This paper asks whether the technological changes wrought by the digital revolution require concomitantly dramatic changes to the Supreme Court of Canada’s section 8 jurisprudence. The author answers “no”. While technological change inevitably influences constitutional interpretation and application, the foundation set out by the Court in digital (and other) section 8 cases over the past two decades provides the conceptual and doctrinal tools needed to achieve reasonable accommodations between competing privacy and law enforcement interests in the digital era. The paper begins with a brief overview of the basic elements of section 8 law. Next, it chronologically surveys the Supreme Court’s existing “digital section 8” jurisprudence, that is, each decision that has addressed allegations that the state has violated section 8 in a digital realm. The next part distils three key doctrines from these cases that are likely to animate future digital section 8 decisions: (i) the notion that “computers are different”; (ii) the role of contract, statute and other exogenous norms in shaping privacy expectations over information obtained or held by third parties; and (iii) the application of the “biographical core” test to “low resolution” private information. While there is consensus as to the core meanings of each of these doctrines, to varying degrees each suffers from indeterminacy in application. The author the refore proposes refinements to minimize that indeterminacy. The following part examines, from both descriptive and prescriptive perspectives, how these doctrines played out in the Court’s most recent digital section 8 decision: R. v. Spencer.
"The Digitization of Section 8 of the Charter: Reform or Revolution?."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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