Was Scalia Spooky?

Antonin Scalia’s views on snooping, in the 1970s and later

The Globe and Mail‘s Sean Fine is as good a reporter as he is a bad analyst. Both of his qualities ― an impressive ability to find and tell a great story, and an unthinking belief in simplistic ideological classification of judges ― are on full display in his latest article, a fascinating story of how Antonin Scalia, then a professor at the University of Chicago, was commissioned to produce a report on “United States Intelligence Law” for the McDonald Commission, which investigated the RCMP’s espionage activities and whose eventual recommendations led to the creation of CSIS. Mr. Fine contrasts “[t]he report’s scrupulously impartial (for the most part) author” with the judge that he would become; the former, sensitive to privacy rights if also keen to ensure that intelligence agencies can operate effectively; the latter, in Mr. Fine’s telling, brazenly unconcerned with them, and condoning “torture in some circumstances”. But things are more complicated than Mr. Fine lets on.

Before I get to that, I’ll note little anecdote that Mr. Fine passes over, perhaps because this is a bit too inside-baseball for the Globe‘s readers. Mr. Fine explains that it was Peter Russel, who was the director of research for the McDonald Commission, who recommended then-professor Scalia’s hiring ― on the advice of Edward Levi (Scalia’s boss as Attorney-General in Gerald Ford’s administration) and Herbert Wechsler (a distinguished scholar, notably of the “neutral principles” fame). What Mr. Fine does not mention is that prof. Russel’s recommendation (a scan of which is included in the article) noted that Levi and Wechsler ranked Scalia ahead of none other than Robert Bork. (Prof. Russell, by the way, seems to have had a bit of an issue with names in that memo, referring to “Anthony” Scalia and “Richard” Bork.) Ironically, the Reagan administration would later rank Scalia and Bork in the same order when it came to making their appointments to the Supreme Court. Scalia was nominated in 1986, and confirmed by the Senate on a 98-0 vote; Bork was nominated in 1987 and rejected by the Senate after hearings so bitter that his name became a verb, in which his views and record were arguably distorted out of all recognition by Ted Kennedy and the latest recipient of the Medal of Freedom.

And, to get back to my point, this is a bit what Mr. Fine tries to do with the late Justice Scalia, albeit on a much smaller scale. He makes a point of noting that prof. Russell

would … later be appalled by the justice’s support of originalism – a judicial philosophy in which constitutional rights do not evolve over time, but stay rooted in the vision of the Founding Fathers of the United States. “Originalism is absolute nonsense”,

he quotes prof. Russell as saying. And he refers repeatedly to a “2007 speech” Scalia gave in Ottawa, in which “he was more the suspicious-of-too-many-legal-protections conservative”.  But Justice Scalia’s originalism was neither “nonsense” nor all bad for the protection of privacy rights against over-curious governments.

Prof. Russell, Mr. Fine, and those who think like them ― admittedly, a large contingent in Canada ― might just learn a thing or two from the expanding scholarship documenting the presence of originalism in Canada, and in some cases advocating the expansion of this presence. This scholarship includes (but is not limited to) recent articles by Sébastien Grammond and J. Gareth Morley focusing on the Supreme Court’s opinions on the appointment of Justice Nadon and Senate reform; an as-yet-unpublished paper by Asher Honickman, on federalism; Kerri Froc’s work on women’s rights; and the pair of articles that Benjamin Oliphant and I wrote last year. The first of these, which should come out any day now in the Queen’s Law Journal, shows that contrary to popular belief, the Supreme Court has not squarely rejected originalism, least of all what is arguably the dominant form of originalism now, one focused on the original meaning of constitutional texts (rather than their framers’ intentions or expectations). The second, due to come out in the UBC Law Review later this year, shows that, in fact, the Supreme Court resorts to originalist reasoning in a surprising variety of cases. If Prof. Russell is right that “originalism is absolute nonsense”, then not only has the Supreme Court never renounced it, but in fact large swathes of its jurisprudence (and of that of the Judicial Committee of the Privy Council), are nonsensical too.

But more directly relevant to my present topic is our discussion, in the first paper, of the contrast between Justice Scalia’s reasons, for a 5-4 majority of the Supreme Court of the United States, in Kyllo v United States, 533 U.S. 27 (2001), and Justice Binnie’s reasons for the unanimous Supreme Court of Canada in R v Tessling, 2004 SCC 67, [2004] 3 SCR 432. As we explain (actually, the credit here goes to Mr. Oliphant):

The issue, in both cases, was whether the use of a thermal imaging device by the police amounted to a “search” within the meaning, respectively, of the Fourth Amendment to the U.S. Constitution and section 8 of the Charter. In Kyllo, Justice Scalia … found that because information about what went on within the home ― however collected ― would have been secure from search and seizure at the time the Fourth Amendment was passed, the state cannot now invade that sphere of privacy through the use of new technology.

Justice Binnie, writing for a unanimous Supreme Court, disagreed… Justice Binnie rejected the relevance of Kyllo on the basis that it was “predicated on the ‘originalism’ philosophy of Scalia J.,” [61] and because it is not “helpful in the Canadian context to compare the state of technology in 2004 with that which existed at Confederation in 1867, or in 1982 when s. 8 of the Charter was adopted.” [62]

Tessling is an odd hill upon which to make a stand against originalism. Kyllo, which the Court in Tessling refused to follow, did not restrict constitutional meaning to those realities foreseen by the framers, as originalism does according to the “frozen rights” or “dead” constitution caricature frequently encountered in the Canadian literature. It did precisely the opposite. … Indeed, it is not clear to us just what Justice Binnie is actually rejecting in refusing to follow the “originalist” philosophy underlying Kyllo, or in stating that it is unhelpful “to compare the state of technology” in 2004 with what which existed in 1982. The logic of Kyllo was to deny that changes in technology can diminish the scope of constitutional protection over time; there was no “comparison” of technologies, because changes in technology were irrelevant to the interpretive question of what was protected. (25-26; a paragraph break and a reference removed)

We conclude that

In the ultimate result, and despite frequent and nebulous assertions that the Charter must be read in a “large,” “liberal,” and “generous,” manner, Justice Scalia’s originalist philosophy unquestionably resulted in a more general and robust protection for personal privacy than Justice Binnie’s “purposive” approach to interpreting section 8 of the Charter. (27)

Of course, this is not to say that Justice Scalia was always right, on privacy issues or on anything else. Indeed, this does not even prove that originalism is the better approach to constitutional interpretation than whatever it is that the Supreme Court of Canada is doing. But both originalism and Justice Scalia’s legacy are more complex than many Canadians, including Mr. Fine, tend to assume. We owe Mr. Fine for telling us a story that shed more light on the late Justice’s oeuvre. It’s too bad he tried to shoehorn that story into a simplistic ideological framework that is as misleading as it is useless.

