Invasion of Privacy: Police and Electronic Surveillance in Canada

McGILL LAW JOURNAL

REVUE DE DROIT DE McGILL

Montreal

Volume 27

1982

No. 4

Invasion of Privacy: Police and Electronic Surveillance

in Canada

Stanley A. Cohen*

Synopsis

The Police Function
Crime Prevention and the Police Function

I.
II.
III. A Digression Concerning the History and Philosophy of Preven-

tive Policing

IV. Crime Prevention and the Rule of Law
V.

Basic Principles Governing the Police Role in a Democratic
Society
Pro-active versus Reactive Policing

VI.
VII. Crime Control and the Challenge of Organized Crime
VIII. Police Powers of Surveillance
IX. Police Discretion
X.

The Relationship between Administrative Rule-making and
Police Discretion

*Of the Faculty of Law, McGill University. Segments of this article are extracted
from Invasion of Privacy: Wiretapping and Criminal Investigation in Canada, to be
published by Carswell Co. Ltd in February, 1983. An unpublished paper by Calvin
Becker of Ottawa on the principles of police powers has been influential in the develop-
ment of several ideas expressed here. While the author wishes to acknowledge his
indebtedness to Mr Becker, responsibility for what follows remains that of the author.

Mc GILL LAW JO URNAL

[Vol. 27

XI.

Privacy
A. Privacy: Problems of Definition
B. The “Right” to Privacy
C. Privacy, Intelligence Gathering and Law Enforcement

I. The Police Function

Broadly speaking, there seems to be little mystery as to the role and
function of the police in modem society: the police enforce the law, keep
the peace, investigate crime, apprehend offenders and generally serve the
public. Their basic functions are thus threefold: law enforcement, ‘ order-
maintenance, 2 and community service.

Crime fighting is in many ways the most attractive aspect of police
work and it is from this work that the police have derived their most
positive public (and self) image. Crime fighting is in colloquial terms the
“cops and robbers” aspect of police work. It involves the investigation of
crime –
the pursuit and apprehension of criminals. In broader terms it is
said, not without controversy, to involve the prevention and suppression
of crime. It is the view of most modem policemen that “catching crimi-
nals, especially the violent and the organized,… constitutes the real core
of the job”.3

It was not always so. Criminal investigation was not identified
originally as a separate or special responsibility of urban police depart-
ments. In the nineteenth century the local constabulary retained many of
the characteristics of the town watchman whose duty it was “in some
small way to keep the peace and public order”; only rarely, for instance in
response to some unsolved spectacular crime, did they become involved
in
that “the police have
assiduously cultivated their image as crime fighters as part of a campaign
for professional respectability”.’ They have done this in part through
their insistence that above all criminal investigation was highly technical
work, a “science” which required skill and training, and produced
spectacular results. To a considerable extent the police have achieved

investigative work.4 Weinreb believes

enforcement”.

‘In this analysis, “crime fighting” will be used interchangeably with the term “law
2″Peace keeping” will be used interchangeably with “order-maintenance”.
3L. Radzinowicz & J. King, The Growth of Crime (1977), 164.
4L. Weinreb, Denial of Justice (1977), 21.
Ibid., 22.

19821

INVASION OF PRIVACY

their goal. Indeed, many have contended that the police have fostered an
image which has led the public to expect far more of the police than they
can possibly deliver.

Silberman, in his wide ranging study of Criminal Violence, Criminal
Justice in the United States, claims that “the police simply do not know
what to do to reduce crime; some off-beat officials are not even certain
there is anything they can do to produce a significant and lasting
reduction in criminal violence”. 6 Furthermore, it is his view that the
police have been reluctant to acknowledge their impotence in the face of
rising crime:

Hence police have felt the need to surround themselves with an aura of professional
invincibility, to encourage an image of themselves capturing criminals through a
combination of hard work, bursts of intuition, and the use of arcane scientific methods
dusting for fingerprints, analysing samples of blood, hair, and fingernail dirt,
–
tracking footprints and tiremarks, and other forms of “criminalistics”, as they are
called in police jargon.’

Despite the fact that police work involves much more than sophisti-
cated crime detection, modem policing is increasingly being drawn into
the thrall of modem technology:

The elite in the eyes of both police and public are the detective branches, the wide
ranging regional crime squads. The most advanced modern technology must be
engaged to centralize, sift and transmit information, to overtake the mobile modem
criminal. There must be specialist units to match the specialisms of crime: the drug
squad, the vice squad, the fraud squad, the experts on thefts of art and antiques, not to
mention the special branch. There must be advanced forensic facilities. There must
be centralization of control, inter-regional and international co-operation. The police
are to be seen as professional soldiers in a war against crime, to be organized and
equipped as such. The role of the public is to notify anything suspicious, co-operate in
inquiries if required and keep out of the line of fire.8
Although criminal investigation is without a doubt an important part
of police activity, it by no means commands the major portion of time
allocation in modem policing. Studies conducted in Canada and the
United States have shown that the two functions of service and peace-
keeping consume more of the average police officer’s time than the

6C. Silberman, Criminal Violence, Criminal Justice (1978), 200. See also, in this
regard, the controversial study commissioned by the Rand Corporation: P. Greenwood,
et al, The Criminal Investigation Process (1975), 3 vols.

71bid., 202. R. Ericson, in his study of detective work in a Canadian setting, Making
Crime: A Study of Detective Work (1981), concludes that detectives have little control
over crime, and that their effectiveness derives from mundane (e.g., citizens and uniformed
officers) rather than scientific sources.

8Radzinowicz & King, supra, note 3, 164.

REVUE DE DROIT DE McGILL

[Vol. 27

function of crime control.9 Most modem commentary concedes that it is
appropriate to strike the balance in this manner.10

Historically, the primary task of the police has been the preservation
of public peace and tranquillity. All other tasks and services were thought
to be subordinate to this one. The peace-keeping role of the police entails
such activity as the dispersal of crowds which are unruly, obstruct traffic,
or otherwise endanger the peace; the intervention into family rows with
violent undertones, or street quarrels and disputes which carry the threat
of violence. James Q. Wilson described the peace-keeping function of the
police as focussing on behaviour that “disturbs or threatens to disturb the
public peace or that involves face to face conflict among two or more
persons”. 1 This police duty then is both straightforward and general –
the maintenance of public order and the restoration of peace to the
community once it is disturbed.

The community service role of the police is well expressed in the

following extracts:

The police are called upon to provide a wide variety of social services as well. They
rush accident victims to the hospital; bring alcoholics indoors on a winter’s night;
break into a locked house or apartment to see whether an elderly occupant is alive or
well; persuade a mentally ill person who has barricaded himself in his apartment to
return to the hospital; administer emergency first-aid to a heart attack victim, or
someone who has taken a drug overdose, while waiting for the ambulance to come.
Police also get cats down from trees, chauffeur dignitaries around town, rescue the
drowning, talk suicidal people out of killing themselves, direct traffic, and provide
advice and help to the sick and elderly, as well as to otherwise healthy people who
simply cannot cope with some pressing problem.12
For most people they are also a residual social service. They are liable to be called in
any emergency not within the duties of more precisely defined social agencies like the
fire and sanitation departments: injuries and deaths, burst sewer pipes, cats in trees,
children in locked bathrooms, family quarrels, barroom brawls. The occasions when
the police are called vary among different economic and social neighbourhoods; but

9See the useful summary of the results of such studies detailed in C. Griffiths, J. Klein
& S. Verdun-Jones, Criminal Justice in Canada (1980), 55 et seq. See also Chappell,
Gordon & Moore, Criminal Investigation: A Selective Literature Review and Biblio-
graphy (1982) 6 Can. Police Coll. J. 13.

“Leon & Shearing, Reconsidering the Police Role: A Challenge to a Challenge of a
Popular Conception (1977) 19 Can. J. Crim. & Corr. 331, 336 do not criticize this state
of affairs but do take issue with conclusions which are conventionally drawn from it. They
say the debate has been based exclusively upon an analysis of what police should do and
what they actually do, and has overlooked what the police can do and have the authority
to do. In the result “[tJhe common sense view of the police as law enforcers and crime
fighters.., has recently been obscured” (p. 343).

“J.Q. Wilson, Varieties of Police Behaviour [:] The Management ofLaw and Order

in Eight Communities (1968), 16.
‘2 Silberman, supra, note 6, 203.

19821

INVASION OF PRIVACY

the general principle is that the police are an undifferentiated source of help. When
they are called, unless they can recommend a more appropriate agency, they are
expected to respond. The police do not say, “Sorry, that’s not our job.”‘ 3
It seems correct to state that almost since the appearance of the
modern police force the purposes and tasks of the police have been
mixed. This mixture naturally varies according to the political and social
environment in which they operate. Some police tasks are difficult to
categorize or accurately place within one of the three functional classifi-
cations which have been alluded to. The “duty to prevent crime”, for
example, may be regarded as an aspect of law enforcement, or peace-
keeping, or both.

The Ouimet Committee, in its examination of corrections in Canada,
noted that the control of highway traffic has become an important police
function in modern times.14 At first this task might be thought to be
simply an aspect of order-maintenance but Radzinowicz and King
indicate that the police tend to value this activity primarily because of its
usefulness in crime fighting: “The police claim that their powers to direct
and stop traffic, to check on licenses and insurance, are essential if they
are to catch the motorized criminal: and most criminals nowadays, like
most other people travel by car. Organized crime in particular depends
heavily on a succession of stolen vehicles. ’15

Two additional aspects of modem policing have been detailed in the
literature. The Task Force on Policing in Ontario specified the additional
functions of public education and referral. 6 These two functions may
arguably comprise part of the general service function of the police.
Alternatively, due to their emerging importance, they may be said to be
separate police functions since they require special resource allocation
and personnel skills.

In Canada the police operate under a variety of statutes which
contain significantly different provisions respecting their status and

13Weinreb, supra, note 4, 15. With respect to the social service role of the police in
Canada and more particularly in the City of Vancouver, see B. Levens, The Social Service
Role of Police [:1 Domestic Crisis Intervention (1978).
14Canada: Solicitor General, Report of the Canadian Committee on Corrections –
Toward Unity: Criminal Justice and Corrections (1969), 39 [hereinafter the Ouimet
Report].

I’Supra, note 3, 166.
16″Public Education” includes the development of programs which provide citizens
with information on how to protect themselves, their homes and their property from crime.
One program of this kind is “Operation Identification”. “Referral”
involves removing
individuals from the criminal justice system and sending them to other agencies in the
community. This is often called diversion. See Ontario: Solicitor General, Task Force on
Policing in Ontario (1974), 17.

Mc GILL LAW JOURNAL

[Vol. 27

the important indicia of his status –

accountability. 17 Stenning, in an exhaustive study of the police in
Canada, indicates that the police constable’s jurisdiction, duties and
powers –
are usually not spelled out
in detail in the legislation under which he is appointed.”8 Accordingly, it
is difficult to define with clarity the legal status of the police. Most
governing statutes preserve for the policeman the status of “peace
officer”, which has for centuries been recognized as
the central
component of the office of constable, and has its origins in the common
law status of “conservator of the peace”. 19

In 1962, the English Royal Commission on the Police noted the
many tasks which are assigned to the police and listed eight basic duties,
most of which can be comfortably accommodated under one or more of
the three major functional classifications noted previously:
(1) The police have a duty to maintain law and order and to protect

persons and property.

(2) The police have a duty to prevent cime.
(3) The police are responsible for the detection of criminals and in the
course of interrogating suspected persons, they have a part to play in
the early stages of the judicial process, acting under judicial restraint.
(4) The police have the responsibility of deciding whether or not to

prosecute persons suspected of criminal offences.

(5) The police themselves (in some but not all jurisdictions) conduct

many prosecutions for the less serious offences.

(6) The police have the duty of controlling road traffic and advising local

authorities on traffic questions.

(7) The police carry out certain duties on behalf of government depart-

ments.

(8) The police have by long tradition a duty to befriend anyone who
needs their help, and they may at any time be called upon to cope
with minor or major emergencies. 20
The most problematical of these duties is the “duty

to prevent
crime”. As the previous discussion indicates, the duty to prevent crime
may be regarded either as an aspect of law enforcement, or as a facet of

“P. Stenning, The Legal Status of the Police in Canada [:] A Study Paper prepared

for the Law Reform Commission of Canada (1981), unpublished.

181bid., 141-50.
“Ibid., 157-65. See, e.g., the Royal Canadian Mounted Police Act, R.S.C. 1970,

c. R-9, and the Police Act, R.S.O. 1970, c. 351, s. 55.

“See Great Britain: Royal Commission on the Police, Final Report, Cmnd 1728

(1962), 22; Griffiths, Klein & Verdun-Jones, supra, note 9, 52.

19821

INVASION OF PRIVACY

the peace-keeping mandate of the police, or both. Stenning indicates that
the origins of this duty are ancient indeed.2’ Why the duty to prevent
crime is considered problematical is the focus of the ensuing discussion.

II. Crime Prevention and the Police Function

Since the police are actively engaged in the detection and apprehen-
sion of criminals and since
the effectiveness of modem police
departments is evaluated, at least in part, on the basis of the success
of the strategies which the police utilize in their attempts to combat crime,
it may be stated that the “prevention of crime” is an important part of
modem policing. It is more difficult to ascertain the legitimate scope of
such police crime prevention activities. To what extent should society, in
the name of the suppression of crime, permit the use and growth of extra-
ordinary police powers?

“Crime prevention” in its present usage is a colloquial term of
imprecise breadth. It is used to refer to a variety of police actions ranging
from patrolling the streets to surreptitious surveillance and undercover
activity.22 The claim that one of the prime functions of the police is the
“prevention of crime” is largely uncontroverted due to the looseness
which attends the use and meaning of the phrase. It has almost achieved
the status of a homily or a charm.

Nevertheless, despite the imprecision in the use of language, the right
and the duty of the police to make inquiries23 and to take preventive
action against crime exists not only at common law but is preserved in
statute law as well.24 It is beyond dispute that there is a recognized core of
legitimate police activity which may serve preventive peace-keeping or
order-maintenance functions. Within this core may be located such
activities as:
(1) maintaining a visible presence in the community through the use of

marked cars and uniformed officers (preventive patrolling);

(2) dispersing boisterous or menacing crowds which interrupt traffic or

endanger the peace;

(3) peace-making

interventions

into family disputes which threaten

violence;

“See, generally, Stenning, supra, note 17, 13-87.
22Useful discussion and commentary on this concept are provided in D. Wasson,

Community-Based Preventive Policing: A Review (1977).

23See Dedman v. The Queen (1981) 32 O.R. (2d) 641 (C.A.), rev’g (1980) 30 O.R

(2d) 555 (H.C.). Leave to appeal to S.C.C. granted 19 May 1981.

24Kennedy v. Tomlinson (1960) 20 D.L.R (2d) 273, 295 (Ont. C.A.)per Schroeder

J.A.

REVUE DE DR OIT DE Mc GILL

[Vol. 27

(4) breaking up street quarrels or public altercations which signal poten-

tial violence;

(5) educating the public as to how best to protect themselves or their

possessions;

(6) cultivating good community relations and reliable information net-

works;

(7) ensuring prompt response to complaints as a means of choking off

incipient crime.
While it is evident that much, if not all, of this activity may be char-
acterized as falling within one or more of the three major police functions
of law enforcement, order-maintenance and community service, it is also
true, that these police functions serve the general aim of crime preven-
tion.25 If they do not deter the actual commission of a particular crime
they may accomplish the result of preventing the aggravation of a particu-
lar offence or the escalation of a minor incident to the status of a major
crime.

The growth of crime and the arrival of new technologies has brought
with it the parallel phenomenon of the expansion and specialization of
urban police forces. New methods for the deployment of available
resources have been utilized. Although the police have always claimed
“the prevention of crime” (in the broad sense of that term) to be part of
their mandate, that claim now involves resort to a highly enhanced
intelligence
function extending well beyond such accepted crime
detection devices as the tailing of suspects, or the use of stake-outs and
plainclothes police officers. In order to augment this crime prevention
intelligence function a need for the following powers has been asserted:
expanded, liberally construed (from the police perspective) wiretap and
electronic surveillance legislation; legal authorization to open mail; the
creation of obligations on citizens to identify themselves when requested
by a police officer; compulsory universal
identification schemes;
approbation of the police practice of using undercover agents and agents
provocateurs; and expanded search and seizure powers.

21This is also the view of Wilson, supra, note 11, 31: “To the patrolman, the law is one
resource among many that he may use to deal with disorder, but it is not the only one or
even the most important; beyond that, the law is a constraint that tells him what he must
not do but that is peculiarly unhelpful in telling him what he should do. Thus, he
approaches incidents that threaten order not in terms of enforcing the law but in terms of
‘handling the situation’. The officer is expected, by colleagues as well as superiors, to
‘handle his beat’. This means keeping things under control so that there are no complaints
that he is doing nothing or that he is doing too much. To handle his beat, the law provides
one resource, the possibility of arrest, and a set of constraints, but it does not supply to the
patrolman a set of legal rules to be applied.” [Emphasis added.]

