Some Thoughts On Property, Privacy, and Criminal Law

I have been spending a good portion of my time outside of my regular duties with mooting competitions and writing a paper. One task is seemingly very practice minded while one purely academic. I see it differently. Engaging in an analysis of a case decision produces a repository of creative and imaginative arguments, which can have practical impact in court. To understand a case decision is to embark on a legal and literary adventure that serves as the inspiration, the creative spark, for new unknown approaches to old known areas of the law. 

To be sure, at first glance, doing a theft under case in provincial court has little to do with a Supreme Court of Canada decision on s 8privacy rights. Or does it? Theft is a public law offence yet by its very nature it is about private rights. This is mine not yours. It is about territory and possession. But hidden within the weeds, within the legal structure of theft, is the conflict between public and private which s 8 engages. This conflict can be seen, for instance, in the defence of colour of rightthat is embedded into the elements of theft. Although mistake of law is generally no excuse, when it comes to believing what is mine is mine, it provides a complete answer to a theft charge. That shows private rights abound in criminal law, but privacy, as a personal motif, is an entirely different matter. 

Private rights are not necessarily privacy rights. Yet, there are distinct parallels. In by-gone days when a phone was static, involved a dial, and could not fit in your pocket, the privacy concepts protected by s. 8 were territorial and oriented around the immediacy of personal space. Although s. 8 was in place to protect the person and not a place, it did protect the person’s personal territorial space. Territorial space may not be as solid as territory as land, but it has density to it and can be visualized. Picture the street view of Google mapand the Pegmanwho can be plucked up, carried, and placed into a circle of space. We are that Pegman when it comes to s. 8. Every placement serves to define our s. 8 rights with a property-like quality. This is my space not yours. That is until modernity arrived to displace the solidity of territory. And with that newness came a totally different conception of privacy, cut free from the shackles of Google. Or, maybe more accurately, detached from the map that is Google to be re-imagined in the same cyberspace of Google, the internet platform.

How this new formulation of privacy impacts old considerations of property interests me. Section 8 search and seizure law has kept pace with modernity and changing societal values, but property law seems to lag far behind. Theft, for instance, involves the taking or conversion of “anything” under s. 322 of the Criminal Code. This taking deprives of the owner of that “anything.” Although, the “anything” is typically a tangible thing, it may consist of a conversion of an intangible, as is the case of a taking of a bank credit for instance. However, even this unseen anything is seen in the inner eye. We can all visualize and objectify a bank credit into money in our wallet. The solidity of which cannot be denied. 

The difficulty arises when the “anything” of theft is an idea or better yet as in R v Stewart, a 1988 decision of the Supreme Court of Canada, the theft of confidential information. There, a document containing confidential information, was copied, and therefore not considered a taking of “anything.” The information was still available to the original owner of the information and there was no deprivation. Policy dictated that such wrongs be righted through the civil law not underlined by the condemnation of the criminal sanction. This narrow view of what can be stolen may be driven by policy or even, as Justice Lamer suggested, by the desire to let the lawmakers in parliament create such crimes, but it is nevertheless an antiquated approach to what a person “owns” or “possesses.”

The decision in Stewartcertainly does not wear well when viewed in the s. 8 context. It also confirms that in the property crime world tangibles, or those things that can be objectified, matter most. In today’s connected world, it is mind over matter as tangibles dissolve into a web of technology. Parliament, at least, paid Stewartsome heed and did legislate crimes relating to the misuse of computer images and data. But these new offences seem to be a concession to Stewart, not in defiance of it. True, confidential information can be memorized and copied leaving the information still available to the original owner or originating source of that information. It is not, however, the availability of such information that impacts the deprivation resulting from the taking of that information. By taking the confidential information, through cutting and pasting or through storing it in the Cloud, the original owner or source of that information is deprived of control of that information and deprived of choosing when, how and in what format that information would be released and used. 

We can push the property envelope even further if we look at “taking” through s. 8 Charter REP (reasonable expectation of privacy) eyes. A taking of confidential information would be considered a search and seizure pursuant to s. 8 of the Charter. In s. 8, we see a movement away from the castle-like solidity of territorial privacy to the ephemeral empty cyber spaces where we build castles in the wires. It’s in s. 8 where the full expression of privacy as a virtue is protected and nurtured. Ideas, thoughts and confidences do not just reflect an attitude (despite thoughts to the contrary in R v Benson,2009 ONSC 1480) but form an individual’s biographical core. It is that taking of data, that deprivation of choice in terms of when and how we disclose our secrets, which gives property perhaps a new and different meaning under the criminal law.

