The Limits of Privacy: Some Reflections on Section 8 of the Charter

Individuals enjoy privacy in their person, in their personal spaces, and also in their biographical core of personal information. A successful claim for the exclusion of evidence on the basis of an infringement of section 8 of the Charter requires that three questions be answered in the affirmative: (1) is there a reasonable expectation of privacy? (2) has there been an unreasonable interference with that expectation? and (3) does the infringement warrant exclusion of the evidence? Turning to the first question, the determination of the issue ultimately rests on whether our societal values are such that we are prepared to acknowledge that the accused had a valid and enforceable expectation of privacy. Early on in the jurisprudence, the Supreme Court of Canada answered this question by resorting to a very general and normative form of analysis, largely disconnected from the actual facts of the case, leading to results that were unlikely to conform with societal expectations of what is just. Subsequently, the Court moved towards an approach that remained normative, but firmly rooted in the unique circumstances of the particular case. In deciding whether there is a reasonable expectation of privacy in information, the enquiry should be guided by the extent to which the information in question promotes the values protected by section 8, the dignity and autonomy of the individual. Not all information warrants protection, particularly that which actually undermines the values promoted by section 8. Turning to the second question, the Supreme Court has recently introduced confusion into the law concerning searches in the regulatory context. Searches in the regulatory context were typically not required to comply with the requirement of prior judicial authorization, if they were necessary to ensure compliance with the regulatory framework. However, in the recent decision of R. v. Jarvis, a tax prosecution case, the Court has indicated that investigators must abandon the use of their audit and inspection powers, once their purpose shifts to the determination of penal, as opposed to tax, liability. Jarvis raises many questions and investigators will need to be very careful before relying on a warrantless power of inspection to build a case for prosecution purposes. The decision whether to exclude evidence rests on a balancing of the state’s interest in law enforcement against the privacy rights of the accused. Privacy rights are often subordinated to the state interest in law enforcement, as the Charter is not the only means by which society seeks to promote the dignity, integrity and autonomy of the individual. Conduct is often criminalized in order to protect individuals from having their rights, including privacy rights, invaded by wrongdoers. The individual who has committed an offence should not evade criminal liability for his acts by being permitted to shield himself behind rights he has himself invaded. The state interest in law enforcement should ordinarily prevail in the face of a claim of privacy infringement, unless the state’s conduct is both egregious and deliberate