19821

INVASION OF PRIVACY

There exist both broad and narrow views of the police function as it
relates to crime prevention. The broad view proceeds from the belief that
crime is out of control and that the social order is threatened. Its
adherents argue that present police powers and resources are inadequate
to the task of controlling crime. By this argument “effective law enforce-
ment requires that the police be given adequate powers and be supplied
with the necessary resources to efficiently perform the functions society
has delegated to them”. 26 The broad view is consistent with what Packer
describes as the “crime control model” of the process.27

In its most extreme form the broad view accomplishes a rhetorical
shift from “crime prevention” or “crime control” to “war on crime”
which implies or signifies a “transition from a routine concern to a state
of emergency”. This shift has been derided on the basis that it is
needlessly and misguidedly alarmist:

We no longer face losses of one kind or another from the depredations of criminals;
we are in imminent danger of losing everything! The perception of such risks does not
abide patient study; as long as the envisioned doom is held up as a realistic possibility
there is no need to show it6 impending certainty nor to estimate its likelihood with
precision. It matters little that the [war] metaphor, like many metaphors, contains a
contradiction in terms. For in truth a community can no more wage war on its internal
ills than an organism can “wage war” against its own constitutional weaknesses.
Though it may seem paradoxical on first glance, the existence of crime in society is
like the existence of organic malfunction, a normal aspect of human life. Both are
properly subject to vigilant control. But the conceit that they can be ultimately
vanquished, which is the implicit objective of war, involves a particularly trivial kind
of utopian dreaming. 28
The danger implicit in the broad view of the police function is that in
our zeal to detect and apprehend wrong-doers we may become impatient
with and insensitive to the restraints upon the exercise of police powers.
These have evolved over centuries. It is in the public interest that the
police be strong and effective in preserving law and order and (in a certain
sense) in preventing crime, but as Skolnick points out, “it is equally to the
public good that police power should be controlled and confined so as not
to interfere with personal freedom”. 29 The Ouimet Committee was also at
pains to point out that “it is equally important that police powers and
practices not undermine the societal values which they are established to
protect, which include civil liberties as well as security of the person and
property.”30

‘ 6Ouimet Report, supra, note 14, 40.
“See H. Packer, The Limits of the Criminal Sanction (1968).
21E. Bittner, The Functions of the Police in Modern Society (1970), 48.
29J. Skolnick, Justice Without Trial (1966), 10.
30Supra, note 14, 40.

Mc GILL LAW JOURNAL

[Vol. 27

The traditional, narrow view of the police holds that they should

possess few extraordinary powers:

31

Indeed a policeman possesses few powers not enjoyed by the ordinary citizen, and
public opinion, expressed in Parliament and elsewhere has shown great jealousy of
any attempts to give increased authority to the police. This attitude is due, we believe,
not to any distrust of the police as a body but to an instinctive feeling that, as a matter
of principle, they should have as few powers as possible which are not possessed by
the ordinary citizen, and that their authority should rest on the broad basis of the
consent and active co-operation of all law-abiding people. At the same time it must be
realised that there are certain duties of a special nature which if they are to be
entrusted to the police and adequately performed by them, require the grant of special
powers.
As a restraining principle of the growth of police powers this may be
a laudable sentiment, but as a description of the powers presently
possessed by the police relative to those of the ordinary citizen it is far
from accurate.12 Police powers to use force; search and seize; arrest and
detain; watch, beset and otherwise conduct surveillance; and bear arms,
far exceed any citizen powers in these areas. By a continuous incremental
process the legislature and the courts have chosen to enlarge the grant of
special powers which the police enjoy in Canada.33 The most recent
Canadian examples have occurred through legislative amendments in the
areas of gun control and wiretap law.3 4

The broad conception of the role of the police in the prevention of
crime contemplates the expansion of police powers and resources,
supports the utilization of new technologies to combat crime, and
advocates a greater concentration upon crime in its incipient, inchoate
stages. Rather than viewing the police role as largely reactive it is
asserted that pro-active police involvement in society is necessary, and
therefore
is predicated upon an expanded police
intelligence function.

this conception

The narrow, restrictive view of crime prevention is suspicious of any
expansion of police powers and is fearful of encroachment upon and
diminishment of fundamental civil liberties. It is skeptical about the

31Ibid., 10-1.
32See Great Britain: Royal Commission on Criminal Procedure, The Investigation and
Prosecution of Criminal Offences in England and Wales: The Law and Procedure,
Cmnd 8092-1 (1981), 21, para. 58 [hereinafter Royal Commission Report on Criminal
Procedure].
33The same holds true in Britain. See, e.g., two recent criminal law decisions which
profoundly affect police powers and have contributed to their growth: R. v. Sang [1980]
A.C. 402 (H.L.), which deals with the rule respecting the admission of illegally obtained
evidence, and Malone v. Metropolitan Police Commissioner [1979] Ch. 344, a case
examining the common law position on wiretaps in England.
‘ 4See the Criminal Law Amendment Act, 1977, S.C. 1976-7, c. 53, for recent

legislative changes in these areas.

19821

INVASION OF PRIVACY

potential effectiveness of new technologies in the detection or prevention
of crime. The narrow view seeks to strike a balance between those powers
of the police which are needed for effective law enforcement and the right
of the citizen to be protected from unnecessary intrusions by state agents
and abuse of power. It attempts to delimit the ambit of authorized police
involvement and interventions to the limits of substantive criminal law. In
general, it sees the police as a reactive rather than pro-active force in
society and thus views valid police concerns as being event-specific. If
the police have a maintainable intelligence function to perform it argues
that this function should be rigorously confined within narrowly drawn
legal limits.

III. A Digression Concerning the History and Philosophy of

Preventive Policing
The crime prevention role of the police is hardly a new topic of
debate. The notion of “preventive policing” permeates much of the
eighteenth and nineteenth century writing on the police in England. 5
Notable early proponents of the concept were the utilitarians Bentham
and Chadwick. Their views had great currency during the days when Sir
Robert Peel’s Select Committee on the Police of the Metropolis was
receiving presentations concerning the possible shape of, and role to be
played by a police force in England. Their ideas stood in strong contrast
to those of the eighteenth century philosophers Blackstone, Adam Smith,
and Paley which were hostile to the institution of the police. According to
Radzinowicz, the attitude of the eighteenth century writers “sprang from
their concept of the proper province and powers of the state in relation to
what they conceived to be the natural and inalienable rights of the
individual, the political freedom which all should enjoy and the rule of
law by which society should be governed”. 3 6 To them these considera-
tions far outweighed any greater security which an efficient police might

35That notion is linked to modern perceptions of police officers as part of organized,
bureaucratically structured police forces. The solitary authority of the constable to take
preventive action as part of his historic role as the conservator of the King’s peace is more
venerable yet. Authoritative accounts written in the sixteenth century by Lambard and
Fitzherbert demonstrate the existence of an authority from at least the thirteenth century
onward, thought to inhere in the constable’s office itself, to prevent breaches of the peace.
The degeneration of the constable’s office in terms of its efficiency and prestige which
occurred in the seventeenth and eighteenth centuries spurred the later reformers of the
eighteenth and nineteenth centuries to devise the new police forces. These matters are
comprehensively taken up by Stenning, supra, note 17, 48-59. In this general area I rely
heavily on the monumental contribution of L. Radzinowicz, A History of English
Criminal Law and its Administration from 1750 (1956), vol. 3, Cross-currents in the
Movement for the Reform of the Police.

6Ibid., vol. 3, 425.

REVUE DE DROIT DE McGILL

[Vol. 27

provide. Radzinowicz quotes J.S. Mill in this regard: “In England there
has always been more liberty, but worse organization, while in other
countries there is better organization, but less liberty. ’37

For Bentham, one of the earliest authoritative spokesmen in this area,
prevention of crime could be achieved by two means. The first was
premised on a belief in the deterrent effect of “certain punishment” for
the commission of crime. Clearly, this thesis has to do with the adminis-
tration of justice after the detection, apprehension and conviction of the
offender. However, the second means whereby crime might be prevented
reveals something of the policy behind preventive policing: “The greater
number of offences would not be committed, if the delinquents did not
hope to remain unknown. Everything which increases the facility of
recognizing and finding individuals adds to the general security.”3 As a
result of this belief Bentham argued for a change in public and judicial
attitudes
the
advantages of such an attitude would be great. He also believed that
common informers would respond by demonstrating high moral qualities.
Possibly, these propositions appeared as implausible to the society of
his day as they do in the twentieth century. 39

informers and spies claiming

toward common

that

The debate over the proper scope and ambit of the police function
was no mere philosophic abstraction. Peel was wrestling with the realities
of the dispute and there was no dearth of examples to be followed.
Continental police forces, especially those of France, provided a ready
model from which to fashion a police force with a pronounced crime
prevention mandate. A climate of fear was abroad, especially in London,
which was to be the territorial focus of Peel’s first reforms. Daniel Defoe
had written earlier of London that “violence and plunder is no longer
confined to the highways…. The streets of the city are now the places of
danger; men are knocked down and robb’d, nay sometimes murther’d at
their own doors, and in passing and repassing from house to house or
from shop to shop. Stage coaches are robb’d in High Holbourn, White
Chapel, Pall Mall, Soho and almost all the avenues of the city….
‘Tis
hard that in a well govern’d city… it should be said that the inhabitants

37See J.S. Mill, “Representative Government”

in Utilitarianism, Liberty and

Representative Government (1936), 347.

38J. Bentham, Collected Works (1838-43), vol. 1, An Introduction to the Principles of
Morals and Legislation, 367, 533, quoted in Radzinowicz, supra, note 35, vol. 3, 433.
39Bentham, ibid., 559, quoted in Radzinowicz, supra, note 35, vol. 3, 436: “The
informers who would require to be paid need have only a small salary; and a hundred
gratuitous informers would present themselves for one who required to be paid….
Informers, animated by public spirit, rejecting all pecuniary recompense, would be
listened to with the respect and confidence which is their due.”

19821

INVASION OF PRIVACY

are not now safe.”’40 This environment remained largely unchanged in the
time of Peel.

Louis XIV of France had been the first to establish a permanent
“Lieutenancy of Police” in 1667. In time almost all of Europe followed
his lead, and by the eighteenth century French pre-eminence in the field
was undisputed. “At the time [the mid-18th century] European despots
were dazzled by the level of control and surveillance achieved by Louis
XV’s police. Sartine, Louis’ Lieutenant General of Police, had not
exaggerated when he had boasted, ‘Sire, when three people chat in the
street, one of them is my man’. 41

For William Paley the institution of the police was indissolubly
linked with a despotic form of government. In Principles of Moral and
Political Philosophy42 he offers this stunning exposition of what a
continental police represented to him:

The liberties of a free people, and still more the jealousy with which these liberties are
watched, and by which they are preserved, permit not those precautions and
restraints, that inspection, scrutiny, and control, which are exercised with success in
arbitrary governments. For example, neither the spirit of the laws, nor of the people,
will suffer the detention or confinement of suspected persons, without proofs of their
guilt, which it is often impossible to obtain; nor will they allow that masters of
families be obliged to record and render up a description of the strangers or inmates
whom they entertain; nor that an account be demanded, at the pleasure of the
magistrate, of each man’s time, employment, and means of subsistence; nor securities
to be required when these accounts appear unsatisfactory or dubious; nor men to be
apprehended upon the mere suggestion of idleness or vagrancy; nor to be confined to
certain districts; nor the inhabitants of each district to be made responsible for one
another’s behaviour; nor passports to be exacted from all persons entering or leaving
the kingdom: least of all will they tolerate the appearance of an armed force, or of
military law, or suffer the streets and public roads to be guarded and patrolled by
soldiers; or, lastly, entrust the police with such discretionary powers, as may make
sure of the guilty, however they involve the innocent. These expedients, although
arbitrary and rigorous, are many of them effectual: and in proportion as they render
the commission or concealment of crimes more difficult, they subtract from the
necessity of severe punishment.4 3
As Radzinowicz notes, “although there were very few who stated so
forcibly [as Paley]
in any police
organization based on a system of ‘precautions, inspection, scrutiny and
control’ there were many who,
in a more or less articulate way,
entertained an equally strong apprehension of this danger”. 44

the danger to liberty inherent

40Daniel Defoe, quoted in Buckley, The Present Epidemic of Crime [1903] 11 The
Century Magazine 150, reproduced in T. Bowden, Beyond the Limits of the Law [:] A
Comparative Study of the Police in Crisis Politics (1978), 20.

4’Bowden, ibid., 53.
4217th ed. (1809), vol. 2, 306.
43Ibid., 295-7, reproduced in Radzinowicz, supra, note 35, vol. 3, 424-5.
44Supra, note 35, vol. 3, 425. This apprehension was confined to England. Continental
scholars in the closing decades of the eighteenth century began to fashion their own

Mc GILL LAW JOURNAL

[Vol. 27

At bottom the reluctance to enhance and extend police powers was a
reluctance “to improve the effectiveness of the police for fear of creating
an instrument capable of serving the ends of tyranny”. 45 From the time of
the Gordon Riots in 1780, “London was in the hands of the mob, and
even the military were powerless to intervene”. Nevertheless, there was
no rush to embrace the totalitarian impulse implicit in police state
methods.

Peel’s natural caution and his belief in reform by slow degrees led to
the creation not of an all-powerful national police force but rather a
smaller, more restricted municipal force designed to service London
proper. Ultimately, it was to be the model for the modern police force not
o ly withinEngtandbutthroughout much of the common law world as
well. The modest beginning signalled by the creation of the Metropolitan
Police in 1829 was in essence an attempt to create an instrument of state
control that would be at once manifestly impartial and immune from
outside influence, while still being amenable to some effective form of
external control. The potential incompatibility of these objectives was
only reconcilable through compromise. Thus the prospects for success or
unanimity as to the propriety of chosen methods were impaired from the
outset.

The debate over the broad and narrow views of the police function
continues to the present day. Referring in 1962 to the recurring nature of
the dilemma, the English Royal Commission on the Police quoted these
remarks from Johnson made some two centuries earlier: “The danger of
unbounded liberty and the danger of bounding it have produced a problem
in the science of government which human understanding seems hitherto
unable to solve.” ’46

A recognition that the problems implicit in a consideration of the
police role in crime prevention are perplexing and paradoxical can hardly
serve as an end point for discussion. The balance between liberty and
security is continuously being struck. The lessons afforded by history and
comparative models should not be ignored. There is, to use our previous
example, obviously much to be learned from the English struggle to come
to grips with the role of the police in their society. The early caution and
restraint exercised in a time of rampant disorder provides a not inappro-
priate guide to action at a time when the growth of crime and lawlessness
is the focus of much public attention.

complementary school of political thought which later became known as the liberal
doctrine of state and criminal jurisprudence: see Radzinowicz, supra, note 35, vol. 3,
425-31.

4sRoyal Commission on the Police, supra, note 20, 13.
46The exact source of Dr Johnson’s remarks is not cited by the Commission. See ibid.,

19821

INVASION OF PRIVACY

In striking this note of caution and restraint it is also appropriate to
recognize that this is not a subject fit for ad hoc situational or circums-
tantial adjustment. That approach may achieve some short term
objectives. However, the disfunctional results which in the long run
flow from ill-conceived policies far outweigh any gain. A broader canvass
and a more rational long-term perspective is necessary. The danger is
not that our few, prized liberties will expire in some loud, anguished and
bloody battle, but rather that by slow degrees, by slight turnings of the
screw, by steady, constant erosion, they will silently disappear.

IV. Crime Prevention and the Rule of Law

Underlying this discussion of the scope of police powers lies a desire
to discover and enunciate clear guiding principles of general application.
These principles obviously must relate to the questions of when and what
kinds of coercive interventions or other intrusions into the lives of citizens
by police will be permitted. This can only be achieved by first apprecia-
ting the relationship between the role of the police and the Rule of Law.
In a society avowedly devoted to the maintenance of free men within
free institutions the Rule of Law is conceived in a manner intended to
promote conditions conducive to liberty. The Rule of Law need not be so
allied to the concept of liberty or individual freedom. Indeed, in many
countries it is not; taken alone, it is largely a neutral concept. At the very
minimum the Rule of Law means that people shall be ruled by the law and
subject to it.47 All men, governors as well as governed, are subject to the
dominion of the Rule of Law –
hence the meaning of the phrase
“government by law and not by men”. The Rule of Law primarily serves
the basic intuition that the law must be capable of guiding the behaviour
of its subjects. Human behaviour cannot be guided by law unless it is
discoverable, open, clear and relatively stable. Furthermore, since it is
impossible for anyone to be guided by a retroactive law, the law should
only have application to future acts; that is, it should only be prospective
in its operation.

It is evident, that this conception of the Rule of Law says nothing
about the substantive content of law or how law is made. Thus, it is
possible for the Rule of Law to serve the needs of tyranny as well as
democracy.48

47Raz, The Rule of Law and Its Virtue (1977) 93 L.Q.R. 195, 196. Much of the
ensuing discussion as it pertains to the Rule of Law has been influenced by this article.
48There is, of course, an historically long and highly charged debate over the question
of whether what passes for law under a tyrannical regime is in fact law. See, e.g., H.L.A.
Hart, The Concept of Law (1961); Hart, Positivism and the Separation of Law and
Morals (1958) 71 Harv. L. Rev. 593; L. Fuller, The Morality of Law, rev. ed. (1969);
Fuller, Positivism and Fidelity to Law – A Reply to Professor Hart (1958) 71 Harv. L.