Not Such a Simple Thing

A divided Supreme Court expands the powers of search incident to arrest

A couple of weeks ago, the Supreme Court issued a decision, R. v. Saeed, 2016 SCC 24, that was further evidence of its majority’s expansive views of the police’s powers of search incident to arrest ― and trust in judicially developed checklists to prevent the abuse of these powers. Meanwhile, by writing an opinion which, although concurring with the majority in the result, rejected its approach, Justice Karakatsanis confirmed her role as the Court’s leading ― if only in dissent ― privacy-protecting voice. To that extent, the case was a reprise of the Court’s earlier decision in  R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, where it considered the powers of the police to search an unlocked cell phone incident to arrest. (I commented on that case here.)

The issue in Saeed, was whether the police could conduct a penile swab on a man arrested on suspicion of sexual assault (or effectively force him to do it for them) in order to obtain the victim’s DNA ― without a warrant. In an opinion by Justice Moldaver, a seven-judge majority answered that question in the affirmative. Justice Karakatsanis disagreed, but would have admitted the evidence under section 24(2) of the Charter. Justice Abella dissented, endorsing Justice Karakatsanis’ approach to the main issue, but being of the view that the evidence was not admissible.

The friend of a victim of a brutal sexual assault having pointed to Mr. Saeed as the perpetrator, the police arrested him. Some time later, having concluded that a penile swab would potentially uncover useful evidence, the police placed Mr. Saeed, fully clothed, “in a dry cell, with no toilet or running water, to preserve the evidence. Mr. Saeed was handcuffed to the wall to prevent him from licking his hands or otherwise washing away evidence,” [18] for 30 or 40 minutes. Eventually, Mr. Saeed took the swab, under the direction of two male police officers, who were the only persons present. “The procedure took at most two minutes.” [25]

* * *

Justice Moldaver begins his reasons by asserting ― without much of an explanation ―  that “perhaps more than any other search power,” the “ancient and venerable power” of search incident to arrest “is used by the police on a daily basis to detect, prevent, and solve crimes.” [1] This power extends, he concludes, to the taking of a penile swab, although he “agree[s] that the common law power of search incident to arrest must be tailored to protect the enhanced privacy interests involved.” [42]

Despite the privacy implications, the taking of a penile swab is not, in Justice Moldaver’s view, analogous to that of a bodily sample ― which cannot be carried out as a search incident to arrest. The swab does not reveal information about the arrested person’s body ― it aim is to find the DNA of the complainant. It is also not particularly invasive ― or at any rate less invasive than the taking of dental impressions. Finally, the material it serves to collect can be removed quite quickly, whether deliberately or accidentally.

Justice Moldaver emphasizes the usefulness of collecting this material for prosecuting sexual assaults ― or indeed for exonerating an innocent suspect.  “This type of evidence,” he points out, “is highly reliable. It can be crucial in the case of complainants who are unable to testify, such as children, adults with disabilities, or those who have died or suffered serious injuries as a result of the offence or otherwise.” [59] For this reason, to require consent for a penile swab ― as the United Kingdom does ―  “effectively disregards the interests of victims of sexual assault … and all but ignores the public interest in bringing sexual offenders to justice.” [61] As for requiring a warrant, obtaining one takes time ― hours perhaps ― and thus involves “leaving accused persons to wait for an indefinite period in an uncomfortable and potentially degrading position,” “handcuffed without access to water or toilet facilities … in order to preserve the evidence.” [65]

Justice Moldaver cautions that a penile “swab must be truly incident to the arrest, in the sense that the swab must be related to the reasons for the arrest, and it must be performed for a valid purpose” [74]; that there must be reasonable grounds for conducting one; and that it must be conducted in a reasonable manner, to which end he supplies a list of 10 “factors” or guidelines, admonishing the police to proceed expeditiously, to explain the procedure to the arrested person, to respect his privacy to the extent possible, and to keep records. In Mr. Saeed’s case, the police acted consistently with these guidelines, and the evidence they collected is, accordingly, admissible.

* * *

As she had done in Fearon, Justice Karakatsanis takes a much narrower view of the power of search incident to arrest. She is much more concerned about the privacy interests of the accused, and more skeptical of the ability of courts to prevent abuses by supplying guidelines for the police.

For Justice Karakatsanis, a genital swab (notice, by the way, the gender-neutral terminology she uses, in contrast to Justice Moldaver) are no different from “mouth swabs, dental impressions and hair samples [which] cannot be taken as part of searches incident to arrest because they represent too great an infringement of bodily integrity and affront to privacy and dignity.” [99] Indeed,  “[a] swab of the genital area is far more damaging to personal dignity and privacy than a swab of the inside of the mouth or a pluck of hair from the head,” [101] and this is especially the case for a woman. That a genital swab doesn’t serve to collect information about the individual on whom it is conducted does not matter. The affront to the person’s dignity is the key consideration. However, whatever its purpose, “an effect of the seizure is to put the individual’s DNA in the hands of the state.” [104]

Justice Karakatsanis also notes that “if there is no lawful means by which the police could collect the evidence, ever,” ― and there may not be such means to collect the evidence yielded by a genital swab, as it is not clear that a warrant to collect it can be lawfully issued under the Criminal Code

it would not matter how long the evidence lasts.  Nothing would be lost when the evidence disappeared — no state interests would be compromised —because even if the evidence had survived, the police would have had no lawful authority to collect it. [108]

Further, Justice Karakatsanis argues that although it is not clear that it is actually necessary to handcuff a person in a dry cell in order to preserve the evidence while waiting for a genital swab, if it is,

this necessity could not be used to justify the greater affront to dignity that a genital swab would represent.  One indignity cannot justify another.  It would be ironic indeed if [section 8 of the Charter] did not protect individuals from the indignity of genital swabs precisely because it protects them from the indignity of detention in dry cells. [113]

Finally, Justice Karakatsanis is unconvinced that judicially developed safeguards can effectively protect the privacy interests of all those who may come into contact with the police ― and not only the subset of suspects who will be charged and thus have an opportunity to seek to exclude evidence against them. If Parliament wants to authorize genital swabs by statute, it can do so, but the common law power of search incident to arrest does not extend so far.

