  
THE RIGHT TO PERSONAL PRIVACY
Democracy's commitment to the freedom of the individual requires that society provide special protection not only against unwarranted assaults on our persons but also against unwarranted surveillance of our affairs. Privacy is central to human dignity and liberty. Human beings in our community require a retreat from public view. They need a secluded sector in which to ventilate their hopes and fears, their loves and hates. In short, they need an opportunity to "let their hair down", to be themselves. How free would any of us be or feel if our homes could be readily invaded, our letters readily inspected, and our conversations readily monitored? Indeed, one of the most hideous features of George Orwell's frightening fantasy, "1984", is the provision in everyone's home of television screens where Big Brother can watch and hear everything that takes place. As Orwell's book makes chillingly clear, there can be no liberty without privacy.
Search and Seizure to Collect Evidence of Crime But, like other fundamental freedoms, privacy cannot be absolute and unlimited. Some limitations under some circumstances are necessary and inevitable. Suppose, for example, there is a new "Jack the Ripper" at large? And suppose we have a suspect? As we have already noted in the last section, if, in a proper trial, we can prove the suspect's guilt beyond a reasonable doubt, we can have him jailed for the protection of society. But what if we don't have enough evidence to prove his guilt? Now suppose there is also good reason to believe that the murder weapon is in the suspect's house and No democratic society has ever sought to impose so many handicaps on its ability to enforce the law. Sometimes as this example shows, the need for information or evidence substantially outweighs the claim to privacy. Sometimes, the police must have the power to forcibly enter and search the home of a suspect. The problem is to decide in which situations privacy might be so invaded and by what means the risk of abuse might be minimized. The role of personal privacy is too great to permit such an invasion on the basis of mere suspicion that criminal evidence will be found. Democratic societies have traditionally required the existence of stronger grounds. Canadian law talks of "reasonable grounds" to believe that the premises contain the fruits or implements of a particular crime. American law talks of "probable cause" for such a belief. Moreover, the existence of such grounds must be sufficient to satisfy not only the investigating police, but also a judge or justice of the peace who, presumably is not subject to police and community pressures to solve crimes. The pressures to solve cases are often great. Even the most honest and conscientious police officers might be tempted to resort to the most convenient, instead of the most proper, investigative tactics. In view of their tenure of office and their removal from the mainstream of community activity, the hope is that judges and justices will be less susceptible to such pressures and more independent about their judgments. The requirement of judicial search warrants on a showing of "reasonable grounds" or 'probable cause" is the way democratic societies reconcile the protection of privacy with the needs of law enforcement. Yet Canada has adopted a number of exceptions to this safeguard. There are many provincial statutes and municipal by-laws which empower the entry of certain inspectors on people's premises, without judicial warrant and without special suspicion, for the purpose of checking general compliance with health, safety, and fire regulations. At the time of writing, there is virtually no power to open, read, or search undelivered first class mail without the consent of the person for whom it was intended. An important exception is national security: for such purposes, mail may be opened with the permission of a judge. Again, it is not our function here to debate the pros and cons of Canadian law. Whether our law treats the claims of personal privacy too cavalierly, too deferentially, or just about right, the reader can be the judge. Suffce it at this point simply to examine the importance of personal privacy, the general basis for permitting intrusions upon it, and the nature of the safeguards that have been devised for minimizing the risk of abuse.
Requiring Disclosures to Serve Individual Justice Forcible entry, search,and seizure represent more extreme invasions of personal privacy. Sometimes we intrude upon privacy, not through forcible seizures, but through requiring the possessors of information to disclose it and the custodians of documents to produce them. In the interests of doing justice in particular criminal and civil cases, there is frequently felt to be a need to extract information from the private domains of people's lives. In a divorce case where adultery is alleged, a spouse may be requested to produce letters written by a lover. In a case involving the interpretation of a will, persons close to the deceased may be requested to testify about the intimate relations between the deceased person and family members. Without all relevant information, the courts might decide their cases the wrong way. Yet the exposure of such matters to public scrutiny may cause great embarrassment. Again, the instrument for reconciling the need to know with the claim to privacy is the impartial judge. Before people can be compelled to make such public disclosures, there must be a court order. An impartial judge, not subject to the interests of the contesting parties, must decide how relevant and necessary the evidence is to the determination of the dispute at hand. Even at that, however, certain situations are not subject to court orders. Lawyers cannot generally be compelled to produce evidence against their clients. Our adversary system of justice would collapse if people could not confide completely in their lawyers. Moreover, many of the communications between husbands and wives are protected from compulsory disclosure. This privilege is designed to protect the sanctity of what we believe to be the most intimate relationship in our society. In much of Canada, other delicate relationships are potentially subject to court intrusions, for example, priests and parishioners, psychiatrists and patients, parents and children. In law, these people could be forced to testify against one another. In fact, however, our courts have rarely exercised their power to invade these relationships. Again, the reader is left to decide to what extent the present state of Canadian law adequately protects personal privacy. Is it sufficient to rely on our courts to exercise good judgment, or should other intimate relationships enjoy the kind of special privilege which presently characterizes the lawyer-client relationship and the husband-wife relationship? The problem is how far the interests of justice in the individual case should outweigh the general claim to personal privacy.
