By Peter Jaworski
Loretta Newton was home alone sleeping on her couch in Cambridge, Ontario when she was awakened by several men pressing their faces against her backyard window. Startled, she jumped off her couch to get to the phone to call her husband John, dislodging a medical tube in her breast. She had recently had a breast removal surgery.
By the time John came home, the men were gone, and a nurse was re-attaching the tube.
“The blood on the floor was something I’ll never forget,” then-63-year-old John would later write in a story for The Landowner, the magazine of the Ontario Landowners Association.
When Erica Davis came home to Guelph from a funeral in another country, she discovered that her in-ground swimming pool had been damaged. Someone had gone into her backyard while she was away, cavalierly removed the tarp from her pool, and drained the water below the escape vaults that keep the water circulating. The lining had dried, and earth started caving in.
Erica would later take her city to court, in a case that reached the Ontario Court of Appeal. You read that right: Erica Davis was squaring off against her own City, in part to try to recuperate the costs of the damage to her pool.
The men who drained Erica’s pool in Guelph, contributing to its damage, were not random vandals. The men whose faces were pressed against Loretta’s window, peeking into her living room in Cambridge, were not peeping Toms and they weren’t potential thieves scoping out their next home invasion. In both cases, the culprits were city officials, on official duty, representing the City of Guelph and Cambridge, respectively.
In neither case did they have a warrant, and in neither case did they even notify the homeowners that they will be sending representatives to traipse about in their backyard. They didn’t have to. There is nothing illegal about municipal law enforcement officials pursuing some bylaw complaint by going into your backyard. They can even climb over your fence and take pictures, as the City of Orillia did to Barbara Nicol when a bylaw officer took it upon himself to check if Barbara had complied with an order from the city. Her “No Trespassing” sign afforded her no protection.
In Ontario, the power to enter onto your private property is bequeathed onto municipalities by section 436(1) of the Ontario Municipal Act. According to the section, municipalities may pass bylaws that permit their officers to enter onto private property without notice and without warrant at all “reasonable times.” They can do this in order to pursue an investigation stemming from a complaint, or an inspection following an order by the city.
Bylaw officers: More powerful than cops
No such similar provision exists for police officers, pursuing criminal investigations. In fact, courts have strongly upheld our privacy against investigations in the criminal context. This has been the record of Supreme Court decisions regarding the engagement and applicability of section eight of the Charter of Rights and Freedoms.
Section eight protects each of us against “unreasonable search and seizure.” Famously, Justice Dickson of the Supreme Court of Canada described the section as protecting “people, not places,” emphasizing that it did not protect property, but privacy. Specifically, it protects a “reasonable expectation of privacy,” according to the precedent set in Hunter v. Southam , the first SCC case to test section eight. In Hunter, the Court insisted that a warrant based on “reasonable and probable grounds” was required for any investigation or inspection to pass section eight muster.
This raises an intriguing question: If police officers cannot climb your fence, go in your backyard, or peek under your tarp to see if nothing contrary to law is hiding under there, why can municipal law enforcement in the pursuit of bylaw infractions?
The answer is a set of incoherent and confused cases dealing with section eight of the Charter. As it stands, courts have constructed an analysis that points in multiple directions simultaneously.
Hardly anyone endorses an absolute protection of our privacy. We all recognize that there are circumstances where our privacy interests are trumped by other interests. In particular, there may be times when the values of public safety, health, and well-being outweigh the values secured through strict privacy protections. The courts have recognized this. They carve out an exception for police having to secure prior authorization through a warrant in cases of “hot pursuit” or cases where an illegal activity is being done on private property but “in plain view” of the public.
This suggests that the balancing is to be done akin to the measurement of weight. Place the values secured through privacy on one “pan”, and the values to be secured through an investigation or inspection in the other, and see which way the scale tips. That is, indeed, what courts do. Sometimes. If they were to be consistent with this balancing, criminal investigations would require fewer section eight safeguards than investigations for purposes of seeing if there is a bylaw infraction. The values secured by the former are of more weight and significance than the values secured by the latter.
But on other occasions, the courts have placed privacy interests in one pan, and the penalties or harms of permitting violations of our privacy interests in the other. They discuss the lesser penalties and “stigmatizing effect” related to administrative as compared with criminal investigations. This attempt to strike a balance suggests that the more severe the consequences, the more assiduously must the Courts cling to the protections established in Hunter. And so here we come to the reverse conclusion, that criminal investigations, with their more severe consequences, require more section eight safeguards than administrative investigations.
That’s confusing. It also leaves us with no certain standards about whether, in a particular case, we can expect robust or deflated section eight protection against municipal law enforcement. What the courts should do is embrace the former method of balancing, and reject the latter method.
Librarians can’t seize your overdue books…
The fact that I have overdue library books on the desk in my office does not in any way entitle the university’s librarian to go in my room and take them, even if I have left my office door wide open. It is no defense of the seizure to point to the fact that the overdue book fine is negligible. Ensuring that books are promptly returned is not worth the price of privacy. The potential penalty is not relevant.
There is also terrible confusion about whether the “reasonable expectation of privacy” should focus on what we can reasonably expect given how people in fact behave (a descriptive standard), or what we ought to expect, especially from state officials, in a free and democratic society (a normative standard).
Suppose that it was customary for neighbours to peek in each other’s windows, that this is to be expected, and common. If we focus on section eight as protection against unusual or unexpected invasions of privacy, it would be consistent with section eight for bylaw officers to join the neighbours in peeking in our windows. But if we change our focus to what we ought to reasonably expect in a free and democratic society, we may come to believe that even though neighbours do this as a matter of course, certainly no officer of the state should.
