Kelly didn’t need the state to be kept “out”.  She needed the
state and society more broadly to be let “in”, to actively participate
in her existence by recognizing her humanity and not remaining
indifferent to her poverty. The privacy she needed is that which comes
from access to private property and adequate housing. The privacy she
needed was that which would have enabled her to develop her identity
and sense of self outside of the apathetic public scrutiny that happens
on the street where the privileged are indifferent voyeurs of
What is privacy, anyways?
I write this with the qualification that it is not entirely clear to me
what privacy is. I am puzzled about what it means for something to be
“private”, what it means for someone, or some identifiable group, to
have a right or an interest in “privacy”, or what exactly happens when
this peculiar thing known as “privacy” is lost.
Warren and Brandeis famously quoted Judge Cooley’s definition,
describing privacy as a right “to be let alone”.  Westin is most
frequently attributed with informing us that privacy is about a right
to control information about ourselves.  Judith Jarvis Thompson said
privacy is a reductive concept that essentially consists of clustered
property rights and rights to ones own person.  Ruth Gavison and
Anita Allen have identified privacy as a limitation of access to
individuals.  Richard Bloustein outlined privacy as integral to
human dignity.  Jeffrey Reiman offered a notion of privacy as
critical for personhood formation.  Many other wise theorists have
offered still more accounts of privacy, more attempts to define what
remains, in many senses, opaque.
Legally, the concept of privacy has largely developed in the context
of rights of the individual accused as against the state. The Supreme
Court of Canada has ruled that privacy is an instrumental right –
integral to the realization of fundamental entitlements such as
liberty, security of the person, and equality.  Section 8 Charter jurisprudence
instructs that there is a distinction to be drawn between public and
private space – fostering the notion that we are, at least in some
ways, entitled to less privacy in public. 
So what’s the problem?
Almost all of this theorizing and analysis seems to take for granted
that everyone has access to private space. It assumes a means to limit
or control access to oneself. It further assumes that while privacy may
not be a fundamental right in and of itself, it is an intrinsic aspect
of human life that must be vigilantly protected from theft by the
state, the corporate world, or other actors. The reality is that this
access and these means are far from universal and that sometimes state
intervention and support is necessary in order to foster privacy and/or
the ends that privacy aims to achieve (like dignity, autonomous
decision-making, the ability to exercise even constrained ‘choice’ with
respect to decisions of a private nature, etc.). 
The notion of an obligation on the state to protect vulnerable
people, even from activities that occur in otherwise private settings,
is not new. Largely as a result of feminist activism, the idea of a
man’s home as his impenetrable castle – a sacrosanct space that should
be fiercely guarded from the hands of the law no matter what occurs
within – has been challenged and discredited. It is not okay
for the state to remain passive when a person is beaten-up or raped by
her spouse. The legacy, however, of the historical role of privacy in
protecting male domination of women in the marital home is significant
and enduring. Martha Nussbaum, for example, warns: “anyone who takes up
the weapon of privacy in the cause of women’s equality must be aware
that it is a double edged weapon, long used to defend the killers of
Suspect of privacy, and at the risk of being perceived as taking it
up as a “weapon”, I am becoming increasingly interested in arguments
that call on the state to facilitate the privacy of historically
marginalized groups - like women living and working on the streets. If
the law has deemed it inappropriate for the state to ignore abuses
suffered by women in their homes, it should not be permissible for the
law –and for individuals more generally- to ignore the poverty of women
working and living on Canada’s streets. It is their poverty that forces
them into public space, and robs them of the privileges of privacy.
Elisabeth Paton-Simpson has pointed out that, “contrary to a widely
held assumption in privacy law, reasonable people do not intend to
waive all rights to privacy by appearing in public places.” 
However, Paton-Simpson does not discuss the reality that many Canadians
do not have the option to choose whether to appear in public or whether
to leave the relative security of their homes – because they have no
homes.  Unlike the people Paton-Simpson discusses, homeless and
precariously housed Canadians have no option to “trust” that they will
not be made objects of media excesses and advances in surveillance
technology.  And yet, while they are infinitely accessible and have
no adequate private space within which to develop – they are
simultaneously scorned, ignored, and turned into ghosts counted only in
studies and statistics. 
Privacy comes in degrees.  A person or group of people can
conceivably have too much privacy – or not enough. Indeed, without
regular access to private property or the capacity to ensure that
personal information is not made publicly available, a person’s
existence can be completely lived in the presence of others.
It is understandable why legal and philosophical concern about
privacy has been focused on protecting against loss of privacy. I
think, however, that we need to refocus our attention on whether in
some cases positive action is required to facilitate privacy and the
goods associated with it (like dignity, security of the person, and
liberty). We need to begin addressing the role of the state, the
corporate world, and communities in facilitating conditions conducive
to the “privacy” that continues to be erroneously assumed as the
starting point for all.
