A country’s constitution can be described as the mirror into the national soul. A constitution is a foundational instrument, reflective certainly of its country as it exists, but also aspirational in nature. In countries, like Canada, where the constitution protects individual rights and freedoms, citizens are empowered by the values that shape the legal guarantees. This is at least, the hope behind Canada’s Charter of Rights and Freedoms. What then to make of the fact that an interest or value in ‘privacy’ is not expressly protected by our constitution?

The question of the role privacy plays as a foundational constitutional value has been addressed by the Supreme Court of Canada on numerous occasions. It is well-settled law that sections 7 and 8 of our Charter do contain protections for some aspects of a privacy interest. What is less clear is whether a robust concept of privacy, and privacy-related interests, are adequately and wholly protected in Canada’s Charter. Given the constraints of the privacy protections recognized in sections 7 and 8, finding another home for privacy in the Charter might open up new potential. In my view, it would be both helpful and appropriate to consider privacy in the context of the section 15 equality guarantee.

I stress here that I am proposing “another” and not a “new” home for constitutional recognition of privacy interests, because I agree that sections 7 and 8 offer important and necessary protections for certain privacy interests. These two sections are, however, limited in their scope. They appear in a part of the Charter labeled “Legal Rights”, a heading that has been interpreted as placing boundaries on the application of sections 7 and 8. In Gosselin v. Quebec (Attorney General), [1] a majority of the Supreme Court of Canada affirmed that the guarantees under the “Legal Rights” section of the Charter are triggered by state action involving the administration of justice. In most situations, the “Legal Rights” guarantees are triggered in the criminal law context, though these protections can be used in administrative contexts too (as they were, for example, in the case of New Brunswick (Minister of Health and Community Services) v. G.(J.) [2] , involving challenges to child protection processes). While Gosselin left open the question of whether an adjudicative context was required for “Legal Rights” to apply, the majority insisted that it was appropriate to restrict the applicability of the “Legal Rights” protections to the administration of justice. [3] In Gosselin, this meant the section 7 guarantee to life, liberty and security of the person was useless in challenging an inadequate welfare regime. If privacy protections are housed only in sections 7 and 8 of the Charter, the nature of the interests protected are necessarily limited. These limitations mean that only certain kinds of privacy interests are protected by the Charter, and that a “right” to privacy only comes into play in situations captured by section 7 and/or 8. In my view, this is an impoverished interpretation of what privacy could offer as a constitutional value.

Since the Canadian Charter does not recognize the same sort of “penumbral effects” as the Americans see in their Bill of Rights, we are required to locate our constitutional values within specific Charter guarantees. If there is potential for constitutional recognition of privacy outside of the “Legal Rights” context, privacy must find another resting place. In my view, section 15 offers significant hope and advantages as another home for privacy. Chief Justice McLachlin of the Supreme Court of Canada describes “equality” as perhaps the most difficult of the Charter rights to interpret and define, and indeed, section 15 has had a tumultuous history since it came into force in 1985. In the 1990s, the Court was particularly divided on the proper interpretive approach to section 15, until in 1999 the Court reached a tentative consensus on a “test” for equality violations in Law v. Canada (Minister of Employment and Immigration). [4] [Most section 15 scholars agree the Law test is problematic and that the Court has in any event fractured into differing views on equality rights in recent years, however, Law remains in theory and in practice at least, the prevailing structure for section 15.] In Law, the Supreme Court decided to make “human dignity” the central focus of the equality guarantee, explaining the purpose of section 15 as:

Section 15 claimants must show, as one of the three required steps in the Law test, that the legislative provision they contest violates or demeans their human dignity. [6] Justice Iacobucci, writing for the Court in Law, outlined his version “human dignity” in the equality context, intending his approach to be comprehensive but non-exhaustive:

Connections between privacy and human dignity have long been acknowledged and explored by theorists [8] and the Supreme Court of Canada has declared, “a fair legal system requires respect at all times for the complainant’s personal dignity, and in particular his or her right to privacy, equality, and security of the person.” [9] It seems almost natural, then, that privacy should find a new home outside of the “Legal Rights” portion of the Charter, within human dignity, as it is understood and protected under section 15.

