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Privacy Matters

  • June 16, 2014
  • Clayton Rice, K.C.

The Charter of Rights protects three privacy interests which we encounter in our daily lives. Mr. Justice Ian Binnie of the Supreme Court of Canada identified them as: personal privacy (bodily integrity), territorial privacy (privacy in the home) and informational privacy (information about ourselves and our activities). Informational privacy has been defined as, “…the claim of individuals, groups or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.” (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 at paras. 21-23; and, A.F. Weston, Privacy and Freedom (1970) at p. 7)

We take these privacy interests for granted but they are imperilled by the intrusiveness of state security agencies, the pervasiveness of surveillance cameras in public places, the mobility of surreptitious recording equipment and the Internet.

The law considers wiretaps to be more intrusive on the privacy of individuals than searches of premises. (See: R. v. Garofoli, [1990] 2 S.C.R. 1421 at para. 33) From the perspective of personal autonomy wiretaps are also more intrusive than invasions of bodily integrity such as strip searches by the police and DNA warrants. Why? Because wiretapping is done in secret. You never know when you are being listened to and recorded. A wiretap is a search of our thoughts as expressed through our words. It is a search of the mind. It robs the soul.

Justice Gerald La Forest of the Supreme Court of Canada had his finger on the pulse of privacy rights during his years on the court from 1985 to 1997. In R. v. Duarte, [1990] 1 S.C.R. 30, one of many leading judgments he wrote on privacy law, he stated at para. 22: “…[If]the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. As Douglas J., dissenting in U.S. v. White, supra, put it, at p. 756: ‘Electronic surveillance is the greatest leveller of human privacy ever known’.”

Eight years later in 1998 Bruce Phillips, Privacy Commissioner of Canada, in a speech to the Standing Committee on Industry, Bill C-54, the Personal Information Protection and Electronic Documents Act, said: “Privacy matters. Never has this value been more vital to an individual’s free existence, nor more threatened, than in the technologically advanced societies in which we live. And never have the challenges and the threats been couched in sweeter and more reasonable language than in democracies committed to free speech, free markets, personal safety, caring social programs and, most ominous of all, efficient government.”

In the last thirteen years trial judges in Canada have become increasingly forgiving of breaches of wiretap authorizations by the police. I have seen judicial tolerance of failures by the police to make full disclosure to authorizing judges in wiretap applications, failures by the police to properly implement limiting requirements and interception of telephone calls between lawyers and their clients. I will discuss these and other specific issues in future posts.

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