of the recordings by the complainant did not engage s. 8 of the Charter.
2. Did the warrantless receipt of the recordings and listening to them by police infringe the appellant’s s. 8 Charter rights?
a. Positions of the parties
60The appellant argues that the trial judge erred in finding that the appellant had no reasonable expectation of privacy in the two recordings the complainant made of their conversations which were tendered in evidence. He argues that the trial judge’s analysis relies on the risk analysis that was rejected by the Supreme Court (in the context of undercover police consent interceptions) in R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, and R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36. The appellant argues that the recording of the conversations by the complainant engages a reasonable expectation of privacy. Although individuals conducting intimate conversations in their homes run the risk that the other participant in the conversation will repeat what was said, members of society are not required to accept the risk that such conversations will be secretly recorded and shared with the state.
61The Crown argues that although the appellant may have had a subjective expectation of privacy in the recorded conversations, that expectation was not objectively reasonable. The Crown accepts that the recordings have the potential to reveal biographical core information about the appellant, but argues that the remaining factors in the objective reasonable expectation of privacy analysis drive the conclusion that the appellant’s subjective expectation of privacy was not objectively reasonable. The police technique used – voluntary receipt from the complainant after she had already disclosed the allegations of criminal offences committed by the appellant and told the police that the recordings contained relevant evidence – was minimally intrusive. The information in the recordings was known to a third party, the complainant, who was under no obligation of confidentiality, and who had already disclosed the substance of the conversations in her police interviews before providing the recordings to police. The relationship between the complainant and the appellant – they were ex-domestic partners and the complainant was alleging offences of domestic violence – both limits the privacy the appellant could reasonably expect and informs the reasonableness of the police conduct in receiving the recordings. Finally, the Crown notes that what was provided to police were digital copies of specific recordings, rather than an electronic device, which limited the scope of information provided.
b. Focusing the issue
62It is helpful at the outset to focus the issue. The appellant concedes that, if he had a reasonable expectation of privacy in the recordings, the police receipt of the recordings did not infringe s. 8 of the Charter. He accepts that police receipt of the recordings was a reasonable and lawfully authorized seizure either under s. 489(2) or at common law, to preserve the evidence. The appellant contends, however, that the police were required to obtain judicial authorization before they listened to the recordings.
63It is also not in dispute that the complainant’s secret recording of the conversations with the appellant was lawful: see Criminal Code, s. 184(2)(a). As such, there is no need to consider the potential relevance of unlawfulness in making a recording to the reasonable expectation of privacy analysis.6
64As a result of the appellant’s concession that the police could receive the recordings without infringing his s. 8 rights, the following issue must be decided to resolve this appeal: Did the appellant have a reasonable expectation of privacy in the recordings the complainant secretly, but lawfully, made of their conversations, in circumstances where she voluntarily provided the recordings to police? If the appellant had a reasonable expectation of privacy, the court would also be called upon to decide whether the police receipt of, and decision to listen to, the recordings infringed the appellant’s s. 8 Charter rights in circumstances where the complainant volunteered the recordings, or whether it was a reasonable search applying the analysis from R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp. 277-78. However, as I conclude that the trial judge made no error in finding that the appellant did not have a reasonable expectation of privacy in the recorded conversations, it is not necessary to address the latter questions.
c. Whether s. 8 of the Charter is “engaged” turns on whether the appellant has a reasonable expectation of privacy in the subject matter of the search
65Before engaging in depth in the assessment of whether the appellant had a reasonable expectation of privacy in the two recordings, I address two preliminary issues.
66First, the Crown argues that s. 8 of the Charter is “not engaged” by the complainant voluntarily providing the recordings to the police. The Crown argues this as a distinct issue from whether the appellant has a reasonable expectation of privacy in the recordings. In making this argument, the Crown relies on the frequently cited dicta of Doherty J.A. in R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at para. 34:
I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative. On that approach, s. 8 would be engaged if a “whistleblower” took confidential documents belonging to her employer to the police to demonstrate the employer’s criminal activity. Must the police refuse to look at the documents to avoid violating the employer’s s. 8 rights? As Duarte teaches, it is one thing to say that Canadian values dictate that the state’s power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual’s private information is cloaked in the protection of s. 8 no matter how that information comes to the police.
67Respectfully, the decisions of the Supreme Court and this court do not support the Crown’s position that there is a distinction between s. 8 being “engaged” and whether a Charter claimant has a reasonable expectation of privacy in the subject matter of a search. The Supreme Court has clearly stated that the threshold question in a s. 8 analysis is whether the claimant has a “reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access”: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 10; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 34; R. v. Campbell, 2024 SCC 42, 442 C.C.C. (3d) 275, at para. 39; R. v. Bykovets, 2024 SCC 6, 433 C.C.C. (3d) 423, at para. 31; R. v. Lambert, 2023 ONCA 689, 169 O.R. (3d) 81, at paras. 54-56, 65-74, and 77.
