Deeply Personal Information and the Reasonable Expectation of Privacy in Tessling

Abstract

In the landmark privacy case of R. v. Tessling (2004 ), the Supreme Court of Canada ruled that the respondent did not have a reasonable expectation of privacy with respect to information about him that officers from the Royal Canadian Mounted Police were able to acquire by the warrantless use of infrared imaging directed at his home. In an effort to understand the cogency of the Court's ruling, this paper explores the question of what sort of personal information in general can be said to be covered by a reasonable expectation of privacy, that is, of what constitutes “deeply personal information.” One prominent account in the privacy literature suggests that deeply personal information is tied to sensitivity: what distinguishes deeply personal information from other sorts of information about individuals, on the sensitivity account, has essentially to do with how sensitive they are to widespread knowledge of it. After raising some problems for this account, I go on to the articulate a novel one: on my “self-narrative” account, whether personal information counts as deeply personal depends on whether open access to it would seriously undermine the individual's ability to tell her own unique story about herself to others – for herself and on her own terms. The upshot of this novel account is that we may have to concede that the Supreme Court got it at least partly right in R. v. Tessling: the respondent did not have a reasonable expectation of privacy with respect to the relevant information acquired by the RCMP's warrantless infrared search. Even so, I suggest, it does not follow that the warrantless search failed in any way to violate the respondent's section 8 Charter rights. It is perhaps time to stop trying to make the reasonable expectation of privacy do all the work required by the Charter's protection against unreasonable search and seizure.