|
Charter - s.8 Search and Seizure - Personal Privacy (Bodily). 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".
Here the court considers the Charter s.8 ['search and seizure'] challenge to this testing:A. The Charter claim
(1) Section 8
[49] Section 8 provides constitutional protection against "“unreasonable search or seizure”". When it was first considered by the Supreme Court in Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 (Hunter), that Court identified three core features of that protection:. it protects individuals "“from unjustified state intrusions upon their privacy”";
. it only extends however to an individual’s "“reasonable expectation of privacy”"; and
. it requires, for the purposes of determining if a state intrusion is justified in a particular situation, an assessment "“as to whether the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement”". (Hunter at 159-60).
[50] These core principles have given rise to a two-step analysis. First, it must be determined whether the impugned search or seizure interferes with an individual’s reasonable expectation of privacy. If it does not, then section 8 is not engaged and the inquiry ends there. On the other hand, if the impugned state action does interfere with an individual’s reasonable expectation of privacy, then the question becomes whether said action is reasonable (Goodwin at para. 48).
[51] It is now well-settled that this test applies whether the search or seizure is conducted in criminal or other contexts (Goodwin at para. 60; see also York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 at para. 101 (York Region District)). That said, both prong of the test call for a contextual analysis "“adapted to occupational realities”". This means, among other things, that courts must adopt a flexible approach "“capable of application in a vast variety of legislation schemes”" and guard against "“indiscriminately import[ing]”" criminal law jurisprudence "“into non-criminal matters”" (York Region District at para. 99; Goodwin at para. 53; Thompson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425 at 506-08 (Thompson Newspapers); R. v. McKinlay Transport Ltd., 1990 CanLII 137 (SCC), [1990] 1 S.C.R. 627 at 644-47 (McKinlay Transport); British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3 at 35 (BC Securities)).
[52] As the Supreme Court stated in Thompson Newspapers, at page 506, such an approach, which contemplates the application of a "“less strenuous and more flexible standard of reasonableness in the case of administrative or regulatory searches and seizures”", is "“fully consistent with a purposive approach to the elaboration of s[ection] 8.”"
....
(i) Safety-critical workers’ reasonable expectation of privacy
[54] There is no dispute that the taking of bodily samples – be it breath, saliva or urine – amounts to a "“seizure”" within the meaning of section 8. The Application Judge concluded as such and the Respondents conceded this point.
....
[61] The concept of "“reasonable expectation of privacy”" is a normative one. It corresponds to the "“level of privacy that we, as a society, should reasonably expect in a given circumstance”" (Goodwin at para. 48).
[62] In that sense, measuring a person’s reasonable expectation of privacy in a given circumstance will depend on the person’s subjective expectation of privacy in a subject matter, provided, however, that this subjective view is objectively reasonable. This test, which has sometimes been called the "“twin subjective/objective enquir[y]”", requires that the reasonable expectation of privacy of a complainant in a given case be determined on the basis of the "“totality of the circumstances”" (Goodwin at para. 48. See also York Region District at para. 102, referring to R. v. Tessling, 2004 SCC 67 (CanLII), [2004] 3 S.C.R. 432 at paras. 31−32 (Tessling); R. v. Gomboc, 2010 SCC 55 (CanLII), [2010] 3 S.C.R. 211 at paras. 18, 78; R. v. Patrick, 2009 SCC 17 (CanLII), [2009] 1 S.C.R. 579 at para. 27).
[63] Here, the Application Judge did just that and I see no error in the conclusions he reached. In particular, I see no error in the Application Judge’s reliance on Goodwin. It is important to underscore that these conclusions were drawn in answering the first prong of the section 8 test, which, as noted, requires the reviewing court to determine whether section 8 is engaged by the impugned state action, which, in turn, calls for an assessment of the complainant’s reasonable expectation of privacy.
[64] In my view, Goodwin does indeed provide ample support for the Application Judge’s conclusion that safety-critical workers have a diminished expectation of privacy, given the nature of their work and the unique environment in which that work is being performed (Decision at para. 97).
[65] In Goodwin, the Supreme Court ruled that people driving a vehicle on a public highway had a diminished expectation of privacy since the seizure (the roadside breath demand in that case) "“occur[ed] in a vehicle […] in the highly regulated context of driving on a public highway […] and is relatively non-intrusive […]”" (references omitted). Yet, this did not oust section 8 protection because of the drivers’ "“residual privacy interest in [their] breath.”"