68If the claimant has a reasonable expectation of privacy in the subject matter of the search, then police action in relation to the subject matter of the search engages s. 8, and the next step is the application of Collins factors – whether the search was lawfully conducted, whether the law authorizing it is reasonable, and whether the manner of search was reasonable. If the claimant does not have a reasonable expectation of privacy in the subject matter of the search, then s. 8 is not engaged.
69There is no other test for when s. 8 is engaged than whether the claimant has a reasonable expectation of privacy in the subject matter of the search or seizure. I do not read Orlandis-Habsburgo as suggesting otherwise. As I explain in the analysis below, the concern raised in Orlandis-Habsburgo regarding how the information came into the hands of police is a factor to be considered under the last branch of the reasonable expectation of privacy analysis – whether the subjective expectation of privacy is objectively reasonable.
d. The Scope of Duarte and Wong
70The second preliminary issue I address is the scope of the Supreme Court’s decisions in Duarteand Wong. I do so because, based on Duarte and Wong, the appellant places significant weight in his s. 8 argument on the fact that the conversations at issue were recorded.
71In my view, while the fact that the conversations were recorded is relevant to the s. 8 reasonable expectation of privacy analysis in this appeal, a review of the decisions in Duarte and Wong shows that the appellant’s submissions seek to extend those decisions beyond their intended scope.
72I focus in particular on Duarte because it involved audio recorded conversations. Wong extended the principles from Duarte to video surveillance.
73Duarte involved an investigation into drug trafficking. The investigating police forces rented an apartment which was occupied by a police informer who was working with an undercover officer. The apartment was equipped with audio-visual recording equipment installed in a wall. Prior to the installation of the recording equipment, the informer and the undercover officer consented to the interception of their conversations, pursuant to then s. 178.11(2)(a) of the Criminal Code. The accused and others attended at the apartment and discussed a cocaine transaction with the informer and the undercover officer. The conversation was recorded. At his trial, the accused challenged the admissibility of the recordings, pursuant to s. 8 of the Charter.
74LaForest J., writing for 6 of 7 members of the court, held that the warrantless recording of the conversations with participant consent of the informer and the police officer infringed the s. 8 rights to be free from unreasonable search and seizure. LaForest J. rejected the “risk analysis”, which posited that a person who voluntarily confides wrongdoing to another person takes the risk that that person may disclose the conversation and thus cannot have a reasonable expectation of privacy in the conversation or it being recorded. In his view, the risk that the state will make a permanent electronic recording of a conversation is a qualitatively different risk than that a co-conversationalist will disclose the conversation: Duarte, at pp. 41-49, and 54-57.
75Two concerns animated the decision in Duarte: (1) allowing permanent electronic recording of private conversations in the sole discretion of the state – by state agents – is not consistent with expectations of privacy in a free and democratic society; and (2) allowing such warrantless recording by state agents based on consent of a police officer or other state agent would undermine the scheme of the wiretap provisions of the Criminal Code, by subverting the requirement of prior judicial authorization.
76A few extracts from the reasons of LaForest J. make this point clear:
The real question, as I see it, is whether our constitutional right to be secure against unreasonable search and seizure should be seen as imposing on the police the obligation to see prior judicial authorization before engaging in participant surveillance, or whether the police should be entirely free to determine whether circumstances justify recourse to participant surveillance and, having so determined, be allowed unlimited discretion in defining the scope and duration of participant surveillance. This Court is accordingly called on to decide whether the risk of warrantless surveillance may be imposed on all members of society at the sole discretion of the police. [at p. 42]
The rationale for regulating the power of the state to record communications that their originator expects will not be intercepted by anyone other than the person intended by the originator to receive it (see definition section of Part IV.1 of the Code) has nothing to do with protecting individuals from the threat that their interlocutors will divulge communications that are meant to be private. No set of laws could immunize us from that risk. Rather, the regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.
