Knowledge is Power: The Criminal Law, Openness and Privacy

Abstract

Citizens deserve to know, and in some cases need to know, what their governments — including their courts — are up to. Governments like to be able to, and in some situations need to be able to, gather information about what "the governed" are up to. In recent times the fear generated by an unknown enemy with unknown resources rightly leaves state authorities anxious to preserve whatever advantage they might enjoy in combating terror. at the end of the day the test of a democratic legal system is not whether it permits secret proceedings, or gives the state the power to discover private information: obviously for any sovereign authority to function in a meaningful way it must be able do these things, at least some of the time. Our focus should be on the procedures in place to require the justification of these two departures from the (unattainable) democratic ideal of the perfectly unintrusive, transparent state I tend to the view that the Supreme Court of Canada has, by and large, struck an appropriate balance in matters related to the flow of information between and about state and individual. The judgments in Tessling and Mann are consistent with the Court's previous jurisprudence and continue to approach issues of privacy and search in a principled, responsible manner. Section 8 guarantees only a reasonable expectation of privacy, a standard which requires an internal balancing of the state's interest in the prompt and expeditious investigation of crime against the democratic ideal of an unintrusive government. Too broad a reading of reasonable expectation of privacy runs the risk of creating excessive and unnecessary hurdles to investigations without any significantly increasing the scope of democratically meaningful privacy.