Reasonable Doubt: Protecting your privacy is the legal issue of our time
As the News of the World phone-hacking scandal continues to unfold, we are starting to see the all too familiar flaws of an entity with an excess of power and no accountability. Recently, London’s police commissioner felt it necessary to resign because of his professional connection to a former deputy editor of News of the World. This leaves us wondering, how deeply into government does this scandal go?
What is shocking about the scandal are the many efforts of movers and shakers in the media and government to contain the taint of journalists’ egregious violations of privacy. We are left with too many unanswered questions about how much the people on top knew about the phone hacking and how much they chose to ignore. In my opinion, the cavalier attitude toward people’s privacy is unsettling.
Technology has given us new ways to communicate and manage our affairs, but it has also made us more vulnerable to monitoring by the state and private corporations alike. I think most people would agree that violating someone’s privacy in order to make a buck or two (or two billion) is reprehensible. But what about violating an individual’s privacy in the same way in order to fight crime—should we tolerate that?
While the state and police in Canada do not make money from violating the rights given to all people in Canada, they have been known to violate our rights in order to fight crime. When these violations occur and are successful in uncovering evidence of crime, the courts can evaluate the police investigation. If the investigation was sufficiently rotten, the court can decide to ignore all or parts of the evidence in determining whether or not the person on trial is guilty. But sometimes, depending on the politics of the day, they don’t always do so.
The rights I refer to are your rights under the Charter of Rights and Freedoms. When these rights were framed in the context of the Constitution Act, 1982, the idea of ignoring evidence against an accused person because of an unlawful police investigation was something that was purely in the domain of American criminal law. Canada had, until then, followed the British tradition of ignoring the propriety of police conduct in criminal trials.
Ignoring evidence that police have collected is one way the courts can send a message to an institution that holds a lot of power. It is an after-the-fact solution, but it has been successful in shaping police practices so that they find ways to fight crime in a way that does not violate our rights. For example, most police in Canada now would not consider barging into your home to arrest you without a warrant. The system is not perfect, however, and people need to be aware that as we become more technologically sophisticated, threats to our privacy from the state and corporations alike will only increase.
On an unrelated note, this week I received from a woman a question that I get all the time. It gets me thinking about how the Crown can act as a check and balance in power struggles in units as small and personal as our families.
She told me that she had a fight with her boyfriend and he had been arrested after she lied to the cops and told them that he hit her. She felt bad about it now and didn’t want to press charges.
I explained to her that although she may not want her boyfriend to face criminal charges, it is not up to her. Criminal charges in Canada are between the accused person and the Crown. Of course, the Crown is more likely to get a conviction if the complainant is cooperative and willing to testify. Nonetheless, the Crown has the means to ensure that the complainant will come to the trial to testify: it can issue a warrant for the complainant’s arrest, if he or she does not show up to trial, or charge the complainant with making a false complaint to police or, alternatively, lying on the stand. The lengths the Crown will go to in order to secure a conviction, once a complainant has told the Crown prosecutor that he or she lied or is not willing to cooperate, is at the discretion of the prosecutor in charge of the file.
Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at firstname.lastname@example.org.
A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.