The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. [pp. 43-44]
If privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself, a reasonable expectation of privacy would seem to demand that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence. [p. 46]
In summary, the question whether to regulate participant surveillance cannot logically be made to turn on the expectations of individuals as to whether their interlocutor will betray their confidence. No justification for the arbitrary exercise of state power can be made to rest on the simple fact that persons often prove to be poor judges of whom to trust when divulging confidences or on the fact that the risk of divulgation is a given in the decision to speak to another human being. On the other hand, the question whether we should countenance participant surveillance has everything to do with the need to strike a fair balance between the right of the state to intrude on the private lives of its citizens and the right of those citizens to be left alone. [p. 49] 7
77The concern in Duarte about risks to the right to privacy which would result from allowing warrantless electronic surveillance based on participant consent arose from the fact that the participants giving the consent were a police officer and an informer – i.e., two state agents. In other words, the state was giving itself permission to make electronic recordings. Where the state was the participant giving consent to the interception, if a warrant were not required, unlimited and unregulated police electronic surveillance would have been permitted so long as the police could insert an officer or an informer into a conversation.
78My point is not that the recording of a conversation by a private individual is irrelevant to the reasonable expectation of privacy analysis. It is rather, that the recording of a conversation by a private individual without any state involvement engages different considerations and may lead to a different outcome of the reasonable expectation of privacy analysis, particularly on the issue of whether a subjective expectation is objectively reasonable.
e. Legal principles applicable to determining if a claimant has a reasonable expectation of privacy
79The primary purpose of s. 8 of the Charter is to protect the right of privacy from unjustified state intrusion: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 160; Campbell, at para. 36. The right to privacy is a foundational value in a free and democratic society: Campbell, at para. 37.
80The jurisprudence under s. 8 of the Charter seeks to balance the sometimes competing aims of personal privacy and the public interest, in particular, the public interest in law enforcement: Campbell, at para. 38; Hunter, at pp. 159-60.
81Courts effect this balance by assessing whether a claimant has a reasonable expectation of privacy in the subject matter of an alleged search by the state. A claimant seeking standing to argue that their rights under s. 8 were infringed must show that they subjectively expected the subject matter of the search would remain private, and that their expectation was objectively reasonable, having regard to the totality of the circumstances. In making this assessment, a court must consider four lines of inquiry: (1) the subject matter of the alleged search; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether the claimant’s subjective expectation of privacy was objectively reasonable (Campbell, at para. 39; Cole, at para. 40; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18; Bykovets, at para. 31).
82The issue raised in this appeal – whether a participant in an electronically preserved conversation has a reasonable expectation of privacy in the conversation in circumstances where the other party to the conversation voluntarily provides it to police when they report allegations of criminal conduct by the claimant – has not been decided by the Supreme Court. Although the court has accepted in different contexts that a claimant may maintain a reasonable expectation of privacy, vis-à-vis the state, in electronically preserved conversations even when those conversations are not in the claimant’s control, the Supreme Court and this court have expressly flagged that circumstances where such conversations are voluntarily provided to police by a complainant in alleging criminal conduct may be subject to different considerations: R. v. Reeves, 2018 SCC 56, [2018], 3 S.C.R. 531, at para. 46; Marakah, at para. 5; Campbell, at para. 40; R. v. P.M., 2025 ONCA 208, 176 O.R. (3d) 193, at paras. 49-57; R. v. Amdurski, 2022 ONSC 1338, at paras. 27-29.
f. The subject matter of the alleged search
83Although the medium at issue in this case is a recording, as contrasted to text messages, I would characterize the subject matter of the alleged search in the same manner as in Campbell, at para. 42, and Marakah, at paras. 19-20, as the “electronic conversation” between the complainant and the appellant.
84However, I flag one important piece of context at this stage, which I will return to in the analysis below. The parties agree that the complainant was entitled to disclose the substance of her conversations with the appellant by telling the police about them or testifying about them. In other words, the appellant does not contend that he has a reasonable expectation of privacy which would prevent the complainant simply telling a third party, including the police or other state actor, about the conversations. The hook by which the appellant seeks to engage s. 8 of the Charter is the fact that the complainant recorded the conversations and then disclosed the recordings to police. This context is important to the assessment of whether the appellant has a reasonable expectation of privacy in the recordings.
g. Whether the appellant had a direct interest in the subject matter of the alleged search
85I accept, as did the trial judge, that as a participant in the conversations, the appellant had a direct interest in the subject matter of the search: Campbell, at para. 44; Marakah, at para. 21.
h. Whether the appellant had a subjective expectation of privacy in the subject matter of the alleged search
86The Supreme Court has recognized that a Charter claimant’s burden of establishing a subjective expectation of privacy in the subject matter of the alleged search is not a “high hurdle”: Campbell, at para. 45; Marakah, at para. 22.
87I accept, as did the trial judge, that the appellant had a subjective expectation of privacy in the conversations with the complainant, in light of the fact that the conversations took place in the home and in the context of their domestic relationship. Although the relationship had ended by the time of the recorded conversations, the appellant and complainant were still living in the same home.
