R. v. Gomboc: Considering the Proper Role of the 'Biographic Core' in a Section 8 Informational Privacy Analysis
[2012] 59(1) Criminal Law Quarterly 74-96
31 Pages Posted: 13 May 2014 Last revised: 14 Jan 2016
Date Written: April 11, 2011
Abstract
In R. v. Gomboc, the Supreme Court of Canada considered whether the warrantless use of a digital recording ammeter by the police to measure electricity usage in a home ought to be seen as an illegal search and seizure within the meaning of s. 8 of the Charter of Rights and Freedoms. A majority of the Court in Gomboc adopted an approach to s. 8 that is overly dependent on the finding of a connection between the information over which the privacy interest is asserted and the ‘biographic core’ of an individual. The concept of the biographic core is better understood as merely one element amongst several that can assist in the analysis of whether an individual’s expectation of privacy in some information is objectively reasonable; it is not alone determinative. Gomboc serves to over-inflate its importance, removing it from the objective reasonableness step within the ‘totality of the circumstances’ test, and instead treating it as an initial threshold that the claimant must meet when claiming an informational privacy interest under s. 8. Requiring a connection between the information over which a privacy claim is being asserted and the biographic core of the individual asserting serves to improperly restrict the s. 8 protection.
Keywords: privacy, law, crime, warrant, section 8, charter, Canada, reasonable expectation
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