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Privacy and Personal Autonomy

  • January 2, 2015
  • Clayton Rice, Q.C.

Conventional wisdom ascribes to the view that private information means secret information. Such a limited view of privacy distorts the broader meaning and substantive content of s. 8 of the Charter of Rights. The right to be secure against unreasonable search or seizure embodies a guarantee not merely of secrecy but of personal autonomy. Section 8 protects all Canadians from unjustified government actions that disturb our peace and tranquility – not just from those actions that interfere with secrecy. The language of s. 8 explicitly protects the right to be secure against unreasonable search or seizure by requiring four things: (a) prior judicial authorization; (b) based upon probable cause; (c) in a narrowly drafted warrant; (d) with provision for subsequent accountability.

Section 8, as with the Fourth Amendment to the Constitution of the United States, does not use the word privacy. This interest, however, is undoubtedly protected by the Supreme Court of Canada decision in Hunter v. Southam Inc., [1984] 2 S.C.R. 145 where Justice Brian Dickson, at p. 160, recognized that the purpose of s. 8 is to protect individuals from unjustified state intrusions upon their privacy. Intrusions upon privacy are intrusions upon our security and tranquility. They violate the Constitution even when they do not expose our secrets.

The right to be secure from unjustified government intrusion is sometimes called the right of the citizen to be left alone. In Hunter, Justice Dickson relied upon Katz v. United States, 389 U.S. 347 (1967) where Justice Potter Stewart, in the majority opinion of the Supreme Court of the United States, discussed the right to privacy at p. 350 as the “right to be let alone by other people”. The right was affirmed by the Supreme Court of Canada in R. v. Kokesch, [1990] 3 S.C.R. 3 where Justice John Sopinka stated, at p. 29: “Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally.”

The right to be left alone was not new to Fourth Amendment jurisprudence at the time of Katz and at least dates back to Olmstead v. United States, 277 U.S. 438 (1928) where Justice Louis Brandeis at p. 478 called “the right to be let alone…the right most valued by civilized men.” The right might even find roots in antiquity where Cicero, the Roman statesman and lawyer, declared: “What is more inviolable…than the house of a citizen? This place of refuge is so sacred to all men, that to be dragged from thence is unlawful.” The right to be left alone preserves for all Canadians the ability to claim a private space in which they are free to explore new ideas, a space in which they claim shelter from government scrutiny, a space that enhances personal autonomy.

The domain of personal autonomy is not restricted by the narrow confines of secrecy. It extends to information shared with family, friends and business colleagues. It extends to a bank or internet service provider under promise of confidentiality. Professor Stephen J. Schulhofer, in More Essential Than Ever: The Fourth Amendment in the Twenty-first Century (2012) put it this way, at p. 130:

“Only a hermit can lay claim to complete secrecy. For anyone who wishes to inhabit the world, daily life inevitably involves personal associations and the information we exchange within them. Relationships give meaning to our lives and define a large part of who we are. To insist that information is private only when it remains completely secret is preposterous. Indeed, personal information often becomes more valuable when we share it confidentially with chosen associates who help us pursue common projects. As Judge Richard Posner puts it, “productive independent thinking almost always requires bouncing ideas off other people.” Though shared, the information remains private until we relinquish control and expose it to the public.

In contemporary experience, where social networks have pervasive importance, this reality is especially clear. But even in the eighteenth century, the claim that the right to privacy requires complete secrecy would have been incomprehensible. The colonists who conferred with friends while planning the American revolution did not think that by sharing confidential information they had lost their right to exclude strangers.”

The ability of the individual to flourish in a vibrant democracy cannot survive in the absence of opportunities for privacy. Professor Schulhofer draws on the grim experience of the last century to make this point, at p. 178:

“The ability to control what we reveal about ourselves and to whom is essential for having a sense of personal peace, for trying out new ideas, and for developing our potential. Justice Robert Jackson, fresh from serving as chief U.S. prosecutor at the Nuremberg war crimes trials, saw the experience of Nazi Germany and invoked it in his Fourth Amendment opinions on his return to the Court: ‘Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. [D]ignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure.’ Even for the most conventional among us, personal autonomy – the ability to flourish as an independent individual – cannot survive in the absence of opportunities for privacy.”

Privacy fosters the moral autonomy of the citizen which is vital in a democratic society. It underwrites the freedom to vote and to associate without fear of reprisal. Anita L. Allen, in Uneasy Access: Privacy for Women in a Free Society (1988) states at p. 51 that: “…privacy make[s] persons more fit for social participation and contribution to the pool of resources and assets available to all.” But, as Professor Daniel J. Solove observes in Understanding Privacy (2009) at p. 98: “Privacy certainly protects the individual, but not because of some inherent value of respect for personhood. Instead, privacy protects the individual because of the benefits it confers on society.”

I am uncertain whether the distinction made by Professor Solove makes a difference. Moral autonomy has intrinsic value which benefits both the individual and society. In the context of intrusions on privacy by government, the Supreme Court of the United States in Katz, and the Supreme Court of Canada in Hunter, have recognized that the Fourth Amendment and s. 8 protect people not places. Both provide sheltered space for nonconformity and political disagreement which benefits society as a whole. I will borrow from Professor Schulhofer at pp. 14-15. The genius of the Fourth Amendment and s. 8 is that they do not ban all invasions of privacy. The right to be secure is based on a reasonable expectation of privacy which regulates searches and seizures to ensure that they are justified and are not casual fishing expeditions.

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