[66] I see no principled basis to distinguish Goodwin from the situation at hand. Both matters concern seizures in the form of random testing. In both instances, the seizures, in order to be conducted, do not require prior judicial authorization or reasonable or probable grounds of drug or alcohol impairment. In one case, the seizure occurs in a vehicle; in the other, it occurs at the workplace. Neither occurs at the complainant’s home, which has traditionally been accorded "“the highest degree of privacy”" (Tessling at paras. 44−45).
[67] Both seizures are relatively non-intrusive as well. This is the case with the taking of breath samples, as confirmed in Goodwin. This is also the case of the taking of urine samples (Mazzei v. Director of Adult Forensic Services and Attorney General of British Columbia, 2006 BCCA 321 at para. 58).
[68] This brings me to R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R 607 (Stillman), a judgment rendered in a criminal law context on which the appellants rely heavily. That case tested the limits of the common law power to search which is incidental to an arrest. Mr. Stillman was suspected of murder. In the course of his second arrest by the police, which led to charges being laid, hair samples, including pubic hair, teeth impressions, buccal swabs as well as saliva were taken from him (Stillman at para. 9). The whole procedure took two hours (Stillman at para. 44). The issue was whether the taking of the hair samples, teeth impressions and buccal swabs contravened section 8, and whether the evidence obtained as a result of that search should be ruled inadmissible by virtue of section 24 of the Charter. I note that the taking of saliva was not in issue.
[69] What is telling about Stillman, in my view, is that the standard and degree of justification for the taking of bodily samples will be a function of the invasive or intrusive nature of the body search. Hence, the greater the intrusion, for example the search of body cavities as opposed to the typical "“frisk”" search, the greater the degree of constitutional protection must be (Stillman at paras. 42−44. See also, R. v. Grant, 2009 SCC 32 at paras. 109−11; R. v. S.A.B., 2003 SCC 60, at para. 44).
[70] On the spectrum of intrusiveness when it comes to body searches, the case law is clear that the taking of breath, urine or saliva samples are amongst the less intrusive. This supports the Application Judge’s finding that the seizure of bodily samples "“does not automatically attract a high expectation of privacy”" (Decision at para. 98). As a corollary, it also supports the conclusion that the taking of these types of bodily samples may only attract a diminished expectation of privacy in a given circumstance, as is the case here.
[71] Turning back to Goodwin, as in the present matter, it involved an undeniable highly regulated activity. As noted, no one seriously disputes that the nuclear industry in Canada is also highly regulated; the main purpose of the regulatory framework being to limit the risks to national security, the health and safety of persons and the environment that are associated with the development, production and use of nuclear energy, as outlined in section 3 of the Act.
[72] To that end, human performance, including fitness-for-duty programs and requirements, plays a key role, notably in reducing the risks of drug or alcohol impairment-related safety events. I note that this component of the fitness-for-duty programs and requirements existed well before the adoption of the Impugned requirements and provided for drug and alcohol testing processes as well. According to the record, Canada’s legalization of cannabis in October 2018 also bolstered the need for more robust fitness-for-duty programs when it comes to managing the risks associated with drug and alcohol abuse.
[73] As I indicated earlier in these reasons, the Decision is largely informed by the "“unique context”" of the 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). This, in my view, is an unavoidable and most critical contextual factor in the determination of the safety-critical workers’ reasonable expectation of privacy.
[74] I believe it is fair to say that the nuclear industry is unlike any other inherently dangerous industries in Canada, like railways or chemical plants, given the magnitude and enduring damages a nuclear incident can cause to people and the environment. High security nuclear sites’ workers whose tasks are critical to ensuring the safety of those sites, and as a corollary to the safety of the public and the environment, cannot, in my opinion, reasonably claim a high expectation of privacy when it comes to controls put in place as a license condition statutorily required to operate such sites, regarding matters such as workplace drug and alcohol impairment, that can directly impact it.
[75] But, say the appellants, the objective pursued by the state in authorizing roadside breath demands on British Columbia roads was urgent given the large number of tragic casualties caused by drinking and driving whereas, here, there is no such urgency as there is no evidence of any impairment problem at Canadian nuclear sites causing or contributing to safety concerns.
