What is the right to be let alone and where does it come from?

Canadians expect to go about their daily lives free from state scrutiny. Seeing that citizens are afforded this freedom is one of the goals of Canadian society recognized in the Charter of Rights. The extent to which we are successful in achieving this aim shapes who we are and defines us as a society. (See e.g., R v Beairsto, 2018 ABCA 118 per curiam, at para 19)

The foundation text on the right to be left alone is Samuel Warren and Louis Brandeis’ article The Right to Privacy, 4 Harv LR 193 (1890). The authors had been classmates at Harvard Law School and went on to found the firm Warren & Brandeis (now Nutter McClennen & Fish) in Boston. Warren married a senator’s daughter and much to his profound irritation, he became a person of interest in the society pages of contemporary newspapers. Details of his domestic life were published and he developed a “deep-seated abhorrence” for the invasion of his privacy that gave rise to their joint article. (See: Dorothy J. Glancy. The Invention of the Right to Privacy. 21 Ariz LR 1 (1979), at pp 5-6)

Warren & Brandeis took issue with the invasive nature of the “recent inventions and business methods” of their time. They argued that the common law had to respond to protect the individual’s right “to be let alone”. Recent advancements in photography meant that subjects no longer had to sit for portraits and surreptitious photographs could be taken using “flash lights”. Specifically, they were concerned that “[i]nstantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the housetops’.” The unauthorized taking and circulation of portraits was a pressing concern, as illustrated by the contemporary case of Broadway actress, Marion Manola, who had been photographed performing in tights without her consent. (Glancy, at p 4)

The Harvard article, born of Warren’s irritation, became a pillar of American privacy law.

Brandeis later became a justice of the United States Supreme Court when his nomination by President Woodrow Wilson was confirmed by the Senate on June 1, 1916. He was waiting when a bootlegger from Seattle arrived at the court in the famous wiretap case of Olmstead v United States, 277 US 438 (1928). The issue in Olmstead involved the warrantless wiretapping of a vast network of alcohol bootleggers who were running a thriving business contrary to the National Prohibition Act. The Eighteenth Amendment to the Constitution of the United States, establishing the prohibition of “intoxicating liquors”, had been ratified on January 16, 1919. It was the Roaring Twenties.

The bootlegging enterprise involved large and small ships for transport, a rural ranch with vast underground storage capacities, various urban stash sites and a central office that employed operators, executives, salesmen, deliverymen, dispatchers, scouts, bookkeepers, collectors and a lawyer. The yearly profits were in the range of $2 million. The police installed “taps” on targeted telephones using small wires that were inserted along larger telephone wires and covertly gathered evidence over many months.

The majority of the Olmstead court held that the language of the Fourth Amendment (which protects the right of the people to be secure in their “houses, papers, and effects” against unreasonable searches and seizures) could not be “extended and expanded to include telephone wires reaching to the whole world.” The court reasoned that such wires are not part of one’s house or office “any more than are the highways along which they are stretched.” The wiretapping, then, did not amount to a search in law. Justice Brandeis dissented.

Justice Brandeis observed that when the Fourth Amendment was adopted, the methods of compelled testimony were simple – torture could compel a statement and private papers could be forcibly seized by a break and enter. As a matter of principle, the Fourth Amendment was adopted to protect against invasions of “the sanctities of a man’s home and the privacies of life.” He thought Fourth Amendment protections should keep pace with the changing times and technologies. He noted that “subtler and more far-reaching means of invading privacy have become available to the Government” and “have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”

Justice Brandeis expected that advancements in espionage were unlikely to stop and that the Government may someday be able to seize evidence of the most intimate domestic occurrences without having to go rummaging through one’s “secret drawers”. He feared that some yet unknown “advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.” It was in anticipation of such a world that he penned his “famous dissent” which now stands for the proposition that advances in science will not erode Fourth Amendment protections. [See: Carpenter v United States, slip op, 585 US _ (2018)]

Almost forty years later, the United States Supreme Court overruled Olmstead in the landmark case of Katz v United States, 389 US 347 (1967). Katz was a Los Angeles handicapper with a talent for college basketball wagers. He used a phone booth near his apartment to place bets across state lines. His activities attracted the attention of the FBI and the phone booth was wiretapped. Having uttered the phrase “Give me Duquesne minus seven for a nickel!” Katz was arrested and charged with multiple counts of transmitting wagering information by telephone.

The court reconsidered the implications of government wiretapping for Fourth Amendment rights. After noting that the Fourth Amendment “protects people; not places”, the court held that its protections should extend beyond the physical bounds of one’s home and property. The core question, now known as the Katz test, was whether one had “a reasonable expectation of privacy” in the circumstances. In a concurring opinion, Justice John Marshall Harlan II proposed a new two-stage test for determining reasonableness, at p 389: first, whether a person exhibited an actual (subjective) expectation of privacy; and second, whether that expectation is one that society is prepared to recognize as reasonable. The test is, of course, immediately recognizable to Canadian lawyers as the analytical tool for determining s 8 Charter rights.

The opinion in Katz was adopted by the Supreme Court of Canada in Hunter v Southam Inc, [1984] 2 SCR 145 which defined the contours of search and seizure law in Canada. In April 1982 federal investigators executed a search warrant at the offices of the Edmonton Journal newspaper. The warrant was issued under the Combines Investigation Act which prohibited monopolies and governed anti-competitive business practices. It was notorious for authorizing officials to enter private premises and seize evidence in relation to a violation of the statute. The warrant covered all files except those in the newsroom.

Southam Inc, the owner of the newspaper, obtained a temporary injunction but lost its bid for a permanent injunction in the Alberta Court of Queen’s Bench. The search resumed. Speaking to The Globe and Mail, publisher Patrick O’Callaghan said that investigators told him they were “not alleging anything” but were “just looking.” O’Callaghan scoffed at the new Charter of Rights saying it was “nothing but a sham if someone can just walk into your office and go through your papers without having to reveal who’s accusing you of what.” (See: Robert Stephens. Edmonton Journal loses appeal against probe. The Globe and Mail. May 24, 1982)

Writing for a unanimous court, Justice Dickson recognized that the “right to be let alone by other people” is a basic expectation of privacy in a free and democratic society. The “individual’s interest in being left alone” only yields to the state’s interest in detecting and preventing crime “where credibly-based probability replaces suspicion.”

The opinion in Hunter has been followed by the Supreme Court of Canada in numerous subsequent decisions. In R v Kokesch, [1990] 3 SCR 3, the landmark case on warrantless perimeter searches, Justice John Sopinka stated, at para 46, that “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.”

At its heart, s 8 of the Charter is concerned with the manner in which the state may insert itself into our private lives and papers. However, when we choose to forego the pleasure of solitude and engage with the outside world – risks abound. As I will discuss in my next post, the extent to which we can reasonably expect our private affairs to remain private is diminished when we engage with others. While s 8 may protect us from undue state scrutiny, the Charter will rarely, if ever, protect us from our betrayers.