Privacy Rights according to the Supreme Court of Canada

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CAPA Conference 1997

October 30, 1997
Ottawa, Ontario

H. A. Harris
General Counsel
(Check Against Delivery)

The Supreme Court has tended to view privacy in its emanation as a human right, a Charter protected value. Some tensions exist in the natural course of events and the Supreme Court has become the forum for sorting the tension out: how to effect a balance between Canadians reasonable expectation of privacy, a right guaranteed implicitly by the Charter and the counter interests of the state, such as law enforcement.

There are also counter interests in the private sector such as the profitability of marketing Canadians' personal information. These interests are not typically addressed through the Charter, as you may know, because the Charter limits state action and does not regulate the practices of private enterprise directly (although I must say that the Supreme Court has not been disinclined to adopt a greater dimension of what constitutes state action).

In any event, the State is still one of the largest purveyors of personal information, that in itself causes tension: the State is charged with responsibility under the Privacy Act to protect data at the same time as it collects and uses it. That is why the Courts, particularly the Supreme Court, have come to play such a pivotal role in the protection of privacy.

A variety of Charter provisions provide protection to privacy values:

  • Section 2 protects individuals' abilities to decide personal beliefs and opinions.
  • Section 10 gives individuals a right to legal counsel and the courts have interpreted that to mean counsel in private.
  • Sections 11 and 13 provide the right against self-incrimination.

These are all rights which protect informational privacy by controlling the way information is collected and used. Section 7 provides a right not to be deprived of life, liberty and security of the person, except in accordance with the principles of fundamental justice. This is at least suggestive of privacy protection. But it is section 8 of the Charter - the protection against unreasonable search and seizure - which has been the most valuable for privacy advocates. Despite the lack of a specifically entrenched right to privacy in the Charter, the Supreme Court has accorded privacy constitutional protection as a fundamental human right via primarily section 8. It's worth having a closer look at some of these Supreme Court of Canada decisions because they can provide tools for advancing privacy.

In Lawson Hunter et al. v. Southam Inc., the Supreme Court stated that a major purpose of the constitutional protection against unreasonable search and seizure under section 8 of the Charter of Rights and Freedoms was the protection of the privacy of the individual.

The case involved a constitutional challenge to a search conducted under the Combines Investigation Act. The Court concluded that to assess the constitutionality of a search, it must focus on the search's reasonableness or unreasonableness in terms of its impact on the individual and not simply on its rationality in furthering a valid government objective. Mr. Justice Dickson of the Supreme Court advanced in this case for the first time the precept of reasonable expectation of privacy as a standard against which government action should be scrutinized. The difficulty is this test of reasonable expectation has led to a certain lack of precision in its application by the Court as we'll see in a minute.

In R. v. Stewart, a union seeking to organize the employees of a certain hotel, hired Mr. Stewart to obtain the names, addresses and telephone numbers of the hotel's employees. Mr. Stewart contacted the hotel security guard and offered to purchase the information. The guard refused as he knew he was not authorized to access that information through the hotel records and that the hotel had previously refused to give that same information to the union. Mr. Stewart was charged with counselling to commit fraud and theft.

After an acquittal at trial, the Court of Appeal entered a conviction on the charge. The Supreme Court allowed the appeal on the basis that confidential information does not qualify as property, at least for the purposes of the Criminal Code and that Mr. Stewart's conduct did not amount to fraud as it did not involve a risk of economic loss amounting to deprivation. (But that's not the important part.) Cory J.A., as he then was, suggested that information and its collection, collation and interpretation are so vital to modern enterprises that it may be considered their most valuable asset. He then concluded that the confidential or private nature of the information is exactly what gives it its proprietary interest.

Picking up on that theme, Mr. Justice Lamer, as he then was in the Supreme Court (he is now Chief Justice) acknowledged that, "... given recent technological developments, confidential information, and in some instances, information of a commercial value, is in need of some protection" but he considered that this was best left to Parliament.

Some six months later, Mr. Justice Lamer had an opportunity to revisit these notions in R. Dyment. In that case, decided before amendments to the Criminal Code dealing with blood samples, a doctor drew a blood sample from an emergency patient without his consent or knowledge in order to provide medical treatment and later gave it to a police officer for his investigation.

The sample was used to secure a conviction of impaired driving. Mr. Justice Lamer found that the blood was held by the doctor subject to a duty to respect the patient's privacy; and Mr. Justice La Forest found that the officer breached the respondent's privacy interests in the sample and so effected a seizure within the meaning of section 8 of the Charter of Rights. This case is often cited for identifying the three types of privacy: physical, territorial and informational. Actually, as the Court pointed out, these categories were first identified in a 1972 joint study by the Federal Department of Justice and the Department of Communications. The Court accepted that the notion of privacy derives from the assumption that all information about a person is in a fundamental way, his own.