[76] Removing impaired drivers from public roads so as to reduce driving fatalities caused by alcohol is no doubt an important and compelling objective. However, I believe the better view is that, in the nuclear industry context, the goal pursued by the Impugned requirements, which is to further contribute to reducing the risks to health and safety of persons and the environment associated with the development, production and use of nuclear energy, is equally important and compelling.
[77] Indeed, despite there being no evidence of impairment problems at nuclear sites, there is evidence that there were inadequacies – or gaps – in the fitness-for-duty programs as they existed at the time the Impugned requirements were adopted. This is particularly the case with respect to reliable, consistent and accurate methods to detect drug or alcohol impairment, including behavioural observation of impairment identification. If we accept, as the Application Judge did and as I do, that a pre-emptive and proactive approach to safety measures, instead of a "“wait and see”" approach, is more suited to the protection against identified risks in the "“safety-first and foremost”" environment of high security nuclear sites, where one nuclear incident may be one too many given the uniquely severe consequences it may have, then I am satisfied that bolstering these methods in order to fill those gaps, through the Impugned requirements, is a valid and compelling objective.
[78] Now, a last observation on Goodwin. The Supreme Court found in that case that the breath seizures authorized by the impugned regime, although occurring for a regulatory purpose, had "“certain criminal law features”", which suggested to the Court that "“closer scrutiny [was] required to ensure that the state does not unreasonably interfere with a driver’s privacy interest.”" I note that if those features played a role in establishing the standard for assessing the reasonableness of such seizures, they did not enhance the drivers’ expectation of privacy, which, again, was held to be a diminished one. In the present matter, the Impugned requirements have no criminal law features whatsoever.
[79] Finally, the Application Judge found that Gillies was distinguishable from the case at bar mainly because the Ontario Superior Court in that case applied a "“very specific test for section 8, that was established by the [Supreme Court] to determine whether searches conducted by teachers or a principal in the school environment is reasonable”" (Decision at para. 95, referring to Gillies at para. 129). In Gillies, the Ontario Superior Court applied a "“modified standard”", the one articulated in R. v. M. (M.R.), 1998 CanLII 770 (SCC), [1998] 3 S.C.R. 393 (R. v. MR) to determine the reasonableness of a search "“in a school setting”" (Gillies at para. 104).
[80] In that sense, one could say that Gillies is of limited assistance in determining the reasonableness of the Impugned requirements at stage 2 of the section 8 analysis. However, for our immediate purposes, it is of no moment to the appellants. Indeed, despite being of the view that students enjoy a heightened privacy interest in their bodies, the Ontario Superior Court, quoting again from R. v. MR, concluded that this expectation was "“significantly diminished”" in a school setting "“given the need for school authorities to provide a safe environment and maintain order and discipline in a school community.”" (Gillies at para. 90).
[81] Ultimately, as the Application Judge most appropriately put it, a flexible approach reflects differing expectations of privacy for different contexts (Decision at para. 92). In the particular context of this case, a flexible approach calls for a diminished expectation of privacy for safety-critical workers. The Application Judge committed no error in so concluding. That said, I recall that the Application Judge determined that these workers were nevertheless entitled to the protection of section 8. He therefore engaged in the second stage of the section 8 analysis.
[82] The stage 2 test is clear: in order to be considered reasonable, the Impugned requirements: (i) must be "“authorized by law”"; (ii) the law itself must be reasonable; and (iii) the manner in which the seizure or the search is carried out must be reasonable (Goodwin at para. 48, referring to R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 at para. 10 (Caslake); R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at para. 23 (Collins)). It is also well settled that searches and seizures conducted without a warrant, as is the case here, are presumptively unreasonable. Therefore, the burden of establishing the reasonableness of such a search shifts to the state (Goodwin at para. 56; Collins at para. 22; Caslake at para. 11). The Charter s.8 analysis continues extensively at paras 84-148.
. R. v. Singer
In R. v. Singer (SCC, 2026) the Supreme Court of Canada allowed a Crown appeal, this brought against a Saskatchewan CA decision which "acquitted him of failing or refusing to comply with a demand to provide a breath sample".
