Privacy in Peril
Privacy rights in Canada have been on the decline for some time, especially as they relate to police powers. More recently with the advent of handheld computing, the risk of serious privacy incursions now inhabits every moment of most people’s daily lives. There is no refuge that is out of reach of the prying eyes of just about everyone from friends and acquaintances to law enforcement. This also means that there is a greater need than ever for strong privacy protections in Canadian law, yet, if the work of Richard Jochelson and David Ireland in their recent book Privacy in Peril is of any indication, the privacy rights of Canadians continue to diminish with time. Privacy in Peril deals more specifically with the freedom from unreasonable search and seizure protections outlined in section 8 of the Canadian Charter of Human Rights. The fact that the court has been chipping away at these rights is indeed reason for concern in light of the supposed Charter protection. Privacy in Peril centers around the 1984 Supreme Court case of Hunter v. Southam.
The decision in Hunter by Chief Justice Dickson essentially set out the requirements in order to conduct a valid search in consideration of section 8 of the Charter. Dickson elaborated a number of points to this end. Jochelson and Ireland restate these in the opening part of their book. Among these was the requirement that searches be authorized in advance where feasible, and that in the case of warrantless searches, the burden fell upon the party conducting the search to rebut the presumption of the unreasonableness of the search. Dickson also stipulated that there would be a preference to the individual’s right to privacy over the state’s interest in interference (Jochelson and Ireland. p. 19). At first glance, these seem like fairly strong protections and that Canadians could rest assured that they would be protected from unreasonable interference. These protections today would certainly be in direct contradiction of some contemporary search laws, the latest bill on the enforcement of impaired driving laws comes to mind. These laws allow officers to take breath samples from any driver they pull over without requiring some sort of justification to conduct the search first (Mandatory alcohol screening provision of bill C-46). This is a marked departure from the requirement of obtaining warrants to conduct searches where possible. This sort of legislation could be used to implement search powers in almost any scenario and legislate Canadians’ section 8 rights out of existence, leaving a hollowed-out shell it its place. Officially, we would have the right to the freedom from unreasonable search and seizure, but in practice there would be no substance to section 8 of the Charter, as a simple piece of legislation could destroy that right.
Evidently, there are serious public policy reasons for implementing the mandatory alcohol screening provisions in C-46. The fact that police have more power to enforce existing impaired driving laws, and indeed the stricter laws contained in bill C-46, can help to make the roads safer for all users. The question, becomes, at what point does the incursion of privacy rights cease to be beneficial on the whole and start becoming detrimental to the functioning of a free and democratic society. Safety and security could quickly become buzzwords used to justify any regulation under the auspices that they are in the public’s best interest.
“But the court should step in and protect our Charter rights,” one might argue. “Why should we be concerned about this legislation that is obviously a net positive on its balance?” The simple answer in the 35 years since Hunter, the courts have constantly been finding ways to write new police powers into the law. As explained in Privacy in Peril, the courts have demonstrated a willingness over the decades to carve exceptions out of section 8 protections. This seems odd, given the strong position taken by Dickson in Hunter. There is now a large amount of search rights created by the common law where legislation has remained silent. It seems that this has created a double-edged sword for privacy rights. On the one hand, the government, through legislation like C-46, has been legislating section 8 protections out of existence, and on the other, the courts are also seemingly constantly creating new police powers in the common law. The privacy rights set out in section 8 of the Charter thus face a deadly cocktail of both legislation and a permissive court, not overly concerned with the incursion of police powers into the privacy rights of Canadians. To answer the question earlier, this means that it seems to be much easier to lose privacy rights than to gain them, and this should be of great concern to any person who values the freedom that we, as Canadians, ought to enjoy under the Charter.
I do have to reiterate, that there are often good public policy reasons for making these incursions into privacy. One of them, as I described earlier is the obvious social good of stemming drinking and driving and the dangers that flow from it. There are also obvious benefits to relaxing search protections in situations such as airport security screenings, where the stakes are elevated given the level of damage and harm to human life that can occur as a result of a breach in security. However, the trend to increases in scope and permissiveness of search powers for police both at common law and in the legislature is a huge concern. There needs to be a balance between individual privacy rights and public policy concerns. Otherwise, the long arm of the law begins to take on dragnet characteristics and begins to work against the interests of a free and democratic society.
Jochelson, Richard and David Ireland. . UBC Press. 2019.
Parliament of Canada. . June 21, 2018. Accessed on December 6, 2019. https://www.parl.ca/DocumentViewer/en/42-1/bill/C-46/royal-assent#enH2032
Abedi, Maham. . Global News. Published Dec. 18, 2018. Accessed on December 6, 2019. https://globalnews.ca/news/4769690/canada-impaired-driving-laws/.