REVUE DE DROIT DE McGILL

[Vol. 27

Conformity to the Rule of Law is clearly only one virtue of many
which a legal system should possess. To take one obvious example, the
Rule of Law is often closely identified in democratic systems with the
protection of individual freedom. Indeed, in the Canadian parliamentary
system the preservation of liberty is the complement of the Rule of Law,
and implicit in the Canadian conception of the Rule of Law is a
recognition of the importance of the notion of individual freedom. In
terms of the criminal justice system, the Rule of Law assumes that the
basic purposes of the criminal law should be carried out with no more
interference with the freedom of individuals than is necessary. 49

In terms of the police function the Rule of Law at least in part means
control of official behaviour.50 The Rule of Law is only effective if the
legal machinery for the enforcement of law is itself regulated in ways
which are in themselves capable of guiding official action. It is the
enforcement machinery which also provides effective remedies for cases
of official deviation from the Rule of Law.

While it is desirable that the law be relatively certain and precise,
since vagueness and imprecision diminish the law’s ability to guide
behaviour, it is also necessary that it possess a sufficient degree of
flexibility. This flexibility is required in order that appropriate responses
to unforeseen exigencies and varieties of circumstance are not foreclosed.
The instrument for insuring flexibility within the confines of legal order is
discretion. Unbounded, unstructured discretion, however, is ultimately
destructive of the notion of the Rule of Law, since it introduces
uncertainty, and with it the potential for arbitrariness, into the law.
Therefore, under a system devoted to the Rule of Law it is a matter of
principle interest that the discretion of crime-preventing agencies not be
allowed to pervert the law.51 This is not to imply that the police are the
primary target of the Rule of Law. The police are in the same position as
all men and women in society in that they are subject to the governance of
the Rule of Law.

The police are arguably the agency to which we have granted the
greatest power and widest discretion to interfere in our lives.5 2 The
integrity of our processes is manifest only when such power is exercised

Rev. 630; Harvey, The Rule of Law in Historical Perspective (1961) 59 Mich. L. Rev.
487; J. Finnis, Natural Law and Natural Rights (1980).
49This is one of the basic propositions upon which the Ouimet Committee proceeded,

supra, note 14, 11.

‘ 0Ibid.
” Raz, supra, note 47, 201.
52K. Davis, Discretionary Justice: A Preliminary Inquiry (1969), 81, asserts and
subsequently justifies a claim that “the police are among the most important policy-
making agencies, despite the widespread assumption that they are not”.

19821

INVASION OF PRIVACY

according to law. The Rule of Law demands that this grant of power not
be unstructured and unregulated. The police should not be or be seen to
be a law unto themselves. This is the challenge implicit in the notion of
preventing policing.

The more police are preoccupied with the necessity of bringing to book those they
regard as dangerous villains, the more impatient they become of legal restraints on
their powers and discretion, the more convinced that the end justifies the means. 53
The police in democratic society are required to maintain order and to do so under the
Rule of Law. As functionaries charged with maintaining order, they are part of the
bureaucracy. The ideology of democratic bureaucracy emphasizes initiative rather
than disciplined adherence to rules and regulations. By contrast, the Rule of Law
emphasizes the rights of individual citizens and constraints upon the initiative of legal
officials. This tension between the operational consequences of ideas of order,
efficiency, and initiative, on the one hand, and legality, on the other, constitutes the
principle problem of police as a democratic legal organization.5 4

Skolnick notes that if the police could maintain order their short-run
diffculties would be considerably diminished. In a properly structured
system, however, they must concern themselves with legality not only
because of their use of the law as an instrument of social order but also
because in some measure the law purports to regulate their conduct as it
relates to those who are suspected, accused or found guilty of crime.”5
Taken to its extreme, the maintenance of order without the practice of
legality or the Rule of Law yields totalitarianism. As noted “such a
system of social control is efficient, but does not conform to generally
held notions about the ‘Rule of Law’.” 56

V. Basic Principles Governing the Police Role in a Democratic

Society
No one disputes that the police should be strong and effective in
preserving law and order and preventing crime. This serves the public
good. However, “it is equally to the public good that police power should
be controlled and confined so as not to interfere arbitrarily with personal
freedom”.5 7 Fitzgerald puts the issue well in the following extract:

The aim of crime prevention in a free society is part of the larger aim of producing a
society in which the citizen can fulfil himself in the pursuit of his individual
happiness, free from want, disease, and external interference. The pursuit of this aim
naturally entails some measure of state interference with individual liberty. But

“Radzinowicz & King, supra, note 3, 165.
4Skolnick, supra, note 29, 6.
55Ibid., 7.
61bid., 8.
“7Ibid., 10.

McGILL LAW JOURNAL

[Vol. 27

unless a society is careful to keep a check on the measure of interference, it may end
by losing more in the way of liberty than it gains in freedom from want, disease, and
crime.5 8
Obviously, we must be –

indeed we are – greatly concerned about
crime. We do not wish to live in fear, to be afraid to go about in our
neighbourhoods, or to be reluctant to speak with our fellows lest one
should turn out to be the “violent stranger”. We do not lightly excuse
even non-violent criminal intrusions into our lives: the disquiet, upset and
sense of violation which is felt when a break-in is discovered and items
are missing, property is damaged, or a lock is picked, is very real. All true
crime is disruptive of social tranquillity. As the incidence of crime
accelerates the peaceful community may come to feel itself under seige.
At the same time we value our privacy not only as against the
criminal but also as against the unnecessary visitations of the state. We
do not wish to live our lives under constant scrutiny. Few of us would be
prepared, or at least pleased, to be required to identify ourselves on
demand, to detail our whereabouts or proposed travel plans, to have our
intimate conversations
personal correspondence scrutinised or our
overheard. These things are also disruptive of social tranquillity. The
growth of state surveillance is productive of suspicion and distress. It is a
seige of another kind.

An expansion in police powers of surveillance will not necessarily
alleviate or preclude the occurrence of those crimes which create the
greatest amount of social disquiet. No amount of surveillance will prevent
a rape from taking place on a deserted street, or a mugging in an empty
park, or indeed, even a bank robbery carried out by hooded thieves in
broad daylight. Additional police powers cannot be justified on the
ground that they prevent these kinds of crime in these kinds of circums-
tances. Even if it could be demonstrated that police intrusions on a
massive scale could deter some portion of serious crime it is to be
doubted that Canadians would tolerate living under scrutiny that intense
or that local governments could afford to provide it.5 9

Thus two of the basic principles governing the role of the police in a

democratic society are these:

The police in carrying out the basic purposes of the criminal law
should be subject to the Rule of Law.
The basic purposes of the criminal law should be carried out with no
more interference with the freedom of individuals than is necessary.

5

8p. Fitzgerald, Criminal Law and Punishment (1962), 146.
59This sentiment was also expressed with reference to the United States. See United
States: President’s Commission on Law Enforcement and Administration of Justice, The
Challenge of Crime in a Free Society (1967), 95.

1982]

INVASION OF PRIVACY

Implicit in these principles is the operative notion of restraint. The
emphasis is on a minimum of interference. The state may only intervene
in the lives of its citizens where that intervention is authorized by law,
and may intervene only to the extent authorized by law. This said, the
question which then occurs is “when is it appropriate for the state to
intervene?” In other words, when should the official use of coercive
force” by legitimated?

It is appropriate for the state to intervene with coercive force when
freedom or security is threatened.
This proposition is self-evident. What does not show on its surface is
the proper point of intervention. Since the Rule of Law, in order to be
effective, demands certainty in the sense of discoverable, open, clear and
stable laws, it follows that the state should refrain from coercive inter-
ventions by its agents unless there is a high degree of certainty that the
citizen has acted, is acting, or is about to act contrary to law.61 In the
parlance of the modem criminal
the requirement of
“reasonable and probable grounds” as a condition precedent to most
police actions. The necessity for reasonable and probable cause is the
mechanism whereby the state insures that official action will not be
arbitrary.

law this

is

The police are entitled to know with some precision when they can
and should act. Similarly, a citizen is entitled to a measure of reasonable
certainty concerning what he may do without prompting an intervention
by the state. In a society which prizes liberty it is not surprising that a
basic legal maxim should state that everything is permitted save that
which is expressly forbidden. The conundrum is that the maxim has
application not only to the citizen but to the police as well. Thus the
importance of the following proposition which has the effecct of ordering
society’s priorities:

As a general rule there should be no coercive intervention without a
high measure of certainty that there has been, is being, or will be a
crime committed.
From this it may be seen that in general police intervention should be
tied to proscriptions upon conduct rather than to status or capacity. Our
system of criminal justice is act-oriented. Only in rare instances do we

“Coercive

force” does not simply imply the physical application of force or the
justified resort to violent actions by state agents. In essence it involves any assertion of
authority by officials which is backed by the possibility of a resort to physical compulsion
in order to ensure and obtain compliance.

6’Royal Commission Report on Criminal Procedure, supra, note 32, 22, para. 22.
The power to use coercive force where an offence is about to be committed is
problematical. Arguably, no coercive intervention is justifiable until those elements
constituting an inchoate crime are present.

REVUE DE DROIT DE McGILL

[Vol. 27

punish or incarcerate on the basis of status, and when we have done so
the reaction more often than not is one of distaste and disapproval. 62 A
man is to be punished for what he has done, not for what he is, or on the
basis of what his character is perceived to be like. To do otherwise is to
invite vendettas and persecution. Without the certainty which is the basic
attribute of an act-oriented system, everyone would potentially be subject
to arbitrary coercion at the instance of the state. Arbitrary searches,
seizures, arrests and detentions are in this light seen to be those
predicated upon considerations which are not event-specific. Crime, not
status or some other criterion, should be the activating circumstance.
This proposition should not necessarily be restricted to the notion of a
fully completed crime. The substantive law of inchoate offences –
attempts and conspiracies –
places the inception of crime at a much
earlier point. Thus the time for possible official intervention may also be
moved to an earlier point on the continuum which stretches between
suspicion and charge.

The concerns of the state with the problems of crime and criminality
should be met with event-specific investigation rather than panoptic
supervision.
The force of this proposition resides in the assumption that in a
society in which liberty or individual freedom is the pre-eminent concern,
the police role is of necessity largely reactive rather than pro-active in
nature. The requirement that the existence of a crime serve as the
activating phenomenon for official action leads
to this
conclusion.

invariably

Since the state’s concerns should in general be met with event-
specific investigation rather than all-pervasive surveillance and supervi-
sion it follows that discreet, invisible police activities which nevertheless
involve basic intrusions into the lives of citizens should be dealt with on
the same footing as overt coercive interventions. The mere fact that the
intrusion involved goes undetected does not mean that the violation of the
citizen’s privacy or fundamental rights is less reprehensible or less
complete. A break-in unaccompanied by broken doors or windows, or the
removal of items in order to have them copied, photographed or
reproduced, or other signs of disturbance, is just as much a violation63 as
one which bears the marks of entry, disturbance and theft.

This discussion should not be taken to imply that there is no room in
a modem criminal justice system for any police activity prior to the
commission of crime. As our previous consideration of the police role and
62This has been the history of preventive detention/dangerous offender legislation in
Canada. See Law Reform Commission of Canada, Studies on Imprisonment (1976), in
particular, Price & Gold, “Legal Controls for Dangerous Offenders”, 153.
63Some may query whether the two events are qualitatively equivalent.

19821

INVASION OF PRIVACY

involvement should be event-specific,

function reveals, there are numerous tasks and duties for the police to
perform which by nature occur at a point in time that is quite separate
from the time frame delineated by the phrase “the commission of crime”.
The essence of the control which is introduced in this discussion is that
police
to the
commission of a specific crime. In other words, intrusive police activity
should not be diffuse and unfocussed, or even generally (panoptically)
focussed. The principal assertion is that the police should not be
permitted to roam at large, with power to conduct a wholesale inquisition
in society. The police should investigate specific, real crimes, not
speculative, hypothetical crimes.

i.e.,

tied

in

Even Bentham, who was well known for his belief in a “preventive
police force”, seemed to acknowledge the force of this basic limiting
stricture. According to him the task of the police was to intervene as soon
as an offence “may announce itself in various manners”, 64 either while it
was in the process of being committed or immediately afterwards.
However, Bentham’s belief in a society replete with public-spirited
informers indicates his ultimate preference for intrusive, pervasive,
panoptically focussed police crime prevention activity.

The general rule that there should be no coercive intervention or
other intrusive police activity without a high measure of certainty as to
the existence of a specific criminal act is not a fanciful notion arising in
vacuo. It is a logical corollary of accepted Anglo-Canadian conceptions
of the Rule of Law. In his Introduction to the Study of the Law of the
Constitution Dicey says as much in this forceful statement:

We mean, …, that no man is punishable or can be lawfully made to suffer in body or
goods except for a distinct breach of law established in the ordinary legal manner
before the ordinary courts of the land. In this sense the rule of law is contrasted with
every system of government based on the exercise by persons in authority of wide,
arbitrary, or discretionary powers of constraint. 6′

Thus one is able to assert as a fundamental rule in the area of law

enforcement that

The interventions or intrusions of the state should only be autho-
rized or carried out in a manner that is consistent with the Rule
of Law.

64Bentham, supra, note 38, 367-8, quoted in Radzinowicz, supra, note 35, vol. 3, 435.
61A. Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed.
(1967), 188. Dicey’s conception of the Rule of Law has come under heavy attack,
particularly from administrative law scholars attempting to free themselves and their field
from the burden of Dicey’s views on discretion. See the important article by Arthurs,
Rethinking Administrative Law: A Slightly Dicey Business (1979) 17 Osgoode Hall L.J.
1, 4, fn. 13, where a list of notable critiques of Dicey’s views is provided.

McGILL LAW JOURNAL

[Vol. 27

This rule essentially particularizes the more general assertion put
forward in the first of the basic principles considered in this discussion,
namely, that the police in carrying out the basic purposes of the criminal
law are subject to the Rule of Law.

VI. Pro-Active versus Reactive Policing

Lest it be thought that too great a fidelity to the Rule of Law would
leave society vulnerable and unprotected, and would diminish the effec-
tiveness of the police in controlling crime, it should be remembered that
there are many forms of police activity which serve a preventive function
but do no violence to the notion of the Rule of Law. The maintenance of a
visible police presence in high crime areas, team policing, prompt
response to complaints, public education, the cultivation and mainte-
nance of good community relations and the resultant reliable information
networks, are all arguably devices which aid in the prevention of crime.
There are many others which one could identify.66 Since these are forms
of police activity which operate in advance of the commission of crime
they may be characterized as “pro-active policing”. But they remain
forms of action which are consistent with the Rule of Law.

This is not a panacea. It must be conceded that the effectiveness of
some of these measures has been seriously questioned. Citing American
studies 67 Silberman contends that “[s]hort of creating a police state, there
is no reason to believe that putting more cops on the street would affect
the amount of street crime”. 68 He also notes that “[niew technology does
not help either…. [C]utting a police department’s response time does little
good when, as researchers recently discovered, crime victims wait twenty
to sixty minutes before they call the police. ’69 In terms of a cost-benefit
analysis of these measures the conclusions to be drawn are far from cut
and dried. The jury is still out. Silberman casts his lot with other pro-
active, non-intrusive forms of policing such as the cultivation of improved
police-community relations70 through such vehicles as team policing and
a return to the concept of a “regular beat” and foot patrols.

Silberman is concerned with the ability of the present law enforce-
ment system to deal with what he perceived as the most pressing and
6A useful survey of preventive policing strategies is to be found in Wasson, supra,
67See especially, G. Kelling,.T. Pate, D. Dieckman & C. Brown, The Kansas City
Preventive Patrol Experiment: A Summary Report (1974). See also Greenwood, et al.,
supra, note 6; discussion of the Greenwood study and of the reaction to it is to be found in
Chappell, et aL, supra, note 9, 18-32.

note 22.

6″Silberman, supra, note 6, 200.
“9Ibid., 200-1.
70See, generally, J. Alderson, Policing Freedom [:] A Commentary on the Dilemmas

of Policing in Western Democracies (1979).

19821

INVASION OF PRIVACY

worrisome aspect of crime –
the rising tide of criminal violence. His
concerns lead him to consider the adequacy of present law enforcement
efforts to reduce violent crime. His basic conclusion is not up-lifting:
despite a massively expensive program of law enforcement American
police are largely impotent in the face of rising crime.

Others such as Grant note that both our public and private law
enforcement capability have long been biased in favour of “overt
predatory crime”. He offers the insight that it is “now not so much the
police discretion which dictates resource allocation but the political
discretions which have so organized police forces as to grossly bias the
capability quotient in the direction of overt-predatory crime and away
from clandestine fraud and corruption”. 7′ Thus

Society ends up with the criminals which it organizes its law enforcement agencies
to catch. If we point 90% of those resources at a particular target we cannot be
surprised if the resultant criminal statistics indicate that the area chosen would seem
to have been the right one. Of course we caught criminals there but it says nothing of
the activity occurring elsewhere. 72
Grant does not deny the importance of directing police efforts toward
curbing violence. Both he and Silberman see a need to rethink the
question of resource allocation, although they probably would not be in
complete agreement on where best to concentrate
the particular
allocation of resources. Grant provides us with the insight that it is
essential to focus attention on the political discretions which are
exercised within the administration of criminal justice if the question of
resource allocation is to be meaningfully addressed.