Justice Karakatsanis ultimately agrees that the evidence against Mr. Saeed should be admitted, because its admission does not bring the administration of justice into disrepute, not least because “the law on this issue was unsettled at the time of this seizure and the police acted on their understanding of the law.” [129] Justice Abella, who agrees with her section 8 analysis, does not agree with this and dissents.

* * *

For my part, I’m inclined to agree with Justice Karakatsanis. She is right that the distinction which Justice Moldaver draws between the swab at issue here and the taking of other bodily samples ― that the penile swab does not yield, or rather is not intended to yield, the DNA of the person on whom it is performed rather misses the point of the prohibition on taking bodily samples. I also think that she is right to focus on preventing unconstitutional infringements of privacy, and right that this is best accomplished by having clear prospective rules, and not lengthy checklist to be applied, if at all, by judges after the fact. Beyond these specific points, I am concerned by the expansion of the power of search incident to arrest ― including to cases where, as here, those searches take place many hours after the arrest, in the secure confines of a police station rather than in the unpredictable environment in the field. It hardly needs to be said that Justice Moldaver’s paean to that “venerable” power does nothing to soothe my worries.

I will end with a couple of thoughts about judging. It is sometimes suggested, in the heat of controversies about the judicial system’s handling of cases of sexual assault, that male judges systematically fail to empathize with the victims, leading to perpetrators getting off the hook. There is no denying that this sometimes happens. But Saeed shows that one should be careful with generalizations. Here, the Court’s five men sign on to an opinion overtly driven, in significant measure, by concerns about the difficulty of prosecuting sexual assaults. Two of the women members of the Court, by contrast, dissent from their approach, in the name of respect for privacy rights.

No doubt, a judge is influenced in part by his or her background and personal experiences. But that influence is surely more complex than a reflex that causes women to react in one way and men in another. Nor is background the only thing that influences a judge. Adjudication, even in cases involving sexual assault, should not be seen through the lens of a zero-sum battle of the sexes ― unless, of course, a specific judge gives us cause to do so in a specific case. Unless the evidence leads us to the opposite conclusion, we should treat judges as thinking human beings ― apt err sometimes, perhaps often ― but thinking all the same, and not mere automatons.

How to Get It Right on Wrongs

Ontario’s Superior Court has created a new tort. But should it have, in the circumstances?

In Doe 464533, 2016 ONSC 541, a delivered a couple of weeks ago, Ontario’s Superior Court of Justice awarded substantial damages to a person whose ex-boyfriend posted an intimate video of her online, in addition to showing it to some mutual acquaintances. He had previously coaxed her into making the video, promising that he would be the only one to see it. The promise was a lie, since he shared the video as soon as she had sent it to him. Justice Stinson finds the defendant liable for breach of confidence, intentional infliction of emotional distress, and public disclosure of private facts. The latter ground of liability had never before been recognized in Canadian common law, prompting David Fraser, at the Canadian Privacy Law Blog, to write that “[t]his is a huge deal.” It may indeed, as Mr. Fraser implies, be a hugely positive development. Certainly in Doe the Court was able to give the plaintiff redress for a blatant and vicious injustice that the defendant had done to her. Nevertheless, I want to ask whether, in the circumstances, recognizing or creating this new cause of action was the right thing to do. I hasten to add that, in asking the question, I do not mean to suggest that it must be answered in the negative ― only that it is worth thinking about.

One reason why I wonder whether Justice Stinson was right to develop the common law of privacy in this case is that, as David Canton has pointed out over at Slaw,

[t]he defendant did not file a statement of defence, and this decision was based on a motion for default judgment. So while the decision is well reasoned, there was no contrary position presented. 

Courts are normally dependent on hearing arguments from both sides of a case. Indeed, Jeremy Waldron has argued compellingly that the clash of competing arguments is an essential component of what law is, at a conceptual level. Needless to say, if one the parties chooses to forego his or her right to make an argument, as the defendant did here, this should not stop a court from ruling and, where appropriate, making an order against that party. But I wonder whether the absence of one of the parties from the litigation is not a reason, a very good reason even, for a court to be reluctant to make its ruling a precedent-setting one.

Now, this concern should probably be heavily discounted if not ignored if the question on which a precedent may be set is unavoidable on the path to a decision on the facts of the case. However, this is not the case in Doe. As I note above, Justice Stinson found the defendant liable for three different torts arising out of the same set of facts. The first two are familiar, although I take it that they had not previously been applied to similar circumstances. Had Justice Stinson “only” concluded that the defendant had committed a breach of confidence and deliberately inflicted emotional distress on the defendant, he could and surely would have awarded the same damages against him. So there was no pressing need for the judge to address the question of whether public disclosure of private facts should be a distinct ground of liability. Of course, we can imagine circumstances where the other causes of action would not be made out, and the new tort would be the only conceivable ground of liability. It is arguable that Justice Stinson’s thoughtful analysis is a service to future litigants. But again, the value of that analysis is lessened by the fact that it does not rest on a full, contradictory argument by the parties.

