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Governing Privacy in the Digital Age
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- Author / Creator
- Fehr, Colton
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Courts and legislatures in Canada and around the world have struggled to respond to the challenges posed by rapidly advancing and complex technologies. As a result, American scholars have debated the appropriate role of each institution with respect to crafting criminal procedure rules implicating digital technologies. Yet, the Canadian literature has only sparsely addressed the ability of Canadian courts and legislatures to respond to the digital age. My dissertation begins to fill this gap in the literature. I do so by asking whether the judiciary and Parliament have been able to develop criminal procedure rules implicating digital technologies in an efficient, coherent, and fair manner. As with American courts, I find that the Canadian judiciary often lags behind technological advancement. Although for somewhat different reasons, Canadian judges also frequently fail to receive adequate evidence with which to craft digital privacy rules. Similarly, I conclude that Parliament’s framework for governing state intrusions onto digital privacy has been patchwork and inconsistent. Unlike the American experience, however, public choice theory concerns rarely threaten Parliament’s ability to legislate fairly.
I use these findings to serve two further aims. First, I conduct a comparative analysis of the American and Canadian experiences. In so doing, I identify several considerations relevant to the adversarial and legislative processes which impact judicial and legislative capacity to craft digital privacy rules. These factors include differences in each countries’ method(s) for interpreting its constitution; the structure of the right to be protected from state searches and seizures; the available remedies for breaches of constitutional rights; the judicial system’s willingness to depart from earlier precedents; the role of interveners in the adversarial system; and the particular legislative model used for passing digital privacy laws. Paying heed to these considerations will allow other jurisdictions to learn from the Canadian and American experiences when refining their approaches to governing state intrusions onto digital privacy.
Second, I develop a variety of institutional strategies for governing digital privacy in the Canadian criminal procedure context. In so doing, I prescribe not only how courts and Parliament should respond to the challenges of governing digital privacy, I also consider whether an administrative governance framework might better achieve the aims of rendering more efficient, coherent, and even-handed rules. Utilizing administrative rulemaking can ensure rules are made more efficiently and with well-informed factual backgrounds. Yet, providing unelected, non-judicial decision-makers with significant deference when applying constitutional doctrine requires a more critical assessment than undertaken by its supporters. Majoritarian and public choice theory concerns, I maintain, serve as a strong, though not definitive, impediments to an administrative approach to crafting criminal procedure rules.
In light of these concerns, I contend that a multi-institutional approach ought to be adopted in Canada. Parliament should decide rules that will remain relatively stable. Agencies should create rules with unstable and complex factual backgrounds, such as searches and seizures of complex digital technologies. Courts, however, should not show deference to either actor. This refusal is justified for two reasons. First, judicial review is necessary to counter strong majoritarian concerns inherent to the criminal law. Second, my proposed external aid to assist courts in fact finding ensures judges will be equipped to conduct judicial review. Although this division of labour inserts some rule uncertainty into the field of criminal procedure, the trade-off best ensures that digital privacy rules are made in an efficient and coherent manner, as agencies are most likely to meet these ends. It also allows courts to do what they do best: ensure the rules balance the privacy and security interests at the heart of criminal procedure.
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- Subjects / Keywords
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- Graduation date
- Spring 2021
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- Type of Item
- Thesis
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- Degree
- Doctor of Philosophy
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- License
- This thesis is made available by the University of Alberta Libraries with permission of the copyright owner solely for non-commercial purposes. This thesis, or any portion thereof, may not otherwise be copied or reproduced without the written consent of the copyright owner, except to the extent permitted by Canadian copyright law.