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Happy Anniversary Charter of Rights and Freedoms

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Whatever you may think of the patriation of Canada’s Constitution and the the Charter of Rights and Freedoms, it marked a milestone in Canada’s legal history.  In honour of the 30th Anniversary of the Charter here are excerpts from three Supreme Court of Canada decisions relating to the protection of privacy and the Charter.  As the blog posts on this site attest, we continue to struggle with these issues.

R. v. O’Connor

In a case involving the non-disclosure of alleged victim of sexual abuse’s entire medical, counseling and school records, Justice L’Heureux-Dubé held (at para 119):

The essence of privacy, however, is that once invaded, it can seldom be regained. For this reason, it is all the more important for reasonable expectations of privacy to be protected at the point of disclosure. As La Forest J. observed […]:

…if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after it has been violated. This is inherent in the notion of being secure against unreasonable searches and seizures. Invasions of privacy must be prevented, and where privacy is outweighed by other societal claims, there must be clear rules setting forth the conditions in which it can be violated.

In the same way that our constitution generally requires that a search be premised upon a pre-authorization which is of a nature and manner that is proportionate to the reasonable expectation of privacy at issue […], s. 7 of the Charter requires a reasonable system of “pre-authorization” to justify court-sanctioned intrusions into the private records of witnesses in legal proceedings. Although it may appear trite to say so, I underline that when a private document or record is revealed and the reasonable expectation of privacy therein is thereby displaced, the invasion is not with respect to the particular document or record in question. Rather, it is an invasion of the dignity and self-worth of the individual, who enjoys the right to privacy as an essential aspect of his or her liberty in a free and democratic society.

R. v. Gomboc

In a case in which a majority of the court concluded that there was no reasonable expectation of privacy regarding in information regarding the consumption of electricity in a house, McLachlin C.J. and Fish J. stated in dissent (at paras. 100 to 104):

Every day, we allow access to information about the activities taking place inside our homes by a number of people, including those who deliver our mail, or repair things when they break, or supply us with fuel and electricity, or provide television, Internet, and telephone services. Our consent to these “intrusions” into our privacy, and into our homes, is both necessary and conditional: necessary, because we would otherwise deprive ourselves of services nowadays considered essential; and conditional, because we permit access to our private information for the sole, specific, and limited purpose of receiving those services.

A necessary and conditional consent of this sort does not trump our reasonable expectation of privacy in the information to which access is afforded for such a limited and well-understood purpose. When we subscribe for cable services, we do not surrender our expectation of privacy in respect of what we access on the Internet, what we watch on our television sets, what we listen to on our radios, or what we send and receive by e-mail on our computers.

Likewise, when we subscribe for public services, we do not authorize the police to conscript the utilities concerned to enter our homes, physically or electronically, for the purpose of pursuing their criminal investigations without prior judicial authorization. We authorize neither undercover officers nor utility employees acting as their proxies to do so.

This case concerns a police operation that co-opted an electric utility [...] to install a digital recording ammeter (“DRA”) on its power line in order to generate, record and disclose to the police otherwise non-existent data for the purposes of an ongoing criminal investigation.

Such actions go beyond the voluntary cooperation of a private actor with the police. In our view, they constitute a search that infringes s. 8 of the Charter.

R. v. Kang-Brown; R. v. A.M.

In these cases involving the use of sniffer dogs to conduct searches, the court was divided on the common law authority to use sniffer dogs to conduct searches without statutory authority. The judges who found that there was common law authority agreed that it is constrained to situations in which there is “reasonable suspicion”. In a spirited dissent, however, LeBel J. stated in R. v. Kang-Brown (at paras. 5 to 12):

Section 8 of the Charter expresses one of the core values of our society: respect for personal privacy and autonomy. A significant proportion of Charter decisions have concerned the interpretation and application of s. 8. [...] Although the word “privacy” does not appear in the Charter, from the first days of its application, s. 8 evolved into a shield against unjustified state intrusions on personal privacy [...].

Even before the Charter came into force, the courts were protective of privacy rights, although they tended to ground that protection in the notions of territoriality and of the relative sanctity of property interests [...]. They modified this approach under the Charter, defining privacy interests as personal rights [...]. This shift underscores the crucial importance of privacy interests in the interpretation of s. 8 [...].

The protection of privacy interests rests on the constraints, like the requirements of prior authorization and reasonableness, imposed on those conducting searches and seizures by the wording of s. 8 and by the courts in applying that section. The needs of law enforcement have to be taken into consideration and to be balanced with reasonable expectations of privacy. Nevertheless, in the leading cases on s. 8, the courts imposed significant constraints on intrusions on personal privacy by state agents. These constraints were found necessary because [...] “to determine the balance of the competing interests after the search had been conducted” amounts to an “[ex] post facto analysis [that] would . . . be seriously at odds with the purpose of s. 8”. That purpose, our Court then emphasized, “requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place” [...]. Those constraints were — and in general still are, since this Court has never resiled from them — that there be a legal basis for the search or seizure in a statute or at common law, prior judicial authorization, and reasonable and probable cause. Departures from that constitutional framework had to be justified by the state. [...].

These considerations lead me back to the central question in the present appeal: the proper performance of the courts’ lawmaking function. In my opinion, the jurisprudence-based solutions advanced in the reasons of certain of my colleagues, who openly or implicitly advocate the creation of new common law rules reducing the standard of scrutiny of state intrusion into privacy, do not represent an appropriate exercise of judicial power in the circumstances of this appeal and of the companion appeal in A.M.

The common law has long been viewed as a law of liberty. Should we move away from that tradition, which is still part of the ethos of our legal system and of our democracy? This case is about the freedom of individuals and the proper function of the courts as guardians of the Constitution. I doubt that it should lead us to depart from the common law tradition of freedom by changing the common law itself to restrict the freedoms protected by the Constitution under s. 8 of the Charter.

 One thing seems safe to predict: the debate will continue.