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Article Excerpt
When lawyers and judges describe criminal procedure, they often boil it down to two core goals: finding facts and determining guilt (Friedland and Roach 2004). Understood in this way, the criminal justice system requires reliable means of detecting truth and lies. Research indicates that the capacity for deception is to some extent biologically programmed (Lewis, Stanger, and Sullivan 1989), that it is an important stage of moral development commencing in children as early as age three (Lewis et al.), and that, as children, we learn to deceive in order to avoid punishment for acts of disobedience (Freud 1965; Spence 2001). It is therefore not surprising that lie detection has become a major preoccupation within the criminal justice system.
Although philosophers (Bok 1982; Frankfurt 2005), psychologists (Mann, Vrij, and Bull 2004), and sociologists (Barnes 1994) have appreciated the complexity of distinguishing truth from lies, our courts are increasingly looking to neuroscience as a means of reducing the search for truth to the existence or non-existence of certain brain states.
It has been said that we are entering "the golden age of neuroscience" (Bailey 2003). While neuroscience remains a nascent field of inquiry, some believe that it will one day unlock the mysteries of the human brain. Up till now, the biggest barrier has been the skull. Recently, however, a battery of new imaging technologies makes it possible to gauge and monitor brain activity without the need to penetrate the cranium (Evanson 2003). A number of emerging neuro-imaging techniques can facilitate lie detection (Ford 2006). Some allow electrical activity occurring in the brain to be measured externally and remotely. Some can even map and associate electrical activity with certain brain regions and functions.
While the spectre of intercepting brainwaves to determine whether someone is telling the truth may seem the stuff of science fiction, some courts have already adopted nascent forms of these technologies (Iowa v. Harrington). Brain scans are thought by some to have the potential to revolutionize lie detection because they bypass unreliable physiological indicators of anxiety used in older polygraph technologies, focusing instead directly on the brain states provoking those physical reactions (Appelbaum 2007). While current imaging devices are bulky, obtrusive, and conspicuous, future generations of neuro-technology promise to become smaller and sleeker. We are also told that they will have greater read ranges and could one day interface with implantable microchips (Gasson, Hutt, Goodhew, Kyberd, and Warwick 2005).
If these technologies ever live up to their hype, the possibility of remote, surreptitious brain surveillance--whether used by the police or by private actors--poses a threat to privacy. Would the constitutional safeguards in our present criminal justice system protect citizens from unwanted intrusions of this sort? Surprisingly, when one considers the current approach to the "reasonable expectation of privacy" pursuant to section 8 of the Charter, adopted by our courts in the context of other imaging technologies used in the war against drugs, it is uncertain whether we would be protected without clarification from our Supreme Court or the introduction of new legislation.
Several courts across Canada have already been called upon to determine whether heat patterns, electrical activities, or odours emanating from a private source carry a reasonable expectation of privacy once they enter public space (R. v. Kang Brown; R. v. A.M.; R. v. Tran; and R. v. Ly). In answering this question, a number of courts have interpreted the Supreme Court of Canada's decision in R. v. Tessling (2004) as standing for the proposition that, once bits of information emanate into a public space, they are no longer private and are therefore not subject to constitutional protection.
In this article we argue that this interpretation of R. v. Tessling is flawed and that, as brain scanning technologies increase in their ability to monitor and measure electrical information escaping from the skull, this mistake could have disastrous consequences for personal privacy. In the face of the R. v. Tessling decision, which intentionally conflated the distinctions between "bodily," "territorial," and "informational" privacy, we assert that the interception of brainwaves emanating from the skull, though functionally similar to the heat emanations at issue in R. v. Tessling, are not analogous. We briefly contemplate the implications in light of broader considerations of "brain privacy" in the future. In section 1 of this article, we discuss the Supreme Court's approach to privacy in R. v. Tessling (2004) and the manner in which that case has been subsequently applied in courts across Canada. Section 2 examines the current state of neuro-imaging technology and its potential application in the criminal justice system. In section 3, we investigate the potential application of R. v. Tessling to brain scans and the need to implicate other Charter rights, such as the right to security of the person (Charter, s. 7). In section 4, we discuss its future implications for brain privacy.
I. The R. v. Tessling analogy
In the Canadian criminal justice system, a central aspect of the right to privacy is contained within "the right to be secure against unreasonable search or seizure" (Charter of Rights and Freedoms, s. 8). In determining the scope of this right, courts generally ask whether the police interfered with a person's "reasonable expectation of privacy" (Bailey 2008). There have been many important section 8 cases, the most relevant in the current context is R. v. Tessling.
In R. v. Tessling (2004), the Supreme Court of Canada was asked to determine whether the Royal Canadian Mounted Police (RCMP) infringed upon the right to privacy when one of its planes flew over Mr Tessling's house one night without a warrant and fired infrared beams against its walls, measuring the escaping heat in order to determine whether he had a grow op in his basement. The Supreme Court decided that, because the escaping heat was freely available and easily measured in a public space without entering Mr Tessling's home, and because the heat patterns were, on their own, meaningless insofar as they did not reveal core biographical information about Mr Tessling, his "right to be secure against...
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