And then, quite apart from the unusual circumstances of this case, there is the perennial question of the relative roles of courts and legislatures in developing the law and creating new causes of action. Justice Stinson notes, early on in his reasons, that Parliament has criminalized the “publication of an intimate image without consent,” and that one province, Manitoba, has passed legislation to make it tortious. Should the law of other provinces move in the same direction by way of common law development, or should the courts wait for the legislatures ― which presumably are well aware of the problem ― to act? There are certainly good reasons for the courts not to wait. At least so long as any new causes of action are carefully circumscribed, there is probably something approaching a social consensus in favour of granting the victims of cruelty such as that suffered by the plaintiff in Doe a civil remedy. The issues involved are not ideologically controversial, and do not concern complex policy questions on which courts might lack expertise. Indeed, one could go so far as to say that, seeing how clumsy and pernicious legislative attempts to deal with online miscreants can be, courts would do well to act first, so as to remove the temptation to act that legislators would otherwise feel. All the same, it might have been useful for the court to address the question. Justice Stinson’s reasons do not.

To repeat, all that is not to say that Justice Stinson was wrong to develop the law in the way he did, or that his reasoning on the substantive issue of whether to create a tort of public disclosure of private facts could or should not be endorsed by a court considering the matter in a subsequent case. My point is only that we should take his decision as an occasion for a reflection on the courts’ when faced with novel legal issues.

The Power of Google, Squared

I wrote, I while ago, about “the power of Google” and its role in the discussion surrounding the “right to be forgotten” ― a person’s right to force search engines to remove links to information about that person that is “inadequate, irrelevant or excessive,” whatever these things mean, even if factually true. Last week, the “right to be forgotten” was the subject of an excellent, debate ― nuanced, informative, and with interesting arguments on both sides ― hosted by Intelligence Squared U.S. I encourage you to watch the whole thing, because there is really too much there for a blog post.

I will, however, sketch out what I think was the most persuasive argument deployed by the opponents of the “right to be forgotten” ― with whom, admittedly, I agreed before watching the debate, and still do. I will also say a few words about the alternative solutions they proposed to what they agreed is a real and serious problem ― the danger that the prominence of a story about some stupid mistake or, worse, an unfounded allegation made about a person in search results come to mar his or her life forever, with no second chances possible.

Although the opponents of the “right to be forgotten,” as well as its proponents (I will refer to them as, simply, the opponents and the proponents, for brevity’s sake), made arguments sounding in high principle as well as more practical ones, the one on which the debate mostly focused, and which resonated most with me concerned the institutional arrangements that are needed to implement the “right to be forgotten.” The way it works ― and the only way it can work, according to one of the opponents, Andrew McLaughlin (the CEO of Digg and a former Director of Public Policy for Google) ― is that the person who wants a link to information about him or her removed applies to the search engine, and the search engine decides, following a secretive process and applying criteria of which it alone is aware. If the request is denied, the person who made it can apply to privacy authorities or go to court to reverse the decision. If however, the request is granted, nobody can challenge that decision. Indeed, if the European authorities had their way, nobody would even know that the decision had been made. (Telling the owner of the page to which a link is being delete, as Google has been doing, more or less defeats the purpose of the “right to be forgotten.”)

According to the opponents, this has some very unfortunate consequences. For one thing, the search engines have an incentive to err on the side of granting deletion requests ― at the very least, this avoids them the hassle of fighting appeals. One of the proponents, Chicago professor Eric Posner, suggested that market competition could check this tendency, but the opponents were skeptical that, even if users know that one search engine tends to delete more links than another, this would make any noticeable difference to its bottom line. Mostly, the proponents argued that we can rely on the meaning of the admittedly vague terms “inadequate, irrelevant or excessive” to be worked out over time, so that the decisions to delete a link or not become easier and less controversial. But another consequence of the way in which the “right to be forgotten” is implemented would actually prevent that, the opponents, especially Harvard professor Jonathan Zittrain argued. Since nobody can challenge a decision to delete a link, the courts will have no opportunity to refine the understanding of the concepts involved in the “right to be forgotten.” The upshot is that, according to the opponents anyway, the search engines (which, these days, mostly means Google) end up with a great deal of unchecked discretionary power. This is, of course, ironic, because the proponents of the “right to be forgotten” emphasize concerns about “the power of Google” as one of the reasons to support it, as typically do others who agree with them.

If the opponents are right that the “right to be forgotten” cannot be implemented in a way that is transparent, fair to all the parties concerned, at least reasonably objective, and does not increase instead of the checking “the power of Google,” what are the alternatives? The opponents offered at least three, each of them interesting in its own way. First, Mr. McLaughlin suggested that, instead of a “right to be forgotten,” people should have a right to provide a response, which search engines would have to display among their results. Second, we could have category-specific measures directed at some types of information particularly likely to be prejudicial to people, or of little public interest. (It is worth noting, for example, that in Canada at least, we already do this with criminal court decisions involving minors, which are anonymized; as are family law cases in Québec.) And third, Mr. McLaughlin insisted that, with the increased availability of all sorts of information about everyone, our social mores will need to change. We must become more willing to forgive, and to give people second chances.

This is perhaps optimistic. Then again, so is the proponents’ belief that a corporation can be made to weigh, impartially and conscientiously, considerations of the public interest and the right to “informational self-determination” (which is, apparently, the theoretical foundation of the “right to be forgotten”). And I have argued already that new social norms will in fact emerge as we get more familiar with the internet environment in which we live, and in which our digital shadows are permanently unstuck in time. In any case,what is certain is that these issues are not going to go away anytime soon. It is also clear that this Intelligence Squared debate is an excellent place to start, or to continue, thinking about them. Do watch it if you can.

Call Dropped

Yesterday, the Supreme Court delivered its decision on the constitutionality of warrantless searches of cell phones incident to arrest, R. v. Fearon, 2014 SCC 77. By a 4-3 majority, the Court held that such searches are constitutional provided that some limits are respected. The dissent would only have allowed such searches in very limited “exigent circumstances.” Because Justice Cromwell’s majority opinion is somewhat vague in substance and ambiguous in tone, as well as for technological reasons, the consequences of this decision are uncertain, and may well prove quite limited. We should hope that they will, because Justice Karakatsanis’s dissent has the better of the argument.

