The Right to Be Left Alone and Police Powers in Canada: Is an Update Needed?

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(Disponible en français : Le droit de ne pas être importuné et les pouvoirs policiers au Canada : une mise à jour s’impose‑t‑elle?)

One of the pillars of the law is predictability. Yet decisions of Canada’s highest court on the expectation of privacy and police powers are so hard to predict that they resemble a house of cards on the verge of collapse. Furthermore, many unknowns are involved, such as technological changes and the makeup of the Supreme Court of Canada.

In interpreting section 8 of the Canadian Charter of Rights and Freedoms (Charter), which guarantees everyone “the right to be secure against unreasonable search or seizure,” the Court has often issued contradictory decisions of very limited scope. Examples of this come readily to mind, such as decisions that apply only to text messages sent in real time (but not those saved in a cellular phone), penile swabs (but not vaginal swabs), and household waste at the side of the road (but not waste left next to the garage). These decisions have made the criminal law as complicated as the cat-and-mouse game of tax evasion.

In the landmark 1984 decision Hunter et al. v. Southam Inc. (influenced by the American ruling in Katz v. United States), Justice Dickson laid the foundation for interpreting section 8 of the Charter:

  • This section protects people, not places.
  • The right to privacy is distinct from the right to property.
  • Whenever a person has a “reasonable” expectation of privacy, the police must generally obtain prior judicial authorization.

The following infographic provides a summary of several of the Supreme Court’s subsequent decisions in which the concepts of control over the seized object, the risk of disclosure of the communication and the impacts on police practices have divided the Court and reduced predictability.

The title of the table is: search and seizure powers. The table is divided into two columns. The left-hand column is entitled: reasonable expectation of privacy (warrant). This column contains nine rows whose text is written in superimposition on the image of a judge's robe in red and black. These nine rows contain the following text: Text messages saved in another person’s device. Electronic interception of private communication between a suspect and police. Bag on passenger seat during random roadside check. Buccal swabs, hair samples and teeth impressions. Visual, olfactory and aural observations made by police officers around a suspect’s home. Locker at a bus depot. Tissue discarded in a wastebasket by a suspect detained in a police station. Employer-issued laptop computer. Name and address of a subscriber in the computerized records of an Internet service provider. The right-hand column is entitled: no reasonable expectation of privacy (no warrant). This column contains nine rows with text superimposed on the image of a police officer seen from behind wearing a blue uniform with the word "police" written on it. These nine rows contain the following text: Search of a cellular phone during an arrest. Facebook communications between an adult and a fictitious child created by police. Vehicle passenger with tenuous link to the vehicle owner. Penile swabs taken during an arrest. Heat radiating from a private residence recorded by an infrared camera. Search with a sniffer dog based on reasonable suspicion. Household waste placed at the edge of a property for collection. Apartment of an accused’s girlfriend to which the accused has a key. Computerized records and electricity consumption patterns.

Given that the courts are the guardians of the Constitution, the few rules the Supreme Court has established regarding section 8 are undeniably still quite vague – including the fact that judges must take into account the “totality of the circumstances.” In sum, according to the Supreme Court itself, judicial decisions on the expectation of privacy remain value-laden and very difficult to predict from case to case.

It would take a very shrewd person indeed to predict the existence of a reasonable expectation of privacy in regard to emerging issues such as the following:

  • police access to passwords and encrypted data;
  • random alcohol and drug testing (impaired driving);
  • warrantless access to public information (e.g., data taken from social media); and
  • text messages from a sexual predator or violent spouse saved in the victim’s device.

Accordingly, here is a starting point for further study: Should Parliament intervene to set clear rules of general application with respect to privacy and police searches? It is worth noting that the last major changes to Part VI of the Criminal Code (Invasion of Privacy) date back to the 1970s, well before the proliferation of computers, cellular phones and mobile devices.

Author: Dominique Valiquet, Library of Parliament

Categories: Information and communications, Law, justice and rights

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