88However, I once again add the caveat that although I accept that the appellant had a subjective expectation of privacy in the conversations, even that subjective expectation could not have been absolute. Any party to a conversation must be aware that the other party to the conversation may choose to disclose the conversation to others.
i. Whether the appellant’s subjective expectation of privacy was objectively reasonable
89The decisions of the Supreme Court provide additional precision on the inquiry required under the last branch of the reasonable expectation of privacy analysis. I focus in particular on the recent decisions of Campbell and Marakah.
90In many cases, including this one, whether the claimant’s subjective expectation of privacy in the subject matter of the search is objectively reasonable carries the weight of the analysis.
91Whether a subjective expectation of privacy is objectively reasonable is not a purely factual inquiry. The inquiry “is normative rather than simply descriptive”: Spencer, at para. 18; Campbell at para. 48. In other words, the inquiry requires value judgments about the level of privacy that Canadians expect in our free and democratic society, in the context of the long-term consequences of tolerating particular types of state intrusion into personal privacy.
92The normative inquiry is content neutral. It requires a broad and functional approach to the subject matter of the search and its potential to reveal personal or biographical core information: Campbell, at paras. 49-52; Marakah, at paras. 32 and 48; Bykovets, at para. 7.
93There is no closed list of factors relevant to whether a Charter claimant’s subjective expectation of privacy in the subject matter of a search is objectively reasonable. In Campbell, at para. 53, Jamal J., writing for the majority, provided the following helpful, but not exhaustive, list of relevant factors:
(i) whether the information would tend to reveal intimate or biographical details of the lifestyle and personal choices of the individual subject to the alleged search;
(ii) the place where the alleged search took place;
(iii) whether the subject matter of the alleged search was in public view;
(iv) whether the subject matter had been abandoned;
(v) whether the information was already in the hands of third parties, and if so, whether it was subject to an obligation of confidentiality;
(vi) whether the police technique was intrusive in relation to the privacy interest;
(vii) whether the individual was present at the time of the alleged search;
(viii) the possession, control, ownership, and historical use of the property or place said to have been searched; and
(ix) the ability to regulate access to the place of the search, including the right to admit or exclude others from the place.
94Not all of these factors will have relevance to every case. I focus my analysis on the following factors, which in my view are most relevant to this appeal: (i) whether the information would tend to reveal intimate details of lifestyle or personal choices; (ii) whether the information was already in the hands of third parties, and if so whether it was subject to an obligation of confidentiality; (iii) whether the police technique was intrusive in relation to the privacy interest; and, (iv) the appellant’s level of control over the subject matter of the search.
i. Whether the information would tend to reveal intimate details of lifestyle or personal choices
95As noted above, a content neutral approach is required in the assessment of whether a claimant has an objectively reasonable expectation of privacy in the subject matter of an alleged search. The content neutral approach applies to whether the subject matter of the search would tend to reveal intimate details about the claimant: Campbell, at paras. 55-61; Marakah, at paras. 31-32. As a result, a court should approach this issue by asking whether people generally have a privacy interest in the subject matter of the alleged search and whether the subject matter of the alleged search has the potential or tendency to reveal private information about the claimant: Campbell, at para. 56; Marakah, at para. 31.
96The Crown accepts that the context of the conversations in this case is such that they have the potential to reveal biographical core details. I agree. The subject matter of the search is the electronic conversations between the appellant and the complainant, which took place in their home when they were ex-domestic partners. This is information which has the potential to reveal private information about the appellant, and therefore supports his claim to a reasonable expectation of privacy in the recorded conversations.8
ii. Whether the information was already in the hands of third parties, and if so whether it was subject to an obligation of confidentiality
97The information in this case was already in the hands of a third party – the complainant – who had no obligation of confidentiality. In my view, this is a significant factor that distinguishes the reasonable expectation of privacy analysis in this case from Campbell and Marakah.
98The complainant and the appellant were the two parties to the conversations at issue. The complainant was under no obligation of confidentiality with respect to the conversations. She was entitled to disclose them to anyone she chose, including the police. I return to this issue below in relation to the issue of control over disclosure of the conversations.
99This factor weighs against finding that the appellant’s subjective expectation of privacy in his conversations with the complainant – including in recorded form – was objectively reasonable.
100The appellant argues that the circumstances in this case are, in effect, a slow-motion version of Duarte. According to the appellant, although the recordings at issue do not involve real-time police interceptions, they raise the same concerns about warrantless participant surveillance. I disagree. The appellant’s argument misses the fundamental distinction that the complainant was neither a state actor nor a state agent when she made the recordings. The concerns about unregulated state surveillance that animated Duarte do not arise in circumstances where a private individual records individual conversations.
