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Charter - Section 8 - Analytic Framework. Power Workers’ Union v. Canada (Attorney General)
In Power Workers’ Union v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here relating to "the validity of pre-placement and random alcohol and drug testing which were imposed by the Canadian Nuclear Safety Commission (the Commission) as a license condition to persons licensed to operate high security—or Class I—nuclear facilities".
The court considers the Charter s.8 ['search and seizure'] challenge to this testing, here utilizing an 'analytic framework' appropriate where there was no evidentiary record below [ie. "no search has been carried out so far"]:A. The Charter claim
[25] The Application Judge found that the Impugned requirements did not breach sections 7, 8 or 15 of the Charter. This finding was largely informed by the "“unique context”" of the highly regulated nuclear industry where "“safety is the most important priority”" given the "“devastating and long lasting impacts on the community and the environment”" a nuclear incident can have (Decision at para. 56).
[26] On the section 8 claim, because no search has been carried out so far due to the successive Stay Orders, and because he was asked to "“strike regulatory provisions that empower Licensees to authorize a seizure”", the Application Judge followed the analytical framework applied by this Court in Reference re Marine Transportation Security Regulations (CA), 2009 FCA 234 (Marine Reference), and recently followed in Union of Canadian Correctionnal Officers – Syndicat des agents correctionnels du Canada – CSN (UCCO-SACC-CSN) v. Canada (Attorney General), 2019 FCA 212 (Correctional Officers), "“as guided by the [Supreme Court of Canada] in [Goodwin v. British Columbia (Superintendent of Motor Vehicles), ""2015 SCC 46"" (Goodwin)""]”" (Decision at para. 77). In applying this framework, the Application Judge considered the following questions:a) Is section 8 engaged by the Impugned requirements, based on the safety-critical workers’ reasonable expectation of privacy?
b) If so, are the Impugned requirements "“authorized by law”"? and
c) If so, are they reasonable? [27] On the first question, the Application Judge determined that requiring the Licensees to collect bodily samples (breath, urine or saliva) involved the taking of personal and informational data, and that this amounted to a search or seizure within the construct of section 8 (Decision at para. 82). On the reasonable expectation of privacy requirement, the Application Judge found that although safety-critical workers have a diminished expectation of privacy when working at nuclear facilities, given the highly regulated nature of the nuclear power workplace, their privacy interest in the collection of their bodily samples "“[was] by no means eliminated”". Therefore, to the extent that the Impugned requirements permit the Licensees to take these workers’ biographical information without their consent, he concluded that section 8 is engaged (Decision at paras. 97–98).
[28] At the second stage of the analysis, the Application Judge held that the Impugned requirements are "“authorized by law”". He was not persuaded by the appellants’ argument that the collection of bodily samples could only be authorized by clear statutory language, not general grants of regulatory power, as is the case here. This is because, he said, this argument "“fails to consider the regulatory context in which the seizure is authorized”", a context that requires "“a more flexible approach to the ‘authorized by law’ requirement, as suggested by the [Supreme Court of Canada]”" (Decision at para. 104).
[29] For the Application Judge, the Commission’s authority to impose the Impugned requirements rests on the General Regulations and Class I Regulations, which both "“require Licensees to maintain human performance programs that include ongoing attention to reducing the likelihood of human performance-caused safety events”" and on the Commission’s broad power under subsection 24(2) of the Act to impose licensing requirements "“as it sees fit”" (Decision at para. 105).
[30] On the third question, the Application Judge was satisfied that the Impugned requirements were reasonable "“when considering all the contextual factors at hand, including the regulatory context, the public interest in nuclear safety, the identified need to bolster fitness for duty programs, the reliability of the testing methodology, and the availability of judicial oversight.”" (Decision at para. 151). He agreed that in the nuclear industry, "“one cannot ‘wait and see’ given the severe consequences that often result from nuclear incidents.”" (Decision at paras. 127–28). Being urged by the appellants to rely on arbitral jurisprudence, according to which "“an employer’s interest in safety will not justify breaching an employee’s privacy rights without reasonable cause, even in an inherently dangerous workplace”", the Application Judge found that this jurisprudence was not authoritative for the section 8 analysis, and was, in any event, distinguishable on a number of grounds (Decision at paras. 109–12). . R. v. El-Azrak
In R. v. El-Azrak (Ont CA, 2023) the Court of Appeal considered Charter s.8 ['search and seizure'] basics:(i) The Applicable Legal Principles
[27] Section 8 of the Charter does not exist to protect that which people want to keep private, solely because they want to keep it private. Nor does it exist to hide things that are incriminating, solely because they are incriminating. Rather, s. 8 exists for one purpose and one purpose only: to extend constitutional protection against unreasonable state intrusions to those individuals who have a reasonable expectation of privacy over the subject matter of a search: R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at para. 37; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 292; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 17-18; and Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 159-60.
[28] In determining any s. 8 issue, the court must start by considering whether s. 8 is even engaged, in the sense that there was a search or seizure within the meaning of s. 8 of the Charter. This turns on whether the accused has a reasonable expectation of privacy in relation to the subject matter of the search: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 16. It is the accused’s onus to establish a reasonable expectation of privacy, failing which, s. 8 protection is not extended. Conversely, success in establishing a reasonable expectation of privacy is what grants the accused standing to pursue the s. 8 claim.
