In the last post, I talked about the test for reasonable expectation of privacy and analyzed the Supreme Court’s definition of privacy. In this post, we will continue our study of the case.
Section 8 of the Charter
The Canadian Charter of Rights and Freedom (“Charter“) is the first part of the Canadian Constitution Act, 1982. Pursuant to s.1 of the Charter, the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
The Charter or Constitution Act, 1982, similar to the United States Constitution, does not, explicitly, mention “privacy” or “reasonable expectation of privacy”. However, in both Canada and the United States, the courts have interpreted the statutes, so that they, implicitly, protect the citizens against the intrusion of privacy or reasonable expectation of privacy by the government. In Canada, such protection is found under ss. 7 and 8 of the Charter. This was explained in one of my previous posts, where I gave a summary of privacy laws in Canada.
It is important to note that the Charter, protects the citizens against the government. What this means is that the Charter does not protect citizens against persons or institutions that are not controlled by the government. Government employees, for example, are subject to the Charter, only in their capacities as government employees.
The Supreme Court, however, found that the caselaw surrounding s.8 of the Charter was instructive in this case. This means that the caselaw that surrounds the interpretation of s.8 of the Charter, can be used in cases that do not invoke the Charter itself. As a reminder, s.8 of the Charter states:
8. Everyone has the right to be secure against unreasonable search or seizure.
Chief Justice gave two reasons for this:
- Section 162(1) of the Criminal Code talks about reasonable expectation of privacy. The Chief Justice writes:
 However, the s. 8 jurisprudence recognizes that the inquiry into whether an individual has a reasonable expectation of privacy vis-à-vis the state with respect to a certain subject matter may be informed, in part, by considering the individual’s privacy expectations vis-à-vis other individuals … . Thus, while the ultimate concern in the s. 8 context is whether there is a reasonable expectation of privacy vis-à-visthe state, the s. 8 case law contemplates that individuals may have reasonable expectations of privacy against other private individuals and that these expectations may be informed by some of the same circumstances that inform expectations of privacy in relation to state agents.
2. One of the objectives of Section 162(1) of the Criminal Code is to protect the privacy of individuals. Chief Justice explains:
 … Because this Court and other courts in Canada have most frequently had occasion to consider the concept of privacy in the context of s. 8 of the Charter, the s. 8 case law represents a rich body of judicial thought on the meaning of privacy in our society. And far from being unmoored from our ordinary perceptions of when privacy can be expected, as Mr. Jarvis suggests, judgments about privacy expectations in the s. 8 context are informed by our fundamental shared ideals about privacy as well as our everyday experiences.
Principles under s.8 of the Charter jurisprudence
Chief Justice then went on to enumerate the following principles under the s.8 jurisprudence analysis that drove his decision later on in the case:
 … the idea that a variety of circumstances may reasonably inform a person’s expectation of privacy is consistent with a common sense understanding of the concept of privacy. …
 … privacy is not an “all-or-nothing” concept. In other words, simply becasue a person is in circumstances where she does not expect complete privacy does not mean that she waives all reasonable expectations of privacy…
 … privacy encompasses a number of related types of privacy interests. These include not only territorial privacy interests — “involving varying expectations of privacy in the places we occupy” … but … personal and informational privacy interests…
 … Whether a person reasonably expects privacy is necessarily a normative question that is to be answered in light of the norms of conduct in our society. And whether a person can reasonably expect not to be the subject of a particular type of observation or recording cannot be determined simply on the basis of whether there was a risk that the person would be observed or recorded. …
MR. JUSTICE ROWE’S CONCURRING REASONS
Justice Rowe, agreed with the majority that the students did have a reasonable expectation of privacy, however, did not agree with the majority that s.8 jurisprudence should be introduced in a Criminal Case. He held that the interpretative principle that is used in Constitutional matters must be different than one used in statutory matters, for the following reasons:
- Using Charter jurisprudence in Criminal matters would create a floodgate of common law offences.
- The objectives of the Constitution and Charter are “fundamentally at odds” with the Criminal Code.
- The Charter should be used only if there is ambiguity in the statute.
- The interests protected by the s.8 of the Charter are different than those protected by s.162(1) of the Criminal Code.
For what is worth, section 9 of the Criminal Code, prevents convicting people under common law:
9 Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730
(a) of an offence at common law, …
So, the floodgate of common law offences may not be that much of a concern.
On one hand, in this day and age, with new recording technologies entering the market every day, and the slow pace at which the Criminal Code, or any other Privacy legislation for that matter, is amended, one would think that the majority’s approach is more preferable. However, the floodgate of common law offences that may have just been opened, may affect some of us in the near future!