Facts

The facts of the case were simple and quite scandalous: Tsige, a bank employee, had been looking at Jones’ banking records. Over a period of four years, Tsige had accessed her banking records more than 174 times, obviously contrary to bank policy. Although no information had been published, distributed, or recorded by the respondent in any way, she had access to information that included not only transaction details, but also address, date of birth, and marital status. The reason? Tsige was involved in an ongoing financial dispute with her partner. This partner, in an interesting twist of fate, happened to be none other than Jones’ former husband. Accessing the banking records allowed Tsige to determine whether—and how much—child support was being paid between the former spouses. Not surprisingly, Jones was not too pleased when she found out about Tsige’s ongoing research and appealed to the courts to weigh in on whether people were really still entitled to look over fences to see “what goes on in the plaintiff’s land.”

Expanding the Common Law: The Tort of Invasion of Seclusion

In finding that Ontario law recognizes the right to bring a civil action for damages for the invasion of personal privacy, the OCA emphasized how deeply engrained the value of privacy has become in modern Canadian society. In the context of Charter jurisprudence, the Supreme Court of Canada has held that s.8 affords constitutional protection of a person’s reasonable expectation of privacy (see: Hunter v. Southam, [1984] 2 SCR 145). While the Charter does not apply directly to disputes between private parties, the common law must be developed in a way that is informed by its values. Furthermore, the right to privacy is enshrined in international instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

After canvassing cases and academic literature on the topic, Sharpe J. concluded that the right to privacy encompasses four torts “tied together by a common theme and name, but comprising different elements and protecting different interests”: (1) intrusion upon the plaintiff’s seclusion or solitude, (2) public disclosure of embarrassing private facts about the plaintiff, (3) publicity which places the plaintiff in a false light in the public eye, and (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

The tort that was relevant to the case was the first: intrusion upon the plaintiff’s seclusion. The elements of this tort were set out as follows: first, the defendant’s conduct must be intentional, which includes recklessness; second, the defendant must have invaded, without lawful justification, the plaintiff’s “private affairs or concerns”; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The OCA found that actual proof of harm to a recognized economic interest was not necessary in order to make out the tort of invasion of seclusion. In addressing the perpetual “floodgates” concern that looms on the horizon whenever a court expands the common law, Sharpe J. assured that “claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.”

Finally, on the issue of damages, the OCA held that since the plaintiff in such cases will not suffer from provable pecuniary loss, symbolic or moral damages will be awarded. Such damages should “be modest but sufficient to mark the wrong that has been done.” The OCA fixed the amount at $20,000. Applied to the facts, Sharpe J. found that Tsige had committed the tort of intrusion upon seclusion. In deciding the proper amount of damages, the OCA weighed countervailing consideration: on one hand, Tsige’s actions “were deliberate… and arose from a complex web of domestic arrangements likely to provoke strong feelings of animosity.” On the other hand, Jones had not suffered any economic loss or public embarrassment. Thus, the amount awarded was $10,000, the mid-point of the range identified.

Analysis:

The Role of the Courts

Whenever courts consider expanding the common law, judges tiptoe a line between cultivating the law in a way that aligns it with the demands of changing circumstance and refraining from stepping on the toes of the legislature as the democratically accountable branch. In this case, this tension was made apparent by the contrasting views of the Ontario Superior Court of Justice and the OCA. The former held that the existence of an intricate framework of privacy legislation in Ontario (e.g. Freedom of Information and Privacy Act, Personal Health Information Protection Act, among others) suggested that the legislature had turned its mind to the issue of privacy and chose not to extend protection to situations like the present.

The OCA held that recognizing a cause of action in the case would not overstep the bounds of appropriate judicial activity since it would only be an incremental change that would keep the law in pace with the changing needs of society. Furthermore, the OCA found it had a role to step in where the legislature failed to act in the name of ‘justice’: “most importantly, we are presented in this case with facts that cry out for a remedy.”

The Value of Privacy

Sharpe J. appropriately qualified the expanded scope of protection for privacy by recognizing that it must often be balanced against—and sometimes sacrificed for—other competing interests. The value that society places on privacy must co-exist with values of freedom of information and freedom of the press. The right to privacy, while important, is never absolute.

The Difficulty of Erecting Fences

Judicial decisions to step in to protect privacy interests seem to be critical at a time when people’s personal information is both widespread and accessible to others but also more difficult to protect by people’s own efforts.  In today’s day and age, “routinely kept electronic databases render our most personal financial information vulnerable… sensitive information as to our health is also available, as are records of books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have traveled.” In today’s day and age, it is difficult to protect privacy simply by building a higher fence.

United States v. Jones is hailed as one of the most important Fourth Amendment decisions of the decade. Yet, it is certainly not the final word on the nexus formed among among privacy, technology and search and seizure. Without a warrant, police in Maryland had attached a GPS tracking device on the accused’s car for 28 days, which emitted information about the accused’s location every few seconds. This tracking device led police to a warehouse filled with cocaine and cash. The accused, Antoine Jones, was arrested.

As I had observed in late November, it was not clear by the end of the oral hearings which way the judges were going to side. At the end, a unanimous court decided that the use of the GPS tracking device to be unconstitutional. Namely, they agreed that the accused’s constitutional right – his Fourth Amendment right to be guarded from “unreasonable searches and seizures”  – was infringed upon. That was the end of their agreement. In usual fashion, the Court splintered, with Justice Scalia leading one contingency and Justice Alito leading another. Justice Sotomayer cast the deciding vote, opting for the ‘minimalist approach’ advocated by Justice Scalia. Even though she preferred the narrow interpretation, she also had sympathy for the “incisive” conclusion drawn by Justice Alito. Rather humorously, one critic counts 4.5 votes for Justice Scalia and 4 votes for Justice Alito.

Three Positions:

Given the far-reaching implications of this case for police officers and government officials, it was disappointing that the Court failed to display any decisiveness. While Justice Scalia seems to be most investigated in the question of whether this tracking device constitutes a “search” under the Fourth Amendment, one could argue that his attention is misdirected, or at least unnecessarily narrow. That is, the fulcrum of the case is the increasing tension between new technology and our expectation of privacy: what is a “reasonable” expectation of privacy in a world in which cell phones have a GPS locator and public spaces are often camera-equipped? Courageously, Justice Alito tried to tackle this thornier issue.

Justice Scalia, and the three judges that sided with him, asserts at the end that: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.” He concludes that the accused’s Fourth Amendment right was infringed by the installation of the GPS tracking device by the police.