 

 

 

Let’s Talk About: Property Rights & The Canadian Charter of Rights and Freedoms

The Alberta election is heating up and is soon to be decided as Albertans go to the polls on Monday, April 23, 2012. One of the many controversial issues raised by the Wildrose leader, Danielle Smith, is on property rights and the absence of such rights guaranteed in the Charter. Smith, on her Wildrose website, suggests the “fundamental role” of government is the “protection and preservation of property rights.” As part of her platform on this “fundamental” issue is the promise her government would “entrench property rights.” She would do this by implementing an Alberta Property Rights Preservation Act, entrenching “basic property rights in the Alberta Bill of Rights” and spearheading “a national initiative to add property rights to the Canadian Charter of Rights and Freedoms.” 

Really? Are we really to believe that this “pressing” issue of property rights should be shoulder to shoulder in our Charter along with our fundamental freedoms such as freedom of expression, freedom of conscious, and equality rights. Should our preoccupation with individual, political, and democratic rights take a back seat to issues of ownership and possession? What will this mean for our criminal law and the ability of the government to reasonably search and seize property for a criminal investigation? Does the corporeal trump the spirit? Is property, which not everyone has the ability to own, require the special attention and protection of our most Supreme laws? Why should property rights, which were specifically and deliberately left out of the Charter, now be placed back in?

Not that we would ever see the unanimous agreement to do so that is required before the Charter could be amended. Do we need the kind of property rights litigation, which occurs in the United States, where property rights were specifically enshrined in their Constitution and viewed as sacred as life itself? And if we feel we do want this protection, are we prepared for the result. For a good discussion on the history of American Constitution property rights, read the SCC decision in Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.).

Danielle Smith may have taken a page from her namesake, Adam Smith’s, Wealth of Nations, with a call to protect life, liberty and property but fails to recognize the positive obligation protecting property would place on the government. Thus, we would need a robust and interventionist government, willing to step into the property rights fray. Entrenching property rights would mean not less government but more government, as the Courts would be busy reviewing the government’s ability to regulate and protect the national interest in the name of the economy. Take for instance the issue of natural resources and the role ownership of such resources would play under a property Charter rights scenario.

Canada does in fact have some experience with protection of property rights as section 1(a) of the Canadian Bill of Rights, 1960, the statutory, quasi-constitutional precursor to the Charter, protects “the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law.” While this still enacted statute can still be used to “protect” property rights, the legal interpretation of this right has not provided the protection the Wildrose maintains they can provide if elected. 

But would such entrenchment of property rights really “protect and preserve” an individual’s right to their property as touted by the Wildrose? It is instructive perhaps to look at the case law on property rights in the Bill of Rights. This passage of the Bill of Rights was considered by the Supreme Court of Canada rather recently in the 2003 Authorson case, in which disabled veterans attempted to require the federal government to pay past interest on pension funds despite legislation minimizing Crown liability. The end result of the decision, dismissing the veterans’ claim, was to uphold Parliament’s right to expropriate property without compensation.

Legally, an “entrenchment” of property rights does not in and of itself suggest an individual’s right to property would be absolutely guaranteed. Indeed, considering all of our rights under the Charter are not absolutely protected, any “new” Charter rights would be treated similarly. According to s. 1, all of the Charter rights are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.  In addition, both Parliament and each provincial legislature, including Alberta, have the authority to enact legislation contrary to the rights guaranteed in the Charter through the Charter notwithstanding provision contained in s. 33.

Therefore, the Wildrose is promising, in a very heated election, something they cannot themselves guarantee. Undoubtedly these are the best promises to make: no one can take them to task for merely promising to try. Interestingly, the Authorson case was written by the then Alberta appointment to the SCC, Justice Major, who is now trying to sort out the MLA compensation debacle. Of course, the proponents of property rights would suggest it is the poor wording of the Bill of Rights, offering property protection in accordance with due process, which is the problem and which can be easily fixed.

But even if the Charter was amended and property rights were absolutely protected as desired by the Wildrose, the question still remains whether or not protecting property rights is in the best interests of Canadians. If we say “yes” to property rights, then we must be prepared for all kinds of litigation overrunning our justice system such as: litigation on the right of the government to tax individuals; litigation on the government’s right to make decisions on natural resources; litigation on intellectual property rights including copyright and access to information; and litigation regarding criminal law and search warrants as discussed in the SCC case of Quebec (Attorney General) v. Laroche. We could even see spill-over litigation in the area of economic rights, which traditionally has been unprotected by the Charter as discussed in the SCC Gosselin case, which could put Canada’s economic health at risk by promoting the financial sovereignty of the individual at the expense of a strong economy and healthy society.

Thus, in the end, we must decide if property rights are worth protecting in our country knowing the possible legal pitfalls, which may ensue. Let’s ensure the next thirty years of Charter litigation promotes our fundamental freedoms as individuals of choice and free will, entitled to respect and dignity, instead of a document weighed down by possessory rights and self-interest.