R. v. Duarte, [1990] 1 S.C.R. 30, is a leading case decided by the Supreme Court of Canada

Supreme Court of Canada

The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 on the right to privacy under section 8 of the Canadian Charter of Rights and Freedoms

Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...

. The Court held that warrantless and surrepticious video recording of private communications violates section 8. Consent of only one party to a conversation is insufficient to be reasonable.

Background

Mario Duarte was under investigation by the police for drug-related offences. An undercover officer arranged a meeting with Duarte in a motel room where the police had set up a video camera. Using the video evidence, Duarte was convicted. He appealed on the basis that

In a decision by Justice Peter Cory, the Ontario Court of Appeal found that the video camera did not violate the reasonable expectation of privacy as a camera was analogized to an extension of memory. He sees is as a "small step" beyond the use of human recall, and relied upon the older US cases of United States v. White

United States v. White

United States v. White, 401 U.S. 745 , was a United States Supreme Court decision which held that recording conversations using concealed radio transmitters worn by informants does not violate the Fourth Amendment protection against unreasonable searches and seizures, and thus does not require a...

and Lopez v. United States.

Reasons of the court

Justice La Forest, for the majority, found that the surreptitious monitoring by law enforcement constitutes unreasonable search. He characterizes the issue as a balance between the right to privacy and the right "of the state to intrude on privacy in the furtherance of its responsibilities for law enforcement".

In the current circumstances, La Forest argued that the expectation of privacy should be determined based on whether "the person whose words were recorded spoke in circumstances in which it was reasonable for that person to expect that his or her words would only be heard by the person he or she was addressing".

Aftermath

In response to this decision, Parliament amended the Code to include provisions on electronic interception of communications, which included judicial authorization where consent is not available, "number recorder warrants", and "tracking warrants".