The state really is watching you: The courts blur, again, the distinction between public and private information in a regulatory prosecution. A case comment on R. v Saad, 2021 BCSC 1117 (CanLII).
As the boundaries between public and private information continue to blur in our digital age, a recent decision from the B.C. Supreme Court allows police and regulatory agencies further opportunity to advantage themselves of information gathered by the state about a person, even if gathered without the person’s knowledge or consent.
R. v Saad involves a prosecution for failing to provide the necessities of life and fraud under the Criminal Code concerning an unlicensed daycare. The accused challenged the admissibility of records adduced by the Crown in the trial obtained from Vancouver Coastal Health, a healthcare region in B.C. The health region's records related to its investigation of the accused for allegedly operating an unlicensed daycare.
Vancouver Coastal Health had gathered information, including the accused's identity, addresses, education and the identity of her child as well as reports by licensing officials, notes allegedly made by Ms. Saad, email correspondence between licensing officers, and emails between Ms. Saad and the complainants. In the regulatory prosecution, the accused asserted the records obtained from the health authority were a product of an unreasonable search or seizure under section 8 of the Canadian Charter of Rights and Freedoms. The court dismissed the application and allowed the records into trial. She was later convicted.
The court engaged an analysis developed initially to assess the legality of text messages obtained from a third party, in that case before the Supreme Court of Canada: a telecom services provider (R. v. Marakah). This test has become the Tessling test: whether the accused had an objectively reasonably subjective belief that the information sought to be obtained by the state would be private. In Saad, the court applied the Marakah/Tessling test to determine whether Saad had an objectively reasonable subjective belief that the information gathered by the health authority was private to help the accused:
- The place where the alleged "search" occurred; did the police trespass on the applicant's property, and, if so, what is the impact of such a finding on the privacy analysis?
- Whether the information content of the topic was in public view.
- Whether the informational content had been abandoned.
- Whether such information was already in the hands of third parties; if so, was it subject to a duty of confidentiality?
- Whether the police technique was intrusive to the privacy interest.
- Whether the use of this evidence-gathering technique was objectively unreasonable.
- Whether the informational content exposed details of the claimant's lifestyle or biographical information.
Here, the place searched was that of a third party, not that of the accused. The information obtained was information lawfully to be published on a public website (information about the operation of an unlicensed daycare). Notably, the court acknowledged that the Tessling test did not fit the facts in Saad perfectly. In particular, the second point: whether the informational content of the topic was in public view, did not fit the circumstances of Saad where information was not yet public, but was about to be made subject to publicity due to legislative changes that had been enacted but not yet made in force. Nevertheless, the court in Saad, after applying the Tessling test admitted the evidence and convicted Saad.
As governments struggle to balance calls to be open and transparent with their operations, consider for example the “open data” movement, pressure will mount for more information about persons regulated by the government to be made available to the public. As the doors of government information are creaked open, decisions such as Saad increase the government’s ability to use information that might have been thought by regulated persons to be private, including information gathered without the regulated person’s consent or knowledge. This includes persons who may not be a person explicitly authorized to participate in a program, such as a permittee or licensee of a regulated industry, but anyone whose activities are regulated by statute.
See my Canlii Connects commentary on this case.