The face of crime which Grant would have us direct more attention
towards is important indeed. Fraud and corruption impose a tremendous
cost upon society whether practised by affluent professionals and
government officials or by the underworld. As Radzinowicz and King
note, “corruption is essentially a persistent offence of the prosperous and
the powerful extorting money from the poor”. 7″ Fraud and corruption
uniquely possess, in contrast to other crimes, the potential to be
committed in ways which do not involve specific, individual human
victims. Grant offers the example of fraud on a government department. 74
No individual feels this violation or loss directly. Instead, the loss is
compensated for in a diffuse manner –
usually through the vehicle of
taxes which must be adjusted
in order to accomodate additional
government expenditures.
traditional reactive

In Grant’s opinion,

Police Chief 39.

“Grant, The Criminal Justice System – Where Are We Going? (1980) 69 Can.

72Ibid., 40.
73Supra, note 3, 42.
74Law Reform Commission of Canada, The Police – A Policy Paper (1980), 69.

REVUE DE DROIT DE McGILL

[Vol. 27

policing is inadequate to control or monitor such crime. Without precisely
explaining which techniques he envisions being utilised in advance of the
commission of crime’ he contends that “this is the area, par excellence,
for pro-active detective work”, 76 by which one assumes he means
intrusive, pro-active detective work.

In reality there are no short, simple answers to problems involving
effective law enforcement on the one hand and citizen privacy on the
other. Before embracing “pro-active policing” one must first define what
such a concept legitimately entails. And prior to that inquiry, one must be
satisfied that reactive police detective work is truly and clearly inappro-
priate to the task of policing the forms of crime which have captured
Grant’s attention. Modem business and government are subjected to
various forms of scrutiny (annual audits, tax returns, reports to
shareholders) as well as to non-criminal investigations (security commis-
sions, professional disciplinary proceedings). Informants in the victim-
ized organization can and do present themselves to the police on
occasion. Some crime obviously does come to light. With the promotion
of new, more appropriate
the police
departments themselves (such as the creation of well-funded, sophistica-
ted “fraud squads”) and a greater concentration upon white collar,
managerial crime an improvement in the general level of effectiveness is,
in some small measure at least, bound to occur.

resource allocation within

The low visibility of a particular crime can hardly be the sole or the
over-riding justification for an increase in police powers.77 The justifica-
tion for new intrusive police powers which cannot be justified in terms of
other police functions and duties is captured in a single phrase: crime
control.

Crime control (a term if not coined by Packer, 78 at least popularized
by him) assumes that crime is on the increase and that we need every
reasonable technique at our command to combat it. The argument
continues: “[S]ince modem technology has made the law breaker more
successful and harder to catch, modem technology must be brought in to
check and to bring him to justice. ’79

At first it may not seem to be much of a jump from the suggestion
techniques of eavesdropping and

that we employ older “traditional”

75Ibid., 70, for a reference to the cultivation of informant networks.
7″6 bid.
77In fairness to Grant, supra, note 71, his argument is not so much based upon an
increase in powers but upon an increase in the allocation of resources. However, it is
doubtful whether solutions such as the wide-scale use of spies and informants within
government and the business community implies a growth in the sum of valid, approbated
police powers.

“8Supra, note 27.
79Radzinowicz & King, supra, note 3, 126 et seq.

19821

INVASION OF PRIVACY

undercover surveillance to a discussion of modem technology as applied
to crime control. In fact, “old-fashioned methods of shadowing, eaves-
dropping and interception of letters can now be supplemented by the
microscopic bugging device and the tapped telephone”. 80 A movement
from the recognized, but disapproved, use of entrapment techniques,,”
to a new regime wherein the use of agents provocateurs is approved and
encouraged, and cameras in the work place supplement these efforts,
represents changes
in law enforcement methods that are not only
quantitatively, but more importantly qualitatively different and distinct.
There is in all of this a distinction worth preserving, namely, the distinc-
tion between surveillance as part of crime-specific investigation, and
surveillance as spying.

It is not that the old methods are morally different from the new, but
rather that they are far more pervasive and harder to control.82 On the
other hand it is illogical to dismiss new technologies simpliciter. For
example, no one would suggest that we should give up the benefits of
computer technology and return to such time-consuming techniques as
laborious manual searches through criminal records and checks with
various agencies. The crucial question to be addressed is – when and in
what circumstances will we allow the police to resort to intrusive powers?
The answer to this question has already been given in general terms: the
intrusions of the police must be structured, confined and checked within a
regime which is compatible with the demands of the Rule of Law.
Intrusions which fall outside of a sequence of crime and investigation
should not be legitimated. In other words, the machinery of law enforce-
ment should be controlled, and its activation should not be generalized
(and hence arbitrary) but should be event-specific. This may result in a
system that is somewhat less efficient than would otherwise be the case:
In a time when crime has become a major public issue, we are prone to grant the
police the powers they claim they need to protect us. But it is at just such a time that
we should be most careful to scrutinize the validity of such claims. For there are
many powers we deny to the police that, if granted, would undoubtedly increase their
efficiency. Yet we withhold the grant, not because we wish to hamper law enforce-
ment, but because there are values we place above efficient police work.8 3

VII. Crime Control and the Challenge of Organized Crime

The arguments in favour of the enlargement of police powers in
pursuit of the god of enhanced crime control finds its greatest strength not

80Ibid.
91See Amato v. The Queen (unreported) 9 August 1982 (S.C.C.) and Kirzner v. The
82See generally Beck, Electronic Surveillance and the Administration of Criminal

Queen [1978] 2 S.C.R. 487.

Justice (1968) 46 Can. Bar Rev. 643.

83Ibid., 687.

Mc GILL LAW JOURNAL

[Vol. 27

in the murky shoals of white collar crime, but rather in the dark and
mysterious realms of organized crime. Less than twenty years ago it was
believed that organized crime was largely non-existent in Ontario and
quite possibly in the reste of Canada as well. 4 As recently as 1968
respected commentators continued to voice the opinion that although
“there is no doubt that organized crime exists in the United States… there
is little if any evidence that it exists in Canada”.”5 By 1976 the official
view, in some quarters at least, had changed drastically. The Quebec
Commission of Inquiry on Organized Crime was particularly alarmist on
the subject, contending that “[o]rganized crime is one of the greatest
problems our society must face today”.86 Actually, an off-hand remark in
the same Commission report comes nearer the mark: “Our knowledge of
it is largely superficial”.17

4 See Report of the Inquiry into Organized Crime in Ontario (1961).
85Beck, supra, note 82, 683. However, the assessments have been far from uniform.
For example, in 1963 it was acknowledged that organized crime was active in Ontario at
least in the area of organized illegal gambling. See Report of Mr Justice
.D. Roach on
the Inquiry into Certain Aspects of Gambling in Ontario (1963). American investiga-
tions into organized crime in the United States revealed Canadian “connections”. See,
generally, W. Kelly & N. Kelly, Policing in Canada (1976), 437-530.
86Quebec Police Commission: Inquiry on Organized Crime, Organized Crime and the
World of Business (1977), 2 [hereinafter Crime and the Business World]. Defining
exactly what is meant by the term “organized crime” is not an easy task. The Quebec
Police Commission relies on this formulation: “A group of individuals continuously and
secretly conspiring together on a permanent basis with a view to profiting from several
types of crime, and from loopholes in the law.” Other even lposer definitions such as “a
conspiracy or concerted action between two or more persons to effect any illegal object or
purpose” have surfaced but in the final analysis have proved less than useful in
differentiating organized crime activity from other forms of criminal action. Beck, supra,
note 82, 682, says that “[o]rganized crime is simply the application of corporate principles
to the business of crime”. He elaborates by contending that it is “sound economics and
politics to aggregate human and physical resources into large organizations that provide
central management and control, a division of labour and prudent allocation of profits”.
More explicit is this comment which is found in The Challenge of Crime in a Free
Society, supra, note 59, 187: “Organized crime is a society that seeks to operate outside
the control of the American people and their governments. It involves thousands of
criminals, working within structures as complex as those of any large corporation, subject
to laws more rigidly enforced than those of legitimate governments. Its actions are not
impulsive but rather the result of intricate conspiracies, carried on over many years and
aimed at gaining control over whole fields of activity in order to amass huge profits.
“The core of organized crime activity is the supplying of illegal goods and services –

to countless numbers of
gambling, loan sharking, narcotics, and other forms of vice –
citizen customers. But organized crime is also extensively and deeply involved in
legitimate business and in labour unions. Here it employs illegitimate methods –
to drive out or control lawful
monopolization,
ownership and leadership and to exact illegal profits from the public. And to carry on its
many activities secure from government interference, organized crime corrupts public
officials.”
87Ibid.

terrorism, extortion, tax evasion –

19821

INVASION OF PRIVACY

The Quebec Crime Commission, although not particularly scientific
or even legally rigorous in its methods, did perform the useful service of
identifying the presence of underworld criminal organizations within the
province of Quebec. 8s Through
its concentration on “family” and
individual profiles it revealed organized systematic activity, interconnec-
tions between seemingly disparate criminal elements, and the sanctioned
resort to violence in the pursuit of illegal objectives. s9

Of interest to this inquiry is the ultimate thrust of the Crime
Commission’s recommendations and the extent to which these law
enforcement officials would advocate the use of modem intrusive investi-
gative methods in order to obtain an incremental gain in crime control.
The Quebec Crime Commission has advocated the use of the Commission
of Inquiry on a permanent basis as an indispensable weapon in the fight
against organized crime.90 It also has proposed the creation of standing
“anti-gang squads” capable or carrying on “persistent and effective
action against the gangs and of ensuring effective protection to their
victims”. 9 In addition, the Commission has indicated that the capability
of the Quebec Research Bureau on Organized Crime to collect, process
and analyze police information on organized crime should be enhanced. 92
An examination of the concept of a permanent commission of inquiry is
beyond the scope of this study. It suffices to say that the creation of such
an entity is quite without precedent in this country. Bound up in such a
notion are such fundamental issues as the introduction of inquisitorial
processes into the Canadian criminal justice system and the potential
destruction of hitherto sacrosanct, fundamental rights.

About all that is known with any precision about organized crime in
Canada is that to the extent that these monopolistic crime corporations
operate in Canada, their activities, as in the United States, consist
primarily in “supplying gambling, narcotics, women, money and liquor to
willing customers” as well as “plowing its huge profits into legitimate
businesses”. 93 An argument, perhaps over-stated, has been put forward
that this state of affairs is more than a little ironic:

All these crimes are… crimes without victims, and for that reason are almost
impossible to combat. All these crimes involve imposing someone’s idea of morality
on somebody who has a different idea. It is “coercion to virtue” through the law. If
the criminal sanction is of little utility in these areas is it not time we stopped to ask

“8E.g., the Quebec Police Commission nowhere identifies the standard of proof which

it was applying in reaching conclusions as to criminal culpability.

89See Quebec Commission of Inquiry on Organized Crime, The Fight Against
Organized Crime in Quebec (1976) [hereinafter The Fight Against Organized Crime].

9Ibid., Part Four.
“Ibid., 238 et seq.
9″Ibid., 240-2.
“Beck, supra, note 82, 682.

REVUE DE DROIT DE McGILL

f[Vol. 27

exactly what functions the criminal sanction can perform, and which ones we really
want it to perform? Is it not particularly urgent that we ask this question if in the
attempt to legislate morality we have spawned an infinitely worse evil –
organized
crime?94

The situation depicted in this extract, even if over-drawn, raises valid
question: is the cure potentially more destructive than the malady? This
is the recurring question which must be addressed when responding to the
various pleas for ever-greater, extraordinary police powers to control or
combat crime. The debate in this area does not come down to the simple
choice that proponents of crime control values often express: protection
against crime or no protection. Our police are already equipped with a
vast array of crime fighting weapons, including broad powers of surveil-
lance –
especially wiretapping and the use of other electronic eaves-
dropping technologies.

Nevertheless, if one focusses on rates of apprehension and convic-
tion of offenders, it appears that the system does not operate success-
fully. There are a myriad of reasons for this, many of which would be
unaffected by an expansion in police powers. Many crimes go unreported.
Others are insoluble because the circumstances under which they were
committed yield no evidence as to the identity of the offender. Witnesses
die, leave the jurisdiction of the court, or are unreliable. Available police
resources are such that full enforcement of all criminal laws is an impossi-
bility.95 Clearly, there is room for improvement. However, improvement
must come within the civilizing restraints of the Rule of Law and not
through the adoption of police state or McCarthyist methods. Our rush to
increase police effectiveness or efficiency should not exact such an
unconscionable price as to result in the sacrifice of traditional rights and
safeguards. In a more particular vein, at this juncture in Canada there
appears to be no discernible reason or justification to react to so-called
“organized” crime with police methods or powers that differ significantly
from those which are employed in order to respond to “ordinary” crime.96

94Ibid., 682-3.
“For further elucidation see Radzinowicz & King, supra, note 3, 31-57. This analysis
does not deny the existence of other factors such as the use of extortion, bribery and even
murder to disrupt the criminal process. See Kelly & Kelly, supra, note 85, 453-6, for a
discussion of the Volpe case in this regard.

9’See Ryan, “The Invasion of Privacy by Electronic Listening Devices in Canada” in
Proceedings of the Eighth International Symposium on Comparative Law (1970), 87,
112-3. Ryan’s remarks are still germane more than a decade later: “The Ontario Law
Reform Commission Study and Report [O.L.R.C., Report on Protection of Privacy in
Ontario [:] Preliminary Study (1968)] contains some observations that look as if they
were written to describe the presentation that would be made six months later by the police
to the Justice Committee [examining electronic eavesdropping]: ‘[There is] a continuing
process of public education by conscientious and highly placed police officials designed to
convince the public that the threat of, e.g., ‘Mafia-like syndicated crime controlled by

19821

INVASION OF PRIVACY

VIII. Police Powers of Surveillance

Surveillance may be defined as an activity involving the observation
the gathering or collection of information about or
of individuals,
possessed by such individuals, or the interception of communications
passing between or among them. It may be accomplished through the use
of the unaided senses or by resort to technologies which improve upon
human capabilities. Surveillance is usually, though not necessarily, a
to some degree, a systematic,
clandestine activity. It is always,
continuous activity. In an earlier, less complicated era, surveillance was
to the Canadian state. The same cannot
of only minor concern
comfortably be said in the 1980s.

While casual observation or overhearing of others is a normal feature of every day
life, the intentional surveillance of an individual’s activities or conversation can have
a corrosive effect on his sense of privacy and is generally regarded as a serious affront
to the integrity of the individual subjected to the practice. In the past, when the spy or
voyeur was limited to the use of his senses, the ordinary person could take effective
measures in self-defence to prevent or restrict unwanted invasions of his privacy.
However, technological developments have given rise to sophisticated devices which
today render it virtually impossible for the ordinary person to take effective measures
against the use of technological devices. There has accordingly been a growing
demand for adequate legal protection. Traditionally the law has given only limited
protection against surveillance. The ancient statutory offence of peeping and the
common law crime of eavesdropping sought to restrain deliberate surveillance. But
each of these was created long before the modem development of sense-enhancing
technical devices. As the law currently stands there is insufficient legal protection
against the use of these devices. They have proliferated. The law has not kept pace. 91
Individuals may conduct surveillance upon one another for a variety
of reasons. A husband may spy upon his wife in an attempt to uncover
evidence of suspected adultery; employers may surreptitiously keep
watch over employees in order to monitor productivity or uncover thefts;

American Gangsters’ requires police methods that impinge upon the commonly held view
of the domain of individual privacy…. [Preliminary Study, 8.]’ The Ontario Study and
Report also called for the obtaining of the sort of information that was not to be
forthcoming from the police witnesses: ‘[Tihe reality of an assault by modem crime that is
not capable of being controlled by traditional police methods, rather than the public image
of the spectre of gangsterism, must be the sine qua non of any state sanctioned
institutional surveillance of the private affairs of individuals. [Preliminary Study, 9.]’ The
presentation by the Chiefs of Police [before the subsequent Parliamentary Committee]
contained a great deal of discussion concerning syndicated crime, almost all of it written
about the situation as it exists in the United States. The brief was an interesting and at
times fascinating polemic, but a factual analysis of the present situation in Canada, either
on a crime-by-crime basis as suggested by Westin, or of the syndicated crime picture in
this country as suggested by the Ontario Law Reform Commission, it was not.”

“Australia: Law Reform Commission, Privacy and Intrusions [Discussion Paper
No. 13] (1980), 44. While the sentiment expressed is applicable in Canada, the legislative
situation differs markedly from Australia. See the discussion of Canadian wiretap law,
infra.

Mc GILL LAW JOURNAL

[Vol. 27

commercial rivals may attempt to uncover production secrets; media
reporters may resort to surveillance techniques in order to track down a
story. All of these forms of activity arguably raise valid issues concerning
privacy. However, for the most part these intrusions, as interesting as the
problems which they raise may be, lie beyond the scope of this exercise.
Our concern is with the narrower, more directly threatening issue of
police or state surveillance. 98

When exercised as a police power, surveillance by nature occurs
towards the front end of the continuum stretching between suspicion and
charge. Since the Rule of Law sets the parameters for legitimate police
activity, and since, more particularly, it limits police intrusions to a point
after a distinct breach of the law has “announced itself’ in some manner,
legitimate police surveillance must be positioned on this continuum at a
place after and beyond the point of suspicion. The question which
remains is, how far beyond?

