R v Duarte

R v Duarte
Supreme Court of Canada
Hearing: October 4, 5, 1989 Judgment: January 25, 1990
Full case name	Mario Duarte v. Her Majesty The Queen
Citations	[1990] 1 S.C.R. 30
Prior history	appeal from the Ontario Court of Appeal
Ruling	Duarte appeal dismissed
Court Membership
Chief Justice: Brian Dickson Puisne Justices: Antonio Lamer, Bertha Wilson, Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin
Reasons given
Majority	La Forest J., joined by Dickson C.J. and L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.
Concurrence	Lamer J.

R v Duarte, [1990] 1 S.C.R. 30, is a leading case decided by the Supreme Court of Canada on the right to privacy under section 8 of the Canadian Charter of Rights and Freedoms. The Court held that warrantless and surreptitious 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 rented apartment room where the police had set up a video camera. Using the video evidence, Duarte was convicted. He appealed on the basis that he needed to give permission to record him.

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 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".

External links

• Full text of Supreme Court of Canada decision at LexUM and CanLII