While agreeing with the ultimate decision, Justice Alito faults Justice Scalia for applying eighteenth century legal concepts to the twenty-first century. In particular, the minority takes issue with Justice Scalia’s “trespass” analogy. One cannot help but find the Scalia-Alito sparring match comedic. Justice Scalia considers the use of GPS tracking devices by the police analogous to a constable who might conceal himself “in the target’s coach in order to track its movements.” Justice Alito retorts: “this would have required either a gigantic coach, a very tiny constable, or both — not to mention a constable with incredible fortitude and patience.” (The last part is a reference to the fact that this case involved 24-hour surveillance for 28 days.)

Justice Alito is less interested in whether the GPS device constitutes a search. One of the strengths, and simultaneously one of the weaknesses, of his decision is that it puts much weight on time. There is little doubt that Justice Alito would take issue with any kind of permanent surveillance scheme, even if it is not physically intrusive. “In some locales,” he wrote, “closed-circuit television video monitoring is becoming ubiquitous… Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.” Turning to the case at hand, Jusice Alito concludes that, “We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the four-week mark.”

Justice Sotomayer would have cast her vote in favour of Justice Alito if he had meaningfully addressed the issue of voluntary disclosure. “It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” she states in a somewhat ominous way. She puts her finger on a key issue, our digital footprint. Today, our Internet browsers document every purchase we make, every URL we visit and every message we send. Despite the fact that we put ourselves out there on the Internet everyday, she wonders out loud whether it would ever be acceptable for the government to track our presence online for a day, a week or a month.

The Final Score

From these decisions, it becomes increasingly clear that the government may not really be the losers in this case. None of the justices sided with the government. Yet, they leave open critical questions. Justice Scalia’s “trespass” theory seems to hinge on physical intrusion. Here, the police affixed a GPS tracking device to the accused’s car. What if the police, through a remote location, taps into the car’s pre-existing GPS device? Would Justice Scalia and the majority deem to not constitute a search, and thereby permissible?

Justice Alito’s opinion may sound more appealing because it is more grounded in the realities of life in the twenty-first century. Despite the fact that our cell phones can track our location, we still have a reasonable expectation of privacy when it comes to round-the-clock police surveillance, according to the minority. What is not clear with Justice Alito’s position is whether he would accept shorter-term police surveillance. The minority does not consider the mere installation of a GPS tracking device on a suspect’s vehicle to be a search. Only after a certain point in time does it tip into Fourth Amendment territory. What if the police did not monitor Antonin Jones for four weeks, but rather one week? What if they monitored him for only four hours each day? In either of those scenarios, Justice Alito and the minority might deem it not to be a search that requires a warrant.

United States v. Jones puts some important questions on the table, especially as they relate to our increasingly digital world. And there is a sense that larger changes are needed (i.e. voluntary information disclosure to third-parties). What may be underestimated, however, is that more complicated, more litigious questions remain.

I think we would be up in arms if this actually happened. Imagine the police, without a warrant, monitoring the movement of Justice Ginsberg at ten-second intervals for 30 days, as she goes to and fro from the opera performances and elephant rides with Justice Scalia. (She had once taken a trip during which she and her intellectual rival on the bench, Justice Scalia, rode an elephant together.)

Yet, this scenario did happen. It involved a man, Antoine Jones, and his wife, whose Jeep was tracked by the police by a GPS device for 28 days, even though the warrant lasted only 10 days. Giving his location every ten seconds, the police were eventually led to a “stash house” in the suburbs of Maryland, where they discovered powder and crash cocaine, as well as $850,000 in cash. Jones was ultimately convicted in 2008 for possession and conspiracy to distribute more than 50 kilograms of cocaine and sentenced to life in prison. Citing his Fourth Amendment right to be free from unreasonable government search and seizures, he appealed the decision. The police insisted that the GPS tracking was no different than police observing the activity in a public space and roadway, where we do not have a reasonable expectation of privacy. 

Background

The facts of the case are simple enough. The facts do not factor at all into the appeals. Rather, the task before the Supreme Court of the United States is to strike equilibrium between rapidly evolving technologies and (perhaps not quickly enough) changing social norms. At the D.C. Circuit Court of Appeals, Justice Douglas Ginsburg concluded that this GPS technology was so invasive that it did not track Jones’s movement from place to place, but actually tracked his movements 24 hours a day for 28 days. This technology “discover[ed] the totality and pattern of his movements.”

In the oral argument before the Supreme Court last week, the government relied heavily on the 1983 case, United States v. Knotts [460 US 276 (1983)]. In this leading case, a police radio transmitter was placed on one of the accused’s shipping containers without a warrant. The Supreme Court then held that this did not constitute a violation of the accused’s Fourth Amendment right.

Since the 1980s, technology has evolved in such a spectacular way that we now have a device whereby a satellite could track our movements at any time on almost any corner of the earth. The “beeper” that sent signals to the police radio in Knotts now seems like an antique. As a result of technological advances in recent years, we have come to expect less privacy. The government makes this point by pointing to the prevalence of security cameras in public areas. So, it must be asked: despite the evolution of technology, at what point do the courts need to stop chipping away at our Fourth Amendment right? Our Fourth Amendment right to be free from unreasonable government search and seizure basically protects us from searches in which: (1) the person expects privacy in the thing searched; and (2) society believes that the expectation to be reasonable (Katz v. United States [389 US 347 (1967)]. The fulcrum of the case at hand is, therefore, whether society believes that not having our cars tracked by GPS devices is a reasonable expectation.

This test is what prompts Dahlia Lithwic, writing for Slate, to conclude that it has “long been a truism of Fourth Amendment law that the “reasonable expectation of privacy” test is circular. Each time the state chips away at your privacy, you expect a little less.”

The blurring lines between inside/outside

Much of the case comes down to a distinction between “inside” and “outside,” which is central to the reasonable expectation of privacy test laid out in Katz. The police need to respect our privacy inside – namely, inside our homes. Outside, they are free to patrol public spaces and survey us. This is brought up by Justice Ginsburg during the oral arguments: “The government’s position would mean that any of us could be monitored whenever we leave our homes,” she states. Justice Ginsburg continues with a hypothetical question: “Is the end point of your argument, that an electronic device, as long as it’s not used inside the house, is OK?” Dreeben, for the state, responds quickly. He specifies that the issue here is “monitoring somebody’s movements in public. We are not talking about monitoring their conversations, their telephone calls, the interior of their cars, their private letters or packages.”

At this point, we Canadians should think back to a case in 2004 at the Supreme Court of Canada, R. v. Tessling [2004 SCC 67], which tackled Forward-Looking Infra-Red (FLIR) technology in a case involving a marijuana grow-op. The majority of the bench held that this technology did not violate our Charter rights. Police were using FLIR to get information about heat emanating from the accused’s house, from which they could draw inferences about the activities that were likely to be going on. Although operating outside, the police could get their hands on sensitive information about inside the property. FLIR technology, though not nearly as invasive as GPS technology, is but one example of how technology renders the Court’s investment in the inside/outside distinction completely moot.