Mr. Fearon was arrested on suspicion of involvement in an armed robbery. Police officers searched at the time of the arrest, as the law has long recognized their right to do, and found his cell phone, of the “dumb phone” variety, and searched it. They found a picture of a gun, later determined to be the gun with which the robbery had been committed, as well as a draft text message proclaiming that “we did it” ― it being quite clearly the robbery. The police searched the phone again later on, and yet again some six months later, after obtaining a warrant to search it and download its contents, but found nothing more of interest. At trial, Mr. Fearon applied to have the evidence of the phone search excluded, but the judge refused, as did the Ontario Court of Appeal.

***

Having reviewed the Supreme Court’s previous decisions dealing with searches incident to arrest, Justice Cromwell turns to the search in this case, emphasizing that it was done for one of the purposes recognized as legitimate in these cases ― the gathering of evidence. The police, he stresses, believed that searching the phone could lead them to other suspects or help them find the gun used in the robbery or the property stolen. Justice Cromwell notes that as a general matter, the power of search incident to arrest “is extraordinary because it requires neither a warrant nor reasonable and probable grounds,” [45] and insisted that

[t]hat the exercise of this extraordinary power has been considered in general to meet constitutional muster reflects the important law enforcement objectives which are served by searches of people who have been lawfully arrested. [45]

Searches of cell phones, in particular, can be very useful to law enforcement. At the same time, says Justice Cromwell, “the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other “‘places’.” [51] The amount of information such devices can contain and the things they can reveal about their users are without comparison to other objects or “containers” such as briefcases. Justice Cromwell also indicates that neither the type of device (whether a “smart” phone or not) nor its being or not protected by a password matters to determining the amount of constitutional protection it receives.

That said, Justice Cromwell asserts that “while cell phone searches … may constitute very significant intrusions of privacy, not every search is inevitably a significant intrusion.” [54] And any search incident to arrest

must be linked to a valid law enforcement objective relating to the offence for which the suspect has been arrested. This requirement prevents routine browsing through a cell phone in an unfocussed way. [57]

He therefore rejects a rule that would categorically prohibit warrantless searches of cell phones incident to arrest, such as that which the U.S. Supreme Court set out in Riley v. California, 134 S.Ct. 2473 (2014). He also rejects the further alternatives of requiring the police to have “reasonable and probable grounds” before searching cell phone, or limiting the searches to “exigent circumstances” where they are necessary to prevent harm to persons or avoid the destruction of evidence. The ability to search phones is too important to police, and should not be taken away if it is possible to set out some safeguards that will limit the intrusions on the privacy of the suspects.

Justice Cromwell thinks that it is indeed possible to do so. First, “[b]oth the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence,” which usually will mean that “only recently sent or drafted emails, texts, photos and the call log may be examined,” though “these are not rules, and other searches may in some circumstances be justified.” [76] Furthermore, the investigation of some crimes, notably those involving “violence,” “readily disposable property,” and “drug trafficking” will more readily support searches of phones than that of “minor offences” [79] Second, cell phone searches incident to arrest are only permitted to find evidence absent the prompt discovery of which “the investigation will be stymied or significantly hampered” ― meaning

that the police will have to be prepared to explain why it was not practical … in all the circumstances of the investigation, to postpone the search until they could obtain a warrant. [80]

And third, police must take detailed notes when they search a cell phone.

These constraints were not respected during the search of Mr. Fearon’s phone, albeit for the excellent reason that the Supreme Court had not yet articulated them. Accordingly, Justice Cromwell finds that Mr. Fearon’s right not to be subject to an unreasonable search was infringed, but decides that the evidence could nonetheless be admitted under s. 24(2) of the Charter, as the infringement was not so serious as to “bring the administration of justice into disrepute.”

***

Justice Karaktsanis, for her part, argues that Justice Cromwell’s attempt to limit the intrusions on the suspects’ privacy caused by searching their cell phones will not work. Indeed, in her view, the safeguards proposed by Justice Cromwell will fail to protect privacy while still hampering the work of police and generating litigation.

She begins by observing that

[o]ur digital footprint is often enough to reconstruct the events of our lives, our relationships with others, our likes and dislikes, our fears, hopes, opinions, beliefs and ideas. Our digital devices are windows to our inner private lives. [101]

For this reason, the search of a cell phone is just as serious an “encroach[ment] on the arrested person’s most private spheres [as that] of a home, or the taking of bodily samples.” [104] For Justice Karakatsanis,

the cell phone is like a key or portal which can allow the user to access the full treasure trove of records and files that the owner has generated or used on any number of devices. … The fact that a suspect may be carrying their house key at the time they are arrested does not justify the police using that key to enter the suspect’s home. In the same way, seizing the key to the user’s digital life should not justify a wholesale intrusion into that realm. [132]

She also points out that “[t]he threat of unreasonable intrusions on privacy (and not only the unreasonable intrusion itself) is enough to undermine the values served by privacy.” [117]

On the other side of the ledger, Justice Karakatsanis acknowledges that “searching a cell phone will often be very useful for law enforcement,” [137] but argues that absent exceptional circumstances, waiting for a warrant to do so will not be too much of a burden. While the wait might occasionally hamper an investigation, as with the prohibition on searching a home incident to arrest, this is the price to pay for protecting privacy.

The restrictions on searches proposed by Justice Cromwell, just like a rule allowing only “cursory” cell phone searches incident to arrest, are in Justice Karakatsanis’s view impracticable, uncertain, and bound to generate after-the-fact litigation. A search that is intended to be limited or cursory can still lead to highly private information. Even

a cursory inspection for recent communications will need to search a host of applications ― the privacy infringement may be far from minimal and the inspection far from quick. Similarly, a cursory inspection of photos may involve any number of private and personal photographs of the individual ― and of third parties. [164]

Letting the police carry out such inspections would be an invitation for suspects to subsequently litigate the admissibility of their fruits ― yet even if the evidence is then excluded, the harm to privacy will already have occurred.

