Getting Past Privacy? Surveillance, the Charter, and the Rule of Law

Abstract

A persistent critique in surveillance studies has been that privacy is a limited, legalistic and highly individualized concept, ill-suited to address contemporary practices of surveillance. Recent Canadian Charter cases seem to confirm that critique, permitting police access to a wide range of information that many would argue is precisely the kind of information gathered through emerging forms of surveillance. However, this paper suggests that instead of jettisoning privacy we should instead seek a richer legal understanding of privacy. In particular, I argue that the historical roots of our constitutional privacy jurisprudence are rule of law ideas. Many of the core values of the rule of law have implicitly shaped our legal definition of privacy but have done so in a very partial manner and in a manner that supports a very narrow conception of privacy. The ironic consequence is that the legal discourse of privacy now often helps to support the expansion of the discretionary authority of law enforcement officers rather than constrain it. In order to be more responsive to new forms of surveillance, our privacy jurisprudence requires a more explicit focus and richer understanding of the demands of these core rule of law principles.

Keywords: privacy, Charter, Search and Seizure, rule of law, surveillance