The Intimate and Biographical Core of Personal Information - Kerith Tung
Personal information is given out all the time, but what constitutes personal information at a societal level can be subjective. For example, some people may not hesitate to have their phone number posted online for all to see; others may prefer to ensure that all personal information is private. It is fortunate, then, that when determining a legally reasonable expectation of privacy as set out in Hunter v Southam (“Hunter”), the threshold was designed to be normative: a reasonable standard of privacy that was intended to be broadly interpreted. Unfortunately, courts have taken a flexible approach to the determination of a reasonable expectation of privacy. This has led to a “case-by-case” basis of determining reasonable expectation of privacy using contextual factors. In this blog, I will discuss why a flexible case-by-case approach in determining the intimate and biographical nature of personal information is detrimental to the protection of privacy.
Background: Hunter v Southam and the R v Tessling Test
Hunter is a landmark case that considered the scope of section 8 of the Canadian Charter of Rights and Freedoms (“the Charter”): “Everyone has the right to be secure against unreasonable search or seizure.” One of the most significant principles that can be derived from Hunter is that section 8 only protects a reasonable expectation of privacy. Without establishment of a reasonable expectation of privacy, there can be no argument that a warrantless search is unreasonable. Justice Brian Dickson, in his decision, formed the concept of a reasonable expectation of privacy as a broad threshold to be met. In the book “Privacy and Peril: Hunter v Southam and the Drift from Reasonable Search Protections,” Richard Jochelson and David Ireland argue that the threshold as set out by Dickson is a “bright-line” that provides a resolution for legal issues in a clear and predictable manner. Although Hunter involved an administrative search, the principles established in Hunter have been expanded by Canadian courts to police search and seizure powers. The reasonable expectation of privacy stage, in particular, has been subjected to a flexible approach that allows courts to reduce the privacy standard. As a result, a lower standard of search and seizure may also be applied; this creates a spectrum of reasonable expectation of privacy that was likely unintended in Dickson’s Hunter decision.
The case of R v Tessling (“Tessling”)dealt with surveillance of a home using infrared radiation detection from an airplane.Tessling set out three broad categories of privacy interest: personal, territorial, and informational privacy. With regar to informational privacy, the court built upon the case of R v Edwards to deliver a foundational totality-of-the-circumstances test (“the test”):
(1) What was the nature or subject matter of the evidence gathered by the police?
(2) Did the accused have a direct interest in the contents?
(3) Did the accused have a subjective expectation of privacy in the subject matter?
(4) If so, was the expectation objectively reasonable? In this respect, regard must be had to:
(a) the place where the alleged "search" occurred
(b) whether the subject matter was in public view;
(c) whether the subject matter had been abandoned;
(d) whether the information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
(e) whether the police technique was intrusive in relation to the privacy interest;
(f) whether the use of this evidence gathering technique was itself objectively unreasonable
(g) whether the subject matter exposed any intimate details of the accused's lifestyle, or information of a biographic nature
The above test derived from Tessling was modified in subsequent cases dealing with reasonable expectation of privacy such as R v Kang-Brown and R v AM, but the basic elements were and still are relatively untouched. As Jochelson and Ireland observed, the flexibility of the test allowed the Supreme Court to reduce the reasonable expectation of privacy, thereby eliminating the need for a warrant to “search” the accused’s home using infrared technology. Certain factors of the test were given differing weight in reaching a conclusion. The consideration of intimate and biographical nature of personal information was and still is particularly significant, as this factor considers the actual nature of the information exposed.
As referenced in a prior case, R v Plant, it is extremely difficult to draw a precise line at where information becomes so intimate as to expose details of an accused’s lifestyle or biographical core. I agree with this notion to some extent; it would be ridiculous to expect that courts delineate all the possible information that could be separated into mundane or highly personal categories. I disagree, however, with the courts’ case-by-case approach with particular regard to determining the biographical core factor. Using purely contextual factors ultimately leaves discretion to the courts in determining what information should be personal in nature. This approach has remained unchanged, as seen in a recent case.
Modern Application of the Intimate and Biographical Core Consideration in the Totality-of-the-Circumstances Test: R v Telfer
The recent Manitoba Court of Appeal case, R v Telfer (“Telfer”), thoroughly explores the framework of the test as set out in Tessling. The accused in Telfer was charged for first degree murder; the accused shot and killed the victim from the accused’s vehicle. An eyewitness provided the license number of the accused’s vehicle to the Winnipeg Police Service (“WPS”). Upon running the plates, the WPS found that the accused’s vehicle belonged to the rental car company Budget. Without a warrant, the WPS had Budget provide the accused’s name, cell phone number, driver’s licence number, and credit card number. The WPS used the cell phone number to obtain the accused’s address. When the accused returned the vehicle, the WPS obtained a warrant to search and seize the vehicle.
