Trends in Wiretap Law: Part One
- April 2, 2014
- Clayton Rice, Q.C.
Canadians value their privacy both individually and collectively. We may not protect our privacy like my parents did in a social sense and we have surrendered much to the surveillance camera but in 1982 the nation found the political will to patriate its constitution and entrench our rights in it. I believed in the constitution then and I believe in it now.
Our individual privacy rights are constitutionally protected by s. 8 of the Charter of Rights. Our individual and collective interests also find affirmation in the panoply of federal and provincial legislation regulating access to information and the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA). The late Justice John Sopinka of the Supreme Court of Canada described the purpose of s. 8 as follows:
In balancing the reasonable expectation of privacy of the individual with the interests of the state in law enforcement, this Court has determined that electronic taping of private communications by state authorities violates the personal sphere protected by s. 8: R. v. Duarte,  1 S.C.R. 30. Similarly, such investigative practices as videotaping of events in a private hotel room (R. v. Wong,  3 S.C.R. 36) and seizure by state agents of a blood sample taken by medical personnel for medical purposes (Dyment, supra) have been found to run afoul of the s. 8 right against unreasonable search and seizure in that the dignity, integrity and autonomy of the individual are directly compromised.
In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. (R. v. Plant,  3 S.C.R. 281 at pp. 14-16)
The “personal sphere” or “biographical core of personal information” protected by s. 8 was shielded to a limited extent in the wiretap context by Parliament in ss. 184 and 193 of the Criminal Code which make it an offence to unlawfully intercept a private communication or even disclose the existence of an intercepted private communication. Yet, in the thirty years since the enactment of the original Protection of Privacy Act [now Part VI of the Code] there has been an expansion of state intrusion into the personal sphere of the individual that is vivid in the world of computers, the Internet and electronic surveillance.
I will talk about these trends in subsequent parts of Trends in Wiretap Law.