Deciding for Ourselves: Some Thoughts on the Psychology of Assessing Reasonable Expectations of Privacy

Abstract

Section 8 of the Canadian Charter of Rights and Freedoms guarantees to all Canadians the right “to be secure against unreasonable search and seizure.” Decisions regarding this section of the Charter are typically made in the context of charges against an accused, and the accumulation of these decisions defines the boundaries of the privacy interests of Canadians vis-à-vis governmental action. But while the court is focused on the privacy interests of particular individuals who have been accused of contravening the law, it is also determining the privacy rights of all Canadians. This paper explores the judgmental biases that arise naturally in such a situation. The evidence from psychological literature suggests that the degree to which government actions are viewed as intrusive (and thus compromising privacy) will be reduced to the extent that the decision maker takes a third-party perspective (search of others, not oneself) and to the extent that there is knowledge of irrelevant situational information, including the results of the potential search (i.e., whether evidence was produced) and indication of the guilt or innocence of the subject of the search. In deciding the typical section 8 case, judges find themselves in exactly these positions, and they thus run the risk of attenuated perceptions of intrusiveness. Analysis of the empirical literature suggests strategies for minimizing this bias, including considering intrusiveness from a first-person perspective and adopting an explicitly analytical stance on the specific question of whether the actions in question constitute a search or seizure.