Privacy as a human right
Introduction
Privacy is among the main human rights under the provisions of the United Nation Declaration of Human Rights. Privacy involves various aspects such as the recognition of human dignity, and other values such as freedom of speech and protection against unjustified search and seizure by law enforcers. In countries like Canada, the right to privacy enables citizens to develop barriers as well as to manage boundaries to gain protection from illegal and unwarranted interference. Section 8 of the Canadian Charter of Rights and Freedoms maintains that all Canadians are free from unreasonable search and seizures. This applies to both their properties and personal information. Governments should always ensure that citizens enjoy the right to privacy. Additionally, they should ensure that law enforcers follow the stipulated rules and regulations when conducting search and seizures.
The contentious Issue
Search, and seizure is among the major procedures used in civil law and common law legal systems. During this procedure, law enforcers, after suspecting a crime has been committed, begin a search of a person’s property and confiscates any useful evidence believed to be in connection with the crime. Different countries have different constitutional provisions providing citizens with the right to be free from unreasonable searches and seizures. Such rights are based on the fact that everybody is entitled to a reasonable right to privacy. In most cases, law enforcers are required to obtain a search warrant or owner’s consent before performing any kind of search and seizure
Privacy is a key concern under Section 8 of the Canadian Charter of Freedoms and Rights. Under this section, the law indicates that law enforcers should not engage in any search and seizure without following the stipulated procedures. Under this right, Canadians are provided with their principal source of constitutionally enforced privacy rights against any unreasonable intrusion from the state. In other words, it safeguards private information that can be obtained through searching a person in pat-down, entering their properties or surveillance. Under the meaning of section 8, a search and seizure procedure is considered legal or illegal based on whether the investigatory methods used by the state diminishes an individual’s reasonable expectation of privacy.
However, there have been some controversies on issues of search and seizure, which has increased the number of unreasonable search and seizures in Canada. Law enforcers in Canada can sometimes conduct search and seizures without any reasonable grounds. This is a gross violation of privacy rights, and the Court can decide to exclude any evidence obtained from illegal search and seizures.
Canadian law enforcers are permitted to use maximum powers when conducting investigations. However, this can be considered illegal, as it negatively affects an individual’s reasonable expectation of privacy. Violations of section 8 can be determined by answering various questions such as:
- Does one have a reasonable expectation of privacy?
- Should the obtained evidence be allowed in Court?
- Were there reasonable grounds to conduct the procedure?
Judicial Consideration
The Hunter v. Southam Inc., (1984) 2 S.C.R 145 at 159 is a major Supreme Court of Canada (SCC) case concerned with the issue of privacy. Additionally, during this case, the Supreme Court made its first decision to consider section 8 of the Canadian Charter of Rights and Freedoms. On April 13, 1982, the government, under the powers of the Combines Investigation Act initiated investigations into Southam Newspaper. The investigating officers entered the organization’s offices in Edmonton and in other places with the aims of examining the available documents and other things owned by the organization. The officers were acting on orders from Lawson A. W. Hunter, who was the Director of Investigation and Research of the Combined Investigation Branch. According to Hunter, there were high chances that there was evidence in the offices that would be relevant to the inquiry. He, therefore, authorized his officers to examine, copy and take any paper, book, record as well as any other document that may have relevant evidence. The officers began searching the premises on April 20, with aims of searching all the company’s files. However, the officers never named the complainant that was behind the inquiry, and they also failed to specify the section of the Act the inquiry pertained to. The officers were later served with a notice of motion for an interim injunction by the Southam Inc. According to the company, there were numerous questions on whether or not the search was a violation of Section 8 of the Charter.
Ruling and References
The Judges of the Alberta Court of Appeal maintained that some sections of the Act were inconsistent with the Charter, making them of no effect or force. After this ruling, Hunter appealed the judgement to the Supreme Court of Canada. At the Supreme Court, Southam Inc. argued that the Court of Appeal was correct claiming that S 10(1) and 10(3) of the Combines Investigation Act was not in line with the rights to be protected against unreasonable search and seizure. Additionally, the organization maintained that just like other organizations, it relied on the protections provided by common law as well as by statute in defining the accepted standard of reasonableness for the purposes of section 8 of the Charter.
On behalf of a unanimous court, Justice Dickson ruled that Combines Investigation Act infringed the rights and freedoms in the charter by failing to offer appropriate standards of administering warrants. According to SCC the main purpose of section 8 is to protect people’s reasonable expectation of privacy as well as to limit government actions that can encroach on the expectation. Moreover, there was a need to always balance the rights to privacy against the duties of the government to enforce the law.
The Court concluded that assessing the constitutionality of a search and seizure or any statute authorizing search and seizure requires a deep focus on the reasonable or unreasonable effects on the subject of the search and seizure. This meant that reasonable expectation is always protected by a guarantee of security from unreasonable search and seizure. The SCC concluded that the search and seizure was conducted with no valid procedure for prior authorization making it unreasonable. It further stated that any search and seizure should be conducted following the guidelines of Section 8 of the Charter.
Analysis
I concur with the SCC ruling in this case because the search and seizure was conducted in ways that breached section 8 of the charter of rights and freedom. The whole procedure should have been within Canadian law. All search and seizures should be characterized by a probable cause to believe that there is evidence of a crime in line with the provisions of section 8. Unreasonable search is considered to be unconstitutional as well as a violation of human rights and freedom. Evidence gotten from such unlawful search can never be used in Canadian courts.
As demonstrated by the above case, protection of people under Section 8 include corporations as legal persons The main aim of this section is to stop unjustified search and seizures before they occur not to determine after their occurrence whether they were supposed to have occurred. Some of the major privacy interests protected under section 8 include autonomy, dignity, as well as integrity. Moreover, the SCC ruling acted as a reminder that the privacy protection under section 8-personal, territorial and informational is important to human dignity as well as the functioning of democratic societies. However, it is worth noting that reasonable searches and seizure are allowed under section 8 and can sometimes lead to a certain degree of intrusion into the private sphere.
I also agree with the court ruling that a reasonable search and seizure should be authorized by the law, the law must be reasonable, and the method of conducting searches should be reasonable. However, it is worth noting that for constitutional purposes, not all examination by the government constitutes a search and not every taking by the government constitutes a seizure ((R. v. Tessling, [2004] 3 S.C.R. 432 at paragraph 18;). Any search and seizure should be characterized by consent from the victim.
Conclusion
It can, therefore, be concluded that the police violated Section 8 of the Canadian Charter of rights and freedoms. This means that any evidence from the search and seizure ought to have been excluded. Under section 24 (2), such evidence should be excluded to ensure a fair trial as well as to give full effect to the rights and freedoms provided by the charter. Every piece of evidence gotten in violation of the charter be it self-incriminatory or not should be excluded. Additionally, under Section 184.2 of the Criminal Code, the police required judicial authorization immediately after realizing that the organization was engaging in illegal activities. Moreover, during the search and seizure, the law enforcers should have revealed the name of the complainant behind the inquiry. By failing to do so, they violated the rules and regulations of search and seizures in Canada. In considering the underlying values of integrity, dignity, and autonomy, it is expected that Section 8 of the Charter should safeguard a biographical core of private information that organization and people living in free and democratic societies wish to control and maintain from dissemination to the state.