Protection of Information Privacy from Government Intrusion in Canada Compared to the United States

In the last blog post, among other topics, we covered how the constitutionality of a warrantless police search – whether it infringes on the constitutional rights of individuals against unreasonable searches (Section 8 of the Charter of Rights and Freedoms and the Fourth Amendment) – starts with the threshold question of whether the suspect has a property right in the location or item searched or, alternatively, whether the suspect has a privacy right (“reasonable expectation of privacy”) that would be affected by the search. The former was covered in the last blog post and the latter is covered in this blog post.

Several principles run through this topic: Firstly, when it comes to privacy rights, the “search” is most often some form of surveillance. Nonetheless, in cases involving police surveillance, the same constitutional provisions against unreasonable search are cited by both the Supreme Court of Canada and the Supreme Court of the United States. Secondly, it will be noted over the course of the discussion that, once the concept of a search blends into surveillance, then it becomes more difficult to distinguish it from other forms of undesirable police investigation techniques. Thirdly, a reasonable expectation of privacy is an amorphous concept. If the law allows the police to carry out a certain kind of surveillance, then people naturally will have a lower expectation of privacy in activities that would expose them to that kind of surveillance. A primary principle is that police are allowed to use their natural senses while patrolling in areas that they have a right to patrol in. But every new search technology used by the police will start to encroach on expectations of privacy before the legislature or the judiciary set limits on their use.

One of the earliest surveillance technology used by police is telephone wiretaps. In Katz v. United States, it was held a police wiretap of a phone line was an unconstitutional warrantless search even though the wiretapped phone line was a public payphone instead of a home line. Subsequently, laws prohibiting wiretaps and (more generally) eavesdropping were enacted. The difference is important because wiretaps involve some kind of alteration to a physical communication medium (the phone lines) but eavesdropping includes the use of a parabolic microphone (by merely capturing sound waves more effectively) – at least the recording and sharing of a conversation even if not merely listening in. The privacy of conversations thereby became legally protected, including against a warrantless search. In the United States, police are usually not considered eavesdropping if a police officer is a party to the conversation (On Lee v. United States) but some states require the permission of all parties to a conversation before the police may listen in. Canada also requires only one party to a conversation to consent before the police may listen in. However, in R v. Duarte, the Supreme Court held that police could not use a video camera to observe an undercover officer communicating with the accused without prior judicial authorization.

There are differences in the way that police wiretaps are carried out in Canada compared to the United States. In the United States, there is an obligation to minimize interception (and recording) of innocent calls, which means more human resources must be dedicated to a wiretap. In Canada, however, there is no obligation to minimize interception of non-targeted calls. The machine is turned on and left to record everything.

Another common type of surveillance technology is continuous video recording. It receives the same information as a police officer using his/her natural senses, but it is able to do so for a far longer period of time without breaks and it is able to record more details than a police officer taking notes. It should be noted that even though Canada does not have an “open fields” doctrine, nonetheless a police officer is allowed to stand on public property and visually observe a home. The controversy arises when police continuously record a home from the same vantage point. In the United States, if there is no trespass and the method of surveillance cannot penetrate walls, no warrant is needed (Borg v. Town of Wesport, Second Circuit). In Canada, however, some courts have held that a covert camera installed on public property pointed at a private property without judicial authorization infringes on constitutional rights (R v. Aubrey, Ontario and R v. Wong, British Columbia).

A novel eavesdropping method is the use of “Stingray” machines, devices that can scan nearby mobile phones to obtain identifiable information relating to the mobile phone. In the United States, police internal rules require a warrant for its use. Meanwhile, Canadian police apparently use the device without any warrants, which has generated public controversy in the news media.

Another novel surveillance method is thermal imaging. Here, the Supreme Court of Canada reached a very different conclusion from the Supreme Court of the United States. In Kyllo v. United States, it was held that the use of thermal imaging to obtain information that would not be obtainable at the time of the ratification of the Constitution without physical trespass is a violation of the Fourth Amendment, even though it does not interfere with any property rights. But in R v. Tessling, it was held that the thermal imaging used by police against the defendant’s home from afar did not violate his right to be free from unreasonable search and seizure. For the Court in Kyllo, the fact that thermal imaging is a technology not available to the general public was important because it did not want to preclude the police from access to information that could be obtained readily by the general public. This means that changes in the regulation of potentially privacy-infringing technologies like drones will have an impact on Fourth Amendment rights.

There is a different kind of situation where privacy interests are relevant, but the information obtained by police do not come from some form of surveillance – or at least the surveillance is not entirely carried out by the police itself. This is where a third-party hands over the information to the police about a suspect. The Canadian doctrine is considerably different from the American doctrine in this respect.

A traditional fact pattern is opened postal mail. Opened mail is only private for the recipient. If the recipient chooses to share it with the police, then the sender has no privacy interest in the mail. In the United States, this principle is extended so that, when information is shared with third parties, the sharing party has no reasonable expectation of privacy (Smith v. Maryland). This is called the “third-party” doctrine. In State v. Patino, the Rhode Island Supreme Court held that the defendant did not have a reasonable expectation of privacy in text messages he sent that were stored on the recipient’s mobile phone.

Canada has the same rule for opened postal mail. However, the rule is not generalized to a third-party doctrine like in the United States. In R v. Marakah, the Supreme Court of Canada held that the sender of a text message has a reasonable expectation of privacy in the text message conversation sufficient to give him standing when the police conducted an unwarranted search of the recipient’s phone. The Court continued: the risk that the recipient could have, if he wanted to, voluntarily disclosed it to the police, does not negate the reasonableness of the sender’s expectation of privacy. It is worth noting that the dissent opinion in R v. Marakah opposed the concept of privacy rights in a sent message. Instead, the dissenting opinion suggested that the police overreach – infringing on the rights of the recipient against unreasonable search – can be addressed by other Charter provisions. Evidence may be excluded if it is “gathered in a way that fails to meet certain minimum standards”.

In Carpenter v. United States, the Supreme Court created an exception to the third-party doctrine when it held that police must obtain a warrant before demanding from a telecommunications service provider the location data generated by a mobile phone. In Canada, the same rule had already existed since the courts have never followed the third-party doctrine. In R v. Telus Communications Co., the Supreme Court held that police must obtain a wiretap warrant to obtain text messages content from a telecommunications service provider.

Not all types of information are necessarily private in Canada, however. Different information contents lead to different decisions by the judiciary. In R v. Plant and R v. Gomboc, the Supreme Court held that there was no reasonable expectation of privacy in relation to computerized records of electricity consumption that would outweigh the state interest in enforcing laws against narcotics. In contrast, in R v. Cole, it was held that, even with the consent of the owner of the computer, privacy considerations impose an obligation on police to obtain a warrant before searching an employee’s work-issued computer. And in R v. Dyment, it was held that the police accepting a physician’s disclosure of a suspect’s blood sample constituted a search and is invalid without a warrant.

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