Limiting Privacy in the Digital Age - Kaitlin Trager

Your phone knows you better than you know yourself. In the digital age, technology has become integral to everyday life. Personal electronic devices like phones and computers hold a vast amount of information, which means they may hold a wealth of evidence. Technology is becoming an increasing source of condemning evidence in the criminal sphere, which raises concerns about how that evidence is obtained. However, the case law for digital privacy shows that, while courts are increasingly allowing concerning exceptions to the reasonable search protections and right to privacy laid out in Hunter v Southam [“Hunter”], they are holding steadfast in their protection of a person’s digital information.

Defining the scope of section 8 in Hunter

Section 8 of the Canadian Charter of Rights and Freedoms [“the Charter”] says that “[e]veryone has the right to be secure against unreasonable search or seizure.” Hunter was the first case to consider the scope of this right with Justice Brian Dickson writing the unanimous decision for the Supreme Court of Canada [“the Court”]. In Hunter, the Court found that Charter rights must be interpreted broadly as they are there to protect people from government action. Section 8 of the Charter, stated the Court, was meant to protect people’s privacy by limiting government’s, specifically police’s, ability to conduct searches without a warrant.

According to the Court in Hunter, section 8 of the Charter is to be invoked when a person has a reasonable expectation of privacy. Determining whether a person has a reasonable expectation of privacy involves looking at the context of the relevant situation and considering things like its location. Once invoked, the government must first obtain a judicial warrant, if feasible, which should be granted only on the basis that there are “reasonable and probable grounds to believe…that an offence has been committed”. A prima facie finding of unreasonableness exists wherever police search without a warrant.

The Court in Hunter further explained that context may alter the standard of reasonableness. For example, concerns regarding national security may lower the reasonableness standard required and situations involving personal integrity may raise the standard. But notwithstanding those factors, “reasonable and probable grounds was the minimum standard for the vast majority of actions”. This interpretation of section 8 of the Charter from Hunter was a broad interpretation of the rights guaranteed under that section, meant to ensure that Canadians were protected.

Limiting Hunter in the ensuing years

Despite this broad initial interpretation, courts in subsequent years began to carve out many exceptions in which the standard of reasonableness was diminished and where the conduct of the government would not be considered a search and thus exempt from section 8 of the Charter. Some exceptions, like that found in R v Monney (a case which considered customs security at the border), are drawn directly from Hunter’s own limitations on the right to privacy in situations of national security. But others expand beyond matters discussed in Hunter to create new exceptions and further weaken section-8 Charter rights.

Initially, courts began to limit section 8 based on the location in which an incident occurred. In R v Edwards [“Edwards”], the Court found that the accused did not have the expectation of privacy at his significant other’s home. The accused in Edwards lacked this expectation because he lacked the necessary control of the property to bar people from entering. As a result of his lack of control, the accused could not have barred the police. Edwards also set out other factors to consider when deciding if the accused had a reasonable expectation of privacy, which included both the subjective belief in privacy and the objective reasonableness of that belief. These two considerations would be heavily considered in later cases which found other exemptions from section 8 of the Charter.

For example, in R v M(MR) [“MRM”], the Court found that schools have an inherent diminished expectation of privacy. While police were present, MRM involved the search of a student by a staff member at the school. The Cout in MRM noted that students should know that staff in schools have responsibilities to ensure a safe space and, in ensuring this, they may be required to search students and their belongings.

In MRM, the limitation on the principles in Hunter began to get concerning. In schools, you have a significant power imbalance in the relationship between students and staff, which is exacerbated by lowering an objective standard of reasonableness and giving more discretion to the party who already holds a position of power. While it is true that schools must be maintained as a safe space, the students’ rights to the privacy of their person and property should not be unnecessarily narrowed.

Another limitation found in later years does not diminish the expectation of privacy but eliminates it and, as such, eliminates any section-8 protection. In R v Tessling [“Tessling”], the Court broke down privacy rights into three sub-categories:

• personal, which retained strong constitutional rights and involves bodily integrity;

• territorial, where the degree of protection correlated to the expectation of privacy given the location; and,

• informational, which varied depending on the subject.