Requiring Disclosures to Serve Government Planning The promotion of justice in individual cases is not the only situation where privacy has been traditionally subject to compulsory violations. The social and economic interests of the community have also served as a basis for compelling such disclosures. Periodically, the federal government conducts a census wherein it requires citizens to impart a great deal of personal information. Our governments may want to know a lot about people's experience - their problems with respect to income, health, housing? education, employment, marriage, divorce, etc. Only through adequate knowledge of what is actually happening in the community can governments hope to plan intelligently for the future. Moreover, every year the income tax authorities scrutinize carefully our financial resources. Unless the government could examine our financial situation, it would be unable to levy a fair and just tax upon us. The trade-off in these situations is that the departments which collect the information are usually bound by a legal obligation to keep confidential the contents of individual files.
The Special Problem of Electronic Surveillance
The rapid progress of technology is making necessary new protections for personal privacy. Electronic bugs have advanced to the point where they can overhear conversations anywhere and everywhere. They can spy on us in our board rooms, union halls, dining rooms, parlours, and even in our bedrooms. While there has been a consensus, for some time, that electronic surveillance should not be permitted to further private interests, the difficult question is how much should be permitted, under what kind of safeguards, to serve law enforcement purposes. Police have argued that electronic eavesdropping is necessary to penetrate the otherwise invulnerable secrecy of well-organized criminal conspiracies. Yet, unlike the relatively limited intrusions permitted by search warrants, the intrusions within the capacity of electronic bugs are literally enormous. During a given period of time, the bug catches everyone within earshot - not only the guilty and the suspected, but also scores of completely innocent people. For example, in the course of making fewer than 3500 arrests in cases where electronic surveillance was used during 1969 and 1970, American police overheard more than 40,000 people in more than 550,000 conversations. What measures, then, would be appropriate to deal with such potentially pervasive invasions of privacy? How can we most reasonably balance the competing claims of law enforcement and personal privacy in an age of such technological sophistication? After years of public controversy and debate, the Parliament of Canada enacted a special law for this troublesome area. Generally speaking, only law enforcement authorities are allowed to bug. The permissible scope of such surveillance encompasses national security matters, certain offences involving organized crime, and a special list of more than 40 offences where organized crime is not necessarily involved Apart from various specified emergencies, the authorities require the prior permission of certain judges. Apart from national security matters, the authorities are required, after a certain period, to notify the person bugged. In the case of evidence from unlawful eavesdropping, the courts will be required generally to exclude the recordings produced but allowed a wide latitude to admit the information obtained. Some people have argued that the new law unreasonably encumbers law enforcement. Other people have argued that it needlessly endangers personal privacy. The public controversy has survived the Parliamentary debate. Is electronic surveillance merely helpful or indispensable to an adequate level of law enforcement? Are the safeguards for privacy effectively workable or essentially illusory? These are the questions which Canadians will continue to ask, as they experience the law in action.
The Special Problem of Computers Another offspring of modern technology which threatens our privacy is the computer. In many sectors of the community, computers are now being employed to record information relating to millions of people on a wide variety of matters - health, employment, intelligence, aptitudes, credit, reliability emotional disposition, personal habits etc. Initially collected by governments, schools, employers, credit agencies, insurance companies, etc., much of this material is now co-ordinated and stored in the powerful memory banks of modern computers.
In less than a second, these machines can make co-ordinated information available and usable. Access to the computer's memory bank can give access to substantial information on countless numbers of people. This poses the latest challenge to privacy. Society needs to collect information in the interests of planning efficiency. The more co-ordination that takes place and the faster that information can be retrieved, the more efficiently we can function. How can we evaluate the competing claims of information collection and personal privacy? How can we prevent undue data collection and co-ordination? How can we prevent the information from being used for any purpose but that for which it was originally collected? On what basis and in what ways can we limit access to the computer's memory banks? In the late 1970s, the Parliament of Canada took a first step in meeting this problem. It enacted legislation which gives to Canadians a measure of access to personal information about themselves which is contained in many of the data banks under federal government control. To whatever extent people dispute the information so recorded, they can require rectification or at least the recording of their objections. As might be expected, there are a number of exceptions to this right of access. Such exceptions include a power in the government to withhold information concerning national security, negotiations with other countries, federal-provincial relations, law enforcement investigations, matters which could disrupt order in the penitentiaries, and personal information concerning other people. In the event of a conflict between the individual and the government as to whether certain data fall within the specified exemptions, an independent official
Critics of this legislation complain about the relative absence of restrictions on what information the government may initially collect and about the failure to deal with the data banks under private control. How far such criticisms are justified and what measures should be adopted to meet them, we leave again to the reader. The claim to privacy is in continuous competition with the need to know. Though it is not the function of this pamphlet to prescribe specific solutions to the problems raised, it is our function to spell out the problems. While a number of provinces have legislation similar to the federal law, it is nevertheless fair to note that there is relatively little Canadian legislation dealing with technological invasions of personal privacy. If we are to protect this fundamental freedom from undue erosion, it is essential that we close the gap between our lagging legislation and our galloping technology. The spectre of a self-inflicted "1984" provides us with the continuing incentive to meet this challenge.
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The Fundamentals Of Our Fundamental Freedoms -- The Booklet Contents |
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the bodies of many of his victims are buried in his back yard? Is our belief in personal privacy so absolute and so rigid that we must under no circumstances enter and search his premises for the weapon and the bodies? Must we, in other words, risk the lives of more potential victims in the hope that we will catch him in the act?
known as a privacy commissioner is available to mediate. With access to most of the material under government control, the commissioner conducts whatever examinations and makes whatever recommendations appear justified. In the event that the government does not comply within the time limits prescribed, the individual and/or the privacy commissioner may apply to the federal court which is empowered, in appropriate circumstances, to order the disclosure of all or part of the information at issue.