Faculty Research Series: Professor François Tanguay-Renaud

“Reanchoring Section 8 of the Canadian Charter for an Era of Mass Digital Surveillance: From Privacy to the Protection of Individual Liberty against Arbitrary State Power”

Abstract:
Section 8 of the Canadian Charter of Rights and Freedoms entrenches of a right to be secure against unreasonable search and seizure. Starting with its seminal decision in Hunter v. Southam, the Supreme Court of Canada has interpreted this right as protecting reasonable expectations of privacy. For state action to be regulated under section 8, it must have invaded such an expectation. If not, there is no search or seizure, and thus no violation of section 8. This article defends two claims: (1) that reasonable expectation of privacy should not be a necessary condition for triggering the right to be secure against unreasonable search and seizure under the Charter, and (2) that protection against arbitrary state power provides a more comprehensive and perspicuous normative foundation for this right. Ultimately, the article aims to provide a foundation for the right that allows it to be more responsive to the era of ubiquitous digital surveillance in which we live, and the increased power to interfere with our lives that technology now confers upon the state.

Note: Attendees will be provided the draft paper in advance of the session. However, it is not mandatory to read the paper in order to participate.