Privacy
as an
Endangered Species:
The
False Promise
of the
Charter
of
Rig
hts
Alan
N.
Young*
Everything that
needs
to be
said
has
already
been
said.
But
since
no one was
listening, everything
must
be
said
again
. . .
—
Andre
Gid
e1
A.
INTRODUCTION
In a
highly-regulated,
technocratic
society,
privacy
is a
precious com-
modity.
Although "Big Brother"
was
only
a
creation
of
George
Orwell's
imagination,
it
would
be
naive
to
dismiss
the
fear
of
constant
and
total
state surveillance
as
completely unfounded
and
bordering
on
paranoia.
Section
7 of the
Charter
of
Rights
has a
residual role
to
play
in the
protec-
tion
of
privacy,
but it is the
Charter
guarantee
of
freedom
from
unreason-
able
search
and
seizure (section
8),
which primarily serves
as a
protective
shield against
the
possibility
of
unbridled state surveillance.
Regrettably,
the
developing section
8
jurisprudence
is of
little comfort
to
those
who
fear
that privacy
is
becoming
an
endangered
species.
The
judicial rhetoric
is
"full
of
sound
and
fury"
and
even though
it
cannot
be
said that
the
rhetoric "signifies
nothing,"
there
is a
widening
gap
Of
Osgoode Hall
Law
School.
As
quoted
in R.
Elias,
Victims Still
(Newbury
Park,
CA:
Sage
Publication,
1993)
atl.
353
1
*
between
the
aspirations
of the
judiciary
and the
actuality
of
providing
meaningful
protection
for the
intangible
and
precarious privacy rights
enshrined
in the
Charter.
Even
those scholars
who
believe that
the
Charter
of
Rights
is the
crowning
achievement
of
Canadian
law
realize that
the
Charter
contains
the
seeds
of its own
demise.
For
better
or
worse,
the
framers
of the
Charter
included numerous
"escape
valves"
to
allow
the
state
to
disre-
gard
the
constitutional imperatives
enshrined
in the
Charter.
Beyond
the
broad
and
inherently manipulable language
used
to
create
our
regime
of
legal
rights,
the
Charter
contemplates
and
embraces
rights'
violations
by
allowing reasonable limits
to
temper
a
full
and
rigorous application
and by
allowing legislatures
to
override
the
implementation
of
constitu-
tional
guarantees
by
invoking
the
"notwithstanding" clause.
The
short-
comings
found
in the
protection
of
privacy under section
8 do not
emerge
as a
result
of the
utilization
of
section
1
reasonable limits
or the
section
33
override,
but
rather
as a
result
of the
failure
of the
judiciary
to
give practical
effect
to its
glowing rhetoric.
This
brief
article
is not the
first
to
suggest that section
8
privacy pro-
tection
is
moribund.
Professor
Don
Stuart
has
recently provided
an
insightful
analysis into
the
shortcomings
of
section
82
and
this piece
builds upon
the
argument presented
in
Stuart's article.
In
order
to
make
a
compelling argument that section
8
only provides
a
false
promise
of
protection, this article will examine
the
question
of
whether
the
para-
digm
of
privacy, i.e.,
the
dwelling house,
is
receiving
the
type
of
vigor-
ous
protection
one
would expect when
one
retires
to the
privacy
of
one's
home.
If
section
8 has
failed
with respect
to
protection within
the
dwelling house, then
all
hope
is
lost. This article will demonstrate that
even
within
the
dwelling house,
rights'
claimants will more
often
than
not,
find
that
unjustified
intrusions into
the
sanctity
of the
dwelling
house will
go
unremedied. Most commentators assert that
it is the
dis-
cretionary
remedy
of
exclusion contained
in
section
24(2)
that
has
served
to
eviscerate
the
protection
of
privacy
and
there
is
little question that
reluctance
to
exclude non-conscripted evidence
has
contributed greatly
to the
demise
of
section
8.
However,
a
careful
examination
of
section
8
jurisprudence
reveals that recent formulations
of the
section
8
right have
also contributed
to the
growing
frailty
of
this right.
D.
Stuart, "The Unfortunate Dilution
of
Section
8
Protection: Some Teeth
Remain" (1999)
25
Queen's
L.J.
65; D.
Stuart, "Eight
Plus
Twenty-Four Equal
Zero"
(1998)
13
C.R. (5th)
50.
2
354
Alan
N.
Young
B.
THE
PROBLEM
IN A
NUTSHELL
Recently,
a
Superior Court Judge
in
Ontario excluded
from
evidence
a
diary
that
had
been
lawfully
seized
from
the
accused.3
The
basis
for
exclusion
was an
expansive
and
progressive interpretation
of the
right
against
self-incrimination
and the
right
to
silence
as
implicitly contained
in
section
7 of the
Charter.
The
judge concluded that admission
of the
diary would compel
the
accused
to
testify
in
order
to
explain
the
con-
tents
of his
writings
and
that admission
of the
diary "may increase
the
likelihood
of
abusive conduct
by the
state."
Although there
does
not
exist
any
relevant authority which supports
the
proposition that
a
tacti-
cal
burden
to
testify
as the
result
of the
admission
of
relevant evidence
may be
violative
of the
Charter,
this
judge,
and
many others, have
not
been reluctant
to
expand upon
the
scope
of
protection with respect
to
rights
designed
to
protect
the
right against self-incrimination. However,
if
this case
did not
involve
an
application
of
section
7, and the
objection
to
admission
of the
diary turned upon
the
validity
of the
warrant,
one
must
wonder whether
the
diary would have been ultimately excluded.
Exclusion
of a
diary
on the
basis
of the
right against self-incrimina-
tion appears
to be an
unwarranted extension
of a
common
law
princi-
ple
that
was
only triggered
by
direct testimonial compulsion
of the
accused.4
If
there
are any
principled objections
to the
admission
of a
pri-
vate
journal
or
diary,
one
would expect that
it
would
be
premised upon
the
inherently private nature
of
writing
in a
diary.
In
fact,
the
inherent
private nature
of a
diary
did
lead
one
court
to
refuse
production
of a
complainant's diary
in a
civil suit brought against
an
individual alleged
to
have committed
a
sexual assault against
the
complainant.5
However,
in the
context
of a
criminal trial,
the
private nature
of the
evidence
appears
to
have
no
bearing
on the
issue
of
admissibility.
To
truly under-
stand
the
skewed nature
of the
inquiry
in
Canadian courts,
it is
instruc-
tive
to
compare
our
approach
to the
approach taken
in
Germany with
respect
to the
admission
of
highly private materials.
In our
system, pri-
vate material will only
be
excluded
if the
misconduct
of the
police
is
suf-
ficiently
flagrant
to
warrant exclusion under section 24(2);
in
Germany
state misconduct
is not the
salient
factor,
as the
courts
do not
focus upon
illegally
obtained evidence
but
rather
on
legally unobtainable evidence
3 R. v.
R.T.A.,
[2000] O.J.
No.
1320 (S.C.J.),
online:
QL.
4
See, e.g.,
R. v.
Marcoux
and
Solomon,
5
K.L.V,
v.
D.G.R.
(1994),
118
D.L.R.
(4th)
699
(B.C.C.A.).
Privacy
as an
Endangered
Species
355