Clearly, without the restraining influence of the Rule of Law, it is
logical to assume that the police power to carry out surveillance would be
employed well in advance of the commission of an offence. In other
words, investigation would not be event specific. To the extent even that
it was a particularized, individual investigation, such inquiry would
consist of investigation based on vague suspicions or rumours. More
likely the investigation would be in the form of a generalized search for
wrongdoing. A concern for the Rule of Law, however, results in the
requirement that prior to an authorized intrusion by the police there
should be in existence known, demonstrable, reasonable and probable
grounds for believing that a particular offence has been, is being, or will
be committed. In the case of surveillance this means that the police,
before conducting such activity, should be satisfied as to the existence of
reasonable and probable cause in order to justify their resort to the use of
the power.99

In terms of traditional modes of police behaviour and organization
these activating criteria cause no upset. With rising crime rates, the more
visible presence of organized crime, and the advent of new technologies
which enhance police abilities to maintain surveillance, event-specific

98For an illustration of the extent of the private use of electronic surveillance see
British Columbia, Report of the Commission of Inquiry into Invasion of Privacy (1967),
11-24, [hereinafter the Sargent Report].
99This is only a general rule. Arguably, exceptions to it should exist. However, the
validation of any extraordinary power should occur only after those seeking the use of
benefit of the power have displaced a heavy onus. The relevant question to be addressed
is: “Is the power indispensable in the sense that its use is necessary for the protection or
preservation of an over-riding social interest?” Cf. Royal Commission Report on
Criminal Procedure, supra, note 32, 23.

19821

INVASION OF PRIVACY

probable cause criteria no longer go unchallenged by the police establish-
ment. Like so many “new” controversies in the law this one in reality
harkens back to a much older one, as this extract from Professor
Mewett’s consideration of law enforcement and the conflict of values
reveals:

It is interesting to note that now, in the middle of the twentieth century the problem of
this whole question of privilege [against self-incrimination] really rests on the worry
that manifested itself in the sixteenth, that someone is going to start “poking about in
the speculation of finding something chargeable”. This worry manifests itself not only
in the area of answering questions under oath or the powers of administrative
tribunals, but also in the area of compulsory statements to police officers the powers
of the police to interrogate and wiretapping and eavesdropping. A thirteentl century
canonical rule directed towards heresy and witchcraft inquisitions becomes relevant
once more.100
Surveillance activity can take on many forms. The advance of
technology only adds to the variety of the manifestations. Police activities
which involve the use of informants and undercover agents, or which
entail surreptitious entry into buildings or premises in order to obtain
information, may be characterized as covert, information-gathering,
surveillance actions. The employment of wiretaps or other electronic
surveillance devices, or the scrutiny of posted communications for the
most part involve
interception of communications,
although some techniques such as the use of hidden cameras merely
involve
the appropriation of information or the mere recording of
phenomena. The use of “stake outs” or the “tailing” of suspects are
simple direct forms of surveillance. Research into police activity reveals
other overt, generalized forms of surveillance. Numbered among these
actions are systematic spot checks and prophylactic arrests and searches.
Direct police confrontation of suspected criminals may be categorized as
forms of surveillance inasmuch as these techniques may involve the
gathering of information and the observation of targeted individuals or
groups.

the clandestine

Many of the forms of activity which may be characterized as surveil-
lance activities are of dubious or questionable legality. For example,
undercover agents may be used as agents provocateurs in order to
“entrap” a suspect in the commission of an offence. As imprecise as the
law of entrapment may be in this country, 10 1 there still seems to be a

00Mewett, Law Enforcement and the Conflict of Values (1970) 12 Crim. L.Q. 179,

188-9.

’01See Kirzner and Amato, supra, note 81. The law of entrapment is discussed by
the McDonald Commission: see Canada, Commission of Inquiry Concerning Certain
Activities of the Royal Canadian Mounted Police – Second Report (1981), vol. 2, 1036-
53 [hereinafter McDonald Commission Second Report]. Like the Ouimet Committee
before it, supra, note 14, 77-80, this Commission endorsed the creation of an entrapment
defence, vol. 2, 1053.

REVUE DE DROIT DE McGILL

[Vol. 27

recognized, significant distinction in the law of entrapment such that
there
is little doubt that “the entrapment of an offender already
embarking on criminal conduct is a perfectly proper exercise of the police
function”. 10 2 The same may not yet be said of ensnarement. Another
example is that of surreptitious break-ins by police to plant wiretaps or
bugs. These surveillance exercises are ostensibly supported by judicial
authorizations or by common law authority.103

The dilemma which presents itself in this area is vexing and cannot
be ignored. On the one hand law enforcement agencies press for authority
to utilize the latest technology in the investigation of crime. On the other,
as the -intrusions by government into the lives of citizens becomes
increasingly pervasive –
such is the undeniable effect of the technology
the threat to individual freedom is increasingly perceived to be a grave
–
one. If one is curious as to the “state of the art” or is ambivalent as to the
Orwellian prospects, this already dated description in the United States
Supreme Court case of Berger v. New York provides a chilling and
intriguing glimpse:

Sophisticated electronic devices have now been developed (commonly known as
“bugs”) which are capable of eavesdropping on anyone in most any given situation.
They are to be distinguished from “wiretaps” which is confined to the interception of
telegraphic and telephonic communications. Miniature in size (3/s” x 1/8″ x 1/8″)
– no larger than a postage stamp –
these gadgets pick up whispers within a room
and broadcast them half a block away to a receiver. It is said that certain types
of electronic rays beamed at walls or glass windows are capable of catching voice
vibrations as they are bounced off the latter. Since 1940, eavesdropping has become a
big business. Manufacturing concerns offer complete detection systems which
automatically record voices under most any conditions by remote control. A micro-
phone concealed in a book, a lamp, or other unsuspected place in a room, or made
into a fountain pen, tie clasp, lapel button, or cuff link increases the range of these
powerful wireless transmitters to a half mile. Receivers pick up the transmission with
interference-free reception on a special wave frequency. And, of late, a combination
mirror transmitter has been developed which permits not only sight but voice
transmission up to 300 feet. Likewise, parabolic microphones, which can overhear
conversations without being placed within the premises monitored, have been
developed.’ 0 4

0 2Mewett, supra, note 100, 193. See also Friedland, Controlling Entrapment (1982)

1

32 U.T.L.J. 1.

“‘This issue in the area of wiretap law is presently unresolved. A recent decision of the
Manitoba Court of Appeal has caused a great deal of consternation within law enforce-
ment ranks by stating, in obiter, that surreptitious entry to plant an authorized listening
device is illegal. See R. v. Dass (1979) 47 C.C.C. (2d) 194, 212-4 (Man. C.A.) per
Huband J.A. See also Colet v. The Queen (1981) 19 C.R. (3d) 84 (S.C.C.) which
supports the position expressed in Dass inasmuch as the Supreme Court rejects the use of
s. 26 of the Interpretation Act, R.S.C. 1970, c. I.-23 to provide implied authorization for
police officers to commit otherwise unlawful acts. The conclusion of the Manitoba Court
of Appeal is approved of by the McDonald Commission Second Report, supra, note 101,
vol. 1, 164-73. Cf Dalia v. United States 441 U.S. 238 (1977).

104388 U.S. 41, 46-7 (1967) per Clark J.

19821

INVASION OF PRIVACY

IX. Police Discretion and Surveillance

The advance of science and technology is inexorable. This study does
not argue that the fruits of technological development ought to be denied
to our law enforcement agencies. What is argued for here is the responsi-
ble, controlled use of technology, not its outright prohibition. The key
questions are: “when?”, “in what circumstances?”, and “subject to what
controls?” These questions must be answered by looking first to the
ordering confines of the Rule of Law while at the same time directing an
eye toward the protection of individual freedom.

the dangers

implicit

This paper recognizes

in attempting to
subordinate all exercises of power in society to the dominion of the
courts.10 5 What must be protected against is excessive discretionary
power.106 In many instances society must allow non-judicial agencies to
exercise final, essentially discretionary power over personal and property
rights without statutory rules. Where discretion exists the two principal
needs are “the elimination of unnecessary discretionary power and better
control of necessary discretionary power”. 10 7 As Davis explains, the
principal ways of controlling discretionary power are “confining”, “struc-
turing” and “checking”. 10 8

Some aspects of police surveillance are amenable to statutory and
judicial controls while others, such as the use of informants, are more
properly subject to the kind of administrative structures which Davis
advocates. 109 It is therefore useful to explore the use of informants as a
surveillance technique in the context of this consideration of the use and

15 The view which seeks to eliminate discretion in this way falls within a school of
thought which Davis identifies as the “extravagant version of the Rule of Law”. This
school of thought interprets the Rule of Law to mean that discretionary power has no place
in any system of law or government. What it “especially opposes is discretionary power
exercised outside courts and not fully subject to judicial control.” See Davis, supra, note
52, 30.
106 bid., 4. Davis offers this useful definition of discretion: “A public officer has
discretion whenever the effective limits on his power leave him free to make a choice
among possible courses of action or inaction.”

107Ibid., 55.
1081bid. These are terms which Davis uses in a precise way: “Structuring includes
plans, policy statements, and rules, as well as open findings, open rules, and open
precedents…. Checking includes both administrative and judicial supervision and
review. Our present concern is with eliminating and limiting discretionary power, that is,
confining discretion. By confining is meant fixing the boundaries, and keeping discretion
within them. The ideal, of course, is to put all necessary discretionary power within the
boundaries, to put all unnecessary such power outside the boundaries, and to draw clean
lines. The ideal is seldom realized, and many of the failures are rather miserable ones, for
they frequently result in avoidable injustice.”

“For Davis’ views on the more particular subject of police discretion see K. Davis,

Mc GILL LAW JOURNAL

[Vol. 27

appropriateness of administrative rules as a device controlling police
investigative activity.

Administrative controls are appropriate to the regulation of the use of
informants because of the nature of the policy questions which arise in the
formulation of an effective police enforcement policy, i.e., one which
countenances the practice of utilising informants. Some of the policy
questions which must be addressed in this context are these:

Should any offender be given a chance to earn immunity from punishment by giving
information to the police? Should the police buy information about law violators by
paying money? Should they buy such information with non-arrest, with non-
prosecution, or with non-punishment? Is it a denial of equal protection to give a
chance to one violator to become an informer but not to give a similar chance to
another? Should all violators have such a chance, and if not, on what basis should
selections be made? Should one who is caught selling narcotics be given immunity
from prosecution for burglary if he gives the police valuable information about big
narcotics distributors? On what grounds may a valuable informer status be
terminated? Is the informer entitled to fair procedure when termination of his
informer status is under consideration? If the police renege on promises they have
made to an informer, should the informer have a legal remedy? Is the entire structure
of police informer practices illegal in fact of statutory authorization; if so, who, if
anyone, can get the question before a court?1 ‘
This extract does not address the nature of the applicable principle
regulating the grant of authority under which the informant operates.
When is it appropriate to seek the help of informants? Is the use of
informants not simply another technique of surveillance? If unregulated,
does not the informant do what we prohibit the police from doing, namely,
“poke around in the hope of finding something chargeable?””‘ If the
police are not allowed to conduct a generalized search for wrong-doing
(sometimes referred to as domestic spying) then clearly they cannot have
resort to techniques or technologies which serve the same end.

Once again, it is necessary to reiterate that what is implied here is not
the prohibition of the activity (the use of informers) per se, but rather the
regulation and control of the timing of the resort to its use. At the front
end of the system this means simply that the police cannot “set loose the
dogs” without evidence of the commission of a crime. In this area judicial
controls such as the use of an authorizing warrant are inappropriate. For
reasons which are developed in the ensuing discussion control must reside
within the upper echelons of the police bureaucracy itself.
Police Discretion (1975). H. Goldstein, Policing a Free Society (1977), 94-5, criticizes
Davis for what he sees as his over-concentration on selective enforcement. in his view,
this ignores other areas of discretion that do not directly involve a decision of whether or
not to enforce a law.

” 0Davis, ibid., 28-9.
“‘The expression is that of Wigmore and was made by him in reference to the subject
of the privilege against self-incrimination. See J. McNaughton, Wigmore On Evidence,
rev. ed. (1961) vol. 8, 314, 2251.

1982]

INVASION OF PRIVACY

The questions which then arise are: how practical are these
constraints? How logical are they? How can the police detect the crime if
the sources of their information as to its commission are choked off?. The
answer to such questions are problematical and far from self-evident.
Thus, what follows is hardly free of controversy.

A crime announces

itself in many ways. In carrying out their
manifold duties, the police will often uncover evidence or circumstances
pointing to the commission of crime. Citizens often report wrong-doing or
suspicious events spontaneously. The informant, unlike the ordinary
citizen, usually seeks advantage or gain. His services are valuable, indeed
one might say essential, to the investigation of many crimes. But bargains
with informants, if they are to be struck at all, should be after the fact, ad
hoc, situational responses. The position of the informant should not be
institutionalized. The gain or advantage which he is accorded should be
with reference to, or in return for specific investigations. He should not be
on permanent retainer to the constabulary. In other words, informant use,
while it ought not to be proscribed, equally ought not to be zealously
pursued or encouraged through organizational arrangements within police
departments, such as the creation of informer squads or units whose sole
or primary responsibility is the gathering and collection of domestic
intelligence.

Like any citizen the informant can and should report criminal activity
to the authorities. Indeed, in many circumstances, the informant will
simply be a public-spirited, “ordinary” citizen. Often, however, the
informer will “volunteer” information at a point when he or she is about
to be arrested for specific crimes which he has committed, and indeed the
police on occasion will trade non-arrest for information.11 2 If prosecuted,
the informer may trade information for a promise of a reduced charge or a
lower penalty. These actions presently are largely unregulated and
insufficiently controlled, for example, by a system of open statements of
police and prosecutorial enforcement policy such as that propounded by
Davis.

These remarks are made so as to emphasize the aspect of restraint in
relation to a practice which is regarded by some as unsavoury. Informant
rewards are not discussed, in the context of the control of event-specific
investigation, to signify approval of a practice which at best can be
described, like plea bargaining, as a pragmatic compromise rather than as
a virtuous course of conduct. Rather, they are discussed for the purpose
of expounding upon the ways and means whereby resort to the use of the
practice may be inhibited.

” 2Davis says that this practice is usually though not always limited to misde-

meanours, supra, note 109, 29.

REVUE DE DROIT DE McGILL

[Vol. 27

This kind of informant use differs, if not quantitatively,

then
qualitatively, from a “carte blanche” system wherein a wide-scale
network of spies report regularly to police in return for monetary rewards
or blanket promises of immunity. In the latter case the police conduct
massive,
lives of
(potentially) all citizens, while in the former circumstance the scale is
reduced and the police do not formally initiate the activity. The major
exception to this is where evidence of the commission of a crime has
come to the attention of police and the police then authorize the informant
to gather intelligence in order to confirm the initial information.” 3

though clandestine, general

intrusions

into

the

Obviously this approach will not be free from possible abuse. The
police presently harrass (through threat of arrest or prosecution) certain
target groups, notably prostitutes and bikers, in order to obtain informa-
tion. At present, due to the absence of unarticulated enforcement norms,
some police officers may be unable to distinguish between what is
approved behaviour (in the sense of being authorized) and what is not.
With open, articulated policy direction from the top ranks of the
police establishment much ambiguity will disappear. Since enforce-
ment policy will be open it is more likely to be fair. Davis makes this
point forcefully:

Every policy, unless confidentiality is necessary, should have to run the gauntlet of
public criticism. If it does not survive, then it should not survive.” 4
Of course, I do not say that enforcement strategies or allocations of police manpower
must be disclosed. If extra men are assigned to a high crime area, disclosure might
defeat the purpose. But when the policy is that an officer will not arrest for a crime
committed in his presence, that reality of the law should be disclosed, for non-
enforcement is the practical equivalent of repeal or partial repeal of the criminal
legislation.”‘
Davis’ concerns are consistent with the application of the Rule of
Law. The Rule of Law does not require the full enforcement of all laws.
Other reasons aside, this is simply a practical impossibility. Rather, the
Rule of Law requires that those affected by law should have a chance to
know what the law is. n 6 Just as the promulgation of law must be known or
discoverable, so too must the repeal (or effective repeal) of the law be
knowable. Open, “selective enforcement”‘ 17 is not vulnerable to the same

“‘The use of undercover police is a different issue from informant use. Writing on
the extent of either activity is minimal. See Friedland, supra, note 102, 5-6. The
McDonald Commission Second Report, supra, note 101, vol. 2, 1032, endorses open
guidelines to regulate the use of undercover agents.

“14Supra, note 109, 77.
“‘Ibid., 74.
16The sheer volume of the criminal law qualifies this principle. See Law Reform

Commission of Canada, Our Criminal Law (1976), 12.

‘”Selective enforcement”

is used in contradistinction to the concept of “full
enforcement”. Kadish, Legal Norm and Discretion in the Police and Sentencing Process

19821

INVASION OF PRIVACY

charges of arbitrariness and capriciousness as secret selective enforce-
ment based on unarticulated premises.

As mentioned, upper-level administrative rule-making is one means
whereby some control over some forms of police surveillance activity
may be imposed. The police use of informants provides a ready example
of an area where substantial improvement might be accomplished through
the use of this device. The rationale behind advocating administrative
rather than legislative controls over the police use of informants is based
on the fact that much police-informer activity is of a spontaneous
character. The approach of the police in relation to it is uncoordinated,
and is dictated largely by present circumstances. The use ,of informants in
such instances is essentially a spin-off of other, oftei routine police
activities. A formal statutory structure purporting to regulate resort to the
use of informants, such as one requiring judicial scrutiny and authoriza-
tion, would create a cumbersome and unwieldy instrument; in essence it
would create an impediment in a process which in this area operates best
through informality.