***

It’s not clear just what the effects of the majority’s decision will be. In theory, it is even possible that police will take to heart Justice Cromwell’s warnings about the limited scope of permissible cell phone searches, though I wouldn’t count too much on that. More importantly, technology will help accomplish that which constitutional law will not. If a phone is protected by a password and locked at the time it is seized, the police will not be able to search it incident to arrest, and will need to obtain a warrant anyway. And with manufacturers deciding to relinquish their own ability to break the password protection of their phones, as Apple has already done, phones may become unsearchable, even with a warrant, in the future ― which is not necessarily a good thing.

Yet to the extent that the decision does matter, it is, I think, a regrettable one. Justice Cromwell dutifully recites the his own conclusions, for the Court, in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 about the potentially far-reaching effects of searching computers, and acknowledges that cell phones are equivalent to computers from a privacy perspective. But when reading his assertion that “[l]ooking at a few recent text messages or a couple of recent pictures is hardly a massive invasion of privacy, let alone an affront to human dignity,” [61] one cannot help but wonder just how seriously he takes his own words. Justice Cromwell discusses the dignitarian problems inherent in strip searches, but would allow police to look at images just as if not more intimate. He is aware of the intrusiveness of a taking of bodily samples, but would let police read emails discussing a person’s health issues. Justice Karakatsanis, whose opinion reads like that of a very technologically savvy person, has a much better appreciation of what is at stake when phones are searched, and of the likely impossibility to the searches’ effects on privacy.

Indeed, the Justice Cromwell’s opinion is striking in the extent to which it seems to favour the interests of law enforcement. It seems much more concerned with the efficacy of police investigations than with the rights of the persons these investigations target. One wonders whether Justice Cromwell was swayed by his conclusion ― irrelevant and apparently unsupported ― that the robbery of which Mr. Fearon is accused is “a crime that has become depressingly routine.” [5] We can only hope that this attitude will not affect other, perhaps more significant, cases in the future.

Tell Them Carefully

Cross-border disclosure of wiretaps survives the scrutiny of a (politely) divided Supreme Court.

Last week, the Supreme Court issued its decision in Wakeling v. United States of America, 2014 SCC 72, upholding the release by Canadian authorities to the United States of recordings of Mr. Wakeling’s communications, which had been wiretapped by the RCMP acting pursuant to a warrant, and which the Americans used as a basis for requesting his extradition on drug charges. Three judges (Justices Moldaver, LeBel and Rothstein) found that the release of wiretaps to foreign states does not infringe the right, protected by section 8 of the Charter, “to be secure against unreasonable search or seizure”; one (the Chief Justice) found that section 8 was not engaged at all; and three (Justices Karakatsanis, Abella, and Cromwell) found that it was indeed infringed.

Section 193 of the Criminal Code prohibits the release of “intercepted” “private communication[s],” subject to a number of exceptions. One of these, par. 193(2)(e), applies

where disclosure is made to a peace officer or prosecutor in Canada or to a person or authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere.

Mr. Wakeling argued that this exception suffered from a number of constitutional defects: it was, he said, overbroad and vague, and lacked any accountability mechanisms. (He raised some other arguments as well, which all the judges rejected, and which I will not address here.)

***

Before getting there, however, he had to establish that the Charter was engaged at all. The Chief Justice thought that it was not, because “sharing information obtained under warrant for law enforcement purposes with foreign law officers does not violate s. 8,” [96] except in cases where the disclosure will used abusively (for example “for rendition to a foreign country … or public titillation” [95] or to enable torture or mistreatment).

Justice Moldaver, however, accepted that s. 8 of the Charter was engaged, despite the fact that the disclosure of an already-intercepted communication is not a “search” (as Mr. Wakeling claimed). In his view,

[t]he highly intrusive nature of electronic surveillance and the statutory limits on the disclosure of its fruits suggest a heightened reasonable expectation of privacy in the wiretap context. Once a lawful interception has taken place and the intercepted communications are in the possession of law enforcement, that expectation is diminished but not extinguished. [39]

The test for deciding whether the disclosure infringes s. 8, similar to the one applicable to a search, is

(1) whether the Impugned Disclosure was authorized by law; (2) whether the law authorizing the Impugned Disclosure is reasonable; and (3) whether the Impugned Disclosure was carried out in a reasonable manner. [42]

In this case, the first prong of the test was obviously satisfied, and the focus was almost entirely on the second.

Mr. Wakeling’s first arguement against the reasonableness of par. 193(2)(e) of the Criminal Code was that it was overbroad in authorizing “near-limitless” disclosures. Justice Moldaver rejected this claim because the Code “limits the type of information that may be disclosed, the purpose for which it may be disclosed, and the persons to whom it may be disclosed” [55]. He also rejected additional arguments concerning the scope of par. 193(2)(e) made by the BC Civil Liberties Association. To the latter’s claim that it was not reasonable to authorize disclosure in the interest of the administration of justice in a foreign state rather than in Canada, Justice Moldaver answered that Canada also benefits from international co-operation, which has to be reciprocal. To the assertion that authorizing disclosure for improper purposes, or with knowledge that it would be used to torture or otherwise abuse people, he replied that “the disclosing party must subjectively believe that disclosure will further the interests of justice in Canada and/or the foreign state. The belief must be an honest one, genuinely held” [59], a criterion that would probably not be met if the disclosing party does not know how the information disclosed would be used, and still less if it know that it will be used to commit human rights violations.

Mr. Wakeling’s next argument was that the requirement that disclosure to foreign authorities be for the purposes of “the administration of justice” is unconstitutionally vague. Not so, said Justice Moldaver. “Administration of justice,” he said, “means that disclosure must be for a legitimate law enforcement purpose,” and that’s precise enough to guide legal debate.