The accused was of the position that they had a reasonable expectation of privacy regarding the Budget information, and that the Budget information should not have been admissible evidence as per s. 24(2) of the Criminal Code. The accused failed, however, to testify with regards to their subjective expectation of privacy. Despite the omission to testify, that would normally automatically lead to no finding of expectation of privacy, the court proceeded to do a thorough objective analysis as per the test in Tessler as though a subjective expectation of privacy had been found.
The facts of the case were simple enough to establish that, overall, no reasonable expectation of privacy should be found. The analysis of the intimate and biographical core factor was a critical factor in the court’s reasoning. The court held that all of the Budget information was arguably mundane. There was case law to support the fact that cell phone numbers were not “intimate details of the lifestyle and personal choices” of the accused. Credit card numbers were also held to not be highly personal, as this information was accessible to anyone entitled to do a credit check; section 5(c) of Manitoba’s The Personal Investigations Act allows police to conduct credit reports. The conclusion of these factors, along with the fact that Budget had no actual obligation of confidentiality when illegal activity was involved, formed a large part of the argument that led to a finding of no reasonable expectation of privacy.
Returning to Hunter: A Bright-line Threshold for the Biographical Core Consideration
I agree with the outcome of Telfer; the court was well reasoned in the overall consideration of factors to find that no expectation of privacy existed. I disagree, however, with the lack of a broad threshold that should have been applied, particularly with regard to the biographical core consideration. The personal information in Telfer was simple and previously explored such that the court could rely on precedent. The problem arises, however, when novel concepts of personal information emerge. Determining the nature of personal information will always be a critical step in the reasonable expectation of privacy stage. The fact that courts must consider the nature of personal information on a case-by-case basis suggests that there is no guiding threshold for law enforcement to follow. Furthermore, protection of privacy should not be limited to a retrospective approach. If courts must use a case-by-case approach to determine that novel concepts of personal information are, in fact, of an intimate and biographical core, that information has already been exposed and the damage has been done. As previously mentioned, this approach also gives discretion to the courts to determine what should be highly personal information. As seen in Telfer, exposure of credit card information was deemed not personal, as authority to obtain credit card information was previously set out in statute. I would argue that the specifics of discretion are better left to Parliament as democratically elected leaders; the government is better situated to hear from society and have the resources to implement specific change. I agree that digital information on home computers is a biographical core of personal information, as evidenced by a body of cases the courts developed. The problem is that it took a body of case-by-case decisions to give definition to the nature of a broad class of information.
Difficulty in creating a Hunter bright-line for the biographical core consideration is understandable, but courts have addressed similar complex legal issues in the past. For example, the proof beyond a reasonable doubt standard has been given a definition: proof that is closer to absolute certainty than it is close to the civil balance of probability. It would be an unnecessary burden to the judicial system if all novel proof had to be examined on a case-to-case basis by the courts. Although this definition is not a clear cut and definitive bright-line, it at least provides some measure of guidance for those who are involved in the legal process. There are clear guideposts; a balance of probabilities has been defined at minimum as fifty-one percent and absolute certainty is one-hundred percent. I contend that a similar definition or threshold could be applied in determining the intimate and biographical core of personal information.
 Hunter v Southam,  2 SCR 145.  Richard Jochelson & David Ireland, Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections (Vancouver, BC: UBC Press, 2019) at 59.  William MacKinnon, “Tessling, Brown, and A.M.: Towards a Principled Approach to Section 8” (2007) 47 Alta L Rev 79 at 81.  Canadian Charter of Rights and Freedoms, s 8, Part I of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.  Jochelson & Ireland, supra note 2 at 62.  Ibid.  Ibid at 42, 62.  Ibid at 62.  R v Tessling, 2004 SCC 67.  Ibid at para 20.  Ibid at paras 31-32.  R v Kang-Brown, 2008 SCC 18.  R v AM, 2008 SCC 19.  Jochelson & Ireland, supra note 2 at 38.  Ibid at 37.  R v Plant,  3 SCR 281.  MacKinnon, supra note 3 at 104.  R v Telfer, 2021 MBCA 38.  Ibid at para 36.  Ibid at para 64.  Ibid at para 63.  Ibid; see also The Personal Investigations Act, SM 2009, c 15, CCSM c P34, s 5(c).  MacKinnon, supra note 3 at 107  Ibid.  Jochelson & Ireland, supra note 2 at 48-52.  MacKinnon, supra note 3 at 105.