At present, informant use is a form of completely unregulated police
discretionary activity. Properly structured rules are an appropriate
mechanism for confining this activity since they are easily implemented,
and control introduced in this way is capable of being every bit as
complete as under legislated standards. Legislative guidelines, if anything,
are less comprehensive than properly conceived administrative rules.
Statutes, because they are less flexible, rarely have the specificity that
rules possess. Rules have an additional advantage over legislation in that
the power to make rules accompanies the grant of discretion and need not
be separately conferred. 118 The police already do much policy-making
through rule-making procedures, 119 although present police rule-making
procedures do not measure up to the standards suggested by theoreticians
such as Davis and Goldstein. Through the open articulation of rules,
policies become known and accountability is injected into the process.
There is another side to the question of the police use of informants.
An informant may, in one sense, be any person who provides information
of illegal’activity to the police in any context. Thus the pedestrian who

(1962) 75 Harv. L. Rev. 904, 906, describes full enforcement as “the official
assumption… that.., the police are supposed to enforce all laws against all offenders in all
circumstances.” Davis, supra, note 109, 79-97, suggests that selective enforcement
involves the use of discretion to determine whether and when to enforce particular laws.
The purpose of his study is to find or invent ways to better control this kind of police
discretion.

“sDavis, supra, note 109, 98-120.
‘”Ibid. For example, police manuals give directions on such matters as conducting
line-ups. Directives are also known to exist on matters such as high speed chases and the
use of firearms.

Mc GILL LAW JOURNAL

[Vol. 27
sees a fleeing thief turn down an alleyway and conveys this information to
the pursuing officer is an informant. One of the reasons why the citizen
will assist the police in this way is because the police have taken the time
to cultivate good community relations. The particular officer may even be
a familiar figure known to the citizen due to his regular presence on foot
patrol in that community. In this way police organization, and the order-
maintenance or community service activities of the police serve the goal
of crime prevention. Citizen cooperation,
if it may be labelled as
“informer activity”, is certainly the benign face of that phenomenon. 120
It will be recalled that this discussion of the police use of informants
was conducted in order to more fully explore the appropriateness of the
use of administrative
to control some police
investigatory activities. As mentioned, while some aspects of police
surveillance are amenable to statutory and judicial controls, others are
more properly subject to administrative controls. Whatever the context,
be it statutory provisions, judicial oversight, or administrative rules, our

rules as a device

120As important as citizen cooperation is to the process, it should be remembered that
rank and file police cooperation is equally important. Even the best organized system can
be frustrated by an unaccepting or ignorant police force. Hence the importance of
adequate levels of police education and training: see The Police – A Policy Paper, supra,
note 74, 25-7, 49-53; Grant, Some Reflections on Police Education and Training in
Canada (1976) 18 Crim. L.Q. 218; Goldstein, supra, note 109, 257-307. However,
education alone does not provide a complete answer. Skolnick, supra, note 29, 238-9,
says the prevailing conception of police professionalism insufficiently addresses the values
of a democratic legal order and the Rule of Law. It is also clear that he feels that this
situation is not likely to be significantly altered without a transformation in the police
understanding of why it is important to uphold the Rule of Law even though this has the
effect of making their task more difficult: “The police are increasingly articulating a
conception of professionalism based on a narrow view of managerial efficiency and
organizational interest. A sociologist is not surprised at such a development. Under the
rule of law it is not up to the agency of enforcement to generate the limitations governing
its actions, and bureaucrats typically and understandably try to conceal the knowledge of
their operations so are forced to make disclosures. But the police in a democracy are not
merely bureaucrats. They are also, or can be conceived of as, legal officials, that is, men
belonging to an institution charged with strengthening the rule of law in society. If
professionalism is ever to resolve some of the strains between order and legality, it must be
a professionalism based upon a deeper set of values than currently prevails in police
literature and the ‘professional’ police department studies, whose operations are ordered
on this literature.

“The needed philosophy of professionalism must rest on a set of values conveying the
idea that the police are as much an institution dedicated to the achievement of legality in
society as they are an official social organization designed to control misconduct through
the invocation of punitive sanctions. The problem of police in a democratic society is not
merely a matter of obtaining newer police cars, a higher order technical equipment or of
recruiting men who have to their credit more years of education. What must occur is a
significant alteration in the ideology of police, so that police ‘professionalization’ rests on
the values of a democratic legal order, rather than on technological proficiency.”

19821

INVASION OF PRIVACY

primary concern remains the effective control of discretion. 121 Goldstein
elaborates on the relation between police surveillance (an investigative
method) and discretion:

albeit legal –

An important segment of police activity, requiring many discretionary decisions,
involves efforts to acquire evidence of certain kinds of criminal behavior while it is
going on and, in some cases, before a victim recognizes that he or she has been
victimized. The police in most large cities follow the activities of known professional
burglars; lie in wait for street robbers and muggers; trace the sale and distribution of
narcotics; check out individuals encountered under suspicious circumstances; keep
tabs on suspected subversives; and acquire information on the activities of persons
though to be involved in organized crime.
Most of the methods commonly employed in these self-generated activities involve
some degree of intrusion –
into the affairs of private individuals. The
decisions to utilize these methods, therefore, constitute one of the most important
choices. They can decide to frisk; stop and question; search persons and property; use
informants; conduct surveillances; eavesdrop or wiretap; take photographs and
motion pictures; go undercover, infiltrate an organization; employ decoys; or in other
ways place themselves in a situation that invites a person intent on committing a
crime to attempt it.’ 22
While it is undeniably true that the police are involved in making
enormously important discretionary decisions in these areas, nevertheless
one may still question Goldstein’s casual assertion that these self-
generated activities which involve some degree of intrusion into the
affairs of private individuals are legal. Many times they will be, but in
other instances there is reason to question the legality of a particular
investigative method. This is particularly the case where the technique
employed occurs in advance of the commission of a crime.123 One
suspects that Davis comes closer to the mark when he concludes that “a
good deal of discretion is illegal or of questionable legality”. 124 By this
one assumes that Davis means that a good deal of discretionary activity
in which the police are involved is unlawful. In other words, the police,

“‘The problems posed in the area of police surveillance certainly require the exercise
of discretion but the decisions involved are often quite different from those which arise in
connection with other areas of discretionary activity. Goldstein, supra, note 109, 94-101,
identifies six forms of discretion routinely exercised in police departments: (1) choosing
objectives, (2) choosing from among methods for intervening, (3) choosing from among
alternative forms of disposition, (4) choosing investigative methods, (5) determining field
procedures and matters of internal administration, and (6) issuing licences and permits.
For example, police administrators exercise a different kind of discretion when they
decide how much of a department’s resources should be directed toward dealing with
serious crime as compared with such other functions as providing protection to persons
who feel threatened, and coping with public inebriates.

‘ 22Goldstein, supra, note 109, 98-9.
‘ 31t should be noted that some instances of illegality will not be subject to effective
sanction since the intrusion will go undetected or official discretion (e.g., to prosecute) will
be employed in such a way as to preclude the effective pursuit of a remedy.

’24Davis, supra, note 52, 4.

REVUE DE DROIT DE McGILL

[Vol. 27

when choosing among possible choices of action or inaction (i.e.,
exercising discretion), occasionally act illegally.

latitude

In the United States and Canada it has become increasingly apparent
that the police establishment has for a period of some considerable time
been quietly appropriating a great
the gathering of
intelligence. 125 Gross illegalities – burglaries, unauthorized wiretapping,
“dirty tricks” and incitements to violence – have been uncovered in both
countries. 126 Consequently, the public concern now extends beyond the
legality of specific individual acts to a consideration of the over-all
programs in which the police have become involved. In Policing a Free
Society Goldstein notes the dimensions of this discretionary mandate
which the police have appropriated for themselves and touches on the
difficult questions which it gives rise to:

in

It is generally recognized that police need to gather certain types of intelligence. They
are expected to seek information regarding criminal activity to prevent crimes from
occurring and to solve those that occur. But what types of activities are likely to lead
to commission of a criminal act? What organizations and individuals are to be kept
under surveillance? And what criteria are to be employed in decided on the methods
to be used in gathering intelligence data? The police exercise a tremendous amount of
discretion in making these judgments. 27
Perhaps because Goldstein encompasses within these remarks intelli-
gence activities which pertain to threats to the national security he is able
to state that the police are “expected to seek information regarding
criminal activity to prevent crimes from occurring”. If one subtracts
national security considerations (or the political intelligence function)
from the equation, then arguably it would be preferable to state that the
police are expected to heed information concerning incipient criminal
activity in order to prevent such crimes from being carried forward to
fruition.

X. The Relationship between Administrative Rule-Making

and Police Discretion
The implication of the foregoing analysis

nor possible in practice –

is that it is neither
necessary nor desirable –
that all police
activity be regulated by a statutory legal r6gime. Many acts and duties
performed by the police do not require any form of legal regulation, and
other more important tasks are more amenable to administrative controls
than they are to statutory guidance. There has been a reluctance to
acknowledge that the police are an administrative agency wielding a vast

21This observation need not be restricted to intelligence as it also relates to political or
national security matters. It has equal validity in terms of purely domestic or simple
criminal surveillance activities.

26See, generally, McDonald Commission Second Report, supra, note 101.
“‘Goldstein, supra, note 109, 103.

19821

INVASION OF PRIVACY

amount of discretionary power. Davis, clearly the most influential and
authoritative spokesman on this subject, details this reluctance and
contends that the police are among the most important policy-makers in
our entire society. They make far more discretionary determinations in
individual cases than any other class of administrator. There is no close
second.121

Davis does not argue for the elimination of discretion. What he
proposes is that discretion be properly structured and confined. The
mechanism for structuring discretion is the promulgation of rules – not in
an effort to “replace discretion with rules but to locate the proper balance
between rule and discretion”. 129 There are a number of tangible benefits
which flow from the equitable structuring of discretion:
(1) A police administrator’s capacity to exercise effective control over
the infinite number of decisions being made by his personnel at the
operating level will be improved.

(2) Higher level decision-making should ensure that the decisions made
will be based upon a more defensible weighing of competing consi-
derations.

(3) Operating personnel would have greater guidance and could be held

to pre-announced standards.

(4) Supervision would be made easier.
(5) Problem identification would be assisted.
(6) Opportunities for corruption would be lessened.
(7) Training could be more realistic.
(8)

Levels of service and enforcement could be related much more
directly to legislative appropriations.

(9) Expertise that the police have developed could be more systemati-

cally utilized in deciding upon operating polices.

(10) The police would be provided with a more realistic and healthier

atmosphere in which to function.130
Statutory regulations and administrative rules which systematize and
order police activities are most important to the police function. At
various points throughout the process they may be complementary
regulators. Moreover, they may be intimately related. For example, when
properly interpreted, the Criminal Code provisions advise a police officer
as to the outer limits within which he may resort to the use of a gun.
Administrative rules may offer him guidance in more specific terms, e.g.,

12

8 Davis, supra, note 52, 222.
’29Ibid., 44.
‘3This list has been culled from Goldstein, supra, note 109, 110-1.

McGILL LAW JOURNAL

[Vol. 27

they may enjoin him from shooting at a suspect in an area that is crowded
with other persons. To take another example, they may tell him when to
desist from a high speed automobile chase. In this parallel example the
applicable statutory provisions again set the outer limits governing
conduct.

In the area of police powers of surveillance the “usual need” –

that
of reduced discretion and more elaborate rules –
prevails. While it is
true that we cannot in many sectors eliminate all discretion (nor should
we even if we could) there is a strong case to be made for the position that
wherever police. activity is by nature intrusive it should be highly
regulated –
either by statute of by sophisticated open rules which
adequately “convey the objectives, priorities and operating philosophy of
the [police] agency”.131 As noted, intrusive actions may be either overt or
covert. The suspect may be aware of the surveillance and suffer a sense of
invasion, or he may remain totally unaware of the clandestine probe. It
should be immaterial whether the action is overt or surreptitious as the
values embodied in the rules promulgated to regulate the activity remain
the same.

In

The structuring of discretion through the creation of rules is not a
suggestion which has been greeted with much enthusiasm by the police
community.
the area of selective enforcement senior police
bureaucrats have strongly disagreed with the notion that the police be
recognized as having broad discretion. They argue that this kind of public
image “would detract from [the police] image of objectivity,.., would
open them up to charges of partiality,.., would increase the potential for
corrupt practices, and that it would subject to public debate aspects of the
police function that might be better left in their current state”.1 32 Davis
and Goldstein, among others, convincingly make the case. in reply that
the failure to acknowledge the discretionary nature of police functioning
accounts, at least in part, for some of the most common short-comings in
police operations.

The fear has been voiced that a too extensive structuring of
discretion, by the application of administrative rules, would reduce the
police officer to the level of an automaton.133 This, of course, is an
unrealistic fear, as the following extract indicates:

The picture of the constable which emerges from all of this is something of a,
paradox. On the one hand he is captive on the bottom rung of a ladder of authority.
On the other hand he is a unique individual set loose with a tremendous arsenal of
weaponry, and the decisions involving the use or non-use of that store of power are by
and large his, and his alone.

1311bid., 112.
“‘Ibid., 107.
133Ibid., 1 11.

19821

INVASION OF PRIVACY

Although there are many who would eschew any analogy between the policeman on
the beat and the soldier in the field the two phenomena nevertheless provide suitable
features of comparison.
The panorama of events which conceivably would compel the intervention of the
constable is immense. In the real world which he confronts the constable formulates
policy, mediates disputes, and makes decisions. He does so notwithstanding the
pervasive web of authority which surrounds him. Directives, guidelines regulations
and statutory restrictions may or may not be relevant to the exigencies of the
particular situation which confronts the constable. The issues are complex and do not
afford simple solutions. 13 4
The structuring of discretion does not mean that the police officer will
forfeit all freedom or lose the ability to choose among competing courses
of action. Ideally, rules will assist in removing caprice and arbitrariness
from the process.

The formulation of rules would undoubtedly benefit the process of
regulation and rationalization of the power to conduct surveillance. Some
of the policy questions which could be answered through the open
formulation and articulation of rules are:
(1) When and in what circumstances is surveillance to be conducted?
(2) In what ways and with what resources should it be carried out?
(3) For how long should it be maintained?
(4) Against which targets should it be directed?
(5) Whether and/or when to pay informants or refrain from charging

them?

(6) Whether to share information with other forces or government

departments?
In conclusion, the reform and improvement of police discretionary
practices through administrative rule-making is far from being regarded as
a heretical notion. It has won the support and advocacy of many
spokesmen13s both within and outside of the police establishment.

34S. Cohen, Due Process of Law (1977), 49-50.
1
1S3 See The Challenge of Crime in a Free Society, supra, note 59, 103; United States:
President’s Commission on Law Enforcement and Administration of Justice, Task Force
Report: The Police (1967), 21-5; United States: National Advisory Commission on
Criminal Justice Standards and Goals, Police (1973), 53-5; American Bar Associaiton,
The Urban Police Function (1973), 121-33. All of these sources are cited in Goldstein,
supra, note 109, 116, who also notes the advocacy of this approach by the International
Association of Chiefs of Police (I.A.C.P.). B. Grosman, Police Command [:] Decisions &
Discretion (1975), 93, 145, also acknowledges the need for rules to structure discre-
tionary action. The Task Force on Policing in Ontario, supra, note 16, 20-3, while not
explicitly referring to administrative rulemakingper se, advocates a movement away from
the military tradition in Ontario police work combined with a new emphasis on
professional management for policing. This approach is certainly compatible with
management structures which are heavily reliant upon administrative rule-making.

REVUE DE DROIT DE McGILL

[Vol. 27

XI. Privacy

The police in modem society are not simply a loose collection of
public servants performing ad hoc tasks in response to specific situational
demands involving public order. Modem police organization is complex;
police tasks and functions are diverse, and the mechanism for directing
and ordering the discharge of a multiplicity of duties and assignments
involves a sophisticated bureaucratic structure. 13 6

The police bureaucracy, like other complex bureaucracies in society,
has a highly developed record-keeping, information-gathering aspect.
This aspect of police business is in large measure the natural by-product
of the performance of the various duties entrusted to the police as a public
agency. With the growth and increasing sophistication of the police
record-keeping function have come new and vexing problems. These
problems revolve around the potentially conflicting demands of individual
privacy and effective law enforcement. The gathering and handling of
personal information by law enforcement agencies raises difficult issues
of privacy protection.

A. Privacy: Problems of Definition

Most modem considerations of privacy in a legal context begin with
the definition of privacy provided by Alan F. Westin in his seminal work
on Privacy and Freedom: “Privacy is the claim of individuals, groups or
institutions to determine for themselves when, how, and to what extent
information about them is to be communicated to others.’ 13 7

Whether privacy is a right, an interest or a value has been much
debated over the years, and even today, after much attention has been
focussed on this topic, we are far from achieving a consensus as to its
nature. Neither is there unanimity as to the usefulness of the other aspects
of Westin’s definition of privacy, or of any other definition for that
matter.138

Raymond Wacks, a British commentator, contends

that “the
currency of privacy has been so devalued that it no longer warrants, if it
ever did, serious consideration as a legal term of art.’ ‘ 39

Any attempt to restore [privacy] to what it quintessentially is –
an interest of the
personality –
seems doomed to fail for it comes too late. ‘Privacy’ has become as
136 See The Police – A Policy Paper, supra, note 74, for a development and analysis of

the organizational attributes of the modem Canadian police bureaucracy.