Justice Ginsburg, however, seemed to have bought Dreeben’s distinction. Justice Breyer did not. He delves into “futuristic scenarios,” citing George Orwell’s magnum opus, Nineteen Eighty-Four. (Nineteen Eighty-Four seems to be a favourite of the Court, cited in at least three previous decisions.) Breyer is less concerned about the actual surveillance (inside v. outside, for example), but rather how it could be collected and subsequently used. He draws a distinction between human-beings surveying each other, which is hardly ever done around the clock. More importantly, human memory is fallible, whereas data generated by these GPS devices are computerized and stored, and so infallible. Justice Breyer invokes Orwell to force us to picture a world in which the police have stores and stores of our data, data that reveals our most personal habits and intimate details.

One of Dreeben’s responses is that our most personal habits and intimate details can be revealed by our credit card statements. Nothing stops the police from studying our credit card statements, rifling through our trash, etc. for a month.

What about cameras?

The Court expends quite a bit of energy discussing how GPS technology differs from surveillance cameras. As soon as Justice Ginsburg brings up the analogy, Justice Kagan pipes in about London: “If somebody goes to London, almost every place that person goes there is a camera taking pictures.” Leckar exclaims: “It’s pretty scary. I wouldn’t want to live in London under those circumstances.” Justice Scalia, in typical Scalia fashion, injects some tartness and humour into the hearings: “Well, it must be unconstitutional if it’s scary. I mean, what is it, the scary provision of what article?”

At this point, someone noted that these cameras were responsible for helping to track down the bomber who was going to blow up Glasgow airport before he did. As useful as this technology may be in terms of national security, we have to wonder how far it will go. Right now, at least in the United Kingdom, they are installed on lampposts on the street as a way to monitor those on the sidewalk and around nearby buildings. Justice Sotomayer imagines a scenario where cameras, on the corner of the street or way up in space in satellites, can show us our neighbour in magnificent detail: “There are now satellites that look down and can hone in on your home on a block and in a neighborhood. I don’t see that far in the future when those cameras are going to be able to show you the entire world and let you track somebody on the camera from place to place.” (Because technology has not progressed that far yet, we have not had to really address this issue and litigate on it. As it stands, however, security cameras may be used by the government in any public space.)

Conclusion

At times, it seemed as though the oral arguments were going back and forth, and not really leaning in one direction or another. No matter how many arguments and counterarguments, and Orwellian future scenarios, the justices raised, none of it was indicative of what the final outcome would be. What is underlined by the case as a whole is that the law is increasingly out of place with technology. First, the inside/outside distinction as part of the reasonable expectation of privacy test under the Fourth Amendment is greatly undermined by new technology. Above all, however, technology – by making our lives more efficient and in some ways easier – has completely changed our own expectations about privacy. Justice Kagan points to smart phones with built-in GPS devices that allow our phones to track our physical location. We could find the nearest Starbucks. In exchange, anyone could find us. With these devices in our pockets all the time, should we really quip about a GPS tracker on someone suspected of dealing illegal drugs?

Here is where the danger lies. Law and technology, with respect to unreasonable searches and seizures by the government, move in a circular way: the more we rely on our technology (and make friends with it, like Apple’s Siri) and the more it shapes our lives, the less privacy we expect. The law reinforces this, beginning with the cute little beeper devices in the 1980s case of Knotts. So, when we ask the law to turn around and protect our privacy, we find that we have already bitten the hand that feeds us.

Flowing from a spate of privacy cases at SCOTUS (most notably, Snyder v. Phelps covered by fellow Contributing Editor, Alysia Lau here and our Amici Curiae here and NASA v. Nelson that I covered here and here) as well as contributing to a general trend of ruling for “no constitutional right to privacy,” FCC v. AT&T Inc. (2011) No. 90-1279, 582 F. 3d 490 decided on March 1, 2011 continued a line of rulings that corporations as separate legal persons are not entitled to the personal right to privacy.

The telecommunications company, AT&T, was under investigation by the Federal Communications Commission (FCC). This independent agency of the U.S government had, in the words of the Third Circuit decision (pdf link) “ordered the production of invoices, internal emails and billing information, responses to interrogatories, names of employees involved in alleged overbilling, and AT&T’s assessment of the extent to which its employees’ actions violated its internal code of conduct.”

SCOTUS held that corporations do not have a right of personal privacy for purposes of Exemption 7(C) of the Freedom of Information Act that requires corporations to disclose law enforcement records to a federal agency unless disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

AT&T’s argument against disclosing its “embarrassing” record of overcharging the U.S government for its E-Rate services was that these records fell under the exemption mentioned above due to the corporation’s alleged right to personal privacy for its internal information.

A Lesson in Using the Dictionary

In a unanimous 8-0 decision, Roberts wrote what has been identified by the media as a “teacher-like” “grammar lesson” in corporate privacy rights:

Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read”… “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” which has little to do with “corn” (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of anaxis bent at right angles,” “cranky” can mean “given to fretful fussiness…

All of this to explain that:

“Person” is a defined term in the statute; “personal” is not. When a statute does not define a term, we typically “give the phrase its ordinary meaning”…“Personal” ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word “personal” to describe them.

The decision turned on a strict interpretation of the language of the statute and utilized several dictionary definitions to show that “ordinary usage of a noun and its adjective form may have different meanings as disparate as any two unrelated words.” SCOTUS ruled on this reasoning that artificial entities are not “personal” despite being separate legal “persons” and are therefore not subject to the statutory exemption for the disclosure of “personal” information.

Bring-On the Adjective-laden Legal Reasoning

I often enjoy reading decisions by SCOTUS and rarely hesitate to applaud colourful commentary and generous use of non-legalese descriptions and catchy phrases to lay down the law (particularly by Justice Scalia) — a method rarely used by Canadian Supreme Court justices, except Justice Binnie’s clever dissent in R. v. Sinclair.

This U.S. judgement is certainly one of these brisk, informative reads as it decided the case in 15-pages, a rather dry subject matter of corporate “personhood” by making it more approachably human (excuse the pun). Why else did the judge choose to compare a random choice of words such as “corn” vs. “corny,” “crab” vs. “crabbed,” and “crank” vs. “cranky” in a case about corporate personality, except for reasons of style and plain language emphasis that spells it out for the layperson without cloaking the answer in convoluted legalese. (This style is particularly intriguing for someone like myself with an interest in journalism, as it provides my legal coverage with plenty of quotable material). The bottom-line message in this case is clear: “personal privacy” is not a statutory right, not for corporations, but for living, breathing human beings.