The Court agreed with the latter approach (in R. v. Tessling ), explicitly saying that the “[e]xpectation of privacy is a normative rather than a descriptive standard.”
Even the precedents that established diminished section eight protection over internal business operations — including business-related tax returns, and expenses — are best understood according to the normative, rather than descriptive, standard. The reason why business-related information sees fewer section eight protections is because, as Justice La Forest has written, business records and documents “do not normally contain information about one’s lifestyle, intimate relations or political or religious opinions. They do not, in short, deal with those aspects of individual identity which the right to privacy is intended to protect from the overbearing influence of the state.” So if something contains these “aspects of individual identity” then section eight is engaged, and the state cannot peek in your windows even if they did it in the past.
But here, as elsewhere, the Court decided to sow confusion by also referencing the descriptive standard. Almost as an afterthought, the Court said that regulators in the past have subjected businesses to frequent and unannounced regulatory inspections, so you can’t reasonably expect privacy. So which is it? Does section eight protect “aspects of individual identity” from the gaze of the state, or does it protect us against new and unusual ways the state has invented for peeking through our windows?
The Court should abandon the descriptive standard entirely for one simple reason: this standard is circular. As University of Toronto law professor Lisa M. Austin puts it: “subsequent state intrusions are reasonable because you do not have much of an expectation of privacy and you do not have much of an expectation of privacy because of the existence of previous state intrusions.”
Our homes are not akin to businesses
While internal business operations may not include such aspects of our individual identity, our backyards and living rooms clearly do. These aspects take the form of campaign posters on walls or signs stored in our sheds, religious books and icons on our bookshelves or as backyard ornaments, prescription medicines left on our living room table visible from backyard-facing windows, or clear indications that the other person living with us is not just a housemate who happens to be the same gender as us, but a lover. We all have legitimate reasons to sometimes keep that information private.
These places are to be your sanctuary. And access to this private sanctuary should not come as easy as an anonymous complaint from a neighbour, or, possibly, a jilted ex seeking to make life difficult for you. It should come at the price of your consent, or, if you give them the finger rather than a welcoming gesture, a warrant.
The circular reasoning at the Ontario Court of Appeals
That is not, unfortunately, how the Ontario Court of Appeal saw things in Erica Davis’ case. In Davis v. Guelph (City), Justice R. A. Blair unnecessarily highlighted the circular descriptive account of section eight in his judgment, thereby further bolstering this mistaken interpretation and ignoring entirely the normative standard. In finding against Erica, Blair did not look at a possible violation of section 8, and ruled only on the reasonableness of the actions of the City under section 436, the enabling statute. That still leaves open the possibility of challenging the reasonableness of the statute itself under section 8.
Blair’s mistake, however, was based on an earlier Court of Appeal precedent in Barbara Nicol’s case. In R. v. Nicol , the court erred in two ways with respect to section eight. First, they struck the balance by focusing on the consequences to Barbara of an investigation rather than on the value of the goals of the investigation: “There is not the same stigma involved and the penalty attached to regulatory searches is less,” they wrote. And, second, in saying that “[p]eople in today’s society are accustomed to regulation,” they invoked the circular reasoning that animates the descriptive account of section eight.
The Supreme Court declined an opportunity to fix these mistakes when, in May of this year, they dismissed Erica’s appeal. None of the three women, Erica, Barbara, and Loretta, found protection under section eight. Erica discovered that bylaw officers could traipse into her backyard and start messing with her swimming pool. Barbara discovered that bylaw officers can hop fences and ignore “No Trespassing” signs. And Loretta discovered that bylaw officers in Canada do not always shy away from peeking through windows.
In a free and democratic society like Canada’s, it is unacceptable for municipal law enforcement officers to climb over our fences, to press their faces against our windows, and to help themselves to no-notice, no-warrant walks around our property.
To add insult to the injury done to our privacy, these powers of entry are entirely unnecessary. The provinces of Alberta, Manitoba, and Saskatchewan all require that bylaw give reasonable notice. They must then seek a warrant if they get a “get off my land” rather than a “by all means, officer, have a walk about” at the door. So do all three Territories. The suggestion that these provinces and territories have dysfunctional municipalities because they lack no-notice, no-warrant powers of entry would be viewed as some sort of joke.
Only British Columbia, Quebec, and Ontario give municipalities the extraordinary power to barge onto private property without notice nor warrant for purposes of an investigation stemming from an anonymous complaint, or randomly and at any officer’s discretion for purposes of an inspection to see if an order is being complied with.
A warrant requirement would cut down on city’s and grouchy neighbours using bylaw officers as their personal, private bully service. An independent body that ensures there are good reasons for pursuing an investigation or inspection would cut down on the pursuit of malicious or vexatious complaints, and would give us back some of our lost privacy.
And it might have been enough to keep Loretta and John Newton in Canada.
“We have started giving away our belongings,” Loretta’s husband John explained to Marlene Black, editor of The Landowner, in an email on April 20, 2011, “and hope to be on a plane out of Canada the day our first OAP cheque arrives.” They’ve since left, unable to cope under the heavy gaze of the corporation of the city of Cambridge.
 See Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) 
 See Austin, Lisa M. (2007). “Information Sharing and the “Reasonable” Ambiguities of s.8 of the Charter” 57 University of Toronto Law Journal 499, at p. 9.
 An earlier version of this story erroneously suggested that Davis v. Guelph (City) passed judgment on the constitutionality of section 436 itself. Instead, a better interpretation of the judgment is that the Court merely ruled on the reasonability of the actions of bylaw officers under the statute, rather than on the reasonability of section 436 under section 8 of the Charter.