137A. Westin, Privacy and Freedom (1967), 7.
138A good discussion of competing theories and definitions is to be found in Bums, The
Law and Privacy: The Canadian Experience (1976) 54 Can. Bar Rev. 1, 2-12. This
article is heavily relied upon in both this section and in the next section which deals with
the “right”

to privacy.

139R Wacks, The Protection of Privacy (1980), 10.

19821

INVASION OF PRIVACY

40

nebulous a concept as ‘happiness’ or ‘security’. Except as a general abstraction of an
underlying value, it should not be used as a means to describe legal right or cause of
action.’
On the other hand, Rule, McAdam et al. alter Westin’s basic
definition only slightly when they propose as a “single-global definition
for privacy” the “restriction of another’s access to information about
oneself’. 1 41 This designation encompasses restrictions for both what they
identfy as “aesthetic” and “strategic” reasons. 42 Other definitions are
pithier but to the same effect. Cooley described privacy in now classic
terms as simply “the right to be let alone”.143

Critics of Westin’s definition object to the characterization of privacy
as a “right” or “claim ‘ 144 and note that the definition fails to encompass
situations “wherein communications are made to a person such as
unsolicited telephone calls”‘ 45 –
a particularly important example in
the context of wiretapping and other forms of electronic surveillance.
Parker proposed a physically-oriented definition of privacy posited
on our ability to control those who can “sense” us: “Privacy is control
over when and by whom the various parts of us can be sensed by
others.’ ‘
46 “Sense” in this context means observation through any of the
1
senses –

vision, hearing, touch, smell or taste.

Prosser, dissatisfied by the shortcomings of attempts to articulate so
-general a right as privacy, concentrated instead upon particular instances
wherein rights of privacy have received recognition. 47 This “functional”
approach, based on decided American cases and statutes, has some
descriptive uses but is of decidedly limited usefulness in analysing the law
in a Canadian context.1 48

140Ibid., 21.
141J. Rule, D. McAdam, L. Stearns & D. Uglow, The Politics of Privacy (1980), 23.
“42By “aesthetic privacy” Rule, et al., ibid., 22, mean “the restriction of personal
information as an end in itself. These are cases where disclosure is inherently embarras-
sing or distressing.” Strategic privacy by contrast is “the restriction of personal informa-
tion as a means to some other end.” In these cases privacy facilitates the pursuit of some
other interest as where a general is concerned to conceal troop movements from the
enemy, or where one conceals future employment plans from one’s current employer while
seeking a new position elsewhere.

3T. Cooley, Treatise on the Law of Torts, 2d ed. (1888), 29.
14
’44Burns, supra, note 138, 7, summarizing Lusky, Invasion of Privacy: A Clarifica-

tion of Concepts (1972) 72 Colum. L. Rev. 693.

“4’Parker, A Definition of Privacy (1974) 27 Rutgers L. Rev. 275; see Burns’ criticism

of this treatment, supra, note 138, 7-10.

146Ibid.
147Prosser, Privacy (1960) 48 Calif. L. Rev. 383; see also the rejoinder by Bloustein,
Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser (1964) 39 N.Y.U.
L. Rev. 963.

4Burns, supra, note 138, 11, suggests that Prosser’s “interest analysis” if combined
with a conception of privacy (the right to be let alone) which regards it not as a rule but as

Mc GILL LAW JOURNAL

[Vol. 27

Evidently it is difficult to develop a single comprehensive definition
for privacy, a term which as we have seen is employed to describe a
variety of related affairs or conditions. 149

a principle providing guidance and revealing directions would yield a sound basis upon
which a coherent and workable law of privacy could develop. Referring to three provincial
privacy enactments he notes that none have attempted to define privacy as such but rather
they provide guidance in the form of certain factors to which regard is to be had by the
tribunal of fact in determining whether or not an invasion of privacy has occurred. Burns
says: “This ‘open-textured’ legislative approach, which is not very different from the
judicial development of the law of negligence, seems most appropriate. The tribunal will
exercise its own sense of what is proper in the circumstances in deciding whether there has
or has not been a breach of privacy subject to the legislative directions and strictures. It
may not be entirely satisfactory from a theoretician’s perspective but from the viewpoint of
efficiency and simplicity it is arguably best. In any event, until such time as a definition of
privacy is constructed that incorporates the distinct and discrete legally protected interests
we understand to fall under that term, the present ‘functional’ direction appears to be the
only way to stumble.”
49Two recent government inquiries into the subject – Canada: Department of Justice
1
and Department of Communications, Privacy and Computers (1972), 13-4, and Ontario:
Commission on Freedom of Information and Individual Privacy, Public Government for
Private People (1980), vol. 3, Protection of Privacy, 499-500 – have found it helpful to
isolate the different contexts in which the claims of invasion of privacy arise. These bodies
both identified and defined “territorial privacy”, “privacy of the person”, and “privacy in
the information context” in the following terms: “(a) Territorial Privacy: Claims to
privacy advanced in a territorial or spatial sense are related historically, legally and
conceptually to property. There is a physical domain within which a claim to be left in
solitude and tranquility is advanced and is recognized. A man’s home is his castle. At
home he may not be disturbed by trespassers, noxious odours, loud noises, or peeping
toms. No one may enter without his permission, except by lawful warrant. (b) Privacy of
the Person: In the second sense, a claim to the privacy of one’s person is protected by laws
guaranteeing freedom of movement and expression, prohibiting physical assault, and
restricting unwarranted search or seizure of the person. This notion, like the territorial
one, is spatial in the sense that the physical person is deemed to be surrounded by a bubble
or aura protecting him from physical harassment. But, unlike physical property, this
‘personal space’ is not bounded by real walls and fences, but by legal norms and social
values. Furthermore, this sense of privacy transcends the physical and is aimed essentially
at protecting the dignity of the human person. Our persons were protected not so much
against the physical search (the law gives physical protection in other ways) as against the
indignity of the search, its invasion of the person in a moral sense. (c) Privacy in the
Information Context: The third category of claims to privacy was of primary relevance to
the Task Force. It is based essentially on a notion of the dignity and integrity of the
individual, and on their relationship to information about him. This notion of privacy
derives from the assumption that all information about a person is in a fundamental way
his own, for him to communicate or retain for himself as he sees fit. And this is so whether
or not the information is subsequently communicated accurately, and whether or not it is
potentially damaging to his reputation, his pocket-book, or his prospects; the context is of
course the controlling factor in determfning whether or not particular information will be
damaging. Competing social values may require that an individual disclose certain
information to particular authorities under certain circumstances (e.g., census informa-
tion). He may decide to make it available in order to obtain certain benefits (e.g., credit
information or information imparted to his lawyer to win a lawsuit or to his confessor to
win salvation). He may also share it quite willingly with his intimates. Nevertheless, he

19821

INVASION OF PRIVACY

B. The “‘Right” to Privacy

The “right to privacy” has been described as “the most comprehen-
sive of rights and the right most valued by civilized man”. 5 0 In the United
States its origins have been traced to the Constitution, though not without
controversy. ’51 In Canada its legal basis is murky and open to some
doubt. However, s. 1 (a) of the Canadian Bill of Rights’1 2 guarantees
“the right of the individual to life, liberty, security of the person and
enjoyment of property and the right not to be deprived thereof except by
due process of law”. A similar provision is to be found in s. 7 of Canada’s
newly proclaimed Charter of Rights and Freedoms. Conceptually it is
difficult –
to conceive of privacy as
severable from the notion of individual liberty and autonomy. Life,
liberty, security of the person and enjoyment of property are only
meaningfully guaranteed if privacy is an implicit condition in the grant
of such rights. Moreover, privacy is explicitly guaranteed in the Inter-
national Declaration of Human Rights,’ 53 an instrument whose passage
Canada supported and one for which it still espouses support. Article 12
of the Declaration states: “No one shall be subjected to arbitrary inter-
ference with his privacy, family, home, or correspondence, nor to attacks
upon his honour or reputation. Everyone has the right to the protection
of the law against such attacks.”

some would say impossible –

Privacy cannot be insisted upon as an absolute. Since rights often
conflict with one another they must possess a degree of pliancy. In certain
circumstances an individual’s right to privacy may be expected to yield in
deference to the competing demands of other rights such as the rights of a
free press, the right to free speech, or the public’s right to know. Although
some would argue that privacy possesses a fundamental nature or
character, as a protected interest it has spawned remarkably
little
litigation in this country.’5 4

has a basic and continuing interest in what happens to this information, and in controlling
access to it.”

Act, 1982, Part I, The Canadian Charter of Rights and Freedoms.

’50Olmstead v. United States 277 U.S. 438, 478 (1928) per Brandeis J.
’51Griswold v. Connecticut 381 U.S. 479 (1965).
1″2R.S.C. 1970, App. III. See also Canada Act, 1982, Schedule B, The Constitution
“53G.A. Res. 217 A, U.N. Doc. A/810 71 (1948).
ls 4This is particularly the case where the cause of action is said to be founded on an
“invasion of privacy” per se. One such attempt was Krouse v. Chrysler Canada Ltd
[1970] 3 O.R. 135 (H.C.). The plaintiff, a professional football player, sued for damages
alleging invasion of privacy by the defendant’s use of his photograph in promoting its
product. The case proceeded to trial where a decision was rendered without the necessity
of relying on the privacy cause of action: [1972] 2 O.R. 133 (H.C.). That decision in turn
was appealed to the Court of Appeal which reversed the decision below. The privacy issue
was not argued at this stage: (1974) 1 O.R. (2d) 225 (C.A.).

Bums, supra, note 138, 24-8, makes the point that although invasion of privacy has

REVUE DE DROIT DE Mc GILL

[Vol. 27

In the field of civil law the chief developments have been the
enactment of provincial privacy legislation in three provinces,’ 55 the
passage of the Canadian Human Rights Act, 156 as well as the recent pas-
sage of Bill C-43 which amends the Human Rights Act and contains both
the new Access to Information Act and the Privacy Act.156a There are also
a variety of criminal and quasi-criminal provisions that are designed to
protect privacy interests or do so incidentally.1 7 Bums offers the examples
of
libel,””
disturbance 59 and loitering offences (particularly prowling at night on
another’s property near a dwelling house),160 and spreading false news. 16
The Criminal Code is of course much wider than this and contains prohi-
bitions concerning a whole host of non-consensual intrusions of strangers
upon the physical and territorial privacy of the individual.

criminal offence of publishing

a defamatory

the

The enactment of the Protection of Privacy Act’62 greatly expanded
the Criminal Code’s ability to police invasions of privacy. Indeed, the
not gained much prominence as a cause of action in this country there are nevertheless
numerous causes of action recognized at common law and equity that do protect privacy
interests. He establishes that “in the main these are available where privacy and property
or reputation of interests intersect and these have been granted a measure of legal
protection”. Burns also documents how various discrete statutory provisions, both
provincial and federal have granted a measure of reinforcement to the right to privacy.
l”sSee Manitoba, The Privacy Act, RLS.M. 1970, c. P-125; Saskatchewan, The
Privacy Act, R.S.S. 1978, c. P-24; British Columbia, The Privacy Act, RLS.B.C. 1979, c.
336. Burns, supra, note 138, 32-9, notes that by recognizing privacy as an interest worthy
of legal protection in its own right, the provincial privacy laws represent an advance over
the previous position of privacy under Anglo-Canadian common law, which did not
recognize a right to privacy. Under certain circumstances these Acts allow for redress
where there has been a wrongful invasion of privacy. None of the three Acts require a
plaintiff to demonstrate actual financial loss in order to succeed. The invasion or violation
of privacy is itself deemed to be sufficient injury to merit compensation.

‘”Canadian Human Rights Act, S.C. 1976-7, c. 33, ss. 49-62, ensures the protection
of personal privacy in the context of government data handling practices. The purpose of
Part IV of the Act is to guarantee to individuals rights of access and correction with respect
to personal information about them held by federal government departments and institu-
tions, and to control the use and dissemination of this information. Part IV of the Act is
to be repealed and replaced by more comprehensive legislation. See infra, note 156a.
This is discussed in some detail in Public Government for Private People, supra, note
149, vol. 3, 627-36.
156aEnhanced access to personal information held by or under the control of govern-
ment will be possible under Bill C-43, the Access to Information Act (Schedule I) and the
Privacy Act (Schedule II), 32d Parl., 1st Sess., passed by the House of Commons on
28 June 1982.

1-7See Burns, supra, note 138, 25.
158 Criminal Code, R.S.C. 1970, c. C-34, s. 264, as am.
59Criminal Code, s. 171.
160Criminal Code, s. 173.
161Criminal Code, s. 177.
16’S.C. 1973-4, c. 50. This legislation was subsequently amended by the Criminal

Law Amendment Act, 1977, S.C. 1976-7, c. 53.

19821

INVASION OF PRIVACY

express purpose of these Criminal Code amendments was to create
criminal offences where none had previously existed for the interception
of private communications and the disclosure of the contents of such
communications. The Act also prohibited the possession of electronic
surveillance devices which were designed for the surreptitous interception
of private communications. The Protection of Privacy Act also effected
changes in the Official Secrets Act, 16 not from the point of view of
protecting privacy, but rather to accomplish the legitimation of officially
sanctioned electronic surveillance which had as its purpose the gathering
of intelligence where the national interest or security was at stake.
Amendments to the Criminal Code also had the effect of legitimating
officially sanctioned electronic surveillance. However, Parliament
expressly withheld validation of an intelligence gathering function for the
police where ordinary crime was involved.

It appears that a legal interest is developing in this country which it is
perhaps now appropriate to describe as a “right” to privacy. 64 Canada
does not possess a comprehensive, integrated set of legal rules respecting
all aspects of the interest in privacy. Certain aspects of the interest in
privacy are well protected by the civil and criminal law. What is proble-
matic is the ability of the individual to be free from unjustified official
spying and intelligence gathering – whether such surveillance be in the
form of the surreptitious interception of private communications or the
acquisition and use of information about the individual. Bound up in the
resolution of this problem is the creation of a mechanism for conferring
meaningful, legally enforceable rights upon the individual affected. This
is no easy task, particularly in the area of law enforcement.
C. Privacy, Intelligence Gathering and Law Enforcement 6

I

Government studies have repeatedly stressed the importance of a
police intelligence function. The Ouimet Committee in its 1969 report
stated:

One of the most important aspects of police work in the field of crime prevention and
the detection and apprehension of offenders involves the gathering of information
with respect to intended crimes and the organization of criminal groups. Police
intelligence may be related to the task of obtaining evidence to sustain a specific
prosecution, or it may have longer term objectives related to acquiring knowledge of
the existence of criminal organizations; the scope of their operations and their plans
and methods of operation in order to be able to effectively combat them.’ 66
’63R.S.C. 1970, c. 0-3.
‘6See Privacy and Intrusions, supra, note 97, 12: “for the purpose of the law, it is
to privacy where the legal system affords an

only appropriate to speak of a ‘right’
enforceable remedy for interference with the interest in privacy”.

activity relating to political subversion and national security.

1’6This analysis specifically excludes consideration of surveillance and intelligence
‘ 660uimet Report, supra, note 14, 75.

McGILL LAW JOURNAL

[Vol. 27

In the United States the President’s Commission on Law Enforcement
and the Administration of Justice identified two different forms of
intelligence:

Intelligence deals with all of the things that should be known before initiating a course
of action. In the context of organized crime there are two basic types of intelligence
information: tactical and strategic. Tactical intelligence is the information obtained
for specific organized crime prosecutions. Strategic intelligence is the information
regarding the capabilities, intentions, and vulnerabilities of organized crime groups.
For example, the body of knowledge built up by the FBI concerning the structure,
membership, activities, and purposes of La Cosa Nostra represents significant
strategic intelligence….
A body of strategic intelligence information would enable agencies to predict what
directions organized crime might take, which industries it might try to penetrate, and
how it might infiltrate. Law enforcement and regulatory agencies could then develop
plans to destroy the organizational framework and coherence of the criminal
cartels. 16 7
In a similar vein,

the Ontario Commission on Freedom of
Information and Individual Privacy16
recently noted the usefulness in
distinguishing between two major types of law enforcement information-
gathering activity:169 the investigation of specific occurrences and the
gathering of “intelligence”. 17
investigation” refers to a
specific incident, while intelligence gathering is concerned with a pattern
of occurrences, or with the prevention of occurrences”.

0 “Occurrence

71

Irrespective of whether information-gathering is event-specific or
generalized and prophylactic, it may be intrusive or invade individual
privacy. Therefore, the important policy question to be addressed is
“when is intrusive law enforcement activity valid or legitimate? 172 As
the earlier discussion of the Rule of Law has indicated, there can be no
quarrel with event-specific investigatory techniques which are congruent

167The Challenge of Crime in a Free Society, supra, note 59, 199.
‘”Public Government for Private People, supra, note 149, vol. 3, 554.
169Ibid.
17″0

Intelligence” in this context is further defined, ibid., as “concerning crime, where
on-going efforts are devoted to the detection and prosecution of crime, and security
operations which are designed to identify and prevent the realization of threats to the
government and political stability of the province.”

