Information Sharing and the 'Reasonable' Ambiguities of Section 8 of the Charter
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University of Toronto Law Journal 57.2 (2007) 499-523

Information Sharing and the 'Reasonable' Ambiguities of Section 8 of the Charter
Lisa M. Austin
University of Toronto Faculty of Law.

I Introduction

In Hunter v. Southam, the first Supreme Court of Canada case to interpret s. 8 of the Charter, the court liberated the guarantee against unreasonable search or seizure from its common law roots – indeed shackles – of property. Section 8, wrote Justice Dickson, protects 'people, not places' and the interest at stake is privacy, not property.1 This firmly set s. 8 within a framework suitable for the modern world, where the paradigm for unjustified state intrusions into individual lives is not the knock of the king's messengers at one's door. The question is whether the analytical framework outlined by Justice Dickson and subsequently refined in the Supreme Court's s. 8 jurisprudence is robust enough to address the privacy challenges of the twenty-first century, where the major concern is the destruction of informational privacy. To many observers, it is not clear that many traditional privacy paradigms – often focusing on direct state surveillance or the protection of secrecy – can capture what is at stake in emerging practices that create 'digital dossiers' on individuals and potentially subject them to forms of 'dataveillence.'2 Instead of involving a single state agency's directly collecting personal information that is otherwise shielded from others, these practices often involve a state agency's gaining access to information that is already in the hands of third parties – such as those in the private sector or the state in its regulatory capacity. In this way, information-sharing practices are at the centre of the debate regarding informational privacy. This article argues that the Supreme Court's s. 8 jurisprudence has the [End Page 499] resources to address the phenomenon of information sharing but in order to do so must adopt greater analytic clarity and rigour in its approach to s. 8.

In telling this story, Justice Iacobucci is a perhaps surprisingly central figure. Surprising because, compared to for many areas of the law discussed in this volume, his voice was rarely heard with respect to privacy issues. He wrote very few s. 8 decisions during his juridical career and generally concurred with the majority. Nonetheless, he co-wrote two of the most important cases to touch upon s. 8 and information sharing: R. v. Mills and R. v. Jarvis.3

Mills, co-written with Justice McLachlin, as she then was, contains a statement as important for creating a modern privacy jurisprudence as Hunter's affirmation that s. 8 protects people, not places: 'Privacy is not an all or nothing right.'4 This statement, and its elaboration by Justices Iacobucci and McLachlin, creates the jurisprudential foundation for overcoming one of the most important conceptual hurdles with respect to informational privacy in the context of information sharing. The hurdle results from the fact that, in such contexts, the initial collection of information is usually non-problematic and the person providing information may give consent to its being collected. If there was nothing amiss in the original collection, then why should there be a problem with the subsequent sharing of this information? In order to argue that information privacy concerns are still present, we need to be able to conceive of privacy as something that is not lost, or strongly diminished, simply because information is shared with others in some contexts for some purposes. Mills affirms that privacy is not lost simply because information is shared and therefore secures the possibility of robust constitutional protection of personal information in the hands of third parties.

However, the legacy of this decision with respect to informational privacy is still uncertain and unfolding. Justice Iacobucci's later decision, with Justice Major, in Jarvis appears to be in tension with a strong reading of Mills on this point. Jarvis can be interpreted as suggesting that there is no s. 8 impediment to the government's using, for...