As noted in our last post on the Court’s judgment, there was no clear consensus at the Supreme Court, with three very different reasons from different factions of judges. But the polemical positions taken on the issue of third parties could stimulate some interesting discussions in cases to come.

Trespassing on a homeowner’s property is conduct the police themselves are not permitted to engage in (see Kokesch, Evans), and I do not understand that the Regulations were intended, nor constitutionally able, to empower police agents to do what they themselves can not legally do. In my opinion, the Regulations do no more than permit the utility to share pre-existing customer information with the police unless the customer has objected. … If it were otherwise, the police could recruit any agency with limited access to a home to exploit that access to gather information for them. For example, the mailman to look into the windows while at the house delivering mail and report his observations; or the cable TV provider to report the viewing habits and preferences of the subscriber. Such unauthorized state surveillance of its citizens is offensive to the basic tenets of our society and would render the protection of a reasonable expectation of privacy over one’s home, illusory. [emphasis added]

The coercive undertones evoked by describing Enmax as being co-opted or conscripted are entirely inapposite to the case at bar. As noted above, if the police had merely notified Enmax of a potential electricity theft and the utility had proceeded on its own initiative to install a DRA and turn over what it disclosed, no Charter violation would have arisen.

The average consumer signing up for electricity cannot be expected to be aware of the details of a complex regulatory scheme – the vast majority of which applies to the companies providing services, and not to the consumers themselves – which permits the utility company to pass information on electricity usage to the police, especially when a presumption of awareness operates to, in effect, narrow the consumer’s constitutional rights.

The information, we reiterate once more, was gathered in response to a police request for assistance with a criminal investigation. It did not exist prior to the police action. In our view, the regulatory scheme should not be interpreted to authorize police agents to act in a manner forbidden to the police themselves.

As discussed in my prior post about this case, at issue was whether “low risk” contract employees at Caltech’s Jet Propulsion Laboratory (JPL) could be subject to open-ended background check investigations.

These background checks began as a part of a Bush administration security directive that included asking employees questions about “recent illegal drug use,” “financial integrity,” “mental or emotional stability,” and “general behavior or conduct” (that some interpreted this question as referring to sexual orientation). The basic issue is whether these employees have a constitutional right to information privacy in this context as the case landed on the docket of the SCOTUS when the Ninth Circuit Federal Court of Appeal granted a temporary injunction against these disputed background checks.

SCOTUS decided to uphold NASA’s background checks for employees of contractor companies. In a unanimous 8-0 opinion delivered by Justice Alito, SCOTUS reversed the Ninth Circuit’s decision. Alito’s judgment took a straight-forward, narrow, and somewhat bland route to come to its conclusion without delving deeper into the constitutional question. Instead, the Court permitted background checks in the narrow scope of “routine use” by emphasizing the importance of the work done at the JPL that is critical to NASA’s mission and “all of it funded with a multibillion dollar investment from the American taxpayer.” As such, “the Government has a strong interest in conducting basic background check into the contract employees minding the store at JPL.”

As is often the case, Justice Scalia’s reasons, here in concurrence, contained far more colourful commentary in reaching the same result through his own rather different reasoning. Particularly interesting was Scalia’s judgment that outright rejected the notion of a U.S. constitutional right to “informational privacy,” dismissing the respondents’ position in this case as “meritless,” “absurd,” “utter silliness,” and “ridiculous.”

Scalia wrote:

Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information.  But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them.  A federal constitutional right to “informational privacy” does not exist.

Scalia’s opinion expressed concern for creating a right that would dramatically increase the number of lawsuits relating to right to information privacy:

Moreover, the utter silliness of respondents’ position in this case leaves plenty of room for the possible success of future claims that are meritless, but slightly less absurd.  Respondents claim that  even though they are Government contractor employees, and even though they are working with highly expensive scientific equipment, and even though the Government is seeking only information about drug treatment and information from third  parties that is standard  in background checks, and  even though the  Government is liable for damages if that information is ever revealed, and even though NASA’s  Privacy Act regulations are very protective  of private information, NASA’s background checks are unconstitutional.  Ridiculous.

Previously at The Court, I predicted a “reluctant defeat” of the Ninth Circuit decision with “new limits” set on privacy rights. My predictions were partially correct— SCOTUS did indeed defeat the Ninth Circuit decision, but did so resoundingly and without much hesitation.

Unfortunately, Justice Alito’s decision contained little discussion clarifying the existence or scope of an American constitutional right to informational privacy. This in essence opens up the issue to further public debate, which is another element of the decision that I found surprising. The failure of the SCOTUS to discuss it and the tepid interest in the blogosphere suggest to me that claiming informational privacy as a constitutional right is waning in the age of Twitter and Facebook (notably beginning with an aging bench at SCOTUS who did not grow up with the internet). Even for those who have become accustomed to the changes in privacy rights driven as much by technology as political developments, this case may indicate a trend towards losing traditional notions of a right to privacy, especially when it is confined to narrow spheres of employment disclosure. In its conclusion the case spells out a judicial reluctance to deal with a tricky and ambiguous constitutional treatment of privacy rights in the 21st century. This is unfortunate, as this is not an issue likely to be disappearing any time soon.

Late last year, the Supreme Court of Canada delivered its judgment in Gomboc (2010 SCC 55), in what was certainly one of the most exciting and polemical judgments to come out of the Court in 2010. (In fact, the Court’s decision in Gomboc has received two nominations in this year’s Golden Gavel awards, the results of which will be released later this year.)

The Gomboc decision is fascinating for two primary reasons. First, on a pragmatic level, it is another example of the highest court being asked to weigh in on the constitutionality of an investigative tool utilized by police, which requires a precarious balancing act between the public’s dual (and sometimes dueling!) interest in privacy and an efficient police investigation.

As I noted in my survey of the appellate level decision, the case also raises some interesting questions about the role third parties can play in a police investigation. Although the Court’s decision offers some interesting developments on that point, I will be canvassing that aspect of this case in a separate post, slated for February 15.

While the role of third parties was arguably the most compelling issue raised by the majority at the Alberta Court of Appeal, the Supreme Court’s application of section 8 jurisprudence is also quite noteworthy.

Facts & History

The facts of this case were canvassed in greater detail in my first post on this case. Briefly: the accused, Daniel James Gomboc, was convicted at trial of producing marijuana and possession for the purpose of trafficking. At the appellate court, the accused appealed and successfully argued that the police investigation had violated his section 8 Charter rights, because of the use of a digital recording ammeter (DRA).

Based on visual observations of the accused’s property, officers requested the local electrical service provider to install a DRA, which creates a record of electrical power consumption. The accused’s pattern of electricity usage fell within the ambit of a marijuana grow-op, and was later used to obtain a search warrant of the premises. The Crown relied on the Code of Conduct Regulation, made pursuant to the province’s Electric Utilities Act, as support for their position that the accused’s section 8 rights were not violated. Under section 10(3)(f) of the Regulation, “customer information” can be collected by the utility company and disclosed to police investigating an offence “without the customer’s consent.”

