Christine Van Geyn: Do police have the right to peer at you in your car with a drone?
These questions are not hypotheticals; they are real live issues in Canadian law. We are living in the mass surveillance era. But many Canadians do not have a thorough understanding of how far surveillance goes, or what the limits on it are, or whether our legal protections are adequate.
The police in Kingston, Ont., are ticketing drivers at red lights for merely touching or holding their cellphones based on evidence collected by a drone. The Supreme Court recently heard a case about police entering a private driveway and not just looking in a truck window, but opening the door and collecting evidence — all without a warrant. The Alberta Court of Kings Bench just considered a case involving the facial recognition technology of Clearview AI. During the COVID-19 pandemic, the Canadian government was tracking the cellphone location data of 33 million Canadians. After the Trudeau government invoked the Emergencies Act, the government ordered the freezing of bank accounts of a police-compiled 'blacklist' of demonstrators, which was distributed by the government to a variety of financial institutions and even lobby groups.
What these cases are demonstrating is that we have entered the era of mass surveillance, and Canada's legal protections are inadequate.
First, Canada's privacy legislation is outdated. Privacy Commissioner Philippe Dufresne has said we are at a 'pivotal time' for privacy rights in Canada. Former Ontario Privacy Commissioner Dr. Ann Cavoukian has also called for updates to Canadian privacy laws, 'so they apply to all data, including anonymized data.' Much has changed since the current federal privacy legislation was drafted in the early 2000s, but efforts to modernize this law died when Parliament was prorogued.
Second, when it comes to state intrusions, the concept of privacy may be inadequate. Section 8 of the Charter of Rights and Freedoms guarantees the right to be secure against unreasonable searches and seizures, and the Supreme Court has interpreted this right to mean the protection of a person's 'reasonable expectations of privacy' against state intrusions. The notion of 'reasonable expectations of privacy' has become a mantra in Section 8 jurisprudence. But some academics have said that in the era of mass surveillance, this guiding principle is an inadequate gatekeeper.
In a lecture for the Canadian Constitution Foundation's new free course on privacy rights, Osgoode Hall Law professor François Tanguay-Renaud proposes a thought experiment that reveals the inadequacy of 'privacy' as an organizing principle. What if the police were recording people on the street, with drones following people and recording their movements as they went about their day, zooming in on their cellphones and recording their conversations? In such a scenario, where people are in plain view, privacy is an inadequate concept to limit what we all see intuitively as oppressive state conduct.
At one time, this hypothetical might have been considered far-fetched. Today it is eerily similar to the Kingston police drone scenario. In Kingston, police are using a drone to take aerial images peering into cars and zooming in on cellphones. Those drivers do have reasonable expectations of privacy inside their cars, but what would limit this police conduct if they surveilled citizens on sidewalks or parks, where they were in plain view without those privacy expectations? A principled line must be drawn between things done in plain sight that police can view and constant surveillance using enhanced technology. It may not be possible to draw that line on the basis of the existence or not of 'reasonable expectations of privacy.'
There are other values that could serve as guiding or informing principles for Section 8. There is nothing in the text of Section 8 that mandates the gatekeeper of the right be 'reasonable expectations of privacy' rather than another interest, like dignity, liberty, security, anonymity, public confidence in the administration of justice, and many more. Indeed, American jurisprudence has been moving away from the concept of 'reasonable expectations of privacy' as the sole guiding principle for their 4th Amendment.
To meet the challenges of the surveillance era, it is well past time for Parliament and the provincial legislatures to update privacy laws. But as recent police conduct shows, it's time for our Section 8 jurisprudence to be revisited as well, to meet the emerging challenges of the surveillance state.
National Post
Christine Van Geyn is the litigation director for the Canadian Constitutional Foundation.
Canadians who want to learn more about their privacy rights in Canada can sign up for the Canadian Constitution Foundation's free course at theCCF.ca/learn/
Opinion: In 2020 the world shut down, and Canadians lost their privacy rights
Facial recognition tool used by RCMP deemed illegal mass surveillance of unwitting Canadians
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