Reasonable Expectations of Privacy & ‘Open Fields’ – Taking the American ‘Risk Analysis’ Head On
25 Criminal Reports (5th) 351-361
6 Pages Posted: 29 May 2012 Last revised: 30 Oct 2013
Date Written: 1995
This paper argues that the American "open-fields" doctrine should not be imported into Canada. That doctrine holds that there is no reasonable expectation of privacy in the area beyond the curtilage surrounding a home and therefore searches of such "open-fields" do not engage constitutional safeguards, such as the warrant requirement. In making the case that the open-fields doctrine should be rejected by Canadian courts, the paper canvasses the differences between American and Canadian constitutional jurisprudence relating to the definition of reasonable privacy expectations under the constitutional guarantees relating to the protection of privacy in both the American Bill of Rights and the Canadian Charter of Rights and Freedoms. The paper argues that a key difference is the rejection of a "risk-analysis" approach to the definition of reasonable privacy expectations in Canada. That difference, explains the author, is the principal reason why the open-fields doctrine should find no place in section 8 Charter jurisprudence. The open-fields exception to the warrant requirement is all about misguided and illogical risk-reasoning, which the Supreme Court of Canada has consistently and clearly rejected.
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