The Court in Tessling found that “a person can have ‘no reasonable expectation of privacy in what he or she knowingly exposes to the public, or to a section of the public, or abandons in a public place,’” and that, instead, section 8 of the Charter should protect intimate information which may reveal personal information about their life. The Court specifically noted that not all information that a person may want to keep private has the right to stay private. Instead, determining whether a reasonable expectation of privacy exists requires examining the totality of the circumstances. Tessling involved the police using special technology to measure heat waves from which they were able to get a warrant on the suspicion that the accused was growing marijuana. The Court in Tessling found that obtaining the evidence of heat waves was not a search because it was an external collection of information about the house which was not sufficiently personal.

R v Patrick [“Patrick”] was a case that considered informational privacy regarding physical property. If the property was sufficiently abandoned by the accused, then it would become information which may present intimate details of a person’s life which would typically invoke section 8 but would be counteracted the abandonment. This premise is logical on its face. Abandoned property is not something that one should expect would stay private. There are also security concerns with leaving unattended bags around in areas such as airports, where they make it clear that any abandoned bag may be confiscated. Specifically, Patrick found that garbage left out for collection was abandoned and therefore information could be taken from garbage without invoking section 8 of the Charter. However, in Patrick, the relevant physical property was a trash bag that the accused had placed on the edge of his property, within his fenced area. The police had reached over the fence to grab the bag and used the contents to obtain a search warrant. The Court found that, by placing a trash bag in his trash bin at the property line for pick-up, the accused had abandoned his property and any person walking by could reach in and take it. Therefore, any reasonable expectation of privacy was eliminated.

The concern with this approach is that it diminishes the importance of the home in relation to privacy. The personal dwelling of a person should be considered highly protected as it is where a person is most vulnerable and where the most information about the person would be available. In Patrick, the police officer had to trespass on the accused’s property by reaching over the fence to retrieve the property. It was not in a public space. While things left out in the yard may be more susceptible to theft, that does not mean that you abandon property you leave outside. In a dissenting opinion, Justice Conrad emphasized the importance of a person’s home and emphasized that the home should have enhanced protection. Furthermore, the dissent in Patrick found that the accused used opaque bags which stayed on his property and which he could retrieve at any time. The opaque garbage bag was left on the edge of the accused’s property on the assumption that the contents would be “mixed in with other garbage collected by the municipality and thereby become anonymous”, and therefore he had a reasonable expectation of privacy which had been breached. The dissent’s analysis in Patrick is the preferable interpretation in the view of protecting individuals from government action and is more along the lines of the spirit of Dickson’s judgement in Hunter.

What we can see from these examples is that the Court is increasingly willing to diminish or eliminate privacy protections in certain situations. These exceptions are becoming more personal in nature. There is a clear desire by the Court to try and find a better balance between investigative powers of law enforcement and the right of the individual to privacy. The court even states in Patrick that one consideration was that police had often used evidence found in personal trash bins in cases in the past, which indicates their desire to not hamper police investigations unless a clear breach of section 8 exists. While these limits being set by the Court are not necessarily unreasonable, they are potentially concerning given the importance of a person’s privacy, particularly in their home.

Personal privacy in the digital age

While the Court is setting out various limits to section 8 of the Charter, there are two areas where it remains wholly committed to preserving the privacy protections. One is personal integrity and protection against unreasonable searches of the person in cases like R v Stillman [“Stillman”], where the accused was compelled to provide DNA evidence; another is in cases of a cavity search, for example; another is digital privacy. In R v Vu [“Vu”] the Court found that, in general, not only would searching a computer require a warrant, but it would require a distinct warrant. This is because of the complete personal nature of the information contained on the device.

Apple recently made headlines with their latest operating system update which allows users to enable a “do not track” feature which prevents apps from tracking users across platforms, a common practice of which many people are unaware. The amount of information that your phone retains without its user’s knowledge, either through collecting information in the background or the user’s forgetting of the information’s presence on the phone, is vast. Even when a user thinks he or she has deleted something, there is often a way to get it back. This recoverability was noted in Vu when the Court spoke about the special nature of computers.

This protection is essential because of how integrated personal electronic devices are in society. In 2018, one study found that 88% of Canadians above the age of 15 have a smartphone. Of those, almost half check their phone at least once every 30 minutes. COVID-19, and the increasing requirement to work and learn from home, has only exasperated this issue. Smartphones are now an essential part of life and the Court recognized this in its 2014 decision of R v Fearon [“Fearon”]. The Court in Fearon found that, while not every search of a phone will result in an invasion of privacy, the potential for an invasion must be considered, particularly when the search is more extensive.

