(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.
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