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Article Excerpt
Introduction
Privacy is not an enumerated constitutional right under the Canadian Charter of Rights and Freedoms ("Charter"). Perhaps this is what the Ontario Court of Appeal meant when it starkly stated in Euteneier v. Lee,
[It was] properly conceded in oral argument before this court that there is no free-standing right to dignity or privacy under the Charter or at common law. (para. 63)
Indeed, the foundational legal concept of when citizens may reasonably expect privacy has been developed almost entirely within the context of determining whether a legally relevant "search" has occurred, thereby triggering the section 8 Charter right against unreasonable search and seizure.
Given the circumstances in which section 8 challenges occur, it is unsurprising to find that articulations of privacy for purposes of Canadian law have been fundamentally oriented toward the negative right of individuals to be left alone by the state. The section 8 focus on limiting intrusion by the state leaves little room for discussion of the positive entitlements to state intervention that may in some cases be necessary to ensure a more equitable distribution and enjoyment of privacy for all citizens (Gotell 2006). While presenting what is perhaps a rather flat conception of privacy, the paradigm reflected and developed in the context of section 8 challenges reflects the individualistic one dominating Western approaches to privacy (Bennett and Raab 2006) and is central to understanding the extent and dimensions of the constitutional protection of privacy in Canada.
This paper examines key aspects of the section 8 jurisprudence relying on the Western paradigm in two parts. Part 1 highlights discussions of the meaning and purposes of privacy found within the Canadian section 8 jurisprudence. Part 2 sets out the three-part framework outlined in Canadian case law for determining section 8 claims, with special emphasis on the first component in which expectations of privacy and their reasonableness are assessed. The Conclusion reflects upon some of the effects of the section 8 framework and emerging information technologies on the substantive conception of privacy in Canada.
I. What is privacy?
Privacy, as noted by Binnie J. in R. v. Tessling (2004), is "a protean concept." In Western philosophy it has been approached both as an intrinsic and an instrumental value--as both a good in and of itself (Mill 1869) and as a producer of other goods both for individuals and society generally (Allen 1988; Gavison 1980; Westin 1967). The focus, however, has tended to be privacy's value to individuals (Bennett and Raab 2006), and this has been no less true in Canadian law. As Bennett and Raab describe it,
The privacy paradigm rests on a conception of society as comprising relatively autonomous individuals. It rests on an atomistic conception of society; the community is no more than the sum total of the individuals that make it up. Further, it rests on notions of differences between the privacy claims and interests of different individuals. Individuals, with their liberty, autonomy, rationality, and privacy, are assumed to know their interests, and should be allowed a private sphere untouched by others. (4)
The notion of the intrinsic good of a "right to be left alone" articulated by the U.S. Supreme Court in Olmstead v. United States has also found its way into decisions of Canadian courts (R. v. Dagg). However, the Supreme Court of Canada CSCC") has also construed privacy as being grounded in fundamental aspects of humanity:
Privacy is grounded in physical and moral autonomy--the freedom to engage in one's own thoughts, actions, decisions. (R. v. Dagg at para. 65)
Privacy, from this perspective, is instrumental to independence of thought, action, and decision making--its key value being in erecting spaces of refuge within which the individual is able to withdraw from society in order to develop and assert his or her own autonomous convictions. These spaces of refuge, however, have not been confined to physicality. Nonetheless, the ideal of physical zones of freedom from scrutiny and intrusion underlie two of the three privacy categories focused upon in Canadian case law--bodily, territorial, and informational.
While the lines between these categories are often unclear, Canadian courts have tended toward a hierarchy among these categories and even within the categories themselves, generally placing bodily privacy at the pinnacle:
[A] violation of the sanctity of a person's body is much more serious than that of his office or even of his home. (R. v. Pohoretsky at 949)
Tellingly, the seemingly prized place of bodily integrity in the privacy hierarchy seems to play out quite unequally for those most marginalized in our society--particularly for poor, racialized women like Linda Euteneier and for the seven women protestors in Guelph who were strip searched after engaging in a political protest in 1997 (Euteneier v. Lee; Corp. of the Canadian Civil Liberties Assn. v. Ontario).
Recognizing the link between bodily and informational privacy ruade obvious through technologies enabling scientific determinations to be made from bodily samples, LaForest J. stated in R. v. Dyment,
The use of a person's body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity. (para. 27)
Territorial notions of privacy, developed in the context of early common law entitlements against state intrusion in the home that were premised largely on proprietary analyses, have given way to more fully explicated reasons connecting the home with personal and intimate activities:
The original notion of territorial privacy ("the house of everyone is to him as his castle and fortress": Semayne's Case ... ) developed into a more nuanced hierarchy protecting privacy in the home, being the place where our most intimate and private activities are most likely to take place ... per Cory J.: "[t]here is no place on earth where persons can have a greater expectation of privacy than within their 'dwelling-house.'" (R. v. Tessling 2004 at para. 22)
Protections of territorial privacy associated with the home have also been extended to judicial analyses of artifacts within the home--including computers (R. v. Aucoin). Here, territorial concerns overlap informational ones, raising important issues about, among other things, the impact of the collection, and use and dissemination of data at increasingly rapid rates on increasingly rapid scales made possible by technology:
In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected. (R. v. Dyment at para. 22)
One of the most perplexing problems associated with emerging technologies, however, has been the degree to which they create novel privacy concerns by making knowable and meaningful information and data that previously existed but weren't susceptible to being captured or conclusively comprehended through ordinary human senses. Take, for example, the distribution of heat emanating from the exterior of one's home. Observations with the naked eye that require no physical intrusion (such as patterns of snow melting on roofs) have always made it possible to detect heat escaping from a home, and perhaps even to determine that more heat is escaping from some parts of the home than others. What more recent technologies like the forward-looking infrared (FLIR) technology at issue in R. v. Tessling (2004) make possible is the permanent capture of that information through images capable of supporting more exacting inferences about the nature and distribution of heat-generating activities going on inside that home.
Fact patterns may arise that raise concerns overlapping the traditional categories relating to bodily, territorial, and informational privacy. Further, as will be discussed in more detail below, emerging surveillance and other technologies used by law-enforcement agents increasingly blur the line between the categories and the concerns that underlie them. For example, breathalyzers involve taking a bodily sample and extracting information in relation to the individual whose physical integrity is intervened upon, however minimally. Where lines between traditional categories are blurred, courts may nevertheless be tempted to place the privacy interest at stake within one category or another. Despite the seemingly protective words of LaForest J. in R. v. Dyment about the centrality of personal information to privacy, conceptual detachment of information from the more traditionally venerated categories of bodily and territorial privacy may lead to lesser protections. This risk is manifest in the case law analyzing section 8 claims and the framework underlying them.
II. Section 8 framework
Section 8 of the Charter provides that "[e]veryone has the right to be secure against...
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