101I do not intend to minimize the impact of a private individual who is a party to a conversation secretly recording the conversation. Many Canadians would view such conduct in the course of a relationship, and even after a relationship has ended, as a betrayal. But this type of individual recording does not raise the same privacy concerns as unfettered state intrusion into private conversations as in Duarte.
102The appellant also raises the spectre of police listening to unlimited quantities of privately-recorded conversations in the absence of any grounds to do so such as either reasonable suspicion or reasonable and probable grounds.
103Respectfully, that concern is groundless on the record in this case. The complainant provided the recordings to the police in the context of reporting allegations of criminal conduct by the appellant, and providing statements to police disclosing the allegations prior to providing the police with the recordings. There can be no question that when the police received the recordings, they had reasonable and probable grounds to believe that offences had been committed.
104Further, it is unlikely, given the workloads of the police departments, that officers will begin listening to recordings brought to them by private parties to assess their legality without an accompanying criminal complaint. If such a circumstance arises, it would be a different factual matrix than this case, and the courts can consider the potential privacy issues engaged at that time.
iii. Whether the police technique was intrusive in relation to the privacy interest
105In Campbell, building on earlier decisions of the Supreme Court, Jamal J. held that the relative intrusiveness of the police technique in relation to the privacy interest at issue is a factor to be considered in assessing whether a claimant’s subjective expectation of privacy is objectively reasonable: at para. 62.
106The lack of intrusiveness of the police technique in this case is another factor which distinguishes the circumstances of this case from cases such as Campbell, Marakah, and Duarte. Indeed, to some extent it is a stretch to use the word “technique” to describe the police act of listening to recordings voluntarily provided to them by the complainant.
107The police had no involvement in the recording of the conversations. As outlined above, the complainant acted entirely on her own in recording them. She was not a state agent. Her conduct in recording the conversations in which she was a participant was lawful, pursuant to s. 184(2)(a) of the Criminal Code.
108The complainant voluntarily chose to come to the police to report allegations of domestic violence by the appellant. After being interviewed by the police and disclosing the allegations against the appellant, the complainant provided two recorded conversations with the appellant that she told police provided evidence in support of her allegations.
109What did the police do? They received the digital files from the complainant and listened to the voluntarily-provided recordings.
110The appellant concedes that the police were entitled to receive the recordings pursuant to s. 489(2) of the Criminal Code or at common law, to preserve the evidence. In the context of this appeal, where the complainant was free to disclose the substance of her conversations with the appellant, and recorded them lawfully with no involvement from the police, one can only view the police conduct of listening to the recordings voluntarily provided by the complainant as minimally intrusive of the appellant’s subjective privacy interest in his conversations with the complainant.
111This factor weighs against the appellant having a reasonable expectation of privacy in the recordings of the conversations.
iv. The appellant’s level of control over the subject matter of the search
112The appellant did not have control over either the substance of the recorded conversations with the complainant or the recordings themselves. The complainant was free to disclose the substance of her conversations with the appellant to anyone she chose. Her recording of the conversations was lawful.
113The jurisprudence is clear that whether a s. 8 claimant is able to control information that is the subject matter of an alleged search is relevant to whether the claimant has a reasonable expectation of privacy, but not determinative: Campbell, at para. 66; Marakah, at paras 38-41; Reeves, at para. 37.
114As I will explain, there are differences between the nature of a shared expectation of privacy in a computer and a shared expectation of privacy in a conversation. These differences are relevant to whether the appellant had a reasonable expectation of privacy in relation to the complainant voluntarily disclosing the recorded conversations to police.
115When two or more individuals share a computer, typically, they each have their own private information on the computer. While one user may access another user’s data on the computer, in general, any particular file belongs to one user. A conversation is different. By its nature, a conversation is an act engaged in by two or more people, each of whom has the right to disclose its contents. This distinction was persuasively made by Woolley J., as she then was, in R. v. R.D.C., 2022 ABKB 788, at paras. 75-77:
In any conversation, whether electronic, in hard copy, or in person, both participants in the conversation appreciate the other’s knowledge of what has been communicated. Both participants have the ability to make decisions about what to communicate and retain. Further, and importantly, both participants accept the risk of disclosure by the other party and understand – or certainly ought to understand – that the other party’s interests and rights are equal to their own.
