Hostname: page-component-cd9895bd7-dk4vv Total loading time: 0 Render date: 2024-12-18T04:56:51.423Z Has data issue: false hasContentIssue false
  • English
  • Français

Getting Past Privacy? Surveillance, the Charter, and the Rule of Law *

Published online by Cambridge University Press:  27 June 2014

Lisa M. Austin
Lisa M. Austin*
Affiliation:
Faculty of Law, University of Toronto, 78 Queen's Park, Toronto, ON M5S 2C5, [email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'

Keywords

privacyChartersearch and seizurerule of lawsurveillancevie privéeCharteperquisition et confiscationÉtat de droitsurveillance
Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 27 , Issue 3 , December 2012 , pp. 381 - 398
Copyright
Copyright © Canadian Law and Society Association 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

I would like to thank Hamish Stewart for his excellent comments on an earlier draft. An earlier version of this article was presented at the Queen's University conference “The Expanding Surveillance Net: Ten Years after 9/11” (September 8-9, 2011), and I am grateful to the comments of the participants. I would also like to thank the participants of two other events for their helpful input on earlier iterations of some of the ideas presented here: Melbourne Law School's conference “Media, Communications and Public Speech,” where I gave a talk titled “Privacy: Rights, Risks and the Rule of Law” (November 25, 2010), and the University of Toronto Faculty of Law's Law Lab (March 4, 2011).

References

1 R v Gomboc, 2010 SCC 55.

2 R v Patrick, 2009 SCC 17.

3 R v Chehil, 2009 NSCA 111.

4 R v Ward, 2008 ONCJ 355; R v Cuttell, 2009 ONCJ 471.

5 In the subscriber information cases this was because of terms of the standard form service agreements indicated that the service provider might share information with the police. In Gomboc, supra note 1, the terms of the relationship were set out in a regulation that permitted the utility to share information with the police unless the customer specifically requested confidentiality.

6 For an excellent overview of this debate, see Bennet, Colin J., “In Defence of Privacy: The Concept and the Regime,” Surveillance and Society 8 (2011), 485Google Scholar, and the articles in the same issue responding to Bennet's claims.

7 See, e.g., CBC News, “Lawful Access FAQs: Clearing Confusion about ‘Surveillance’ Proposals” (10 5, 2011), http://www.cbc.ca/news/politics/story/2011/10/04/f-lawful-access.htmlGoogle Scholar

8 Waldron, Jeremy, ’Is the Rule of Law an Essentially Contested Concept (in Florida)?” Law and Philosophy 21 (2002), 137Google Scholar; Tamanaha, Brian Z., On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004)CrossRefGoogle Scholar.

9 Waldron, Jeremy, “The Concept and the Rule of Law,” Georgia Law Review 43 (2008), 1Google Scholar; Raz, Joseph, “The Rule of Law and Its Virtue,” Law Quarterly Review 93 (1977), 195Google Scholar.

10 Fuller, Lon L., The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969)Google Scholar.

11 Some put these two ideas together. See Raz, “The Rule of Law.”

12 Hunter v Southam, [1984] 2 SCR 145.

13 The text of the US Fourth Amendment is: “The right of the people to be secure in then-persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

14 Hunter v Southam, 158-59.

15 Ibid., 157.

16 Entick v Carrington (1765), 95 ER 807 (KB).

17 Ibid. Cited in Hunter v Southam, 158 (per Dickson J).

18 Ibid. Wilkes was the other high profile case concerning the use of general warrants and seditious libel, which is acknowledged to have a great influence on the drafting of the Fourth Amendment in the US constitution. See Wilkes v Wood (1763), 98 ER 489 (KB).

19 Ibid.

20 Ibid.

21 Note that there was no professional police force at the time.

22 For an overview of the history of the Fourth Amendment, including different interpretations of this history, see Davies, Thomas Y., “Recovering the Original Fourth Amendment,” Michigan Law Review 98 (1999), 547CrossRefGoogle Scholar.

23 The Michael, Honorable M. Blane, “Reading the Fourth Amendment: Guidance From the Mischief that Gave it Birth,” NYU Low Review 85 (2010), 905Google Scholar. See also Davies, “Recovering the Original Fourth Amendment.”

24 Section 7 states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” See Re BC Motor Vehicle Act, [1985] 2 SCR 486 at para 63.

25 Ibid., para 29.

26 R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606.

27 Joseph Raz is one of the strongest proponents of this view. See Raz, “The Rule of Law.”

28 See Papachristou v City of Jacksonville, 405 US 156 (1972).

29 For example, A.V. Dicey made this part of his understanding of the rule of law: Dicey, A.V., Introduction to the Law of the Constitution, 10th ed. (London: Macmillan, 1959)Google Scholar But note that this was one of the reasons that Dicey was opposed to the rise of the administrative state.

