In R. v. Telfer, 2021 MBCA 38, April 15, 2021, the accused was charged with the offence of murder. The evidence led at the trial indicated that the victim was killed in a drive-by shooting. The Winnipeg Police Service (WPS) obtained the licence plate number of the suspect vehicle from a witness and traced it to a Budget rent-a-car office.
A Budget employee identified a co-accused (Ms. Crossman) as the renter of the vehicle and the accused as an authorised driver on the rental contract. Budget also provided the police with their cell phone numbers, their driver’s licence numbers, and the credit card numbers that were used to rent the vehicle. A production order had not been obtained.
The accused and Mr. Crossman returned the vehicle to Budget. The police seized the vehicle, obtained a search warrant and searched it. They found the rental agreement in the glovebox. This document identified the renter as “CROSSMAN, PAIGE”, and set out her driver’s licence number and credit card number.
The police subsequently obtained an authorization to intercept private communications. The Crown sought to introduce evidence obtained as a result of the authorization at the trial.
The accused objected to the introduction of this evidence. He argued that the application upon which the authorization was based, contained information obtained from Budget in violation of section 8 of the Charter.
The application was dismissed. The trial judge concluded that the accused did not have a reasonable expectation of privacy in the information supplied by Budget and thus section 8 of the Charter was not engaged.
The accused was convicted. He appealed from conviction.
The Manitoba Court of Appeal described the issue raised as being the following (at paragraph 19):
The sole issue argued at the appeal was whether the trial judge erred in finding that the accused had no reasonable expectation of privacy in the Budget information and that its acquisition by the WPS did not constitute a search under section 8 of the Charter.
The Court of Appeal:
The Manitoba Court of Appeal indicated that the “purpose of section 8 of the Charter is to protect individuals’ privacy interests from state intrusion. However, only reasonable expectations of privacy are protected…If there is no reasonable expectation of privacy in the subject of the state action, then there is no ‘search’ for the purposes of section 8 of the Charter…This means that, in assessing an alleged breach of section 8 of the Charter, the judge must first determine if the individual had a reasonable expectation of privacy in the subject of the state intrusion. If not, then section 8 is not engaged. It is only after a reasonable expectation of privacy is found to exist that the judge turns to inquire whether the search was reasonable” (at paragraphs 24 and 25).
In this case, the rental agreement indicated that any “personal information” contained within the agreement was subject to being shared with law enforcement agencies “as requested by these agencies if the disclosure is required or permitted by law” and “to take action regarding illegal activities or violations of terms of service”. In addition, section 22 of the Highway Traffic Act, CCSM c H60, indicates that such agreements “shall be a public record and open to inspection by any person”.
The Manitoba Court of Appeal dismissed the appeal, concluding that section 8 of the Charter was not engaged because the accused did not have a reasonable expectation of privacy in the information Budget provided to the police (at paragraphs 55 and 64):
In the circumstances of this case, I am not convinced that any of the Budget information was subject to an obligation of confidentiality. First, the WPS obtained the accused’s name as a result of the first-hand knowledge of the rental agent. This information was also required to be disclosed to any member of the public under section 22 of the HTA, as were the particulars of the accused’s driver’s licence. Additionally, the one-page rental document that was left abandoned inside the vehicle directly linked at least Crossman’s name to the Jeep. Next, while the accused’s cell phone number and credit card number are not subject to section 22 of the HTA, Budget was entitled to disclose them to the WPS under the rental agreement in order to “take action regarding illegal activities”.
Taking into account all of the above circumstances, I am not persuaded that the trial judge made any error of law or palpable and overriding error of fact. The accused had no reasonable expectation of privacy in the Budget information. Thus, there was no search within the meaning of section 8 of the Charter.