Two years later, in R. v. Duarte, Mr. Justice La Forest had occasion to review the police practice of consent surveillance i.e. electronic surveillance without a court authorization where one of the parties to a conversation, an undercover police officer, surreptitiously records it. He reinforced the precept that the Charter standard for privacy is set at a reasonable expectation of privacy and that the particular police practice of audio-surveillance failed to meet that standard.

In the same year as Duarte, Mr. Justice LaForest wrote the majority reasons in a case involving unauthorized videotape surveillance of a hotel room. In R. v. Wong, he again stressed the need to interpret the individual's reasonable expectation of privacy in light of the social importance of privacy. In other words, the question for him should always be framed in a neutral manner, whether in a society such as ours, persons who retire to a hotel room and close the door have a reasonable expectation of privacy.

The trouble is Mr. Justice LaForest has a different way of applying the test from other members of the Court. He feels the Court must consider the reasonable expectation in the context of a free and democratic society, i.e. without reference to the illegal activity of the particular person. Mr. Justice Sopinka, on the other hand, and also Mr. Justice Lamer, appear to feel that the Court must evaluate the expectation in light of what a reasonable person placed in those circumstances could expect. For example, in R. v. Plant, Mr. Justice Sopinka wrote the Court's majority judgment which considered the individual's privacy interest in computerized utility records. He set out some five considerations to be used by the Court when determining whether or not the individual's expectation of privacy had been violated.

In this case, Calgary Police received a tip that an individual was growing marijuana in his house. They conducted a search of his electricity records held in the computer of the city's utility commission, using a remote terminal in the police station with a password given to them by the utility. They discovered in this manner that the house used four times the average amount of electricity, but typical use for a marijuana operation. Eventually, the owner was charged and convicted and the matter went up to the Supreme Court where it was argued that the warrantless search of the owner's computerized records violated his reasonable expectation of privacy under section 8 of the Charter.

The Supreme Court rejected the claim. Justice Sopinka set out his factors for applying the reasonable expectation test: one must consider the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained, and the seriousness of the crime being investigated. These factors, he felt, would properly allow for a balancing of the societal interest in protecting individual dignity, integrity and autonomy with effective law enforcement.

Under the last factor, he concluded that the seriousness of the accused's offence in this case suggested that the accused could not reasonably have a privacy interest which outweighed the state's interest in law enforcement. In a short but powerful dissent, Madame Justice McLachlin disagreed with the conclusion that police were free to search the database without a warrant. The proper question for her was whether the evidence disclosed a reasonable expectation that the information would be kept in confidence and used only for the purpose for which it was given.

This Justice, in the use of this kind of language, certainly appears to have read the Privacy Act!. Electricity records, she said, were close to the line but they deserved protection because they could reveal information about the individual's private life. She writes in her judgment:

"The records are capable of telling much about one's personal lifestyle, such as how many people lived in the house and what sort of activities were probably taking place there. The records tell a story about what is happening inside a private dwelling, the most private of all places. I think the reasonable person looking at these facts would conclude that the records should be used only for the purpose for which they were made, the delivery and billing for electricity, and not to be divulged to strangers without proper legal authorization."

In a speech which Mr. Justice Sopinka gave in September this year entitled "Freedom of Speech and Privacy in the Information Age", he spoke of his approach in the Plant case. He told the audience:

"The ease with which personal information can now be assimilated makes it possible for 'big brother' to be watching us. Unlike freedom of speech, there is no explicit right to privacy guaranteed under the Charter. However, s. 8, which provides everyone with the right against unreasonable search and seizure, is grounded in the right to privacy. The test for its application against government surveillance is the existence of a reasonable expectation of privacy. The more accessible the information about an individual, the less is his or her expectation of privacy. In recent years, a story appeared in the Ottawa newspapers that the police in the course of scanning bulletin boards detected a posting by a parolee which they believed showed that he had travelled to the U.S. in breach of his parole. The subject had obtained gainful employment in a car dealership, but was fired when the police arrested him. It turned out the police has misinterpreted the information.

In order to make out a breach of s. 8, our parole car salesman would have to distinguish R. v. Plant. In that case, we had to consider whether it was constitutionally permissible for the police to use its computer records of the electrical consumption at a specified address in order to determine whether or not it was likely that marijuana was being grown at the house, since this is often characterized by a higher than normal consumption of electricity. I observed that the 'Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state'. It could be said that information revealing a pattern of electricity consumption would fall into such a category. However, each case must be decided on its own facts, carefully analyzing the extent to which respect for one's personal privacy and dignity has been violated."

So there is on the one hand Justice Sopinka, a rather narrow contextualization of privacy and on the other, Justice La Forest, a much broader context.

