Development of a Right to Privacy in the Common Law? 5

PRIVACY

PRIVACY 1

Australia 4

RIGHT TO PRIVACY 4

Development of a Right to Privacy in the Common Law? 5

Johns v. Australian Securities Commission [1994] 116 ALR 567 5

Bradley v. Wingnut Films Limited [1993] 1 NZLR 415 6

Malone v Metropolitan Police Commissioner [1979] Ch 344 6

Breach of Confidence 6

Bibliography 6

European Community 6

Kruslin v France 12 EHRR 547 1990. 7

Chappel v United Kingdom 12 EHRR 1 1989. 7

Cremieux v France 16 EHRR 357 1993. 7

Miailhe v France 16 EHRR 332 1993. 7

Funke v France [1993] 1 CMLR 897. 7

Huig v France 12 EHRR 528 1990: Telephone tapping 7

Silver v United Kingdom 3 EHRR 475 1980: censorship of prisoner’s correspondence 7

Bruggemann and Scheuten v Federal Republic of Germany 3 EHRR 244 1977: Restrictions on obtaining abortions 8

LASKEY, JAGGARD AND BROWN v. THE UNITED KINGDOM (109/1995/615/703-705) February 1997: prosecution and conviction for sado-masochistic practices-- "interference by a public authority" with right to respect for private life -- National authorities entitled to consider interference "necessary in a democratic society" for protection of health 8

Z v. FINLAND (9/1996/627/811) 25 February 1997: orders requiring doctors and psychiatrist to give evidence, seizure of medical records and their inclusion in investigation file without the patient's prior consent in criminal proceedings concerning her husband, limitation on the duration of the confidentiality of the medical data concerned and publication of her identity and HIV infection in a court judgment 13

HALFORD v. THE UNITED KINGDOM (73/1996/692/884) 25 June 1997: - interception of telephone calls made on internal telecommunications system operated by police and on public network - lack of regulation by domestic law 15

ANNE-MARIE ANDERSSON v. SWEDEN (72/1996/691/883) 27 August 1997: - lack of possibility for a patient, prior to the communication of personal and confidential medical data by medical authority to a social services authority, to challenge the measure before a court 19

M.S. v. SWEDEN (74/1996/693/885) 27 August 1997: communication, without the patient's consent, of personal and confidential medical data by one public authority to another 21

CAMENZIND v. SWITZERLAND (136/1996/755/954) 16 December 1997: search of residential premises carried out in connection with administrative criminal law proceedings -- Interference "in accordance with the law" and pursued aim consistent with Convention: "prevention of disorder or crime". 27

KOPP v. SWITZERLAND (13/1997/797/1000) 25 March 1998: – monitoring of a law firm’s telephone lines on orders of the Federal Public Prosecutor -- law did not clearly state how, under what conditions and by whom distinction was to be drawn between matters specifically connected with a lawyer’s work under instructions from a party to proceedings and those relating to activity other than that of counsel 31

VALENZUELA CONTRERAS v. SPAIN (58/1997/842/1048) 30 July 1998: monitoring of telephone line in connection with criminal proceedings against subscriber -- Foreseeability of law: telephone taps constituted serious interference with right to respect for private life and correspondence – had to be based on an especially precise "law". 36

ENGLAND 37

Three elements of defamation: 37

Defenses: 37

Criminal Libel: 37

Protection of privacy: 37

Trespass: 37

Data Protection Act 1984: 37

Breach of Confidence: 38

Argyll v Argyll [1967] Ch 302. 38

Canada 38

R. v. Caslake [1998] 1 S.C.R. 51: -- Search and seizure -- Inventory search of accused's car following lawful arrest -- Search conducted pursuant to police policy and without warrant or permission -- Admissibility of evidence 38

M. (A.) v. Ryan [1997] 1 S.C.R. 157: -- Disclosure -- Counselling records -- Victim bringing civil action for damage allegedly caused by defendant's sexual conduct -- Defendant seeking production of psychiatrist's counselling records and notes -- Whether documents privileged 40

R. v. Feeney [1997] 2 S.C.R. 13: Search and seizure -- Police looking for suspect in serious crime -- Police entering home uninvited and without warrant -- Whether accused's privacy interest violated -- Canadian Charter of Rights and Freedoms, s. 8. 47

Constitutional law -- Charter of Rights -- Admissibility of evidence 47

Dagg v. Canada (Minister of Finance) [1997] 2 S.C.R. 403: Access to information -- Privacy -- Personal information -- Request made for sign-in logs of government department -- Personal identifying features deleted from information -- Whether information should be disclosed -- Whether part of information can be withheld because "personal information" 53

