Where the Heart is: Dignity, Privacy and Equality under the Charter
By: Daphne Gilbert
July 3, 2007
A country’s constitution can be described as the mirror into the
national soul. A constitution is a foundational instrument, reflective
certainly of its country as it exists, but also aspirational in nature.
In countries, like Canada, where the constitution protects individual
rights and freedoms, citizens are empowered by the values that shape
the legal guarantees. This is at least, the hope behind Canada’s Charter of Rights and Freedoms. What then to make of the fact that an interest or value in ‘privacy’ is not expressly protected by our constitution?
The question of the role privacy plays as a foundational
constitutional value has been addressed by the Supreme Court of Canada
on numerous occasions. It is well-settled law that sections 7 and 8 of
our Charter do contain protections for some aspects of a
privacy interest. What is less clear is whether a robust concept of
privacy, and privacy-related interests, are adequately and wholly
protected in Canada’s Charter. Given the constraints of the privacy protections recognized in sections 7 and 8, finding another home for privacy in the Charter
might open up new potential. In my view, it would be both helpful and
appropriate to consider privacy in the context of the section 15
I stress here that I am proposing “another” and not a “new” home for
constitutional recognition of privacy interests, because I agree that
sections 7 and 8 offer important and necessary protections for certain
privacy interests. These two sections are, however, limited in their
scope. They appear in a part of the Charter labeled “Legal Rights”, a heading that has been interpreted as placing boundaries on the application of sections 7 and 8. In Gosselin v. Quebec (Attorney General),  a majority of the Supreme Court of Canada affirmed that the guarantees under the “Legal Rights” section of the Charter
are triggered by state action involving the administration of justice.
In most situations, the “Legal Rights” guarantees are triggered in the
criminal law context, though these protections can be used in
administrative contexts too (as they were, for example, in the case of New Brunswick (Minister of Health and Community Services) v. G.(J.)  , involving challenges to child protection processes). While Gosselin left
open the question of whether an adjudicative context was required for
“Legal Rights” to apply, the majority insisted that it was appropriate
to restrict the applicability of the “Legal Rights” protections to the
administration of justice.  In Gosselin, this meant the
section 7 guarantee to life, liberty and security of the person was
useless in challenging an inadequate welfare regime. If privacy
protections are housed only in sections 7 and 8 of the Charter,
the nature of the interests protected are necessarily limited. These
limitations mean that only certain kinds of privacy interests are
protected by the Charter, and that a “right” to privacy only
comes into play in situations captured by section 7 and/or 8. In my
view, this is an impoverished interpretation of what privacy could
offer as a constitutional value.
Since the Canadian Charter does not recognize the same sort
of “penumbral effects” as the Americans see in their Bill of Rights, we
are required to locate our constitutional values within specific Charter
guarantees. If there is potential for constitutional recognition of
privacy outside of the “Legal Rights” context, privacy must find
another resting place. In my view, section 15 offers significant hope
and advantages as another home for privacy. Chief Justice McLachlin of
the Supreme Court of Canada describes “equality” as perhaps the most
difficult of the Charter rights to interpret and define, and
indeed, section 15 has had a tumultuous history since it came into
force in 1985. In the 1990s, the Court was particularly divided on the
proper interpretive approach to section 15, until in 1999 the Court
reached a tentative consensus on a “test” for equality violations in Law v. Canada (Minister of Employment and Immigration).
 [Most section 15 scholars agree the Law test is problematic and
that the Court has in any event fractured into differing views on
equality rights in recent years, however, Law remains in theory and in practice at least, the prevailing structure for section 15.] In Law,
the Supreme Court decided to make “human dignity” the central focus of
the equality guarantee, explaining the purpose of section 15 as:
to prevent the violation of essential human dignity and
freedom through the imposition of disadvantage, stereotyping, or
political or social prejudice, and to promote a society in which all
persons enjoy equal recognition at law as human beings or as members of
Canadian society, equally capable and equally deserving of concern,
respect and consideration. 
Section 15 claimants must show, as one of the three required steps in the Law
test, that the legislative provision they contest violates or demeans
their human dignity.  Justice Iacobucci, writing for the Court in
Law, outlined his version “human dignity” in the equality context,
intending his approach to be comprehensive but non-exhaustive:
What is human dignity? There can be different conceptions
of what human dignity means… [T]he equality guarantee in s.15(1) is
concerned with the realization of personal autonomy and
self-determination. Human dignity means that an individual or group
feels self-respect and self-worth. It is concerned with physical and
psychological integrity and empowerment. Human dignity is harmed by
unfair treatment premised upon personal traits or circumstances which
do not relate to individual needs, capacities, or merits. It is
enhanced by laws which are sensitive to the needs, capacities, and
merits of different individuals, taking into account the context
underlying their differences. Human dignity is harmed when individuals
and groups are marginalized, ignored, or devalued, and is enhanced when
laws recognize the full place of all individuals and groups within
Canadian society. 
