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Article Excerpt
Section 8 of the Canadian Charter of Rights and Freedoms guarantees to all Canadians the right "to be secure against unreasonable search and seizure." Although there is no positive right to privacy protection in Canada, this section of the Charter is generally viewed as protecting reasonable expectations of privacy. What does it mean, however, to have a reasonable expectation? There is little if any literature in law directly on this question, but a considerable body of work has examined the related notion of the reasonable person, and authors in this area note that the term admits multiple interpretations (Gluckman 1965; Powell 1957). Common to those deemed applicable at law is the perspective that reasonable people are those whose actions are in some sense supported by or representative of larger society (Scalet 2003). By extension, reasonable expectations are those supported by larger society or representative of the expectations held by larger society, and section 8 of the Charter can be interpreted as extending to all Canadians freedom from governmental intrusions that contravene those expectations.
Section 8, like all sections of the Charter, identifies a principle that is fleshed out through an accumulation of judicial decisions, and the boundaries of the privacy interests of Canadians vis-a-vis governmental action are delineated through those same decisions.
It is important to note, therefore, that the interpretation of section 8 rights has taken place largely in the context of charges against an accused. This raises a tension: while the court is focused on the privacy interests of particular individuals who have been accused of contravening the law, it is also determining the boundaries of the privacy rights of all Canadians.
The Supreme Court of Canada uses a three-part test to determine whether evidence has been obtained in contravention of section 8, and if so, whether that evidence should be admitted (Bailey 2008). The first part of the test examines whether the actions of the government in fact constituted a search or seizure. If this first question is answered in the affirmative, the inquiry proceeds to the question of whether the search or seizure was reasonable in the circumstances. Finally, if it is determined that the search or seizure was not reasonable in the circumstances, and thus that the section 8 rights of the accused were violated, the court considers whether the evidence should nonetheless be admitted under section 24(2) of the Charter. The focus of this article is the first question: whether there was a search or seizure. When this question is answered in the negative, no right to privacy can exist for any member of society (including the accused), since the action in question has been deemed acceptable practice. It is critical, therefore, that there be no inappropriate constraints on what are identified as reasonable expectations of privacy at the first stage of the analysis (see Bustamante 1985; Clancy 1990). In answering the first question, issues regarding any presumed offence are irrelevant, as are issues of prior authorization, grounds for suspicion, or exigent circumstances. These become relevant in the later determination of whether the search was reasonable under the circumstances. The first part of a section 8 test therefore assesses whether the actions under consideration would have violated the reasonable privacy expectations of the average (or perhaps ideal: see Scalet 2003) citizen engaged in everyday activity.
Members of the court are well aware of the focus that is required. La Forest J., in the context of a section 8 challenge regarding the constitutionality of video surveillance in a hotel room (R. v. Wong), makes it clear that the reasonable expectations at issue in determining whether a search or seizure has taken place are those of the general public rather than the accused in particular:
[I]t would be an error to suppose that the question that must be asked in these circumstances is whether persons who engage in illegal activity behind the locked door of a hotel room have a reasonable expectation of privacy. Rather, the question must be framed in broad and neutral terms so as to become whether in a society such as ours persons who retire to a hotel room and close the door behind them have a reasonable expectation of privacy. (R. v. Wong at 17-18)
Wilson J. adds that determinations regarding reasonable expectations of privacy should be independent of the outcome of the search:
I add as a final comment that in advancing the commendable purpose of rendering all citizens secure from unreasonable searches and seizures courts should not be unduly influenced by hindsight, i.e., by the fact that many of the searches and seizures which come before us have in fact resulted in the discovery of evidence of criminal activity. (R. v. Simmons at 105)
Failure to adopt the "broad and neutral" perspective identified by La Forest J., or failure to mitigate the hindsight bias identified by Wilson J., could compromise the privacy expectations of all Canadians. Thus, in the words of La Forest J., unless the question of whether there exists a reasonable expectation of privacy is answered in the neutral terms he suggests,
[I]t follows not only that those who engage in illegal activity in their hotel rooms must bear the risk of warrantless video surveillance, but also that all members of society when renting rooms must be prepared to court the risk that agents of the state may choose, at their sole discretion, to subject them to surreptitious surveillance. (R. v. Wong at 19)
In decisions regarding whether the actions of the government constituted a search, the sort of privacy expectations that should be taken into account are the kind that reasonable people hold for themselves about their everyday activities. It falls to the judge to ensure that those reasonable expectations are considered in a situation otherwise focused on the privacy rights of the accused.
The question, of course, is whether the required perspective is possible. Typically, in deciding a section 8 challenge, the judge is faced with a search of a third person who has been accused of some illegal activity; moreover, the search is known to have produced probative evidence (for it is exactly the admissibility of this evidence that is at the heart of the challenge). In deciding whether the actions constituted a search, the judge must reason as if the target of the search could be any person (including and perhaps especially someone engaged only in everyday, non-criminal activity), as if there were no evidence of criminal activity, and as if the outcome of the search were unknown. The goal will be easily achieved if perceptions of reasonable expectations of privacy are not influenced by the subject of the search, knowledge or suspicion of the presence of criminal activity, and/or knowledge of the outcome of the search. To the extent, however, that these factors influence perceptions of reasonable expectations, the goal of a "broad and neutral" perspective on what constitutes a reasonable expectation of privacy may be compromised, and as a result the privacy rights of all citizens may be constrained. This raises a critical question: are perceptions of reasonable expectations of privacy affected by such knowledge?
Determining reasonable expectations: The impact of who was searched and what was round
It could be the case that the class of privacy expectations identified as "reasonable" is independent of perspective (first person, third person) and contextual information (guilt/innocence,...
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