Many of my friend Kelly’s daily rituals, no matter how intimate,
were performed in “public” – they were accessible to all who passed by,
and yet the three-dimensionality of her life and eventually her death
remain invisible to most. We are repulsed, we simply don’t give a damn,
or we actively disengage and explain-away our responsibility to pay
attention, to do something, and to not let people who are in
need of assistance alone. Perhaps until we learn better when it is okay
to look away, we should take a positive obligation to facilitate
privacy as our starting point – so that women do not go missing or die
 Single room occupancy (SRO) residential hotel units represent the
most basic shelter provided for low-income individuals living in
Vancouver’s Downtown Eastside (DTES). The people who live in SRO
buildings are low-income singles at high risk of homelessness.
 This is not her real name.
 I am writing from a perspective that treats drug use as a health issue.
 This is intended as a reference to privacy as involving an
entitlement to keep the antagonistic state out of the lives of
 Samuel Warren and Louis Brandeis, “The Right to Privacy” (1890) 4 Harv.L.Rev. 193. at p. 195.
 Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967) at p. 7.
 Judith Jarvis Thomson, “The Right to Privacy” (1975) 4 Philosophy and Public Affairs 295-314
 Ruth Gavison, “Privacy and the Limits of Law,” (1980) 89 Yale Law Journal at p. 428; Anita Allen, Uneasy Access (New Jersey: Rowman and Littlefield, 1988).
 Bloustein, E.J., “Privacy as an aspect of human dignity: An answer
to Dean Prosser,” (1964) 39 N.Y.U. L. Rev. 963. It is worth noting that
Bloustein is referencing “dignity” in what some might call the liberty
sense, and not the equality sense. He writes of privacy as dignity
offending by explaining: “an intrusion of our privacy threatens our
liberty as individuals to do as we will, just as an assault, a battery
or imprisonment of our person does.” at p. 1002.
 Jeffrey Reiman “Privacy, Intimacy, and Personhood” (1976) 6 Philosophy and Public Affairs at p. 26
 See for example: R. v. Dyment,  2 S.C.R. 417 at paras. 17, 21-22; R v. O’Conner  4 S.C.R. 411 at paras. 110-113, 115; R. v. Mills,  S.C.J. No. 68 at 91.
 Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search and seizure.” In R. v. Silveira,
 2 S.C.R. 297, at para. 140, Cory J, found: “[t]here is no place
on earth where persons can have a greater expectation of privacy than
within their 'dwelling-house'”. See also: R. v. Tessling,
 S.C.J. No. 63, in which the SCC indicated that expectations of
privacy are less reasonable when one moves outside of the sphere of the
home, at para 22.
 On privacy’s functional role in facilitating dignity, integrity and autonomy see: R. v. Mills,  S.C.J. No. 68 at para 81.
 Martha Nussbaum, “What’s Privacy Got to Do With It: A Comparative Approach to the Feminist Critique” in Women and the United States Constitution: History, Interpretation, and Practice ed. Sibyl A. Schwarzenbach and Patricia Smith (New York: Columbia University Press, 2003) at 164.
 Elizabeth Paton-Simpson, “Privacy and the Reasonable Paranoid: The
Protection of Privacy in Public Places,” (Summer, 2000) 50 Univ. of
Toronto L.J. 305.
 Canada has no official data on homelessness – an omission which has attracted critique from the United Nations Committee on Economic, Social and Cultural Rights.
For a somewhat dated discussion of this, see: Patricia Begin, Lyne
Casavant, Nancy Miller Chenier, & Jean Dupuis, “Homelessness,”
Political and Social Affairs Division, Parliamentary Research Branch,
1999. Online: http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/modules/prb99-1-homelessness/index-e.htm
 Elizabeth Paton-Simpson, supra
note 15: “To the extent that they have any choice in the matter,
[reasonable people] generally refuse to be governed by suspicion and
paranoia, preferring to trust that their privacy will be respected.
They leave the relative security of their homes in order to survive and
participate in society, and their experience and expectation is that
public places do afford varying degrees of privacy.”
 In using the term “ghosts,” I am mindful of Jeffrey Reiman’s
theory that there would be no person, or moral agent, to whom moral
rights could be ascribed if it weren’t for the boundary drawing, person
creating, “social rituals” we call privacy. According to Reiman,
privacy “protects the individual’s interest in becoming, being, and
remaining a person”: Jeffrey Reiman, supra
note 10 at p. 25, 43-44. Charles Fried has similarly made the point
that privacy is integral “to regarding ourselves as the objects of
love, trust and affection” to understanding ourselves “as persons among
persons”: Charles Fried, “Privacy” (1967-68), 77 Yale L.J. 475, at p.
 I am not speaking here about what courts sometime refer to as “degrees of privacy” in the Charter
s. 8 context - as dependent on the type of search (the degree of
rights, for example, yielded by a search of a person, as opposed to a
search of a person’s home or vehicle). See, for example, Roback v. Chiang,  B.C.J. No. 3127 at para 14.