Connections between privacy and human dignity have long been
acknowledged and explored by theorists  and the Supreme Court of
Canada has declared, “a fair legal system requires respect at all times
for the complainant’s personal dignity, and in particular his or her
right to privacy, equality, and security of the person.”  It seems
almost natural, then, that privacy should find a new home outside of
the “Legal Rights” portion of the Charter, within human dignity, as it is understood and protected under section 15.
There are many benefits to interpreting section 15 to include a
privacy interest, broadly captured by two significant features. First,
protecting privacy as part of the Charter’s equality
guarantee provides opportunities for a set of privacy-related claims
that do not fall within the boundaries of the “Legal Rights” section to
be brought forward. A claimant whose privacy interests have been
violated outside of the Legal Rights context (meaning sections 7 and 8
are not triggered), may now have an avenue under section 15 to bring
forward the claim, expanding the Charter’s spectrum of
privacy protections. For example, in contexts including (dis)ability
discrimination, social welfare or employment regimes, access and
funding for abortion or contraceptive services, poverty and
homelessness, government relationships with aboriginal peoples, as well
as other pressing equality concerns, arguments around privacy interests
might be helpful in unpacking and explaining the human dignity step of
the Law framework.
Second, an understanding of privacy embedded within the Charter’s
equality framework could open up more expansive possibilities for
protecting a range of privacy interests beyond those that fall within
sections 7 and 8. Section 8 has been interpreted as protecting three
specific ‘classes’ of privacy interests: personal, territorial and
informational privacy. Section 7’s protection for security of the
person, which includes bodily integrity, includes decisional privacy
interests. A number of theorists, however, including feminists Allen,
Roberts, Gavison, McClain and others, have argued that a robust
understanding of privacy includes more than simply protecting these
manifestations of recognized privacy interests, and may include such
features as positive obligations on the state to provide the conditions
necessary for true private choice to be exercised. It is possible that
interpreting privacy within section 15 could lead to the legal
recognition of new or different ‘kinds’ of privacy, over and above
those protected by sections 7 and 8.
Whatever the content of privacy is understood to include, there is
general agreement in law and society that privacy is worth protecting,
as a “core value of a civilized society,”  and as a requirement
both of “inviolate personality”  and human dignity. Expanding the
possibilities for protecting privacy by including it within the ambit
of the section 15 equality guarantee is further and uniquely Canadian
recognition of the foundational role that privacy plays in our society.
Equality, and by necessity a constitutional right to equality, is at
the heart of a compassionate democracy. While the Charter protects and advances many of our most cherished values, section 15 is at the heart of the Charter’s
vision for Canada. Finding a home for a privacy interest in our
understanding of human dignity, not only promotes a more fulsome
understanding of the many facets of privacy as a core value, but also
opens up new equality arguments for vulnerable and marginalized groups.
 2002 SCC 84
  3 S.C.R. 46.
 Then Justice Arbour took a different and radical approach to
section 7, and would have removed it from the limitations of its
placement in the “Legal Rights” section of the Charter. She left the Court soon after the Gosselin decision and her views have not gained traction at the Court so far.
  1 S.C.R. 497.
 Ibid. at para. 59.
 The first two steps in the Law test are that the claimant establish
that he or she is a member of one of the enumerated or analogous
grounds listed in section 15 and that the impugned legislative
provision imposes a burden or denies a benefit to the claimant on the
basis of the ground.
 Ibid. at para. 53.
 A number of philosophers have connected privacy to human dignity,
and explained the relationship between the two as harmonious and even
symbiotic in nature. Edward J. Bloustein reasoned:
The man [or woman] who is compelled to live every minute of
his [or her] life among others and whose every need, thought, desire,
fancy or gratification is subject to public scrutiny, has been deprived
of his [or her] individuality and human dignity. Such an individual
merges with the mass. His [or her] opinions, being public, tend never
to be different; his [or her] aspirations, being known, tend always to
be conventionally accepted ones; his [or her] feelings, being openly
exhibited, tend to lose their quality of unique personal warmth and
become the feelings of every man [or woman]. Such a being, although
sentient, is fungible; he [or she] is not an individual.
See: Edward J. Bloustein, “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser” in Schoeman, Ferdinand, eds. Philosophical Dimensions of Privacy: An Anthology, (Cambridge University Press, 1984 at page 188). See also: Jeffrey H. Reiman, “Privacy, Intimacy and Personhood” in Ibid, at page 305; Helen Nissenbaum, “Privacy as Contextual Integrity” (2004) 79 Wash. L. Rev. 119.
 R. v. O’Connor  4 SCR 411 at para 154.
 See Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis J., dissenting).
 Warren & Brandeis, “The Right to Privacy” 4 Harv. L. Rev. 193, 194 (1890).