30 Kolender v Lawson, 461 US 352 (1983), internal references removed.

31 Nova Scotia Pharmaceutical.

32 See Austin, Lisa M., “Privacy and Private Law: The Dilemma of Justification,” McGIll Law Journal 55 (2010), 165CrossRefGoogle Scholar.

33 Schonberg, Soren, Legitimate Expectations in Administrative Law (Oxford: Oxford University Press, 2000), 12CrossRefGoogle Scholar

34 Ideas of procedural fairness in administrative law are not necessarily tethered to ideas of individual rights but can be required where important interests, privileges, or expectations are also at stake.

35 For a critique see Austin, Lisa M., “Privacy and the Question of Technology,” Law and Philosophy 22 (2003), 119Google Scholar.

36 Rv Edwards, [1996] 1 SCR 128, is the strongest example, which Binnie J relies on heavily in R v Tessling, [2004] 3 SCR 432. In R v Dyment, [1988] 2 SCR 417, LaForest focused instead on the nature of the social relations that occur in various places, but this is not a point that has received any notable further development, although it is sometimes restated.

37 R v Plant, [1993] 3 SCR 281 at 293, per Sopinka J; cited in Tessling at para 15. Emphasis added.

38 Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 SCR 425 at 517. Although La Forest J was not in the majority in Thomson, his statements were cited with approval by Sopinka and Iacobucci JJ in British Columbia Securities Commission v Branch, [1995] 2 SCR 3 at para 62, and by Iacobucci I and McLachlin CJC in R v Mills, [1999] 3 SCR 668 at para 80.

39 Thomson, ibid.

40 There was some dispute about this in Gomboc with several of the judges arguing that the information could yield other inferences about activities within the home.

41 R v AM, 2008 SCC 19 at para 37.

42 Gomboc at para 81, per Abella J; see also the reasons given by McLachlin CJC and Fish J (at para 129).

43 Patrick at para 67 for the requirement of confidentiality to attend a disclosure to third parties.

44 Ibid, at para 55.

45 As pointed out by Justice Abella in her concurring judgement, the City of Calgary Waste Bylaw, 20M2001 “prohibits scavenging, dictates the location of the waste and controls what is to be placed in the receptacle.” Ibid, at para 87. She takes this as evidence of an “objectively reasonable expectation that household waste will be gathered by the garbage collection system once it is left at the pickup site” (at para 88).

46 Gomboc at para 85 (Binnie and LeBel JJ concurring).

47 Ibid, at para 142.

48 See McLachlin CJC and Fish J: “In our view, the regulatory scheme should not be interpreted to authorize police agents to act in a manner forbidden to the police themselves.” Ibid, at para 148.

49 Abella J does suggest that the accused should have challenged the constitutionality of the regulation.

50 R v Duarte, [1990] 1 SCR 30, dealing with participant surveillance; R v Wong, [1990] 3 SCR 36, dealing with video surveillance; R v Wise, [1992] 1 SCR 527, dealing with a tracking device installed on a car.

51 Ibid.

52 Wong.

53 Bill C-52, Investigating and Preventing Criminal Electronic Communications Act, 40th Pari, 3rd Sess, 2010, s 16, first reading November 1, 2010. This bill died on the order paper but is expected to be reintroduced.

54 Disclosure of such information to ordinary citizens is prohibited under Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (PIPEDA).

55 There have been a series of cases regarding whether the police can get access to subscriber information without a warrant in the absence of legislation like the proposed lawful access legislation, and many of these follow such a fact pattern. See R v Kwok, [2008] OJ No 2414, 78 WCB (2d) 21; R v Ward, 2008 ONCJ 355, [2008] OJ No 3116; R v Friers, 2008 ONCJ 740, [2008] OJ No 5646; R v McGarvie, 2009 CarswellOnt 500 (Ont CJ); R v Verge, 2009 CarswellOnt 501 (Ont CJ); R v Vasic, [2009] OJ No 685, 185 CRR (2d) 286; R v Cuttell, 2009 ONCJ 471, [2009] OJ No 4053; R v Trapp, 2009 SKPC 5, [2009] SJ No 32; R v Wilson, [2009] OJ No 1067 (QL); R v McNeice, 2010 BCSC 1544, [2010] BCJ No 2131; R v Brosseau, 2010 ONSC 6753, [2010] OJ No 5793.