Finally, Mr. Wakeling contended that par. 193(2)(e) did not provide sufficient accountability mechanisms, whether notice to the target of the wiretap, record-keeping, reporting to Parliament, or mandatory imposition of conditions on the ways in which the recipients of disclosure would use the information in question (known as “caveats”). Justice Moldaver rejected these claims, on the basis that the existing accountability mechanisms are enough. Additional safeguards may be desirable and worth encouraging; their existence or application to a particular case may even be relevant to determining whether a given disclosure was authorized by law or reasonable; but they are not constitutionally required. Justice Moldaver seems to have been concerned about imposing, as a constitutional matter, excessively rigid rules in the area of foreign relations and co-operation between law enforcement agencies. He concluded this part of his reasons by

emphasizing that this Court’s task is not to determine whether there may be better or additional accountability measures or stricter language that could be put in place with respect to the cross-border disclosure of wiretap communications. Any attempt to micromanage Parliament in this context must be approached with great care. The task at hand is to determine whether s. 193(2)(e) passes constitutional muster. [77]

It is worth noting here that, although she did not formally reach this question because of her conclusion that s. 8 was not engaged at all, the Chief Justice opined that “[t]hese are difficult questions more redolent of policy than of law. Parliament has considered them and answered with the offence provisions and exemptions of s. 193,” [100] and suggested that Parliament’s choices deserve deference.

The final prong of the s. 8 test asks whether the disclosure at issue was itself carried out in a reasonable manner. There was no real dispute that this requirement was satisfied here. However, Justice Moldaver pointed out that in other cases, “[w]here a disclosing party knows or should have known that the information could be used in unfair trials, to facilitate discrimination or political intimidation, or to commit torture or other human rights violations” [80], the requirement that disclosure be carried out in a reasonable manner could entail the imposition of caveats or other precautionary measures ― or, in the more extreme case, may operate to prevent disclosure at all.

For her part, Justice Karakatsanis disagreed with Justice Moldaver on the matter of accountability requirements. She worried that “[w]hen information is shared across jurisdictional lines, the safeguards that apply in domestic investigations lose their force,” which “can create serious risks to individual privacy, liberty and security of the person interests.” [118] To mitigate these concerns, Justice Karakatsanis would have made mandatory the imposition of caveats that would

provide some assurance to our law enforcement agencies that disclosed information will only be used to advance legitimate law enforcement objectives, in accordance with respect for due process and human rights and will not be shared further except as agreed to by the disclosing party. [133]

Furthermore, Justice Karakatsanis would have required the implementation of some form of record-keeping and notice-giving mechanisms applicable specifically to cross-border disclosures. The fact that such mechanisms apply to the general fact of the interception of communications was not enough, in her view, because cross-border disclosure comes with its own set of privacy risks. However, Justice Karakatsanis did not specify the form that such mechanisms ought to take, leaving it to Parliament to figure this out.

Having found that par. 193(2)(e) is not a “reasonable” law and thus infringes s. 8 of the Charter, Justice Karakatsanis summarily rejected the possibility that it might be justified under s. 1, on the basis that it is minimally impairing, since alternatives more respectful of privacy interests are available to Parliament.

***

I do not have any particularly deep thoughts about the substance of the Supreme Court’s decision. (Craig Forcese does, mostly about what it means for Canada’s security services, and what Parliament should do to address the somewhat uncertain situation in which they now find themselves. Do read what he has to say.) I will, however, make a couple of observations.

The 1-3-3 split in Wakeling, following similar multi-way splits in cases such as R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 SCR 3, seems to indicate that s. 8 and privacy rights more broadly remain an area on which the Supreme Court, so inclined towards consensus on most topics, still cannot agree. Yet it is worth noting that the splits do not involve consistent “camps” that would suggest irreconcilable differences of views. Indeed, in Wakeling, Justices Moldaver and Karakatsanis go out of their way to acknowledge each other’s concerns ― to an extent remarkable even by the Court’s usually polite standards.

This, to me, seems to suggest that we are in an area of reasonable disagreement between people debating in good faith. And that, in turn, might mean that Justice Moldaver’s and the Chief Justice’s appeals for deference to Parliament are especially appropriate. At least insofar as Parliament considers the interests at stake and tries to strike a balance between them, judges should probably hesitate before upsetting this balance. This is all the more so if they have limited evidence about how cross-border information-sharing actually operates, which may well have been the case in Wakeling. That said, Parliament should not get the benefit of deference if it fails to study and debate the issues before it with some degree of care and honesty. Unfortunately, the legislative practices of the current government do not inspire much confidence on that front.

Pistes de réflexion

Dans mon billet de vendredi, j’ai discuté de la complexité de la pondération du droit à l’image et à la vie privée et de celui à la liberté d’expression et à l’information dans le contexte de la publication d’une photo d’une personne sans le consentement de celle-ci. Comme je l’ai expliqué, je crois que les tribunaux québécois, dont notamment la Cour supérieure dans son récent jugement dans Hammedi c. Cristea, 2014 QCCS 4564, n’accordent pas suffisamment d’importance à la liberté d’expression et au droit du public à l’information, et ont une conception trop large du droit à l’image. L’équilibre voulu par le législateur québécois, qui a, à l’article 36 du Code civil, posé l’intérêt public comme limite au droit d’une personne de ne pas voir son image publiée sans son consentement, n’est pas atteint. Dans ce billet, j’aimerais proposer quelques pistes de réflexion supplémentaires pour ce débat qui, comme je l’expliquais vendredi, a parfois manqué de nuances.

La première piste dont j’aimerais parler a été tracée par Pierre Trudel dans son sage billet sur le jugement Hammedi, oû il a soulevé l’arrêt de la Cour suprême dans Alberta (Information and Privacy Commissioner) c.Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 401, 2013 CSC 62, [2013] 3 R.C.S. 733, dont j’ai discuté ici. La Cour y a invalidé la législation albertaine de protection de la vie privée en vertu de laquelle un syndicat avait été condamné pour avoir pris et publié des photos de personnes traversant une ligne de piquetage. La Cour suprême a statué que la législation ne reflétait pas une pondération appropriée du droit à la vie privée, qu’elle protégeait de façon excessive, et du droit à la liberté d’expression, qu’elle négligeait. Le prof. Trudel voit en ce jugement la preuve de ce que, pour la Cour suprême, «  la liberté d’expression protège le droit de capter et d’utiliser des images prises dans un espace public ». Il a peut-être raison ― j’aimerais, même, qu’il ait raison ― mais je n’en suis pas certain. Le jugement rédigé par les juges Cromwell et Abella insiste spécifiquement sur l’importance, pour un syndicat, « de communiquer avec le public et de le convaincre du bien‑fondé de sa cause, compromettant ainsi sa capacité de recourir à une de ses stratégies de négociation les plus efficaces au cours d’une grève légale » (par. 38). Il s’agit peut-être d’un argument plus ou moins superfétatoire employé par des juges qui sont probablement les deux membre les plus pro-syndicaux de la Cour suprême. Mais peut-être est-ce une indication que le contexte particulier de l’affaire avait une importance réelle pour la décision, et que, dans une autre situation, celle en cause dans Hammedi par exemple, la Cour suprême ne pondérerait pas la liberté d’expression et le droit à la vie privée de la même manière. Du reste, la Cour souligne que sa « conclusion ne nous oblige pas à cautionner toutes les activités du syndicat ». Elle se contente d’indiquer que les restrictions à la liberté d’expression imposées par la loi albertaine sont inacceptables, sans préciser, comme elle le fait pourtant souvent, quelle pondération des droits en cause serait constitutionnelle. Je soupçonne, en fait, qu’elle ne le sait pas elle-même. Son jugement mérite certainement d’être invoqué dans le contexte québécois, mais il ne nous fournit pas toutes les réponses, loin de là.