For the majority at the appellate court, Martin J.A. applied the Tessling test, outlined below, and found that Gomboc did have a subjective expectation of privacy, and distinguished the DRA evidence from the FLIR technology in Tessling, finding it to be “more intrusive and revealing.” The Court of Appeal concluded that Gomboc’s section 8 right against unreasonable search and seizure had been violated by the use of the DRA-obtained evidence. (Read more about the appellate decision here.)

The Court’s Decision: Three Reasons, No Clear Consensus

At first blush, the test for a section 8 Charter claim seems fairly straightforward. The analysis consists of two steps. First, did the state action in question constitute a search? And second, was the search reasonable? In order to establish a “search,” it must be found that the conduct interfered with the individual’s reasonable expectation of privacy.

The test for a reasonable expectation of privacy, which was most recently considered in R. v. Nolet, 2010 SCC 24, places the onus of proof on the claimant to show that he or she has a subjective expectation of privacy in the subject matter of the search, and that the subjective expectation is objectively reasonable.

The “objective reasonableness” analysis, in turn, must take the “totality of the circumstances” into account, as per R. v. Tessling, 2004 SCC 67, and various other precedents on this point.

The “totality of the circumstances” test can often result in a highly contextual and fact-specific analysis, and jurists often reach very different reasons based on their weighing and balancing of these factors. In my consideration of the appellate level decision, I concluded that “the Supreme Court’s decision may hinge on how the DRA evidence – and the information it discloses – is characterized by the Court.” Although I correctly predicted that result, Gomboc is interesting because of how the facts are characterized by different factions of the Court.

On one side of the issue, we have Deschamps J., with Charron, Rothstein and Cromwell JJ. concurring. Deschamps J. easily concluded that no reasonable expectation of privacy in the information at issue arises in this case, and section 8 of the Charter was thus not engaged. However, Deschamps J. made it clear that her conclusion was based on the totality of the circumstances, and not solely on the allowances made under the Code of Conduct Regulation:

The nature and quality of the information in this case, its remoteness from the “biographical core of personal information which individuals in a free and democratic society would with to maintain and control from dissemination to the state,” and the legislative scheme permitting disclosure of customer information to authorities investigating an offence combine to weigh against finding a reasonable expectation of privacy in this case.

The majority noted that a critical factual consideration, “on which much of the disagreement in this case turns,” was the degree to which the technology employed revealed private information. Deschamps J. held that there was “absolutely no reliable inference” that could be made about the occupants or their activities, apart from the existence of a marijuana grow operation. In fact, Deschamps J. was of the opinion that DRA data perfectly punctuates an investigation, and “protects a suspect against more intrusive techniques.”

Deschamps J. noted that Gomboc did exhibit a subjective expectation of privacy. However, two key factors vitiated against the reasonableness of that privacy expectation: the nature and the quality of the information disclosed by the DRA, and the regulatory scheme that permitted disclosure of customer information to a police officer. Deschamps J. made particular note of the fact that Gomboc did not request that his customer information be kept confidential, despite the regulations that were in place. The reasoning also finds that the information disclosed wasn’t any more revealing than the information that was at issue in Tessling or R. v. Plant, [1993] 3 SCR 281.

The reasoning of Deschamps J. also departs from the approach taken by the Court of Appeal and the minority at the Supreme Court on the consideration of the territorial privacy issues raised in Gomboc. Although Deschamps J. acknowledged that the target of the search was the respondent’s home, “the fact that the search includes a territorial privacy aspect involving the home should not be allowed to inflate the actual impact of the search to a point where it bears disproportionately on the expectation of privacy analysis.”

Deschamps J. thus concludes that the appeal should be allowed, and the conviction restored.

In separate reasons, Abella J. (with Binnie and LeBel JJ. concurring) concurs with the result reached by Deschamps J. However, Abella J.’s reasons place a greater emphasis on the Regulation, and the impact the regulation’s existence had on whether the expectation of privacy was objectively reasonable. Early in her reasons, Abella J. notes that “given that the information emanated from his home, the most protected of privacy spheres, [Gomboc] may well have succeeded but for the existence of the Regulation, which make any expectation of privacy objectively reasonable.”

Abella J.’s reasons also depart from Deschamps J.’s conclusions regarding the revelatory nature of the DRA evidence. The reasons distinguish the evidence in the case at bar from the billing records at issue in Plant, noting that DRA evidence reveals more personal information than billing records. Abella J. concludes:

Given the overriding significance of protecting the privacy interests in one’s home, the concerns regarding the warrantless use of DRAs seems to me to be well founded. And this case may well have been differently decided but for a crucial factor: the relationship between Mr. Gomboc and his utilities provider is governed by a regulatory scheme, which, in my view, effectively erodes the objective reasonableness of any expectation of privacy in the DRA data.

McLachlin CJC and Fish J. deliver the dissent in Gomboc, and the opening words of their dissent make it clear that there is a strong difference of opinion between the majority and the minority. The Chief Justice and Fish J. note that the Crown relies on easily distinguishable precedents to take an “incremental but ominous step toward the erosion of the right to privacy.”

On the issue of the intrusiveness of the DRA, the dissenting judges concur with Abella J., and find that the warrantless use of DRAs raises some serious concerns. However, in considering the “totality of the circumstances,” they disagree with Abella J. on the effect of the Regulation.

The judges note that the results of a search need not produce conclusive determinations about what is happening in the accused’s home in order to be considered intrusive. The dissenting judgment is also quick to distinguish between this case and Plant and Tessling. Additionally, McLachlin CJC and Fish J. note that, “the constitutionality of a search does not hinge on whether there are even more intrusive search methods the police could have improperly used.”

McLachlin CJC and Fish J. also go on to consider the argument that Gomboc could have sought an exemption from the provision in the Regulation that allowed disclosure of his consumption information. The justices aren’t buying that argument:

This is not a situation, like Branch or Nolet, where a reasonable person engaged in the highly regulated fields of securities trading or trucking would be expected to be aware of the relevant legislation. The average consumer signing up for electricity cannot be expected to be aware of the details of a complex regulatory scheme – the vast majority of which applies to the companies providing services, and not the consumers themselves – which permits the utility company to pass information on electricity usage to the police, especially when a presumption of awareness operates to, in effect, narrow the consumer’s constitutional rights.

The minority also questioned whether the provisions in the Regulation could be interpreted to allow for the installation of new technology to obtain information “the company neither already had nor intended to obtain about what was happening inside their house.”

