Using Protection of Privacy Legislation to Erode Privacy: R. v. Chehil

Abstract

The Nova Scotia Court of Appeal here in R. v. Chehil overturns the trial judge's conclusion that the accused had a reasonable expectation of privacy in the information the police obtained from the computer manifest. With respect, their application of the totality of the circumstances test is subject to question at several important points.

For example, in assessing the objective reasonableness of an expectation of privacy, the Court of Appeal relies on the fact that the Westjet website informs customers that "information will be disclosed to the authorities without your knowledge and consent as required by law." The court then observes of the Personal Information Protection and Electronic Documents Act (PIPEDA). 7(3)(c.l)(ii) authorizes disclosure of information for law enforcement purposes." They conclude from these facts that it would not be reasonable to expect privacy in information supplied to the airline.

However, this reasoning seems inverted. Section 7(3)(c.l)(ii) actually only authorizes disclosure for law enforcement purposes to a government institution that has "identified its lawful authority to obtain the information." That is also the essential message of the Westjet website — that the rule is non-disclosure and the exception is when disclosure is "required by law." To say that information will be disclosed when there is, for example, a warrant requiring its disclosure, is not to diminish the objective reasonableness of an expectation of privacy. Quite the contrary, the recognition that something like a warrant will be required before the information is released stresses precisely that there is a reasonable expectation of privacy in it.

Keywords: R v. Chehil, reasonable expectation of privacy, privacy, police, Westjet, warrant, non-disclosure