| | |
|
JonPenneySecondPaper 3 - 28 Apr 2009 - Main.JonPenney
|
| |
| META TOPICPARENT | name="WebPreferences" |
|---|
The Fourth Amendment’s Unwelcome Journey to Canada | | | 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. | >
> | 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. | | | 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. | |
<
< | WORDCOUNT: 986 | >
> | WORDCOUNT: 985 | | |
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, JonPenney |
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|
| | |