Upon concluding that there was a reasonable expectation of privacy, the two judges finally considered whether the search was reasonable, and concluded that it wasn’t. In the result, they would have affirmed the judgment of the Court of Appeal.

She Said, She Said, She Said – The Frustrating Nature of Section 8 Judgments

It is truly impossible to say which faction of judges in Gomboc was right or wrong. I will say that I find myself agreeing McLachlin CJC and Fish J.’s characterization of the Regulation. Most Canadians—even the ones with a legal education—probably don’t spend a lot of time pouring over regulations that apply to their private information. To think that a piece of regulation could be used to conscript a third party service provider seems troublesome. I will conduct a longer analysis on that point in my next post on Gomboc.

I do have to confess that, as a student of the law, I am fascinated by the continuing application of section 8 jurisprudence to new investigative modes and technologies. However, I can also see the practical frustrations that arise out of this line of jurisprudence.

The “totality of the circumstances” test seems appropriate, given the often fact-specific and contextual nature of police investigations. Quite frankly, this area of the law does not lend itself well to bright line tests or rigid standards. However, this also means that these issues are often unpredictable, and judicial results can often go either way.

Gomboc offers a perfect example of this point: four judges concluded that the DRA technology was not intrusive. Five concluded that DRA evidence did give rise to a reasonable expectation of privacy, but the appeal was inevitably allowed based on Abella J.’s consideration of the Regulation. In other words – and Abella J. said as much – it is quite possible that, given the right constellation of facts, DRA evidence could be found to be an unreasonable search within the meaning of section 8 of the Charter. There is no clear consensus on the efficacy or constitutionality of DRA evidence, generally.

It is quite easy to see why this would be frustrating on a practical level, from both sides of the issue. Accuseds who are convicted on the basis of search warrants based on DRA evidence would have to litigate the issue all the way to the Court in order to get a firm answer. Also, investigators who rely on DRA evidence to confirm their suspicions regarding marijuana grow operations are vulnerable to a constitutional challenge.

Perhaps what we need is further guidance on how different pieces of evidence and context should be weighed when considering the “totality of the circumstances.” As we can see in Gomboc, all three judgments considered the “totality of the circumstances,” but gave different weight to reach different results. It is unlikely that further clarification will make for more predictable results to section 8 challenges. But as the Gomboc judgment demonstrates, there may be different ideas on how the law on unreasonable search and seizure should be carried forward at the Supreme Court of Canada.

At issue for the Ninth Circuit was whether “low-risk” contract employees at the California Institute of Technology’s (“Caltech”) operation of NASA’s multi-billion-dollar research and development facility, the Jet Propulsion Laboratory (“JPL”), could be subject to open-ended background investigations as a part Caltech’s compliance with NASA’s implementation of the 2004 Homeland Security Presidential Directive #12 (“HSPD-12”) (a component of the Bush administration’s anti-terrorism initiative.) Such investigations included delving into personal information about medical treatment for past drug use and any “adverse” information about the employee including “financial integrity,” “mental or emotional stability” and private sexual matters.

A year earlier, the United States District Court for the Central District of California rejected the initial claim for a preliminary injunction by JPL employees under Section 304(A) of the National Aeronautics and Space Act of 1958, 42 U.S.C. s.2455(a) (“Space Act”) (pdf link) by stating that the Space Act allows NASA specifically to establish security requirements as deemed “necessary in the interest of national security.” Reversing the District Court decision, the Ninth Circuit on appeal held that a violation of employee’s privacy rights was not sufficiently tailored to a legitimate government interest. These employees – most of whom were scientists, engineers and administrative support personnel – did not work with classified material that posed a threat to national security, nor would NASA be harmed if this information were not disclosed. As such, Ninth Circuit granted a temporary injunction that remains in effect today in favour of JPL employees and against NASA’s intrusive background checks until SCOTUS further clarifies what is included in the right to informational privacy.

On October 5, 2010, the appeal, now dubbed NASA v. Nelson, was heard by the Nine at the US Supreme Court (“SCOTUS”). Interveners for JPL employees included the American Civil Liberties Union, the Union of Concerned Scientists and online privacy advocacy organization, the Electronic Frontier Foundation. For the first time in a generation, America’s High Court heard arguments about the constitutional right to personal privacy that has sent the blogosphere buzzing in anticipation of the pending decision that has yet to be released.

Do you think there is something wrong with the Government having to explain why it seeks information? […] that begs the question of can you ask anything you want regardless of why?

The justices were concerned with comparisons between ranges of permissible questions for government employees as opposed to employees in the private sector— as they probed the government to justify broad disclosure.

NASA’s Argument: Security Concerns

Each side has a different response to this basic question. Specifically, NASA’s Brief for Petitioners on May 20, 2010 wants answers from SCOTUS about (pdf link):

1) whether the government violates a federal contract employee’s constitutional right to information privacy in the course of a background investigation, particularly counseling or treatment for illegal drug use in the past year protected under “records maintained on individuals” in the Privacy Act, 5 U.S.C. 552a; and

2) whether these rights are violated when the government ask the employee’s references for adverse information that may have bearing on the employee’s suitability for employment at a federal facility

They claim the federal government as a responsible employer requires “basic” and “routine” background checks of its employees to determine these individuals as “trustworthy.” NASA argues by analogy that “basic and routine” background checks serve the purpose of recommending the applicant for government employment or a security clearance.

Employees’ Argument: Privacy Interests

On the other hand, the brief for the respondents (pdf link) requests SCOTUS to determine whether the Ninth Circuit correctly concluded its decision. They argue the seriousness of their informational privacy claim whereby “low-risk, long-time employees” of Caltech who are employed contractually with NASA are required to fill out intrusive questions on employee forms. In their opinion, these required forms delve unreasonably into 1) confidential details about medical treatment or counseling for past drug use and 2) any “adverse” information of the employee including sexual matters. Whalen v. Roe, U.S. 589, 599 (1977) is cited as a key precedent that recognizes the constitutional right to informational privacy as including “the interest in avoiding disclosure of personal matters.” The respondents’ argument also emphasizes the fact that the respondents are 28 employees of Caltech and not employees of the federal government, which renders questionable the reasonableness of the information sought.

Waning Constitutional Privacy Rights in a Post 9/11 World

While it may very well take the entire judicial term for the decision to be released, I predict that SCOTUS will reluctantly defeat the Ninth Circuit injunction with new limits establishing some private information to be obtained from these employees that may not permitted to be asked by other types of employers. Being employed at NASA, in this case, is not the same as non-governmental corporations, like Caltech. However, given the inclinations of the SCOTUS transcripts, supposedly “standard employee information” about past criminal records, mental and emotional status and illegal drug use may remain relevant to internal security at a government entity like NASA. That said, delving further into employees’ private sexual matters (short of sex crimes) will be difficult for NASA to justify as requisite information to maintain a team of scientists, engineers, and administrative personnel employed on contract in work classified as “low-risk.”