R. v. Belnavis [1997] 3 S.C.R. 341: Unreasonable search and seizure -- Car stopped for speeding -- Officer looking for car's documentation and questioning passenger -- Stolen goods contained in garbage bags found in car -- Driver and passenger charged with possession of stolen goods -- Whether the driver and the passenger had reasonable expectation of privacy engaged by the search and seizure -- If so, whether the evidence should be excluded 56

Godbout v. Longueuil (City) [1997] 3 S.C.R. 844: Right to privacy -- Residence requirement -- Municipality adopting resolution requiring all new permanent employees to reside within its territorial limits -- Whether right to choose where to establish one's home falls within scope of right to privacy -- Whether residence requirement infringes employee's right to privacy -- If so, whether infringement justifiable 60

R. v. Evans [1996] 1 S.C.R. 8: Search and seizure -- Admissibility of evidence seized -- Police sniffing marijuana at house door -- Arrests made, premises secured, and search warrant for premises then obtained and executed -- Marijuana plants seized -- Whether or not "sniffing" for marijuana at house door a "search" under s. 8 of Charter -- If so, whether or not that search "reasonable" 64

R. v. Dewald [1996] 1 S.C.R. 68: Unreasonable search and seizure -- Bringing administration of justice into disrepute -- Admissibility -- Demand for breath sample not made in accordance with Criminal Code and infringing appellant's Charter rights -- Admission of evidence obtained as result of infringement not bringing administration of justice into disrepute 66

R. v. Bernshaw [1995] 1 S.C.R. 254: -- Demand for breath sample -- Roadside screening test -- Police officer authorized to demand that driver provide breath sample "forthwith" for screening test -- Whether "fail" result per se provides reasonable and probable grounds to demand breathalyzer -- Whether officer must ascertain when driver consumed last drink or wait at least 15 minutes before administering screening test -- Whether "forthwith" means immediately or whether it may encompass 15-minute delay 67

R. v. Edwards [1996] 1 S.C.R. 128: Unreasonable search and seizure -- Evidence -- Admissibility -- Search of apartment of third party -- Real evidence seized and admitted -- Whether or not accused can challenge admission of evidence obtained as a result of a search of third party's premises 69

R. v. Clement [1996] 2 S.C.R. 289: -- Police searching accused's car -- Evidence supporting trial judge's finding that accused gave his consent to the search freely and voluntarily -- No infringement of accused's right to be secure against unreasonable search and seizure 70

R. v. Goldhart [1996] 2 S.C.R. 463: Admissibility of evidence --Accused arrested on premises searched pursuant to invalid search warrant --Marijuana seized but excluded from evidence -- Person arrested with accused pleading guilty in prior trial and testifying for Crown at accused's trial -- Whether witness' evidence obtained in a manner that breached the Charter -- If so, whether its admission would bring the administration of justice into disrepute -- Whether a temporal connection existed between the witness' evidence and the Charter breach and whether any causal connection with the Charter breach was too remote 71

R. v. Knox [1996] 3 S.C.R. 1996: -- Blood test -- Consent -- Demand for blood test made of suspected impaired driver -- Standard demand not mentioning requirements that assurances be made that the blood samples will only be taken by a qualified medical practitioner and that taking the samples would neither harm the suspect's health nor endanger the suspect's life -- Whether the driver's consent was an essential element to be proved by the Crown in obtaining the driver's blood sample 74

R. v. Jacques [1996] 3 S.C.R. 312: Police officer stopping and searching appellants' truck several kilometres from Canada-U.S. border after receiving report that a vehicle had crossed at uncontrolled point of entry -- Report containing no description of vehicle or passengers -- Customs Act authorizing stop and search of vehicle where officer suspects on reasonable grounds that vehicle is or might be involved in smuggling -- Whether officer had reasonable grounds to stop appellants -- Whether appellants subjected to unreasonable search or seizure 76

R. v. Keshane [1996] 3 S.C.R. 413: Admissibility of evidence -- Accused charged with possession of marijuana for purpose of trafficking – Trial judge finding that warrantless search of accused's car violated s. 8 of Canadian Charter of Rights and Freedoms -- Trial judge excluding marijuana found by police from evidence -- Court of Appeal correct in directing that evidence be admitted 78

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN 78

R. v. Garofoli [1990] 2 S.C.R. 1421: Interception of private communications -- Judge failing to include minimization clause in wiretap authorizations -- Whether authorizations violate s. 8 of Canadian Charter -- Grounds for challenging authorizations and appropriate remedies -- Protection of identity of informers -- Admissibility of evidence 79

