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Reflections on the Top Hat Case and the right to privacy

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Few recent examples of law enforcement have brought the administration of justice into such disrepute as the actions of the police and Crown in gathering evidence against and prosecuting Arlie Blakely for living off the avails of prostitution and procuring sexual services.

In what has become known as the “Top Hat Case”, a loophole in the Criminal Code was exploited by police to conduct surreptitious video surveillance, without prior judicial authorization, of citizens engaged in lawful sexual acts in the private confines of a Victoria hotel room. Had the police merely wanted to intrude upon the privacy of these individuals to the lesser extent of placing their “private communications” under surveillance, prior judicial authorization would have been required to plant a listening device or install a wiretap—or the police could have faced prosecution under the protection of privacy provisions of Part IV.1 of the Criminal Code. But in a regrettable oversight, the Code’s privacy protections on electronic surveillance were not framed to cover silent video recording of “private conduct”. Apparently, no one ever thought that the police would leave their VCRs running with the sound switched off.

There was very good reason for the police to leave the sound off in this case. After all, what responsible judge would authorize the police to record the conversations of individuals engaged in lawful conduct in the privacy of their hotel rooms? Even if these individuals were expected to be reluctant witnesses in a case the Crown was building, a judge would almost certainly have found that a subpoena was the appropriate method of compelling testimony.

But having gone this far, the Crown then predictably used these tapes to press its unwitting stars (in a new genre of “blue” movies) into testifying against Ms. Blakely. At least two witnesses who testified alleged that they were told by the Prosecution that if they did not give evidence, the tapes of their carnal misadventures would have been shown in a public courtroom. Obviously, the quality of testimony obtained by these means has to be questioned. In fact, one hapless witness stated that he’d “give almost anything” not to have the tapes shown in court…. Including perjury? It cannot be supposed that the administration of justice can enlist and maintain the respect of citizens when it stoops to blackmail in order to achieve its ends. And especially when the ends are such as were aimed at and achieved in the Top Hat case. A recent federal Law Reform study (Working Paper 47, Electronic Surveillance, 1986) which examined the issues involved in law enforcement’s use of electronic surveillance recommended that the offences with which Ms. Blakely was charged were not even serious enough to warrant the use of wiretaps or other listening devices to obtain evidence. This argue not only that the use of video surveillance ought to be questioned in this case, but that even the police audio surveillance (telephone calls to the Top Hat business for which a wiretap authorization was obtained) could be seriously questioned as well.

And what of the costs of these hijinks? The Crown clearly used its full arsenal of technological wizardry and human resources to prosecute one of the most trivial and questionable provisions of the Criminal Code. Yet what became ironically apparent during the trial was that the civility with which sexual transactions were arranged by Ms. Blakely—rather than being worthy of prosecution—could well have served as a model for a community that has struggled to find ways to deal with the public order problems associated with the sex trade. If these sorts of cases are the “hot” files down at the prosecutor’s office, a lot of public officials need to re-think where our law enforcement dollars are being spent. But however great is the taxpayers’ bill for these particular misadventures, the personal costs are likely to be greater. public notoriety and disgrace are almost certain to follow the witnesses and leave their imprints on innocent families—perhaps forever. It is also reasonable to infer that the political aspirations of one of this province’s leading public figures were severely, perhaps irreparably, damaged. To what purpose? What evil was vanquished that justified taking such losses?

These caustic criticisms might be discounted by claiming that this is just an isolated case of abuse. On the other hand, the unwillingness of the Victoria police and prosecution to admit any wrongdoing or error in judgement in the handling of this case more plausibly leads one to ask whether this type of ham-handed, bullying disrespect for the rights of private citizens is the rule rather than the exception? We hope that this Inquiry will clear the air and try to find ways to ensure that such abusive and unwarranted interferences in the private lives of ordinary citizens, many of whom had committed no wrong in the eyes of the law, do not occur again.

The importance of privacy in a democratic community

What is centrally at issue in this Inquiry is law enforcement authorities’ insensitivity to and misunderstanding of the importance of the right of privacy. Some definition and discussion of the notion of privacy seems appropriate in these circumstances. We make no apology for the unabashedly philosophic character of this. The importance of privacy is much talked about but very little understood in our community, and the conduct of law enforcement officials in the Top Hat case is an example in point.

The benchmark definition of privacy is often taken to be Warren and Brandeis’ famous observation that the right of privacy is “the right to be let alone by other people”. That this is so is hardly disputable, but it is not informative in telling us 1) why we attach importance to this right, and 2) at what point other interests may override it. It seems to us that an understanding of these issues is an essential precondition to waking informed social policy decisions about where to draw the line when privacy interests come into conflict with law enforcement interests.