17Ibid.
172 The word “intrusion” has not been defined thus far. For purposes of this discussion,
behaviour is intrusive when it “involves invasion or penetration of the individual’s private
world in some way”: Privacy and Intrusions, supra, note 97, 15. Certain police powers
by nature violate individual privacy. The clearest example of this is the search power. The
Rule of Law does not declare that there is to be no power to search because the resort to
the use of the power will restrict liberty and compromise freedom. Rather, the Rule of Law
ensures that the intrusions into the lives of citizens, e.g., under the search power, will not
be arbitrary or random but will be dependent upon the commission of a crime. Thus there
is no right to a generalized search and no intrusion without specific justification, i.e.,
“reasonable/probable cause”.

19821

INVASION OF PRIVACY

with the requisites of the Rule of Law. In addition, there should be no
dispute as to the right or ability of law enforcement agencies to gather
information in a manner that is non-intrusive and does not invade the
realm of individual privacy. Thus, provided that the final compilation of
information together with such opinion and conclusions as are drawn are
held in confidence by the investigating agency, there seems little reason to
doubt the right of law enforcement agencies to collect and report upon
information about individuals that is already in the public domain.
Similarly, there can be little doubt as to the right of the police to collect,
collate, store or assemble information arising out of day to day police
operations. 173 As regards this latter type of information, however, it is
submitted that access to such information should be administratively
controlled and restricted. Guidelines should detail to whom, when, and in
what circumstances access to a requesting agency or officer should be
authorized. Presumably, one triggering criterion, at least insofar as
ordinary crime is concerned, would be that the information is required in
the course of the investigation of a specific occurrence.

The foregoing remarks are subject to certain important caveats. Such
information gathering practices are assumed to be employed only in
relation to event-specific investigations. They should not be taken to
signal approval of any organizational arrangement within a police depart-
ment or agency whereby the collection, collation and storage of
information is systematically and routinely assembled so as to assist in
domestic intelligence gathering or spying activities.

The police in carrying out their various functions and duties will
incidentally collect or become privy to a great deal of useful information
which may ultimately assist in the detection or investigation of crime. For
example, one of the obvious benefits of the cultivation of good police
community relations is the fact that citizens will be more likely to
volunteer information as to the commission of crime to the police than
would be the case if the police were viewed as an alien force in the
community. Such information gathering may be seen to fall within the
legitimate sphere of policy intelligence activity.

Intelligence may legitimately be gathered in other ways as well.
for more lenient disposition or
investigation, may

Informants, or criminals “bargaining”
treatment on a particular charge while under
“volunteer” information as to other illegal activities.

These examples provide a bare tracing of the legitimate shape of
from

intelligence activities. The gathering of

police

information

‘MIncluded in such information would be individual criminal record synopses; infor-
mation about wanted or missing persons; persons prohibited from driving motor vehicles
or possessing firearms; information as to stolen property or firearms, etc.

REVUE DE DROIT DE McGILL

[Vol. 27

government agencies which have a duty to hold their records in confi-
dence clearly falls outside this jurisdiction. An exception in favour of law
enforcement agencies cannot be presumed. It must be explicit and
express. 174

The gathering and handling of personal information by law enforcement agencies
raises particularly difficult issues of privacy protection. It is inherent in the nature of
law enforcement activity that highly sensitive personal information will be gathered
for the purpose of making law enforcement decisions relating to the data subject. Data
will be gathered without the knowledge or consent of the data subject by methods
which would, by any reasonable standard, be considered to be invasive of personal
privacy. Public tolerance of these invasive practices is premised, of course, on the
need for effective law enforcement as a means of preserving public order. On the
other hand, it is widely accepted that there are limits to the extent to which the public
interest in privacy protection should be sacrificed to the public interest in effective
law enforcement. 17″
In Canada two sophisticated computerized systems for the collection,
storing and dissemination of law enforcement information are now in
place: the Canadian Police Information Centre and the Automated
Criminal Intelligence System. 176 These systems assist in the coordination
of law enforcement information. However, the use of computer technolo-
gy does create certain unique hazards. For example, “the need to convert
detailed information (sometimes based on opinion rather than fact) to
coded computer language may reduce its accuracy”. 177 The importance of
this shortcoming is expanded upon in the following extract:

With respect to the scope of intelligence record keeping in general, it is important to
remember that the subjects of such surveillance may be individuals who have never
been convicted, or indeed accused, of any criminal act. Moreover, the names of
persons who have merely had innocent contact with the subject of surveillance may
appear in intelligence files and in the computerized name file. The broad range of
potential sources of such information and the unverifiable nature of some of the
information which may find its way into the system gives rise to classic informational
privacy problems and suggests that the scope of such surveillance should be carefully
limited to cases where a clear need for it can be demonstrated.’
At present, no clear statutory standard regulates the scope of police
record-keeping in Canada and, as the Ontario Freedom of Information
Commission attests, neither has a power of inspection and comment been

‘The McDonald Commission Second Report, supra, note 101, vol. 2, 1029, re-
commends that law enforcement access to government agency files be regulated under
the same terms and conditions as obtain under s. 178.1 of the Criminal Code with regard
to electronic surveillance. Unfortunately, as presently designed, this is a seriously flawed
control mechanism.

“”Public Government for Private People, supra, note 149, vol. 3, 553-4.
“6These systems, their purposes, and the methods of access to them are described,

ibid., 555-6.

17Ibid., 557.
17Ibid., 557-8.

19821

INVASION OF PRIVACY

bestowed on any independent body or official. 179 In Canada there is a
demonstrable need for some entity to be entrusted with broad powers to
examine and comment upon law enforcement intelligence files. Of course,
subject access to files containing personal information, rather than third
party access, is regarded as the primary device for “ensuring that fair
information practices are adopted by agencies which gather and use such
information.’ 80 However, law enforcement information systems are
problematic inasmuch as they contain information as to the identity of
informants, law enforcement techniques and other sensitive material
mandating secrecy. The Ontario Commission’s survey of other jurisdic-
tions’ approaches to this problem”‘ reveals various attempts in freedom
of information and privacy legislation to “draft exemptions from the
general principle of subject access which would protect the need for
secrecy… while assuring citizens that any personal information falling
outside this range of protected interests is accessible”.182 In Canada the
law at present appears to be that law enforcement agencies are under no
legal obligation to give data subjects access to files which contain
information about them.183

One other important area where

the privacy interest and law
enforcement concerns intersect occurs where preferential, and perhaps,
illegal access to government data banks is given to law enforcement
authorities. The McDonald Commission has
recently confirmed
allegations that the R.C.M.P. has had relatively routine access to
information pertaining to, among other things, unemployment insurance,
social insurance and taxation.18 4 The Krever Commission in Ontario has
examined official access to information concerning medical health
(including psychiatric assessments).8 5 The Ontario Freedom of Informa-
tion Commission in its report examined and found a greater level of

179Ibid., 558. The report goes on to detail the fact that the state of New South Wales,
Australia and Sweden and France all confer broad powers on public officials to examine
and report on law enforcement intelligence files.

18Ibid., 560.
“‘Ibid.; see, in particular, chaps 6 and 29.
182lbid., 560.
18’Note the specific exemptions in Part IV of the Canadian Human Rights Act, S.C.
1976-7, c. 33, s. 53, which allow the Minister to refrain from disclosure where the
information was obtained or prepared by any government institution that
is an
investigative body in the course of investigations pertaining to the course or suppression of
crime generally, or in the course of investigations pertaining to particular offences against
any Act of Parliament. This situation is largely unchanged in Bill C-43.
“84SeeMcDonald Commission Second Report, supra, note 101, vol. 1, 583-92; vol. 2,

1026-9.

“‘5See Ontario, Report of the Commission of Inquiry into the Confidentiality of
Health Information (1980), vol. 2, 14-9, 38-48 [hereinafter Krever Commission Report].

Mc GILL LAW JOURNAL

[Vol. 27

access by law enforcement agencies to driver and vehicle registry
data 186 than that enjoyed by the public at large.

The specific findings of these bodies confirm what had heretofore
only been suspected, namely, that there exists a serious potential for
abuse. At present, many government bureaucracies
lack a policy
concerning information-sharing with law enforcement agencies; and in
other areas such as taxation, where the law guarantees confidentiality, a
loose attitude prevails. 186” The
in
computer information banks, which presents the possibility of compiling
all-encompassing personal information dossiers on individuals, can only
serve to heighten or magnify this potential for abuse.

inevitable centralizing of data

Recent proposals to amend federal laws in order to allow police
investigators access to personal information possessed by federal govern-
ment institutions have been overly generous. The most recent privacy bill
to make its way before Parliament, Bill C-43, which contains the new
Privacy Act, advocates release of information to a designated investiga-
tive body carrying out a lawful investigation provided that the request
for information was in writing and described the information to be dis-
closed.8 7 This initiative has been criticized for failing to provide a
sufficiently clear test of necessity to justify access to the information.’88
Parliament and the provincial legislatures have all created plans and
bureaucratic schemes to administer various programmes which, when
operating, by their very nature result in the accumulation of sensitive
personal information. These plans – which include income tax, old age
security, family allowance and the Canada Pension Plan – were
carefully conceived and over the years they have been cautiously refined
and amended in various ways. They all share a noteworthy characteristic
in that they bar disclosure of such accumulated personal information
without exception. The omission with respect to the information needs of
law enforcement agencies thus can hardly be characterized as an
oversight. Undoubtedly, much that is contained within the data banks and
files of these government bureaucracies would be of use in ordinary
investigations.’ 8 9 However, mere usefulness cannot be a
criminal
IS6aSee Toope & Young, The Confidentiality of Tax Returns under Canadian Law

(1982) 27 McGill L.J. 479.

“87 This legislation, in draft form, is discussed in the McDonald Commission Second
Report, supra, note 101, vol. 2, 1026-8. See also the recent Canadian Bar Association
study by M. Rankin, Freedom of Information and the McMurtry Letter: A Response
to Provincial Concerns (1982), 53 et seq.

“88lbid., 1028. The Commission also criticized the legislation for “not going far
enough” due to its failure to provide access to income tax, family allowance, old age
security and Canada Pension Plan information all of which are protected by Acts of
Parliament which bar disclosure of information even with permission of the Minister.
“‘9The various uses to which personal information from government data banks and

19821

INVASION OF PRIVACY

sufficient justification where the integrity and effectiveness of a particular
programme depends upon promised confidentiality
in its information
gathering, and information storing, processes. Nevertheless, it is doubtful
that confidentiality is compromised in any significant way by the release
of simple biographical information such as an individual’s name, address,
phone number, date and place of birth, occupation and physical
description. Absolute barriers to the release of such information to law
enforcement agencies for the purpose of conducting a criminal investiga-
tion should be removed. 190

to the

The justification for this increment

lawful information
gathering capability of the police is quite simple. The grant of this power
involves no serious incursion into the realm of individual privacy or
liberty, but it does measurably advance the crime control capacity of the
police. This is not a situation involving the curtailment of a basic right.
Even if one concedes the possibility that this proposal involves some
curtailment, it will be minimal in extent and is outweighed by the
magnitude and social importance of the benefits conferred by such an
initiative. 91

The McDonald Commission recommends that all information held
by the federal government, with the exception of census information held
by Statistics Canada, should be accessible to the police through a system
of judicially granted authorizations subject to the same terms and
conditions as are now found in s. 178.1 of the Criminal Code with regard
to electronic surveillance. 192 The Krever Commission adopted a different
approach when considering the problem of police access to medical
information. With regard to O.H.I.P. health information Mr Justice
Krever recommends

that no employee of OHIP be permitted to release health information to any police
force without a search warrant. The district manager of OHIP or a person designated
by him or her in writing at a district or satellite office should, however, be
permitted to answer, yes or no, to the question of any police officer whether OHIP
has specific health information about a named person.’ 93
The McDonald Commission offers an explanation as to why a search
warrant regime, in contrast to a wiretap judicial authorization model,

dossiers might be put are discussed in the McDonald Commission Second Report, ibid.,
vol. 2, 1026-7.

’90The McDonald Commission Second Report, ibid., vol. 3, 1029, recommends
release of such information upon the written request of the investigating agency. This is
arguably an insufficient check. Some administrative mechanism in order to ensure that
circumstances of demonstrable necessity exist should be devised.

19’As to rights and their possible curtailment, see Ashworth, Concepts of Criminal

Justice [1979] Crim. L. R. 412, 422-5.

’92McDonald Commission Second Report, supra, note 101, 1029.
’93Krever Commission Report, supra, note 185, vol. 2, 69.

REVUE DE DR 0IT DE Mc GILL

[Vol. 27

would be inappropriate to the needs of a national security investigation
but fails to explain its insufficiency in relation to ordinary criminal
investigations. 194 However, present wiretap controls –
the device the
McDonald Commission urges us to employ –
are seriously flawed.
Consequently, any movement to legislate by analogy to this scheme
should be undertaken only with the gravest of reservations, and certainly
only after major improvements to that scheme have been made. Further-
more, it should be noted that although the Krever Commission recognizes
the public interest in allowing the police in general the right to more in-
formation than they are now entitled to obtain, 195 the Commission is
cautious in its approach and it certainly does not advocate throwing open
all the doors for the purposes of law enforcement investigation.

The case for allowing the police greater access to personal, as op-
posed to biographical, information may, and this point is not conceded,
on close examination ultimately prove well-founded in some instances.
The careful inquiry of the Krever Commission into just one aspect of the
problem arguably demonstrates the need in that context for some addi-
tional, highly controlled access. The McDonald Commission made more
general recommendations for enhanced access. At the same time, it
should be noted, it also insisted that any additional grant of access be
highly controlled and restricted. That Commission, however, failed to
conclusively demonstrate the need for greater access to personal infor-
mation on a case by case basis. It is difficult to understand why its
reasoning, which seeks to justify the one area where it would preserve
complete inviolability –
does not apply with equal
vigour to personal information collected for other federal purposes, such
as taxation. 196

census information –

This area requires further study. Canada’s concern over freedom of
information and protection of privacy has been late in arriving. Never-
theless, it is now manifest in the form of government inquiries, in the
enactment of freedom of information and privacy legislation, 97 and in the

“4McDonald Commission Second Report, supra, note 101, vol. 2, 1059.
195Supra, note 185, vol. 2, 45.
‘ 96McDonald Commission Second Report, supra, note 101, vol. 1,587, states in this
regard: “One category of federal government information which it would be reasonable to
exempt from the scope of legislation giving access to otherwise protected bodies of
information is the census information compiled by Statistics Canada. While such
information may not be more personal than that found in some other federal, data banks,
the tradition in this country has been very strongly in favour of complete confidentiality of
census returns. The unqualified guarantee of confidentiality helps to overcome the
reluctance of Canadians to respond to inquiries about personal matters for purposes which
may be suspect, or at least not clearly understood, by many”.

197The most recent federal initiative is Bill C-43, Access to Information Act (Schedule
I) and the Privacy Act (Schedule II), 32d Parl., 1st Sess., passed by the House of Corn-

19821

INVASION OF PRIVACY

creation of access to information rights under human rights legislation. It
is to be hoped that this process is not yet complete and that future studies
will assess the utility of these proposals:
(1) the registration of all government information banks containing
personal information; (this applies to both the federal and provincial
levels of government and most especially to law enforcement infor-
mation banks);

(2) the publication of annual indexes or inventories of such facilities;
(3) controlled rights of subject access and correction;
(4) the development of adequate guidelines and directives to ensure
privacy protection and restrain unwarranted official intelligence
gathering activities;

(5) the creation of an effective impartial oversight mechanism to police

adherence to this process. 198
The police have no general mandate to conduct surveillance on
society as a whole. They would be acting far beyond their powers,
express or implied, were they to compile intelligence files on the entire
adult population or even a large proportion of it.199 The general rule
remains that there should be no coercive intervention or intrusion by the
police without a high measure of certainty that there has been, is being, or
will be a crime committed; and that the concerns of the state with the
problems of crime and criminality should be met with event-specific
investigation rather than panoptic supervision. Thus, while intelligence
gathering has some facets which may be regarded as legitimate, we are
still a long way, as indeed we should be, from recognizing in Canada the
validity of a wholesale expansion of the police surveillance/intelligence
function. 200
mons on 28 June 1982. In the area of other enacted legislation see, e.g., Right to Informa-
tion Act, S.N.B. 1978, c. R-10.3, and Freedom of Information Act, S.N.S. 1977, c. 10.
’98More particular guidance for the collection, maintenance, storage and dissemination
of law enforcement information is furnished by Draper, Privacy and Police Intelligence
Data Banks: A Proposal to Create a State Organized Crime Intelligence System and to
Regulate the Use of Criminal Intelligence Information (1976) 14 Harv. J. on Legis. 1.
See, in particular, the author’s model statute, entitled General Standards for Criminal
Intelligence Information, 98-106. Naturally, the study of public sector controls should
not divert attention from the equally pressing demands of private sector controls.

‘”Hence public consternation over the recent revelation that the R.C.M.P. Security
Service maintained files on over 600,000 individuals. Information from these files, some
containing hearsay information, was until fairly recently routinely exchanged with foreign
intelligence agencies: Globe and Mail, 5 August 1981, 1, col. 1.
20 Needless to say, intelligence activities founded upon illegal police activities (such as
unauthorized wiretapping, break-ins to secure information, etc.) are incompatible with the
Rule of Law and cannot be countenanced. The same holds true where the police might be
tempted to instigate the commission of unlawfful acts by others in order to obtain
information.