R. v. Silveira [1995] 2 S.C.R. 297: Unreasonable search and seizure -- Exigent circumstances -- Admissibility of real evidence if search unlawful -- Police entering house to protect real evidence while waiting for issuance of search warrant -- Search conducted and evidence seized only after warrant issued -- Whether or not search and seizure contrary to s. 8 of Charter -- If so, whether admission of evidence would bring administration of justice into disrepute 83

R. v. Colarusso [1994] 1 S.C.R. 20: Unreasonable search and seizure -- Coroners Act permitting warrantless seizures by coroners -- Validity of legislation -- Whether investigatory provisions of Coroners Act intra vires province 89

Comité paritaire de l'industrie de la chemise v. Potash; Comité paritaire de l'industrie de la chemise v. Sélection Milton [1994] 2 S.C.R. 406: Inspections -- Powers of inspection of an agency responsible for implementing a government decree in a regulated industrial sector -- Whether these powers of inspection, conferred by a provincial statute, infringe s. 8 of the Canadian Charter 93

Kourtessis v. M.N.R. [1993] 2 S.C.R. 53: Income tax -- Enforcement -- Search and seizure -- Warrant authorizing search and seizure quashed but material seized not returned --Second warrant issued with respect to retained material but subject to right to challenge -- Appellants challenging warrant by bringing application for declaration that search warrant and enabling legislation unconstitutional and for order quashing warrant -- Application dismissed -- Court of Appeal finding no right to appeal because search and seizure effected under federal criminal law power and no right to appeal existing in Criminal Code or Income Tax Act -- Whether or not appeal could be effected under provincial procedures -- Whether or not search and seizure unreasonable contrary to s. 8 of Charter 97

R. v. Wiley [1993] 3 S.C.R. 263: Cultivation of marihuana -- Police conducting perimeter search of accused's property without a warrant -- Whether warrantless perimeter search violated s. 8 of Canadian Charter -- Whether evidence should be excluded 103

Constitutional law -- Charter of Rights -- Admissibility of evidence 103

R. v. Wise [1992] 1 S.C.R. 527: -- Electronic surveillance -- Tracking devices -- Police installing unauthorized electronic tracking device in accused's car to monitor his whereabouts -- Whether use of device infringed accused's right to be secure against unreasonable search and seizure -- whether admission of evidence so obtained would bring administration of justice into disrepute 104

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO 104

R. v. Duarte [1990] 1 S.C.R. 30: -- Evidence obtained by electronic surveillance conducted without authorization -- Conversation recorded with consent of a party to it -- Recording of conversation entered into evidence -- Evidence obtained as result of breach of Charter inadmissible if administration of justice would be brought into disrepute -- Evidence obtained as result of unintentional Charter breach 107

R v McKinlay Transport Limited [1990] 1 S.C.R. 627: Income tax audit -- Demand for information or documents under s. 231(3) of the Income Tax Act -- Whether a demand for information or documents under s. 231(3) constitutes a seizure -- If so, whether seizure under s. 231(3) unreasonable 110

R. v. Ladouceur [1990] 1 S.C.R. 1257: Random routine traffic checks -- Checks authorized by statute -- Driver stopped for no apparent reason -- Driver found to be driving while licence under suspension and convicted -- Whether or not random routine traffic checks violating the Charter 112

R. v. Thompson [1990] 2 S.C.R. 1111: Interception of private communications -- Validity of authorization -- Sufficiency of description -- Places of interception: public pay phones and residential premises -- Authorizations permitting private communications to be intercepted at all places resorted to by named persons within the province -- Whether authorizations valid -- Surreptitious entry into residential premises to install intercepting devices ---- No conditions included in authorizations to protect public interest -- Whether authorizations violate s. 8 of the Canadian Charter 114

R. v. Debot [1989] 2 S.C.R. 1140: Reasonableness of search -- Right to counsel -- Admissibility of evidence if obtained in circumstances in violation of Charter rights -- Appellant frisked in warrantless drug search -- Search ordered following tip from reliable informant -- Drugs found and appellant arrested -- Appellant informed of his Charter rights, including right to counsel, on arrest -- Whether or not search reasonable -- Whether or not right to counsel infringed -- Whether or not real evidence obtained in search should be excluded from evidence 120

Privacy

14. Everyone has the right to privacy, which includes the right not to have ­

a.  their person or home searched;

b.  their property searched;

c.  their possessions seized; or

d.  the privacy of their communications infringed.