Furthermore, it may be difficult to justify information such as private sexual matters as necessary disclosure for employees working on NASA’s “high-risk” projects in light of the Space Act which is tailored for national security. An individual’s criminal tendencies rather than ability to maintain personal “financial stability” poses a greater threat to “internal subversions” and “foreign aggression” in accordance with the objective of the Space Act. Indeed, it may be the Fourth Amendment and the Privacy Act that may save the Ninth Circuit decision; however, the case transcript shows a possibility of striking down the injunction. Either way, the final decision will likely be coloured by today’s political climate. In a post-9/11 world, constitutionally permitted surveillance will factor into a delicate balance to maintain national security that unfortunately impinges upon the sanctity of individual privacy rights.

In recent years, the Court has been asked to determine the constitutionality of various investigative tools and tactics used by police. In R. v. Tessling, [2004] 3 S.C.R. 432 for example, the court ruled on a use of a Forward Looking Infra-Red (FLIR) camera, which provided the external heat signature of a dwelling house. More recently, R. v. A.M., [2008] 1 S.C.R. 569 and R. v. Kang-Brown, [2008] 1 S.C.R. 456 brought the issue of sniffer dog searches before the Court.

In Gomboc, the Court has been presented with the opportunity to consider the use of another technology without prior judicial authorization. Based on preliminary visual observations, police believed that the accused was operating a marijuana “grow-op” on his property. Officers requested local electrical service providers to install a DRA, and the police used the device to create a record of electrical power consumption that was later used to obtain a search warrant.

In addition to the use of technology issue in question, the Gomboc case also puts an interesting question before the Court: what are the limitations on the access provided to police by third-party commercial service providers?

Background and Facts

During the course of an unrelated investigation in 2004, Calgary policy took note of Gomboc’s home. Unlike houses of the same size in his neighbourhood, there was no snow on his roof, and police also noticed that there was condensation on the windows. Following these observations, officers from the Calgary Police Drug Unit began an investigation of the accused’s home, and made similar observations that led them to suspect that the accused was growing marijuana in his home.

Enmax, the local utilities company, received a request from the officers to install a DRA to monitor the consumption at Gomboc’s property, and Enmax complied with the request. The investigators received a five-day graph printout of the consumption patterns at Gomboc’s home, and the usage was deemed to be consistent with a marijuana grow-op. Police used the DRA evidence, along with police observations, to obtain a search warrant.

At trial, there were some questions raised about whether Enmax had connected the DRA device to the correct power line. However, the trial judge concluded that the DRA had been installed correctly, and the issue was not considered at great length on appeal.

On appeal, the main issue before the court was whether the use of the DRA without prior judicial authorization was in breach of section 8 of the Charter. A majority – Martin J.A., with Berger J.A. concurring – allowed the appeal and ordered a new trial. However, O’Brien J.A. dissented, finding that the trial judge was correct in deeming the evidence to be admissible.

The ABCs of DRAs

At first blush, the facts in Gomboc seem identical to those in R. v. Plant, [1993] 3 S.C.R. 281, where an officer used monthly electrical consumption records maintained by a utility company as part of an investigation into a particular residence. In Plant, a majority of the Court concluded that the use of computer records of electrical consumption was not unreasonable.

The facts of Gomboc, however, are distinguishable from those in Plant. At the appellate level, counsel for the appellant argued that the police engaged a third party – the utility company – and the DRA was installed particularly for that purpose. The crux of the argument was that the effective involvement of a third party in the investigation “adds a dimension to the case not contemplated by the court in Plant.” In other words, the evidence at issue was not pre-existing information that had been gathered by the company in the normal course of business, but rather had been obtained with the particular purpose of aiding a police investigation.

Moreover, O’Brien J.A. noted in dissent that the DRA “discloses patterns and cycles of electricity usage, and measures the electrical energy supplied to a premises during a specific period of time.” Thus, there is a clear distinction between the simple monthly billing records involved in Plant and the detailed and specific readings provided by the DRA in Gomboc.

The split decision at the appellate level provides two strong positions on whether the accused had a reasonable expectation of privacy, and whether the police conduct in question violated that expectation. In applying the “totality of the circumstances” test as set out in R. v. Patrick, [2009] 1 S.C.R. 579 and Tessling, the jurists came to two very different conclusions on the facts of the case.

Writing for the majority, Martin J.A. concluded that a homeowner does have a subjective expectation of privacy regarding information about activities that take place in their home. In applying the Tessling test, Martin J.A. also distinguished the DRA from the FLIR technology in Tessling, concluding that the DRA evidence is ”more intrusive and revealing.” He noted a difference in the level of personal disclosure between the devices, stating that “DRA information must, as a matter of common sense, also disclose biographical or private information; for example, the approximate number of occupants, when they are present in the home, and when they are awake or asleep.”

On the other hand, O’Brien J.A.’s dissent found a closer parallel to the computerized billing records used in Plant, and he concluded that the evidence retrieved from the DRA does not reveal more about the lifestyles of the residents than a monthly bill would.

Additionally, in applying the Tessling precedent, O’Brien J.A. found there to be very little to distinguish between “the patterns of heat distribution generated from within and emanating from their residences as externally measured, and the patterns of electrical utility usage within the residences as externally measured.”

Although both jurists pulled from the same Supreme Court jurisprudence and applied the “totality of the circumstances” test to the facts of the case, they arrived at two very different and compelling conclusions on the use of DRA evidence.

Party’s Over? The Question of Third Party Commercial Actors

Although Gomboc revolves around the constitutionality of DRA evidence, one of the most interesting facets of the case is Enmax’s role in procuring the damning evidence.

Out of necessity, homeowners must grant utility companies greater access to their premises than they would afford the general public. This is also true for a range of other services and products – an Internet Service Provider (ISP), for instance, may have access to personal and identifying information that would attract a reasonable expectation of privacy.

In addressing whether a provincially-enacted regulation could be used by police to obtain DRA records from a utility company without a warrant, Martin J.A. noted that such a regulation would allow police to “recruit any agency with limited access to a home to exploit the access to gather information for them.” Using the example of a mail deliverer who could look in through a home’s windows or a cable television provider who could disclose the viewing habits of a subscriber, he concluded that “such unauthorized state surveillance of its citizens … would render the protection of a reasonable expectation of privacy over one’s home illusory.”

The fact that a commercial service provider used its access to help police obtain a crucial piece of evidence adds a layer of complexity to the Gomboc case. The Canadian Civil Liberties Association (CCLA), which had intervener status in the recent Supreme Court hearings, has argued that Charter scrutiny applies when police exploit service relationships during an investigation. In its factum (PDF) for the Court proceedings, the CCLA argues that “an informed observer would conclude that exploiting third party access in such fashion is antithetical to any reasonable conception of privacy in a modern democracy.”