Justice La Forest has, on occasion, in fact gone much further in pursuing privacy protection than the rest of the Court. In Edmonton Journal v. Alta (A.G.), the Court examined the rights of individuals to protect their privacy as against the right of newspapers to report on court proceedings. At issue was a provision of the Alberta Judicature Act which limited the publication of information relating to matrimonial cases. In his dissent, Justice La Forest concluded that, although freedom of expression and the need for open courts are important interests, the general publication of details of private family cases serves insufficient public interest and the limitation should stand. Most interestingly, in this case, it was recognized that the privacy of individuals is not only threatened by the interference of government but also by other powerful entities, such as the media, against which an individual is powerless.

More recently, the Court has extended the notion of privacy into that of reputation, perhaps opening the door to successful claims in damages for invasion of privacy. In Morris Manning and Church of Scientology of Toronto, Mr. Justice Cory stated:

"... reputation is intimately related to the right to privacy which has been accorded constitutional protection. As La Forest J. wrote in R. v. Dyment, 'privacy, including informational privacy, is [g]rounded in man's physical and moral autonomy and is essential for the well-being of the individual'. The publication of defamatory comments constitutes an invasion of the individual's personal privacy and is an affront to that person's dignity. The protection of a person's reputation is indeed worthy of protection in our democratic society ..."

This notion that the Charter is concerned not only with the protection of property but also the protection of privacy could be an extremely valuable one. Speaking before the Canadian Human Rights foundation in 1990, Mr. Justice LaForest suggested that "it is with the adoption of section 8 of the Charter that a privacy doctrine has truly developed". However, as Mr. Justice Sopinka has more recently re-iterated on the subject, "... It [the Charter] only applies to government action. Given that much of the world of electronic communication is controlled privately, without any government regulation, the Charter may be an ineffective tool ..."

So, if the Charter is a less than precise and a limited vehicle for privacy protection in the Supreme Court, how about Parliament? How about legislation as a better vehicle for privacy? The first case to reach the Supreme Court of Canada involving the interpretation of the Privacy Act, was the Dagg decision. Mr. Dagg wanted access under the Access to Information Act, to information in weekend log-in sheets of public servants. There is a mandatory exemption to access under the Access Act for other individuals' personal information. At trial, the two issues of interest to the Privacy Commissioner were the interpretation of the definition of personal information and the relative status of the Access Act to the Privacy Act.

Justice Cullen at the Trial level imported a new ingredient to the definition of personal information: a test of predominance. The information had to be predominantly personal in nature. Further, he suggested the Privacy Act is secondary in interest to the Access Act! Accordingly, the Privacy Commissioner intervened at the Federal Court of Appeal where the predominance test was rejected, the equality of the two statutes was restored and Mr. Dagg was denied the information.

At the Supreme Court of Canada, the Court of Appeal judgment was affirmed insofar as the two issues of importance to the Privacy Commissioner were concerned. However, Mr. Dagg obtained the information as it fell within a proper exception to the definition of personal information in the Privacy Act.

The Court was split 5 to 4, as has been mentioned. The majority judgment was written by Mr. Justice Cory and was concurred in by Chief Justice Lamer and Justice Sopinka - not a surprise in view of what we have heard about Justice Sopinka's approach to the reasonable expectation of privacy test, and by Madam Justice McLachlin, more surprisingly in view of her strong dissent in the Plant case. The dissent reasons were written by Mr. Justice La Forest. The majority and the minority decisions differ only on the meaning of s. 3(j) of the Privacy Act, i.e. does the type of personal information which appeared on overtime log-in sheets relate more or less to the position and function of the public servants? La Forest J. felt less, Sopinka J. and his group, more.

La Forest J. considered that the information revealed the times during which employees attended at their workplace on weekends and that therefore it was personal information about them. He accepted that there were numerous legitimate reasons why individuals may not wish members of the public to have access to their comings and goings.

It is difficult to discern a clear rationale behind the majority's decision that the information fell within the exception to the definition of personal information. Justice Cory simply said:

"Although this information may not disclose anything about the nature of the responsibilities of the position, it does provide a general indication of the extent of those responsibilities. Generally, the more work demanded of the employee, the longer will be the hours of work required to complete it in order to fulfil 'the responsibilities of the position held by the individual'. Nothing in s.3(j)(iii) of the Act indicates that the information must refer to 'responsibilities' in a qualitative, as opposed to quantitative, sense."

It is not really persuasive. To my mind, two things were really driving the majority - Firstly, the background to s. 8 of the Charter where the justices were generally true to their own previous interpretations and secondly, the relatively greater public understanding and knowledge of the Access to Information Act compared to the Privacy Act.

There are a number of cases which could be carried up to the Supreme Court where privacy will be more squarely faced off against not only the historically competing interests like law enforcement but those of judicial independence and governance issues. These will test the waters because they raise interests which the Court has traditionally protected.

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