How do we fix privacy? Other than a messy patchwork of conflicting and often irreconcilable federal and state statutes, solutions are not obvious. One answer, for those of us who still retain a measure of constitutional faith, is to fix the Fourth Amendment. Yet, this raises more questions. What is the best strategy? Is a shift in interpretative method enough? Would not a full constitutional amendment be the ideal? The upshot, being, a New Privacy Right entrenched forever; something with eyes not for threats to the places where the King's men did not belong, but identities and data, the warp and woof of informational privacy today. This may not catch all future concerns but it would nevertheless leave the Constitution far better equipped. Or at least that is the theory. The Canadian experience with constitutional privacy might show 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, the Charter's main privacy provision. Studying the Fourth Amendment and its interpretation in U.S. courts carefully, the drafters concluded that while they liked its protection against “unreasonable search”, they disliked its focus on places. The drafters thus 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 threats to privacy beyond the Fourth Amendment’s concern with “persons, houses, papers, and effects”. Section 8's text would not be wedded 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 delivered its judgment in 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 protection under the Charter. Though, said the Court, the differences between the Fourth Amendment and Section 8 meant “American decisions should be transplanted to Canada only with great caution” it still adopted the Katz “reasonable expectation of privacy” test wholesale.

This blending of constitutional cultures has proven deeply troubling for Canadian privacy. The 1990s 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 that did not contain "confidential" personal information. That electricity records revealed details about private lifestyles in the “castle” of the home made no difference.

The danger in Plant and Hunter's reliance on Fourth Amendment principles culminated in the 2004 decision of R. v. Tessling, one of Canada's first decisions on surveillance and informational privacy. There, the Court applied Plant to find that heat imaging of 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 infringed. Now compare Kyllo. In Kyllo, the U.S. Supreme Court found images taken with a similar FLIR camera constituted an unconstitutional warrantless search largely 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 weakened even further by the fact there are no places – like the home – which have constitutional priority. “Place” in the Fourth-Amendment-meets-Section-8 analysis is simply one factor among many.

Canadian Lessons for American Privacy Strategies

There are a few lessons here. First, an amendment may not be enough to fix American constitutional privacy. Some say the only way to rescue the Fourth Amendment is to amend it, replacing its textual focus on places with broader language to secure greater privacy. But if the Canadian experience is any indication, newly minted text, history, structure and purpose is not always enough for broader protections. Canadian courts' reliance on Fourth Amendment principle-- despite clear textual difference from Section 8-- has led to narrower protections than under the Fourth Amendment itself. Second, if you are drafting, it might be best to stick to specific textual language, otherwise some courts might fill the void with nonsense. Judicial error or resistance to constitutional text and history can be a factor in the U.S. as much as Canada. Third, there are risks in courts relying on foreign jurisprudence. Legal scholars love citing and debating foreign precedent. While similar legal systems makes comparative law inevitable, a single act of misinformed borrowing can wreak constitutional havoc on privacy norms-- like eclipsing any remaining traces of Fourth Amendment protections (think of Tessling informing future U.S. privacy law decisions).

Are we thus at an impasse? Not necessarily. All this means is that any privacy solution requires promoting a culture of privacy both inside and outside courts. Frederick Schauer has written about America's "First Amendment Culture" which is the country's deep cultural commitment to free speech apparent in broad judicial interpretations of the First Amendment's speech protections. If a 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. It's high time to get it started.

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