The Court further found that a person’s privacy rights may extend to the content a user sends to other people’s devices by means such as a text message. In its 2017 decision of R v Marakah [“Marakah”], the Court set out a 4-part test to see if standing existed to invoke section 8 against another person’s device. Determining the issue of standing in Marakah involved looking at:

• the subject matter;

• whether the claimant had a direct interest in the content;

• whether the claimant had a subjective expectation of privacy in the subject matter; and

• whether the subjective belief was objectively reasonable.

If the evidence from the other device concerns the subject matter of the search, then an individual may have standing to make an argument regarding section 8 of the Charter. The Court in Marakah also accepted evidence that the accused told the person they were communicating with to delete the text messages as establishing evidence of a subjective belief of privacy.

The Court also recognized, in R v Reeves, that someone sharing their computer with their friends and family does not eliminate their right to privacy. The information involved, along with the nature of the device, means that an individual retains his or her rights even in cases where he or she would otherwise have allowed someone to use his or her computer. That permission does not constitute a grant of access to the police.

In 2014, the Court broadened this view from Reeves to include Internet Service Providers [“ISP”], within reason. While the Court eventually accepted evidence obtained from an ISP in R v Spencer, it stated that there was a high reasonable expectation of privacy expected of ISPs and found that requesting an ISP provide information, even voluntarily, would constitute a search.

Despite this protection of privacy rights from cases such as Reeves and Spencer, there are still limits on privacy rights in the digital world. Nevertheless, even these limits are reasonably tailored given the circumstances. For example, the Court in Fearon, while stating that a search through a phone may constitute an invasion of privacy, also noted that those who are lawfully arrested have a diminished right to privacy. The Court further limited the right to privacy of a lawfully arrested person by finding that, depending on the intensity and information retrieved, a search of a phone may not constitute a violation of section 8 of the Charter. Limits such as that recognized in Fearon are reasonable limitations; if you have been arrested lawfully, there must have been reasonable cause which may in the circumstances extend to a search of the phone. The limitation from Fearon is a tailored limitation, reasonable in the circumstances. Contrasting with a case like Patrick, where evidence obtained from a garbage can was used to obtain a warrant, Fearon involved evidence obtained after an arrest based on other evidence.

Another reasonable limit placed on the right to privacy under section 8 of the Charter is the use of fake profiles online to lure predators into meeting with a fake child. As the Court stated in R v Mills [“Mills”], “adults cannot reasonably expect privacy online with children they do not know”. In investigations such as the one conducted in Mills, the police create a fictitious child and wait for an adult that they know to be a strange to begin a conversation with him or her. The concurring judgment in Mills went further, saying that there was no search; the police did not search anything but instead simply received and kept a copy of a message. In Mills, the dissenting opinion discussed concerns about the potential snowball effect of other relationships being declared to be unprotected. However, I believe that, in this situation, it is a reasonable limitation meant to protect children from predators.

These limits are reasonable, particularly given the broad rights conferred to begin with. With digital rights, the Court very carefully tailored exceptions while maintaining a strong right. Hunter was decided in 1984, just when computers were becoming a more common device. Computers in the time of Hunter were almost incomparable to the computers today, let alone the level of integration. At the time the Court decided Hunter, smartphones would not become the norm for another 25 years. Since Hunter, courts have developed many limitations to restrict its broad view; yet, the Court is applying these broad principles because of the personal nature of these devices. Even as they limit privacy, the Court recognizes the seriousness of this issue and its potential negative consequences of trying to limit this right too much.

Court protects core of privacy rights while balancing with police powers

Hunter gave a broad interpretation of an important right meant to protect the individual. The Court has since tried, through subsequent cases, to limit this right and balance it against police power. Despite this trend, the Courts have maintained privacy where it matters most, in the digital sphere. The Court still recognizes the inherent protection that individuals receive from the Charter and they understand that it must also protect people’s personal devices, given the level of integration that they have with everyday life. Our right to privacy is one of the most important protections we have, and it is essential that we ensure that it stays a broad and well-protected right.