[29] Where the accused gets over this hurdle, barring some well-known exceptions, state intrusion into the accused’s privacy interest will only be reasonable when it was authorized by law, the authorizing law was itself reasonable and the execution of the search was itself reasonable: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 34-37; Spencer, at para. 68; and Tessling, at para. 18.
[30] Three broad categories of privacy have emerged over time: territorial, personal and informational privacy. This case involves the latter, informational privacy, which in turn engages with three different concepts of privacy, namely, privacy as secrecy, privacy as control and privacy as anonymity: Spencer, at para. 38. Privacy as secrecy involves the ability to keep in confidence information that the individual wishes to be kept private. Privacy as control involves the ability to decide when, how and to what extent information about oneself will be shared. And privacy as anonymity involves the ability to act publicly while remaining anonymous: Spencer, at paras. 37-43.
[31] Whatever the form of privacy at issue, and in this case it is informational privacy in its various iterations, determining whether someone has a reasonable expectation of privacy necessitates both a factual and a normative inquiry. The factual inquiry necessitates a command over all of the circumstances at work in the case: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at paras. 31, 45; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 10; and R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 26. The normative inquiry is broader in nature, with an eye to protecting that for which we ought to expect protection from a privacy perspective in a free and democratic society. In this sense, s. 8 does not simply focus on the here and now but also concerns itself with the long-term consequences of government action on society as a whole. Properly viewed through a normative lens, privacy interests will rise to constitutional status when those interests reflect the “aspirations and values” of the society in which we live: Orlandis-Habsburgo, at para. 41. See also: Tessling, at para. 42; Spencer, at para. 18; Patrick, at paras. 14-20; and R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at paras. 60-74.
[32] The factors for consideration in determining whether there exists a reasonable expectation of privacy are well-known and grouped under four headings that allow for analytical convenience: Marakah, at paras. 10-11; Spencer, at paras. 16-18; and R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, at para. 13. The test asks the following:1. What is the subject matter of the search?
2. Does the accused have a direct interest in that subject matter?
3. Does the accused have a subjective expectation of privacy in the subject matter?
4. Would an expectation of privacy be objectively reasonable in the circumstances of the case? [33] Only where the answer to the fourth question is “yes” does the claimant have standing to assert a s. 8 right: Marakah, at para. 12. If the court determines that the answer is “no”, then the state action cannot violate s. 8. The answer here is no.
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[38] In determining the subject matter of the search, we apply a functional and holistic approach, one that derives from the actual circumstances of the case. Undoubtedly, this approach requires that we look beyond the actual information provided and ask whether, with that information in hand, something further is revealed about the individual to whom the information relates: Spencer, at paras. 26, 31 and 47; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at paras. 14-15, 35-39. This requires consideration of not only the raw data that the state came to possess, but also the nature of the information that could be inferentially derived from that raw data: Ward, at para. 93; Marakah, at paras. 14-15; Orlandis-Habsburgo, at para. 75; and Spencer, at para. 26.
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[49] The whole nature of a police investigation is to thread together investigative facts that eventually provide a window into what is undoubtedly private. Indeed, such investigative techniques would not be necessary could the picture be obtained from the outset. The subject matter of the search cannot be characterized based on what the police conclude at the end of their completed investigation; it must be considered solely from the perspective of what the raw data reveals and what, if any, inferences can be taken directly from that data.
[50] Respectfully, were it otherwise, society’s legitimate interest in privacy and being left alone, as balanced against society’s legitimate interest in “[s]afety, security and the suppression of crime”, would quickly become skewed: Tessling, at para. 17; Hunter, at pp. 159-60; and Edwards, at para. 30. Professor Steven Penney refers to this as the “privacy versus security” debate and calls it “a perpetually polarizing dialectic”: Steven Penney, “The Digitization of Section 8 of the Charter: Reform or Revolution?” (2014) 67 S.C.L.R. (2d) 505, at p. 506.
[51] The normative approach asks what a reasonable person would expect in a free and democratic society. That reasonable person undoubtedly has an interest in not only protecting privacy, but also in ensuring the effectiveness of law enforcement. If the subject matter of a search could be characterized by every inference that could be taken from the raw data, when placed against all other investigative facts, this would result in anything but effective and efficient investigations.
[52] This is not even to mention the fact that investigations evolve over time and the inferences that can be derived from raw data can morph with the evolution of further investigative facts. The police must be able to determine at the time they come into possession of information whether it is the subject of a reasonable expectation of privacy. If the subject matter of a search is constantly in flux and depends on the possibility that it may reveal important information after being combined with the results of other investigative steps – that may or may not be contemplated or even possible at the time of the original search – police cannot make informed decisions as to whether prior judicial authorization will be required. Such a procedure would be unworkable. Rather, the subject matter of the search must be fixed at the time of the search and the inferences that can be taken from the data must be ones that arise directly from that data. The court extensively considers the last s.8 criteria ['Would an expectation of privacy be objectively reasonable in the circumstances of the case?'] at paras 62-91.
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