As soon as the Supreme Court of Canada issued the Cole case, I went to the website to read it. Initially, I was drawn to the case hoping to find further clarification and the “filling in,” so to speak, of the legal principle of “reasonable expectation of privacy.” As with so many phrases used in law, legal interpretation is required to give the terms a more robust character and to solidify the meaning so that the mere hearing of the term conjures up the correct legal principle or the proper connections to be made between case law and precedents. The term of “reasonable expectation of privacy” is one of those terms which requires this incremental corporeality in order to make the law more certain. This is particularly needed in the Charter universe where heady terms like “Liberty” and “Freedom”, which by the way are not synonymous according to Chief Justice Dickson in the Edwards Books and Arts case, delineate the parameters of our Charter rights.
Certainly, the Supreme Court of Canada did not disappoint in the Cole decision, as they “filled in” the term in relation to the work place. In doing so, the court answered the question of whether or not there is a line drawn between personal and work and if so, where that line can and should be drawn. Of course, the judgment is not so practical as to suggest the exact place in which the line rests, but it does serve as a guideline for the employer-employee relationship. This posting, however, will not be a critical legal analysis of the judgment in relation to the answer provided by the court. Instead, this posting focuses on one paragraph, indeed the second paragraph of the majority judgment written by Justice Fish.
The second paragraph reads as follows:
Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate, and touching on the user’s biographical core. Vis-a-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.
Two concepts found in this paragraph hold my interest. The first is the striking way in which the court defined the personal information found on a computer as “meaningful, intimate, and touching on the user’s biographical core.” Interestingly, this description, which does not refer to any previous case law, does, on a close reading, come from two earlier Supreme Court of Canada cases, which although are related to reasonable expectation of privacy in a search and seizure context, are not related to information found on a computer.
The first is the 2004 Supreme Court of Canada case, R v Tessling. This case is familiar to most criminal lawyers faced with an unreasonable search and seizure or section 8 challenge. Tessling involved the use by the RCMP of FLIR or forward looking infra-red technology. In this instance, the RCMP employed a FLIR camera on an overflight of property, which revealed infra-red images of the emission of heat radiating from the suspect property. The abnormally large amount of heat radiating from the observed property, together with informant information, resulted in the issuance of a search warrant. Police found on the property a large quantity of marijuana and weapons. Counsel at trial argued the overflight using the FLIR camera was an unreasonable search and seizure. The trial judge disagreed and the accused was convicted. However, the Court of Appeal for Ontario reversed the decision, finding there was a violation of s.8 and the evidence was excluded under s.24(2) of the Charter.
The Supreme Court of Canada, through the unanimous decision written by Justice Binnie (an Ontario appointment), did not agree with the provincial appellate court. They did agree that the ability to be free from state action while at our home (as in "the house of everyone is to him as his castle and fortress": Semayne's Case, [1558-1774] All E.R. Rep. 62 (1604)), unless there was prior judicial authorization to do so, was of paramount importance. Justice Binnie discussed how this concept of territorial privacy of the home has expanded to the protection of the bodily integrity of the person through the protection of the privacy of being at home. Thus, being at home suggests, “being the place where our most intimate and private activities are most likely to take place.” It is these activities, which the Charter must zealously safeguard.
In the end, the FLIR camera, revealing only heat images, did not step into the private refuge of the home. Equally, the camera did not step into the “intimate and private” activities, which are core to personal integrity and self-identity of a person as a human being.
Another issue discussed by Justice Binnie in Tessling, brings us to the second Supreme Court of Canada case to characterize personal information as “meaningful, intimate, and touching on the user’s biographical core.” According to Justice Binnie, the difficult decision was where to draw the line: at what point does the state over step their authority and wander improperly and, more importantly, unreasonably into the private lives of an individual. This too was the issue with which the Court struggled to understand in Cole.
To answer this, Justice Binnie turned to Justice Sopinka’s words in R v Plant (1993), another unreasonable search and seizure case involving a warrantless perimeter search of a dwelling house. Justice Sopinka, in starting from the underlying values of the Charter of “dignity, integrity, and autonomy,” found it an intellectually easy journey that
s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. (Emphasis in bold added)
Thus, it is out of a nuanced discussion on the privacy of the home, which expanded the concept of the “home as our castle” metaphor to another metaphor found in the idiom “home is where the heart is,” suggesting that it is not the structure that reflects who we are but what is inside – the people and the thoughts we leave behind.
As an aside, the 2011 Saskatchewan Court of Appeal in R v Trapp, which is also a child pornography matter considering the “reasonable expectation of privacy”, utilized these cases in determining the legality of the seizure of information from the accused’s internet service provider. In fact, Justice Cameron, speaking for the court, reviewed this seizure
to identify the import or quality of this information, having regard for the principle that section 8 protects a biographical core of personal information, including information tending to reveal intimate details of the lifestyle and personal choices of the individual.(Emphasis added)
Such an analysis lead the court to conclude that the seizure of the information was not contrary to the Charter.
This brings me to the second point arising from this short second paragraph written by Justice Fish. The finding in Cole not only “fills in” the term “reasonable expectation of privacy” but also “fills in” or further defines the Supreme Court of Canada’s interpretation of the Charter; the concept that the Charter reflects the underlying fundamental values of our society. The Cole decision merely continues the line of cases, which embrace the idea that Charter values, not necessarily concrete or corporeal Charter terms, lend meaning to Charter rights. Thus, it is the concept of “meaningful, intimate, and touching on the user’s biographical core,” coming from Charter values, which delineates the line of reasonableness.
Now back to the Cole case and the further expansion of personal information, as protected by Charter values, to personal information contained on a computer hard drive. Now, the private world of an individual’s has shrunk from the home as the container of our most intimate and meaningful thoughts to the nano-world of computers. Like a diary, the computer captures a timeline of who we are and who we want to be: our desires, our dreams, and our inner most thoughts. Recognizing this decision is truly a further “filling in” of Charter values helps us understand this decision more thoroughly and causes us to consider what will be next. Perhaps the intimacy of details on Facebook and other such sites will prove to attract more protection than initially thought. In any event, it is clear that the sanctity of the home has become the sanctity of the hard drive.