Un autre arrêt de la Cour suprême qui pourrait alimenter la réflexion sur la pondération du droit à l’image et de la liberté d’expression est Grant c. Torstar Corp., [2009] 3 RCS 640, 2009 CSC 61. La Cour y a statué que le droit de la diffamation, en common law, ne respectait pas suffisamment la liberté d’expression. Pour la Cour suprême, le droit à la réputation, que le droit de la diffamation protège,  est lié, dans une certaine mesure à celui à la protection de la vie privée et aussi à la dignité de la personne.  On peut donc soutenir que l’arrêt Grant, même s’il n’est pas directement pertinent en droit québécois, témoigne donc lui aussi d’une volonté de la Cour suprême de donner plus de poids à la liberté d’expression de sa pondération avec des droits reliés à la vie privée et à la dignité, dont le droit à l’image est un aspect, selon le Code civil. Cette volonté résulte entre autres de la conscience de la Cour de l’effet paralysant (« chilling effect ») que peuvent avoir les règles insuffisamment protectrices de la liberté d’expression sur la communication de messages qui devraient pourtant être entendus dans le cadre de la recherche de la vérité et du libre débat démocratique.

Un autre facteur dont la Cour suprême a tenu compte et qui mérite qu’on s’y attarde en réfléchissant à la meilleure interprétation de l’article 36 du Code civil est le rôle des médias. La solution adoptée dans Grant consistait en la création, en droit de la diffamation en common law, d’une défense de « communication responsable concernant les questions d’intérêt public ». S’inspirant de pratiques du « journalisme responsable », la Cour a tout de même voulu protéger tous les « propagateurs de nouvelles et d’information », y compris ceux qui utilisent « de nouveaux modes de communication (beaucoup d’entre eux en ligne) permettant de traiter de questions d’intérêt public et ne faisant pas appel à des journalistes » (par. 96).  La Cour a souligné qu’une publication qui respecte les normes du journalisme pourrait ne pas résister à une analyse devant un tribunal et que, par conséquent, « exiger que la couverture des questions d’intérêt public atteigne à une certitude judiciaire peut aboutir à empêcher la communication de faits qu’une personne raisonnable tiendrait pour fiables et qui sont pertinents et importants pour le débat public » (par. 53). La situation dans Hammedi, où la Cour supérieure, sans véritablement se demander si la photo en cause était pertinente au débat public et pouvait faire avancer celui-ci, ou si sa publication était justifiée comme une pratique journalistique responsable, a imposé sa compréhension de ce qui était « nécessaire » pour publier l’article qui l’accompagnait ressemble à celle que la Cour suprême a cherché à corriger en matière de diffamation.

Une dernière piste de réflexion que je voudrais proposer, mais non la moindre, concerne l’impact des nouvelles technologies sur la mise en oeuvre du droit à l’image. Encore à l’époque où la Cour suprême a décidé, dans Aubry c. Éditions Vice‑Versa, [1998] 1 R.C.S. 591, que la publication d’une photo d’une personne sans son consentement constituait une faute, seuls des journalistes et quelques hobbyistes avaient les moyens de prendre et de publier de telles photos. Or, les choses ont bien changé. Presque tout le monde a désormais un téléphone cellulaire doté d’une caméra, et deux Québécois sur trois sont sur Facebook. Et il est rare qu’on demande le consentement préalable d’une personne avant d’en publier la photo sur Facebook (ou un autre réseau social). Dans la mesure ou cette personne accepte par la suite d’être « taguée » (désolé, j’ignore s’il y a un terme français!) dans cette photo, on peut en inférer son consentement rétrospectif, mais qu’en est-il de celle qui ne l’accepte pas ou, simplement, n’est pas sur Facebook, ou encore de celle dont on publie une photo sur une plateforme qui n’offre pas de fonctionnalité équivalente? Il me semble bien que ces personnes là pourraient poursuivre l’auteur de la photo. Est-ce un résultat souhaitable? Et même si ce l’est, force est de constater qu’il existe un écart très considérable entre la règle juridique, telle que posée dans le Code civil et dans Aubry, et la norme sociale qui a émergé en réaction au changement technologique après l’adoption de cette règle.

On le sait, la publication sur internet d’images intimes de personnes qui n’y ont jamais consenti est un problème réel et grave. Les conséquences, pour les personnes affectées, sont affreuses, voire même tragiques. Tant mieux si l’article 36 du Code civil pourrait aider les victimes à obtenir réparation des responsables. Cependant, une règle qui est appropriée dans le cas d’images qui, en raison de leur contenu, sont vouées à rester (très) privées ne l’est pas nécessairement pour celles qui sont parfaitement banales, et encore moins pour celles qui peuvent raisonnablement servir à illustrer des sujets d’intérêt public. Comme le dit le prof. Trudel, il est temps que la Cour d’appel et, éventuellement, la Cour suprême se penchent sur les nombreuses questions que le droit à l’image et sa mise oeuvre en droit québécois soulèvent en 2014. Le législateur aussi, d’ailleurs.