Of course, any decision from the Court on the third party question may have emanations beyond utility companies, as information from third parties can often provide the foundation for a police investigation. For example, in R. v. Chehil, 2009 NSCA 111 (PDF), the Nova Scotia Court of Appeal was asked to consider whether the accused’s section 8 rights were violated after a drug enforcement team at the Halifax Airport was given permission to view the electronic passenger list of a flight with the aim of identifying potential drug couriers.

The Gomboc and Chehil cases are unrelated, but they both offer clear examples of commercial actors playing the role of unauthorized state agents. The role is an uneasy one, and the Court’s decision in Gomboc may offer some insight on how to best balance these concerns against an individual’s privacy rights.

Looking Forward, Looking Back

As is evident from the split decision at the appellate level, the Supreme Court’s decision may hinge on how the DRA evidence – and the information it discloses – is characterized by the Court. When held up against past jurisprudence, there is no clear answer as to where the DRA technology may fall on the spectrum. From one perspective, looking at cases such as Plant and Tessling, it can be argued that the differences are negligible when placed in context.

However, the pendulum could swing just as easily in the other direction, and DRA evidence that is obtained without a warrant may be deemed too great an intrusion to survive the section 8 challenge. The Court is once again left with the task of balancing the public’s interest and the goal of effective law enforcement while technological advances make this an increasingly trying task.

The Court may also use this opportunity to further elucidate on the application of the Tessling test. As noted earlier, the jurists at the appellate level used the Tessling test, but reached divergent conclusions. Perhaps this is to be expected in view of the subjective ambiguities of the test, but the Court could use Gomboc to elaborate on the finer points of the test.

In addition, it will be interesting to see if the Court addresses the much broader question of third-party service providers, and the use of their increased access to an individual’s private information during a police investigation. Although the outcome in this case is staked on the Court’s determination on whether DRA evidence is unconstitutional, any word on third parties may emanate through many aspects of criminal investigations.

Legislative definitions of “spouse” have been expanded to include some persons cohabiting for a certain period of time, with the length of time varying between the provinces. S. 29 of Ontario’s Family Law Act, R.S.O. 1990 requires continuous cohabitation for a period of not less than three years, while other statutes require shorter periods. Consistent between the provinces, however, is the cohabitation requirement, defined in s. 1(1) of the FLA as meaning “to live together in a conjugal relationship whether within or outside marriage.”

Assessing conjugality in relationships falling “outside marriage” is a notoriously difficult task. I would argue that some courts have placed undue emphasis on evidence of certain relationship characteristics in doing so, such that applications of the current regime may be — as two commentators put it — both “wrong-headed and offensive.”

Molodowich v. Penttinen (1980), 17 RFL (2d) 376 (Ont. Dist. Ct.) identifies seven general indicia of conjugality, cited with approval by the Supreme Court in M. v. H., [1999] 2 S.C.R. 3, which represent the prevailing wisdom on that which defines a “spousal” relationship:

(1) arrangements for shelter,
(2) arrangements for sexual and personal behaviour,
(3) arrangements for domestic services,
(4) social activities,
(5) the attitude and conduct of the community toward the couple,
(6) financial arrangements, and
(7) the attitude and conduct of the couple toward children.

No single component is determinative, and nearly all are to be assessed objectively. The Ontario Court of Appeal held in Brebric v. Niksic (2002), 60 OR (3d) 630, “any deleterious effects of the definition of spouse are outweighed by the advantages of having an objective standard by which individuals and the courts can determine when state-imposed support obligations and rights of action arise.” I respectfully disagree. An objective standard applied too strictly, at least with regard to common law couples’ more private activities encompassed by the Molodowich components, results in courts unfairly excluding non-traditional partners from being recognized as “spouses” for the purpose of allocating support. Such a prejudicial consequence necessarily outweighs any efficiency or certainty rationale underpinning the strict objective standard.

Perhaps the most distressing case I have come across is Brunette v. Quebec, [2000] RJQ 2664 (CS), involving a 64-year-old permanently disabled woman and 54-year-old mentally ill man who shared accommodation and expenses, provided each other care and support, and were clearly interdependent despite not having a sexual relationship. The Court of Appeal held that their relationship did not give rise to support obligations because it was non-sexual, an apparently integral characteristic in an objective assessment of what it means to be a “spouse”.

In my view, such a finding is problematic. Most immediately, the court in Brunette would seem to regard the “arrangements for sexual behaviour” component of the relevant Molodowich factors as a trump over other components, including arrangements for shelter, arrangements for domestic services, financial arrangements, etc., all of which were present in the petitioners’ relationship. Molodowich does not support such a hierarchy of its conjugality components. Professors Brenda Cossman and Bruce Ryder go even further, arguing that “arrangements for sexual behaviour” are, or at least ought to be, totally irrelevant to spousal support determinations. “Taking sex into account at all is wrong-headed and offensive,” they write –

It is wrong-headed because whether a relationship has a sexual component or not bears no relation to the achievement of legitimate state objectives. It is offensive because it requires cohabitants to disclose the details of the most intimate aspects of their lives to administrators or in public proceedings.

I agree with the professors. I would add that taking sex into account is also plainly inconsiderate of the possibility that “marriage-like” relationships of functional interdependence characterized by a deep emotional connection, affection between the parties, and an incident lack of sexual intercourse may and do exist. Our laws should reflect the diverse functions of the family rather than its traditional forms.

Further, consensual sexual desire and practice are so fundamentally personal, private, and idiosyncratic that they ought not to be evaluated on an objective basis. Judges are triers of fact, not emotion. No one outside of another’s relationship is equipped to weigh that person’s motivations for engaging or not engaging in consensual sexual relations, and I believe it presumptuous for courts to decide otherwise. Attempting to objectively assess a “spousal” connection by virtue of sexual connection –or, put another way, comparing a couple’s intimate behaviours to a monolithic quasi-marital standard and passing judgment accordingly– is, in my respectful view, an error.

Rather, assessments of “spousal” connections should be broad, flexible, and conducted on a case-by-case basis. This acknowledges that relationships between cohabiting couples will vary widely. However, as courts must have some certainty that their decisions will withstand judicial scrutiny and carry precedential weight in subsequent cases with similar facts, I do not necessarily support abandoning an objective standard in weighing the other six Molodowich components, albeit with a generous allowance for subjective factors as they pertain to “social activities” and other components motivated by more personal or private considerations. At least at first rub, such a formulation of the term “spouse” seems a more inclusive alternative to the approach that has been adopted by some courts.