The story and experience of the communications between SH and RDC do not belong to RDC alone. They belonged to both of them. This was not an object they shared, while retaining independent use and enjoyment of it, as was considered by the Supreme Court in Reeves. Rather, it was a communication between them jointly and equally. The privacy interests they both enjoyed prohibited the intrusion of a third party (someone equivalent to, for example, the wife of Mr. Vey). But it did not prohibit the independent decision of either of them as to what to do with what they had communicated. Each of them had the freedom to decide for themselves whether to retain it or share it. That freedom inheres in the bilateral nature of the communicative act. To put it slightly differently, SH should not – and RDC could not reasonably expect her to – need to obtain approval from a third party for the police to listen to what she has to say and disclose.
That limitation on the extent of a privacy interest does not allow – as the Chief Justice correctly emphasized in Marakah, and as was starkly illustrated in Vey – a third party to intrude upon a conversation without proper legal authorization. But it does mean that the privacy interests of each participant does not go so far as to forbid or prohibit the other participant from disclosing what has been said or written.
116Given the nature of a conversation, and, as I discuss below, the fact that the complainant voluntarily provided the recordings to police, the appellant’s lack of control over the conversation and the recordings is a factor that, although not determinative, weighs against a finding that the has a reasonable expectation of privacy in the recorded conversations.
117The fact that the complainant voluntarily provided the recordings to police is another factor that distinguishes the control analysis in this case from cases such as Campbell and Marakah. In Campbell and Marakah, one of the reasons that a reasonable expectation of privacy was found to exist in the text messages is because the text conversations at issue came into the hands of the state not through the voluntary action of the other party to the conversation, but rather by invasive state action. In Marakah, the texts came into police possession through the warrantless search of the phone of the person the accused had been conversing with by text, which had been seized by police. In Campbell, similarly, the phone came into the possession of the police when it was seized by police from the person the accused had been conversing with. In both cases, the Supreme Court rejected an analysis based on the risk that the co-conversationalist would disclose the contents of the texts, for reasons similar to the rejection of the risk analysis in Duarte. The court did so because the risk that the other party to the text conversation would disclose the conversation was qualitatively different than the risk that the state would intrude into the conversation by warrantlessly seizing the phone: Campbell, at paras. 66-68; Marakah, at paras. 40-45.
118The reasoning used to reject the risk analysis in Duarte, Campbell, and Marakah does not apply with the same force to the circumstances of this appeal. The risk analysis was rejected in those cases because the risk that the other party to the conversation would disclose the conversation was different than the risk that the state would record the conversation without a warrant (Duarte), or seize the phone and impersonate the other party to the conversation (Campbell), or seize the phone of the other party to the conversation in a search not validly incident to arrest (Marakah). These cases recognize that even if a person may not have a reasonable expectation that a person they are conversing with will keep their conversation secret, the person may still have a reasonable expectation of privacy that the state will not be permitted to intrude into the conversation absent a warrant or other lawful means.
119By contrast, in this case, the risk that the complainant would choose to disclose the substance of her conversations with the appellant is exactly the risk that materialized. It was not a qualitatively different risk.
120If one were to hypothesize a situation where the recordings of the conversations were seized from the complainant without her consent, the reasoning from Duarte, Campbell, and Marakah, rejecting the risk analysis might well apply. But that is not what happened here.
121I acknowledge that in some circumstances where there is a shared expectation of privacy in the subject matter of a search, the Supreme Court has nonetheless held that disclosure by one party may not vitiate the other party’s reasonable expectation of privacy: Cole, at paras. 1-3, 47-49; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 2-3; and 105; Reeves, at paras. 34-35; Bykovets, at paras. 8-13, 41-43, 55-56, and 61-69; Lambert, at para. 51.
122However, in my view, two factors distinguish those cases from the present appeal. First, those decisions were driven by the vast amount of information potentially at issue in the search in each case. In Cole, the subject matter of the search was a shared computer. Decisions of the Supreme Court and this court have recognized, in effect, that shared computers9 are different because of the vast amount of information they contain – in terms of both volume and breadth of information: Morelli, at paras. 2-3; Cole, at paras. 2-3, and 46-48; Reeves, at paras. 34-35; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 40-41; Lambert, at para. 51. Similarly, in Bykovets, the majority held that internet subscriber information was protected from police intrusion in the absence of a warrant because it is the gateway to a person’s internet search history – again, a vast amount of information. These cases recognize that where the subject matter of a search is a potentially vast volume of personal information – the contents of a computer or access to the person’s internet search history – s. 8 may protect that information from warrantless state intrusion even if the claimant has limited ability to control the information.
123Second, as discussed above, Cole, Reeves, and Bykovets concerned situations where, although the device or control was shared, the files at issue belonged to the claimant. Those cases did not involve a conversation, which, as discussed above, is qualitatively different because it is an act engaged in by two (or more) people, each of whom has the right to disclose its contents.
