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FRAMED BY SECTION 8: CONSTITUTIONAL PROTECTION OF PRIVACY IN CANADA
Jane Bailey
Faculty of Law, University of Ottawa
The right to privacy in Canada is not explicitly protected by the Charter. Rather, privacy is protected indirectly through other constitutional rights. Leading among these is the section 8 Charter right against unreasonable search and seizure. It is predominantly within the context of accused persons’ section 8 challenges to state searches and seizures that the Canadian constitutional protection and conception of privacy have developed. Key to the section 8 inquiry is a determination of whether an expectation of privacy should be considered reasonable in the circumstances of a challenged search or seizure by state agents. While previously introduced categories of bodily, territorial, and informational privacy may have historically played a useful role in assessing the reasonableness of expectations of privacy, emerging information and surveillance technologies available to state agents increasingly blur the lines among these categories. Robust protection of privacy in the future may depend upon assisting courts in recognizing the broader social implications of the invasive profiling made possible through the aggregation of seemingly non-revealing and individually collected pieces of data.
DECIDING FOR OURSELVES: SOME THOUGHTS ON THE PSYCHOLOGY OF ASSESSING REASONABLE EXPECTATIONS OF PRIVACY
Jacquelyn Burkell
University of Western Ontario
Section 8 of the Canadian Charter of Rights and Freedoms guarantees to all Canadians the right "to be secure against unreasonable search and seizure". Decisions regarding this section of the Charter are typically made in the context of charges against an accused, and the accumulation of these decisions defines the boundaries of the privacy interests of Canadians vis-à-vis governmental action. But 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 privacy rights of all Canadians. This paper explores the judgmental biases that arise naturally in such a situation. The evidence from psychological literature suggests that the degree to which government actions are viewed as intrusive (and thus compromising privacy) will be reduced to the extent that the decision maker takes a third-party perspective (search of others, not oneself) and to the extent that there is knowledge of irrelevant situational information, including the results of the potential search (i.e., whether evidence was produced) and indication of the guilt or innocence of the subject of the search. In deciding the typical section 8 case, judges find themselves in exactly these positions, and they thus run the risk of attenuated perceptions of intrusiveness. Analysis of the empirical literature suggests strategies for minimizing this bias, including considering intrusiveness from a first-person perspective and adopting an explicitly analytical stance on the specific question of whether the actions in question constitute a search or seizure.
IF THE SUPREME COURT WERE ON FACEBOOK: EVALUATING THE REASONABLE EXPECTATION OF PRIVACY TEST FROM A SOCIAL PERSPECTIVE
Valerie Steeves
Department of Criminology, University of Ottawa
This article examines the Supreme Court of Canada’s position that reasonable expectations of privacy in informational spaces can be protected by focusing on the protection of the information itself. It then measures this position against the findings of social science research studies that have examined the behaviour of young people in online spaces. The author agues that the legal test being advanced by the Court is out of step with what we know about people’s online experiences and expectations. As such, the test may limit the Court’s ability to protect us from surveillance technologies that negatively affect our dignity, autonomy, and social freedom. Especially as more of our public and private lives migrate to virtual spaces, it is essential that the courts begin to pay attention to the lessons to be gleaned from the social sciences research on privacy and reinvigorate the legal protection of privacy as a social value.
DEEPLY PERSONAL INFORMATION AND THE REASONABLE EXPECTATION OF PRIVACY IN TESSLING
David Matheson
Department of Philosophy, Carleton University
In the landmark privacy case of
R. v. Tessling (2004), the Supreme Court of Canada ruled that the respondent did not have a reasonable expectation of privacy with respect to information about him that officers from the Royal Canadian Mounted Police were able to acquire by the warrantless use of infrared imaging directed at his home. In an effort to understand the cogency of the Court’s ruling, this paper explores the question of what sort of personal information in general can be said to be covered by a reasonable expectation of privacy, that is, of what constitutes "deeply personal information". One prominent account in the privacy literature suggests that deeply personal information is tied to sensitivity: what distinguishes deeply personal information from other sorts of information about individuals, on the sensitivity account, has essentially to do with how sensitive they are to widespread knowledge of it. After raising some problems for this account, I go on to articulate a novel one: on my "self-narrative" account, whether personal information counts as deeply personal depends on whether open access to it would seriously undermine the individual’s ability to tell her own unique story about herself to others – for herself and on her own terms. The upshot of this novel account is that we may have to concede that the Supreme Court got it at least partly right in
R. v. Tessling: the respondent did not have a reasonable expectation of privacy with respect to the relevant information acquired by the RCMP’s warrantless infrared search. Even so, I suggest, it does not follow that the warrantless search failed in any way to violate the respondent’s section 8 Charter rights. It is perhaps time to stop trying to make the reasonable expectation of privacy do all the work required by the Charter’s protection against unreasonable search and seizure.
TESSLING ON MY BRAIN: THE FUTURE OF LIE DETECTION AND BRAIN PRIVACY IN THE CRIMINAL JUSTICE SYSTEM
Ian Kerr
Faculty of Law, Faculty of Medicine, Department of Philosophy,
University of Ottawa
Max Binnie and Cynthia Aoki
Faculty of Law, University of Ottawa
The criminal justice system requires reliable means of detecting truth and lies. A battery of emerging neuro-imaging technologies makes it possible to gauge and monitor brain activity without the need to penetrate the cranium. Bypassing external physiological indicators of dishonesty relied upon by previous lie detection techniques, some neuro-imaging experts believe in the possibility of reliable brain-scan lie-detection systems in the criminal justice system. Because future generations of neuro-technology will become smaller and sleeker, will have greater read ranges, and could one day interface with implantable microchips, some of those experts also believe in the possibility of remote, surreptitious brain surveillance. In this article, the authors examine such possibilities and assert that Canadian courts’ current approach to protecting privacy cannot easily accommodate the challenges caused by these emerging technologies. The article commences with an examination of the "reasonable expectation of privacy" standard adopted by the Supreme Court of Canada, arguing that various courts across Canada have misunderstood and misapplied the
R. v. Tessling decision by way of an inappropriate analogy. After a description of brain-scan lie-detection systems, the authors then examine the courts’ use of
Tessling analogy in the context of brain privacy. In addition to demonstrating the danger in a generalized judicial proposition that there is no reasonable expectation of privacy in information emanating from a private place into a public space, the authors conclude that a more robust account of brain privacy is required and speculate about possible sources of law from which this might derive.
ADDENDUM: A BRIEF NOTE ON PRIVACY FROM A TECHNOLOGICAL PERSPECTIVE
Carlisle Adams
School of Information Technology and Engineering,
University of Ottawa
Verónica B. Piñero
Laboratoire en traditions juridiques et rationalité pénale, C.I.R.C.E.M.,
Université d’Ottawa
The Supreme Court of Canada’s judgment in
R. v Tessling (2004) has become a paradigmatic decision because of its implications for technology and privacy. In this article, we contend that
Tessling could have had a reasonable expectation of privacy about the heat emanating from his house if a technological point of view had been applied. In particular, we argue, from a description of the technological perspective aimed at an audience who do not primarily have a technological background, that if heat emanations escaping through the walls of an individual’s house are considered a "communication network", privacy could be imposed upon them through technological and/or societal mechanisms. In other words, if the heat emanations are considered an element or part of a given communication those heat emanations can be protected through privacy procedures. For this discussion, we first provide a brief introduction to basic communication technology and then explore the implications of effective communication. Finally, we describe a classification scheme for techniques that can help to achieve privacy in a given communication.