In our view, the importance that we attach to the right of privacy derives in largest measure from the manner in which our community has defined the conduct of its affairs. It needs no argument that the defining characteristic of our society is that it is a democracy. That is, we are a self-governing society, directing our destiny as a community through the institutions of elected government. However, in a democracy, the rulers—the citizens—are also ruled. To save the democratic enterprise from this apparent paradox, democratic societies have to accord citizens certain rights which protect the integrity of their role as sovereign. The right to vote, freedom of speech, conscience and association, the right to be free from unjust discrimination, and the right to be accorded certain due process protections are all rights that set the standards of freedom and dignity that are required to permit citizens to fulfil meaningfully their roles as the ultimate sovereign in our society.

As a corollary to these democratic rights, our society has also recognized that citizens should be permitted the widest possible latitude of personal freedom to determine their individual destinies by their own lights. The argument here is a simple and cogent one: commitment to self-determination cannot be meaningfully fulfilled if the individual members of our society are not afforded the latitude in their personal lives to discover and pursue their own aspirations.

It would be hard to imagine any of these democratic rights or our traditional respect for personal liberty surviving healthily if the right to privacy—to be let alone—were not carefully observed by government in its dealings with citizens, and by citizens in their dealings with each other. Secret ballots, freedom of speech, conscience, religion and association, minority rights, privileged communications, protection against unreasonable search, are all examples of how the right to privacy is a fundamental element in the exercise of many of the most important democratic rights. It should not be surprising then that cries of concern and even outrage follow unwarranted intrusions on privacy. After all, a breach of this right may raise legitimate concerns about the safety of a whole variety of democratic rights and cast a chill over their exercise. Ensuring that personal privacy is only interfered with when some greater and overriding utility is obtained is a matter of considerable public interest. Our legislators have a great responsibility to define those circumstances carefully and precisely, lest the abuse of discretion undermine much of what we as a community hold dear.

We are happy to see that the courts have begun to interpret the Charter of Rights in a way that recognizes and gives force to the protection of privacy in our society. In commenting on the purpose of the protections granted against unreasonable search and seizure in section 8 of the Charter in Hunter v. Southam, the present chief Justice of the Supreme Court of Canada states:

That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization…. (author’s emphasis)

It will be argued in the following section that this sort of model ought to be used for preventing unjustifiable surreptitious surveillance of private citizens. In fact, we think that the use of surreptitious surveillance can be assimilated? to a notion of “search” and thus falls within the ambit of section 8 of the Charter. At last one recent judicial decision has supported us in our view (R. v. Lofthouse, Ontario District Court, unreported to our knowledge—copies of decision are available on request). It is thus possible that the courts could be used to resolve the privacy issues raised by the Top Hat case. However, given the seriousness of the intrusion that this type of surveillance represents, we think it would be irresponsible for the framers of public policy to leave this issue for the courts to decide while such surveillance continues and technology develops to make such intrusions increasingly easier for the police to conduct.

Balancing privacy and law enforcement interests

Like most rights, privacy rights at times come into conflict with other rights and interests, and some decision often has to be made about which one has the stronger claim to be observed. Perhaps most frequently, privacy rights come into conflict with law enforcement interests, particularly in the course of investigating criminal activity. For these situations, our society has developed a whole range of special procedures to be applied in a variety of different law enforcement situations to ensure that the privacy of citizens is upheld in certain cases, and is not interfered with without reasonable justifications in others. In the latter cases, it is generally recognized that where there are reasonable and probable grounds to believe that a criminal act has been committed, is in the process of being committed, or is being initiated, law enforcement interests begin to overtake privacy interests. however, this is not always sufficient in itself to warrant an invasion of privacy. Where the type of intrusion that is contemplated is store serious or “deep,” our community has rightly attempted to require law enforcement officials to meet stricter standards of justification for their contemplated actions. For instance, where the police wish to search a building or other private place under the general search warrant provision of the Criminal Code (s. 443), they must first satisfy a “justice” that they have “reasonable grounds” for doing so. The discretion in these matters is not left to the police; it is given to an independent official who has no interest in the outcome of the police’s work, except that their work be carried out with due regard for the principles of fundamental justice. In the case of Criminal Code applications for wiretaps and other forms of placing private communications under surveillance, more stringent standards have to be met. The use of this procedure under the Criminal Codeis confined to certain designated more serious crimes, and the police must persuade a “judge” (a higher court official) that:

other investigative methods have been tried and have failed, other investigative procedures are unlikely to proceed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures. (Criminal Code 178.13(1)b)

Although, in our view, this provision should also contain some directions to a judge to consider whether the gravity of the suspected crime is sufficient to authorize electronic surveillance of private communications, it serves the purpose here of demonstrating that our community has accepted that stricter standards must be met by law enforcement officials who wish to use more intrusive types of investigatory techniques. As importantly, it also provides an example where the use of a particularly intrusive law enforcement technique is confined to a relatively uncommon range of criminal investigation.