124By contrast, the subject matter of the search in this case is not a computer, an electronic device, or the key to the appellant’s internet search history. It is not something containing or providing access to a potentially vast amount of personal information. Rather, it is two recorded conversations. As I have outlined above, I accept that the context in which the conversations took place gives the appellant a subjective expectation of privacy in the content of the conversations. But the appellant lacks control over the content of the conversations. And this appeal does not raise the situation in Cole or Bykovets where the potential scope of the information at issue is so vast that reasonable notions of privacy in a democratic society demand that the information be protected despite the appellant’s lack of control.
v. Conclusion on whether the appellant’s subjective expectation of privacy in the recorded conversations is objectively reasonable
125I return to the normative analysis at the heart of whether the appellant’s subjective expectation of privacy in the recorded conversations with the complainant is objectively reasonable. In my view, it is not. The context of the claim to a reasonable expectation of privacy in this case is very different from Duarte. Unlike Duarte, this case does not raise the spectre of unrestricted state recording of private communications in the state’s sole discretion. Rather, it involves a private actor – a complainant who says she is the victim of domestic violence – lawfully recording individual conversations with their ex-domestic partner, without the involvement of law enforcement. Some members of Canadian society would view the recording of such conversations as a betrayal of the relationship. But the making of such recordings by a private actor and later providing the recordings to police does not raise the concern of uncontrolled state surveillance that drove the result in Duarte.
126I do not read the rejection of the risk analysis in Duarte as leading to the same conclusion in the circumstances of this appeal. LaForest J. rejected the risk analysis in the circumstances of Duarte because the risk that a co-conversationalist would disclose the substance of a conversation to a third party was qualitatively different than the risk that the state would be permitted to record the conversation without a warrant in its sole discretion.
127By contrast, in this case, the risk that materialized through the complainant providing the two recorded conversations to police was not qualitatively different than the risk any person takes in having a conversation with another – that the other will disclose the substance of the conversation to a third party. The complainant and the appellant were both parties to the conversations. Each was entitled to disclose the substance of the conversation to third parties. I acknowledge that the appellant did not anticipate that the complainant would record the conversations. But in the context of the complainant making allegations of criminal conduct by the appellant, providing statements to police in support of those allegations, and then providing the police with the recorded conversations which she told police supported her allegations, the concerns about unlimited state surveillance that drove the result in Duarte do not gain the same foothold in this case.
128The information in the recorded conversations was already in the hands of a third party – the complainant. She was under no obligation to keep their conversations confidential.
129The police technique was not intrusive. The complainant voluntarily came to the police to report the allegations of domestic violence about the appellant. After being interviewed by the police about the allegations, she voluntarily provided them with the two recordings. The police had no involvement in the making of the recordings.
130Considering the totality of the circumstances, including a normative assessment of the nature of privacy rights that Canadians expect in our free and democratic society, I conclude that the appellant does not have a reasonable expectation of privacy in the recorded conversations that the complainant provided to the police. The trial judge did not err in so finding.
131Because the appellant did not have a reasonable expectation of privacy in the recorded conversations, his s. 8 Charter rights were not infringed by the police warrantlessly listening to the recordings voluntarily provided by the complainant.
132Before leaving this issue, I emphasize, as has the Supreme Court repeatedly, that the assessment of whether a reasonable expectation of privacy exists is fact-specific and dependent on the totality of the circumstances: Campbell, at para. 40; Marakah, at para. 5. This decision deals with circumstances where a complainant secretly recorded individual conversations in which she was a participant and subsequently voluntarily provided some of the recordings to police when she made a complaint that the appellant committed criminal offences.
133Without deciding other hypothetical situations, it may be that a court would reach a different conclusion in the reasonable expectation of privacy analysis if the recording was unlawful (i.e., done by a non-participant) or if the method or circumstances of the recordings was such that it constituted something more like ongoing surveillance (i.e., fixed devices that would record a person at all times in a particular location). See for example, Vey.
134Different considerations may also apply in circumstances where the recordings are taken by police from a party to the conversation (in this case the complainant) without consent, akin to the circumstances involving the text messages in Campbell and Marakah.
3. If there were a s. 8 Charter breach, should the recordings be excluded on the basis that their admission as evidence would bring the administration of justice into disrepute?
135Because I do not find a breach of the appellant’s s. 8 Charter rights, it is not, strictly speaking, necessary to consider s. 24(2) of the Charter. However, I address the issue briefly because, in the event I am wrong that the appellant’s s. 8 rights were not infringed, this is a case where, applying the factors from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the s. 24(2) analysis strongly favours admission of the recordings into evidence.
