Framed by Section 8: Constitutional Protection of Privacy in Canada

Abstract

The right to privacy in Canada is not explicitly protected by the Charter. Rather, privacy is protected indirectly through other constitutional rights. Leading among these is the section 8 Charter right against unreasonable search and seizure. It is predominantly within the context of accused persons’ section 8 challenges to state searches and seizures that the Canadian constitutional protection and conception of privacy have developed. Key to the section 8 inquiry is a determination of whether an expectation of privacy should be considered reasonable in the circumstances of a challenged search or seizure by state agents. While previously introduced categories of bodily, territorial, and informational privacy may have historically played a useful role in assessing the reasonableness of expectations of privacy, emerging information and surveillance technologies available to state agents increasingly blur the lines among these categories. Robust protection of privacy in the future may depend upon assisting courts in recognizing the broader social implications of the invasive profiling made possible through the aggregation of seemingly non-revealing and individually collected pieces of data.