Here the court notes that warrantless searches are 'presumptively unreasonable':[86] A warrantless search is presumptively unreasonable. The Crown must establish, on a balance of probabilities, that the search was reasonable. A search is reasonable if it is authorized by a reasonable law and conducted in a reasonable manner (Campbell, at para. 81, citing R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278; see also Evans, at para. 23). . R. v. Griffith
In R. v. Griffith (Ont CA, 2023) the Court of Appeal considers the extent of searches in various circumstances of detention:[24] A search incident to an investigative detention is not necessarily limited to the detainee’s person alone and may extend to other places where the police reasonably believe that a detainee could have access to a weapon that poses a risk to the safety of the officers and the public: Mann, at paras. 40-45. The precise extent of the search depends on the facts of each case: see R. v. Plummer, 2011 ONCA 350, 272 C.C.C. (3d) 172, at paras. 52-58; R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, at paras. 34-36, 44-56; and R. v. Buakasa, 2023 ONCA 383, at paras. 32, 48-49. . Power Workers' Union v. Canada (Attorney General)
In Power Workers' Union v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the seizure of bodily samples (here, "breath, saliva and urine") as a Charter s.8 ['search and seizure'] issue:[30] The non-consensual seizure of bodily fluids has been held to be highly intrusive, invading personal privacy essential to the dignity of the person (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 at para. 50 [Irving Pulp & Paper], citing R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, 55 D.L.R. (4th) 503 [Dyment]). This arises from the loss of control over personal information contained in the samples, and the use of the person’s body in the process by which that personal information is obtained (Dyment at para. 34). Here, the bodily samples are breath, saliva and urine.
[31] Compared to privacy interests in, for example, business documents, the privacy interests in bodily samples is “at the high end”. Accordingly, this type of seizure is subject to stringent standards and safeguards to meet constitutional requirements (Irving Pulp & Paper at para. 50, citing R. v. Shoker, 2006 SCC 44).
....
[37] Other courts have concluded that invasions of privacy are not remediable with post-intrusion compensation (143471 Canada Inc. v. Quebec (Attorney General); Tabah v. Quebec (Attorney General), 1994 CanLII 89 (SCC), [1994] 2 S.C.R. 339 at 382, 167 N.R. 321). This includes decisions confirming irreparable harm from the taking of bodily fluids, on the basis that the harm cannot be undone or fully remedied through monetary compensation (Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc., 2012 ABQB 627 at para. 38, aff’d 2012 ABCA 373; Stay Decision at para. 104; Fieldhouse v. Canada, 1994 CarswellBC 2219 at para. 71, [1994] B.C.J. No. 740 (B.C. S.C.)). . R. v. Sureskumar
In R. v. Sureskumar (Ont CA, 2023) the Court of Appeal considered the Charter s.8 issue of 'search incident to arrest', here where the purpose of the arrest was for identification:(i) Search Incident to Arrest
(a) Section 8 Breach
[9] In effecting an arrest, peace officers have the power to search incident to arrest. This is an extraordinary power because it requires neither a warrant nor independent reasonable and probable grounds, but, instead, arises from the lawful arrest itself: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 13, citing Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158. This power permits a peace officer to “search a lawfully arrested person and to seize anything in their possession or the surrounding area of the arrest”: R. v. Stairs, 2022 SCC 11, 467 D.L.R. (4th) 579, at para. 34.
[10] The common law standard for a search incident to arrest requires that (i) “the individual searched has been lawfully arrested”; (ii) “the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest”; and (iii) “the search is conducted reasonably”: Stairs, at para. 35; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 27.
[11] The jurisprudence from the Supreme Court has identified three valid law enforcement purposes connected to a search incident to arrest: (i) police and public safety, (ii) preventing the loss or destruction of evidence, and (iii) discovering evidence that may be useful at trial: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 75. However, those categories are not closed, as the Supreme Court has left open the possibility that further valid law enforcement purposes may develop in subsequent case law. In Caslake, for example, the court stated, at para. 25, that “the police must be able to explain, within the purposes articulated in Cloutier… (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched.” [Emphasis added.]
[12] The requirement that the search be truly incidental to the arrest involves both a subjective and an objective component. Subjectively, the police officer must have one of the purposes in mind when searching. Objectively, the police officer’s belief that the search will serve the intended purpose must be reasonable: Caslake, at para. 19.