There are many benefits to interpreting section 15 to include a privacy interest, broadly captured by two significant features. First, protecting privacy as part of the Charter’s equality guarantee provides opportunities for a set of privacy-related claims that do not fall within the boundaries of the “Legal Rights” section to be brought forward. A claimant whose privacy interests have been violated outside of the Legal Rights context (meaning sections 7 and 8 are not triggered), may now have an avenue under section 15 to bring forward the claim, expanding the Charter’s spectrum of privacy protections. For example, in contexts including (dis)ability discrimination, social welfare or employment regimes, access and funding for abortion or contraceptive services, poverty and homelessness, government relationships with aboriginal peoples, as well as other pressing equality concerns, arguments around privacy interests might be helpful in unpacking and explaining the human dignity step of the Law framework.

Second, an understanding of privacy embedded within the Charter’s equality framework could open up more expansive possibilities for protecting a range of privacy interests beyond those that fall within sections 7 and 8. Section 8 has been interpreted as protecting three specific ‘classes’ of privacy interests: personal, territorial and informational privacy. Section 7’s protection for security of the person, which includes bodily integrity, includes decisional privacy interests. A number of theorists, however, including feminists Allen, Roberts, Gavison, McClain and others, have argued that a robust understanding of privacy includes more than simply protecting these manifestations of recognized privacy interests, and may include such features as positive obligations on the state to provide the conditions necessary for true private choice to be exercised. It is possible that interpreting privacy within section 15 could lead to the legal recognition of new or different ‘kinds’ of privacy, over and above those protected by sections 7 and 8.

Whatever the content of privacy is understood to include, there is general agreement in law and society that privacy is worth protecting, as a “core value of a civilized society,” [10] and as a requirement both of “inviolate personality” [11] and human dignity. Expanding the possibilities for protecting privacy by including it within the ambit of the section 15 equality guarantee is further and uniquely Canadian recognition of the foundational role that privacy plays in our society. Equality, and by necessity a constitutional right to equality, is at the heart of a compassionate democracy. While the Charter protects and advances many of our most cherished values, section 15 is at the heart of the Charter’s vision for Canada. Finding a home for a privacy interest in our understanding of human dignity, not only promotes a more fulsome understanding of the many facets of privacy as a core value, but also opens up new equality arguments for vulnerable and marginalized groups.

[1] 2002 SCC 84
[2] [1999] 3 S.C.R. 46.
[3] Then Justice Arbour took a different and radical approach to section 7, and would have removed it from the limitations of its placement in the “Legal Rights” section of the Charter. She left the Court soon after the Gosselin decision and her views have not gained traction at the Court so far.
[4] [1999] 1 S.C.R. 497.
[5] Ibid. at para. 59.
[6] The first two steps in the Law test are that the claimant establish that he or she is a member of one of the enumerated or analogous grounds listed in section 15 and that the impugned legislative provision imposes a burden or denies a benefit to the claimant on the basis of the ground.
[7] Ibid. at para. 53.
[8] A number of philosophers have connected privacy to human dignity, and explained the relationship between the two as harmonious and even symbiotic in nature. Edward J. Bloustein reasoned:

The man [or woman] who is compelled to live every minute of his [or her] life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his [or her] individuality and human dignity. Such an individual merges with the mass. His [or her] opinions, being public, tend never to be different; his [or her] aspirations, being known, tend always to be conventionally accepted ones; his [or her] feelings, being openly exhibited, tend to lose their quality of unique personal warmth and become the feelings of every man [or woman]. Such a being, although sentient, is fungible; he [or she] is not an individual.

See: Edward J. Bloustein, “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser” in Schoeman, Ferdinand, eds. Philosophical Dimensions of Privacy: An Anthology, (Cambridge University Press, 1984 at page 188). See also: Jeffrey H. Reiman, “Privacy, Intimacy and Personhood” in Ibid, at page 305; Helen Nissenbaum, “Privacy as Contextual Integrity” (2004) 79 Wash. L. Rev. 119.
[9] R. v. O’Connor [1995] 4 SCR 411 at para 154.
[10] See Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis J., dissenting).
[11] Warren & Brandeis, “The Right to Privacy” 4 Harv. L. Rev. 193, 194 (1890).