Privacy is not doing so well in America these days and a key reason is the Constitution. Today's greatest privacy threats do not concern places; but information compiled about consumers and citizens by third parties and stored in databases easily accessible by the state (through the subpoena power) and corporate interests (by contract); these all concern things far from the “persons, houses, papers, and effects” of the Fourth Amendment.

Solutions are are not obvious. Other than a messy patchwork of conflicting and often irreconcilable federal and state statutes, one common answer is to amend the Constitution: change the text so that it no longer focuses on places, but on the kinds of threats to privacy pervasive today. This may not catch all future privacy threats but it would nevertheless result in a Constitution far better equipped to deal with modern privacy challenges. Or at least that is the theory. The Canadian experience with constitutional privacy rights might prove otherwise.

Section 8 of the Charter

When Canadian officials were drafting the Canadian Charter of Rights and Freedoms in the early 1980’s they had two hundred years of American constitutional experience to draw on. This included Section 8 of the Charter, which would be the central provision for Canadian privacy protections. The drafters studied the Fourth Amendment and its interpretation in American courts and concluded that while they liked its protection against “unreasonable search”, they disliked its focus on places. Thus, drafters included a right for citizens to be “secure against unreasonable search or seizure” but intentionally omitted any reference in Section 8 to place, location or specific things. This was the twentieth century after all; there were new kinds of threats to privacy involving more than simply “persons, houses, papers, and effects”. Section 8's text would not wed its purpose to a list of places or things; Canadians needed broader privacy protections and the provision's language would reflect that intent.

The Fourth Amendment Goes to Canada

Or so the drafters thought. A year later the Supreme Court of Canada would hand down Hunter v. Southam, which remains the leading case on the interpretation of Section of 8’s privacy protection. In Hunter, the Court would, despite the Fourth Amendment’s different text, history, structure and intent, adopt the U.S. Supreme Court’s Fourth Amendment test in Katz as the standard for privacy protections under section 8 of the Charter. Despite acknowledging the differences between the Fourth Amendment and Section 8 meant “American decisions can be transplanted to the Canadian context with the greatest caution” he nevertheless adopted the Katz “reasonable expectation of privacy” test wholesale.

The deep problems this blending of constitutional cultures has caused for Canadian privacy, particularly the informational kind, has emerged in the ensuring decades. The decision in R. v. Plant offers one example. Citing Fourth Amendment decisions Katz and United States v. Miller, the Court held there was no Section 8 privacy interests in computerized records if they did not include “confidential” personal information. The fact that electricity records may reveal details about private lifestyles in the “castle” of the home made no difference.

The danger in Plant and Hunter's reliance on the Fourth Amendment principles culminated in the 2004 decision of R. v. Tessling, one of Canada's first decisions on surveillance and information privacy. There, the Court cited Plant’s modest view of section 8’s informational privacy protections to find that images of heat emanating from a house taken by police with a FLIR (Forward Looking Infrared) camera but without warrant, was not an unconstitutional search. Again, since the thermal imaging did not contain “core” confidential personal information, section 8 was not sufficiently triggered. Now compare Kyllo. In Kyllo, the U.S. Supreme Court found images taken with a similar FLIR camera constituted an unconstitutional warrantless search in large part because the imaging was of the home— one of the sacred places specifically enumerated in the Fourth Amendment’s text.

The irony is breathtaking. Despite Section 8’s text, history, and intent to provide Canadians with broader privacy protections than the Fourth Amendment, this ill-considered constitutional borrowing has led to narrower protections. In other words, Canada has the flimsy “reasonable expectation of privacy” test, which is weakened even further since there are no places – like the home – which have constitutional priority. “Place” in the Canadian Fourth-Amendment-in-Section-8 analysis is simply one factor among many.

American Lessons from a Canadian Problem

Some lessons can be divined from this constitutional hash up. First, constitutional amendment may not be enough. Many critics believe the only way to rescue the Fourth Amendment is to amend it, replacing its textual and structural focus on places with broader language to secure greater privacy. However, if the Canadian experience is any indication, newly minted text, history, structure and purpose is not always enough to broader protections. Canadian courts' reliance on Fourth Amendment principle-- despite its clear textual differences from Section 8-- has led to weaker protections than under the U.S. Constitution itself. Judicial error, or courts resistant to, or ignorant of, constitutional text and history, can lead here. Second, this experience illustrates the risks of courts relying on foreign jurisprudence. While similar constitutional systems mean comparative law is inevitable, a single act of misinformed constitutional borrowing might eclipse any remaining traces of Fourth Amendment protections (think of Tessling informing future U.S. privacy law decisions). Finally, the Canadian experience illustrates the importance of fostering a culture of privacy outside of courts. Frederick Schauer has written of America's "First Amendment Culture" which is the country's deep cultural commitment to free speech also apparent in broad judicial interpretations of the First Amendment's speech protections. If a similar constitutional culture of privacy existed in Canada - touching judicial culture - a trilogy like Hunter, Plant and Tessling may not be possible; in truth, however, neither Canada, nor the United States, have such a privacy culture. So problems remain.

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