[13] This appeal raises the issue of whether a search incident to arrest for identification purposes can be considered a valid law enforcement purpose. There is no binding authority on this point. However, there is precedent in the Ontario Superior Court of Justice that supports the idea that a search to confirm an arrestee’s identity constitutes a valid law enforcement purpose because it is consistent with the proper administration of justice: R. v. Singh, 2015 ONSC 6312, 343 C.R.R. (2d) 127, at para. 35; R. v. Nunnery, 2006 CanLII 35002 (ON SC), [2007] 147 C.R.R. (2d) 325, at paras. 25-29. The issue was also raised in the Supreme Court in the context of a civil claim for unlawful arrest, but the court declined to determine the point: Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, at para. 100.
[14] It is unnecessary to rule whether a search incident to arrest for identification purposes can be considered a valid law enforcement purpose. That is because this case can be determined on the issue of reasonableness. As noted above, the jurisprudence is clear that a valid search incident to arrest must be carried out reasonably: Stillman at para. 27; Stairs, at para. 35. The same conclusion was reached in Cloutier. However, in the course of her analysis in Cloutier, at pp. 181-82, L’Heureux‑Dubé J. extended the notion of reasonableness beyond a consideration of how the search was carried out:In determining the exact scope of a police power derived from the common law, this Court often had recourse to considerations of principle, and the weighing of the competing interests involved (Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, and R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145). Competing interests are important factors in determining the limits of a common law power. When the power in question comes into conflict with individual freedoms, it is first necessary to decide whether the power falls within the general scope of the duty of peace officers. This duty, clearly identified, must historically have been recognized by the courts as tending to promote the effective application of the law. Secondly, the Court must determine whether an invasion of individual rights is justified. In this regard, Le Dain J. in Dedman defined what he meant by “justifiable use of the power” in question (at p. 35):The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [Emphasis added.] It is therefore necessary in this second stage to determine whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such an invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals. [15] It is apparent from the foregoing that in crafting an analytical approach to determining the validity of a search, the Supreme Court in Cloutier was taking a holistic view of whether the search was a justified intrusion into the rights of the accused. The court instructed that it was essential to consider whether the search was both necessary and reasonable. Somewhere in the development of the jurisprudence on search incident to arrest, the notion of necessity seems to have been lost. For example, in Stairs, the most recent examination of the law of search incident to arrest from the Supreme Court, there is no reference to necessity. However, nothing in the case law suggests that necessity is not a valid consideration.
[16] In any event, it may be simpler to view necessity as a component of the larger notion of reasonableness discussed in Cloutier (i.e., a reasonableness inquiry that considers more than how the search was conducted). The appellant submitted that it was unnecessary for the police to have undertaken a search for further identification because they already had ample proof of his identity. If the focus of the reasonableness inquiry was limited to the manner in which the search was conducted, I would be required to ignore this concern, even if meritorious, and the police would be free to conduct an unnecessary search even though the power to search is premised on promoting peace officers’ abilities to execute their duties. An analysis of the necessity of the search should be a component of the broader reasonableness analysis under the third branch of the search incident to arrest test, because it allows the court to determine whether the search is consistent with the underlying public policy imperatives.
[17] In the case at bar, I accept the trial judge’s finding that the arresting officer was genuinely attempting to confirm the appellant’s identity before he was transported to the police station and that she was not obliged to accept his self-identification. The trial judge then found that while other means were available to the arresting officer to confirm the appellant’s identity, the search was not unreasonable, stating: “I cannot and do not fault [the arresting officer] for wanting to confirm Mr. Sureskumar’s identity before transporting him to the station. While other avenues may have been available to her, it was not an unreasonable step to take in the circumstances of this case where identity theft was an allegation” (emphasis in original). The trial judge also determined that the way the search was conducted was reasonable.
[18] With respect, the trial judge erred in failing to analyze why a search that she found was one of many avenues to confirm identity was reasonable in the circumstances. Had she done so, it would have been clear that there were multiple equally convenient and expeditious means to obtain confirmation of identity. For example, the arresting officer could have confirmed the appellant’s identity by speaking with bank employees, including the bank investigator who was in the branch at the time of the arrest. I am also comfortable taking judicial notice of the fact that the arresting officer had an onboard computer in her police vehicle that would have provided her access to the driver’s licence database.
[19] The trial judge was required to consider why a search that was unnecessary for the arresting officer to carry out her stated police purpose of confirming the identity of the appellant was reasonably conducted. Had the trial judge done so, it would have been evident that it was not reasonable for the arresting officer to search the appellant’s vehicle and seize the wallet. Therefore, the search of the appellant’s vehicle to locate the wallet constituted a breach of his s. 8 Charter rights.
|