For the most part, we think that such legislated checks on law enforcement authorities have attempted sensitively to weight privacy interests against law enforcement interests. We are, however, shocked that no legislative authority seemed to recognize that a potentially more intrusive type of law enforcement technique—surreptitious optical surveillance—was not covered by the Code. This now glaring loophole in the Criminal Code calls for immediate legislative action to ensure that citizens’ reasonable expectations of privacy are observed by law enforcement officials. Moreover, the Top Hat case is an excellent demonstration of how such omissions can be and will be abused by police unless appropriate measures are taken to ensure that police use their law enforcement tools with due regard for the rights of citizens. Our recommendations as to how this gap should be filled are included below.

Before we proceed with our recommendations, we would be remiss if we did not comment on the abysmal manner in which judiciary now superintends the use of the extraordinary law enforcement techniques described just above. The right of citizens to be entitled to a reasonable expectation of privacy and the legislative protections that have been afforded to preserve this right mean little if the judiciary is not willing to exercise its responsibility to preserve a citizen’s right to be free from unwarranted interference by the police. The disgraceful record of the judiciary speaks for itself. In 1984, the latest year for which figures are available for authorizing the use of listening devices, 581 applications for authorizations were made; only one application was turned down. As well, every single application that was made for authority to renew an authorization was approved.

According to the federal Law Reform Commission Working Paper 47 referred to above, Canadian judges authorize 20 applications for installation of listening devices for every one that is authorized by their American counterparts (page 10). Obviously, the degree of judicial scrutiny of these applications has to be seriously questioned. In another recent Law Reform Commission study, a panel of judges was set up to review judicial authorization of search warrants in certain cities across Canada. This panel rated “39.4% of warrants … as validly issued, and 58.9% as invalidly issued …” (Police Powers, Working Paper 30, 1983, p.84). Furthermore, this panel found that the defects in the authorizations usually arose from lax exercise of judicial discretion and not from technical administrative faults in preparing the applications for authorization.

Clearly, if this Inquiry is to recommend changes to the Criminal Code to preserve the reasonable expectation of citizens to be free from unwarranted state intrusions on their privacy, with particular reference to surreptitious surveillance, implementation of these recommendations may have little benefit if the judiciary follows its previous practices. Court decisions like Hunter v. Southam, which recognize and emphasize the importance of the right to privacy, may be an indication that the judiciary will begin to mend its ways. Nevertheless, given the court’s recent record, we think that if this Inquiry is to make recommendations to make the use of surreptitious optical surveillance subject to some form of prior judicial scrutiny it must also make a statement to remind the judiciary that such check on police powers will do little to protect citizens’ rights if the judiciary does not exercise due vigilance on protecting those rights.

Recommendations

1.Prior judicial authorization should be required in every case where surreptitious surveillance of citizens is conducted in circumstances where a citizen is entitled to a reasonable expectation that her/his conduct will not be subject to surreptitious surveillance. Comment: In the case under consideration by this Inquiry, when the subjects of police video surveillance closed the door to their hotel room behind them, they were surely entitled to expect that they were not going to be subject to any surreptitious optical surveillance. As well, this recommendation extends beyond the use of electronic devices to conduct surreptitious optical surveillance. Obviously, the invasion of privacy in this case would have been as great if the police had drilled a hole in the hotel room wall and observed the goings on with the naked eye. If the Inquiry does not take account of this type of intrusion in its recommendations, it will leave another gaping hole in the privacy protections that ought to be afforded citizens.

2. Under no circumstances should surreptitious surveillance be authorized expressly to observe or record the conduct of persons who are engaged in lawful activities. Comment: Other law enforcement procedures can be used to obtain evidence as testimony from these individuals, and thus to resort to surreptitious surveillance in these circumstances would involve a needless invasion of privacy, and would bring the administration of justice into disrepute.

3. The use of surreptitious surveillance should be confined to the investigation of the most serious Criminal Code offences. We recommend that the list of offences for which interception of private communications may be authorized be used as a model, with the following exceptions. Delete from this list: ss 58 (forgery, etc.), 127(2) (obstructing justice), 195(1)a (procuring), 281.1 (advocating genocide), 314 (theft front mail), 331 (threatening letters, etc.), 339 (using mails to defraud); and Excise Act ss 158… and 163 (unlawful distillation and selling of spirits); and that the organized crime definition for of fences be omitted but that authority be available for investigation of: a conspiracy to commit, an attempt to commit, being an accessory after the fact, and counselling, procuring, or inciting in relation to any of the listed offences. The following Criminal Codeoffences should be added to the list: ss 305.1 (criminal interest rate), 381.1 (threats to commit offences against internationally protected person).

Comment: With only a couple of exceptions, this recommendation follows the proposals in a recent federal Law Reform Commission Working Paper (#47) to delete and add various offences from the list offences for which interception of private communications may be authorized.

5. Section 176.13(1)a of the Criminal Codeshould be amended to provide that a judge may authorize surreptitious surveillance where she/he is satisfied that it would be in the best interest of the administration of justice and in the public interest having regard to the seriousness of the offence(s) under investigation and the surveillance techniques to be used by the police and the range of conduct likely to be under surveillance.

Comment: The purpose of this recommendation is to attempt to limit the authorization of surreptitious optical surveillance to serious instances of listed offences.