Framed by Section 8: Constitutional Protection of Privacy in Canada
Bailey, Jane, Canadian Journal of Criminology and Criminal Justice
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. …