136For purposes of this analysis, I proceed on the basis that the police receipt of the recordings did not infringe the appellant’s s. 8 Charter rights, but that the act of the police listening to the recordings without a warrant infringed the appellant’s s. 8 rights.
137The first Grant factor pulls only weakly toward exclusion. I place the seriousness of the breach at the low end of the scale. I reach this conclusion for two reasons. First, if I am wrong in relation to whether the appellant had a reasonable expectation of privacy in the recordings and a warrant was required before the police listened to them, the law on this issue was unclear at the time of the investigation. As noted above, in Reeves, at para. 46, the Supreme Court expressly left open whether s. 8 is engaged when an individual voluntarily brings an item to police. In Marakah, at para. 5, in the similar context of text messages on a receiver’s device, the Supreme Court expressly noted that although it found a reasonable expectation of privacy in the particular circumstances of that appeal, it was not holding that text messages will always attract a reasonable expectation of privacy.
138Second, the police acted in good faith in their decision not to obtain a warrant before listening to the recordings. The police obtained legal advice before deciding to receive the recordings without a warrant.
139Decisions of the Supreme Court and this court have recognized that where police act in good faith in circumstances where the legal standards governing particular conduct are unclear, this factor lessens the seriousness of the breach: Duarte, at pp. 59-60; Wong, at p. 59; R. v. McColman, 2023 SCC 8, [2023] 1 S.C.R. 309, at paras. 61 and 65; Vu, at paras. 69 and 71; Lambert, at para. 102 and 109.
140On the second Grant factor, I find that the impact on the appellant’s Charter-protected rights weighs in favour of exclusion, but not strongly. Assuming that the appellant had a reasonable expectation of privacy in the recordings, the intimate nature of the conversations, both in terms of content and the context in which they were recorded, would have a significant impact on his privacy interests. However, the fact that the recordings were lawfully discoverable greatly lessens the impact under the second branch: Grant, at paras. 122 and 125; Duarte, at p. 60. In this case, there can be no doubt that had the police applied for a warrant before listening to the recorded conversations, one would have been granted. The complainant’s statements to police that the appellant had committed offences against her, coupled with her telling police that the recordings contained relevant evidence, provided reasonable and probable grounds that the recordings would furnish evidence of the offences.
141On the third Grant factor, it is significant that the recordings are reliable evidence. Although they are not real evidence or physical evidence in the usual sense, they are evidence which provides a more reliable account of the conversations than the complainant’s account of the same conversations standing alone. There is no suggestion that the fact of the conversations or the complainant testifying about the conversations infringes the appellant’s s. 8 Charter rights. I acknowledge that if the recordings were excluded, the complainant could still testify about the conversations. However, in my view, the fact that the recordings provide a reliable account of the conversations – indeed, the most reliable account – is a factor that weighs in favour of admissibility.
142Balancing the three Grant factors, and for reasons similar to those expressed in Duarte, Wong, and Lambert, I would admit the recordings into evidence.
D. Disposition
143The appeal is dismissed.
Released: June 19, 2026 “B.Z.”
“J. Copeland J.A.”
“I agree. B. Zarnett J.A.”
“I agree. J. George J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s.486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
- The appellant was acquitted at trial of one count of assault, contrary to s. 266 of the Criminal Code.
- The substance of the legal advice received is not in evidence.
- At p. 609 of Broyles, the Supreme Court left open the possibility that in circumstances where more general police actions, such as making it known they would pay for information or charge an informer with less serious charges, could give rise to a finding of state agency. That hypothetical situation has no application to this appeal.
- In the result, the Court of Appeal ordered a new trial because the trial judge had not applied the correct legal analysis and had misapprehended evidence. The Court of Appeal did not make conclusive factual findings on the state agency issue.
- Without commenting on the correctness of the analysis, I note that the decision of R. v. Vey, 2019 SKQB 135, [2020] 1 W.W.R. 495, considered circumstances where the recording was unlawful because it was made by a non-participant in the conversations (a wife trying to catch her husband in an affair with another woman). In Vey, the recording was also much more pervasive in terms of the manner in which the electronic surveillance was set up. The wife had set up the equipment to record 12-13 hours a day, while she was out of the home: at paras. 30-35, 102, 106, 128, 135-36.
- Comments to similar effect can be found in Wong at pp. 43-45, 47-51, and 53.
- I reiterate that in the circumstances of this case, the recorded conversations are not themselves criminal and do not contain any criminal conduct, as distinct from being evidence of previous instances of criminal conduct.
- Although Cole dealt with a computer, its dicta would be equally applicable to a shared cell phone, given the amount of personal information stored in a modern cell phone – which is really a small computer.