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Charter - Section 8 - Search and Seizure (8). 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.”"
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(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.
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[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.
. York Region District School Board v. Elementary Teachers’ Federation of Ontario
In York Region District School Board v. Elementary Teachers’ Federation of Ontario (SCC, 2024) the Supreme Court of Canada applies Charter administrative procedural doctrine, but here to the 'privacy' provisions of s.8 ['Search or seizure'] - an area that overwhelmingly otherwise attract criminal procedures:D. Public School Teachers Have a Section 8 Charter Right Against Unreasonable Search and Seizure in the Workplace
[97] As noted, Ontario public school boards are government for the purpose of s. 32 of the Charter; thus, school board employees, including teachers, enjoy rights under s. 8 of the Charter against unreasonable search and seizure in the workplace. This Court has recognized s. 8 Charter protection beyond the criminal and quasi-criminal context (see R. v. McKinlay Transport Ltd., 1990 CanLII 137 (SCC), [1990] 1 S.C.R. 627 (s. 8 applies to production of documents under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.)); Comité paritaire de l’industrie de la chemise v. Potash, 1994 CanLII 92 (SCC), [1994] 2 S.C.R. 406 (s. 8 applies to labour inspections under provincial legislation)).
[98] This Court’s criminal decisions, such as in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, and particularly in the school context, such as in Cole, can assist in determining the existence and scope of a reasonable expectation of privacy in the employment context. However, courts should be cautious in adapting the s. 8 framework from the criminal law context to the employment context. The criminal law context cannot readily be analogized to the context surrounding a principal performing their tasks in accordance with their statutorily mandated role of maintaining order in a school. Criminal law thresholds — and considerations related to exigency and law enforcement objectives — should not be the starting point for analysis in the employment context. Rather, in that context, the employer’s operational realities, policies and procedures can be relevant in determining the reasonableness of an employee’s expectation of privacy (Cole, at para. 54).
[99] Criminal law jurisprudence should not be indiscriminately imported into non-criminal matters. The analysis under s. 8, being contextual, needs to be adapted to occupational realities. For instance, this Court has eschewed the requirement of prior authorization by a warrant to conduct searches of students by a school authority. In M. (M.R.), Cory J., for the majority, reasoned that such a criminal law requirement was not feasible in this context because school administrators “must be able to respond quickly and effectively to problems that arise in their school” (para. 45).
[100] In adapting the analysis to the workplace, for example, I agree with the Attorney General of Ontario that workplaces vary in terms of the level of regulation and that the consequences for discipline in the employment context are less severe as compared to penal liability in the criminal context (see I.F., at paras. 19-23).
(1) Determining the Reasonable Expectation of Privacy
[101] Whether in criminal or other contexts, s. 8 analysis proceeds in two steps: courts must determine, first, whether there is a reasonable expectation of privacy, and, second, whether the search and seizure is reasonable (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18, citing R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293).
[102] Whether or not state action has interfered with a reasonable expectation of privacy is to be determined based on the “totality of the circumstances”. This is dispositive of both the existence and the extent of the reasonable expectation of privacy. Four lines of inquiry serve as a guide:(1) an examination of the subject matter of the search;
(2) a determination as to whether the claimant had a direct interest in the subject matter;
(3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and
(4) an assessment as to whether this subjective expectation of privacy was objectively reasonable
(Tessling, at paras. 31-32; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at paras. 18 and 78; Cole, at para. 40; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 27). [103] Inevitably, the reasonable expectation of privacy takes its colour from context. Thus, the employer’s operational realities, policies and procedures may affect the reasonableness of an employee’s expectation of privacy (Cole, at para. 54). For example, in Cole, this Court recognized that the storing of personal information on a computer owned by the employer and the existence of a policy stating that data so stored belongs to the employer would tend to diminish the reasonable expectation of privacy (para. 52). On the other hand, permitting employees to use work laptops for personal purposes would weigh in favour of the existence of a reasonable expectation of privacy (para. 54).
(2) Determining the Reasonableness of a Search
[104] In the criminal context, a search or seizure is reasonable if (1) it is authorized by law; (2) the law itself is reasonable; and (3) the manner in which the search or seizure was carried out is reasonable (Collins, at p. 278). Similar to the first step of a s. 8 analysis, the Collins framework also calls for a contextual assessment. “[Searches that] may be reasonable in the regulatory or civil context may not be reasonable in a criminal or quasi-criminal context” (Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, at pp. 495-96 (per Wilson J., dissenting)). In M. (M.R.), this Court implicitly adapted the Collins test to determine “whether a search conducted by a teacher or principal in the school environment was reasonable” (para. 54).
[105] I hasten to add that what may be considered proportionate in a criminal context, where penal liability is at stake, may look different in a labour relations context where the consequence, albeit serious, does not threaten liberty. In evaluating the reasonableness of the impugned search at the second step of a s. 8 analysis, arbitrators should have regard to employment relations under the terms of the collective agreements. The existing arbitral jurisprudence on the “balancing of interests”, including the consideration of management rights under the terms of the collective agreement, may properly inform the balanced analysis. There exists a considerable body of arbitral decisions regarding privacy in the context of collective agreements that arbitrators may properly have regard to in conducting a s. 8 analysis (see, e.g., Doman Forest Products Ltd. and I.W.A., Loc. 1-357, Re (1990), 1990 CanLII 12718 (BC LA), 13 L.A.C. (4th) 275 (B.C.); Toronto Transit Commission and A.T.U., Loc. 113 (Belsito) (Re) (1999), 1999 CanLII 35815 (ON LA), 95 L.A.C. (4th) 402 (Ont.)).
[106] The effect of this decision is not to displace existing arbitral jurisprudence, but rather to ensure that it respects Charter rights. Arbitral jurisprudence now encompasses a considerable body of decisions that reflect a great breadth of experience; this will continue to play an important role in resolving grievances arising under collective agreements. However, such decisions should also be taken in accordance with the direction in Conway to analyze Charter rights when they apply. This must inform their decision as to the grievance under the collective agreement.
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