I was disappointed by last week's decision of the Supreme Court of Canada in the case R. v. S.A.B., 2003 SCC 60 and the point of my disappointment sits right at the outset of the ruling. In paragraph 1 of the ruling for the entire Court by Arbour J,. she of the Former Yugoslavia war crimes prosecutions, it is stated:

This appeal concerns the constitutionality of the DNA warrant provisions contained in ss. 487.04 to 487.09 of the Criminal Code, R.S.C. 1985, c. C-46. For the reasons below, I have concluded that ss. 487.04 to 487.09 conform with the constitutional requirements of a reasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms. There is no need to engage in a separate s. 7 analysis.

As I noted last week, we have spheres of autonomy in decision making under section 7. There are decisions we make which the government cannot over-rule. We make those decisions based on information and personal characterisitics we know ourselves to have. Some of the data is about the facts of our physical form, the physical integrity we enjoy in a free society. This is noted in the ruling of Justice Arbour where it is stated:

The taking of bodily samples can involve significant intrusions on an individual's privacy and human dignity (Stillman, supra, at para. 51). However, the extent to which there is such an intrusion will depend on the circumstances. In weighing the reasonable privacy interests that are at stake when a DNA warrant is issued, it is useful to consider the categories set out by La Forest J. in R. v. Dyment, [1988] 2 S.C.R. 417, at p. 428: privacy may include territorial or spacial aspects, aspects related to the person, and aspects that arise in the informational context. It is the latter two aspects that are at issue under this legislation.

In 1998 the same Supreme Court, in Aubry v. Éditions Vice-Versa Inc., [1998] 1 S.C.R. 591, a case on the Quebec Charter of Rights (which expressly includes privacy rights), stated at para 52:

If the purpose of the right to privacy guaranteed by s. 5 of the Quebec Charter is to protect a sphere of individual autonomy, that right must include the ability to control the use made of one's image, since the right to one's image is based on the idea of individual autonomy, that is, on the control each person has over his or her identity. It can also be stated that this control implies a personal choice.

This passage is interesting as it may establishes a link between the sphere of individual autonomy and privacy and that privacy exists to protect the sphere of individual autonomy. Is the reciprocal is true? If the purpose of the right to privacy is to protect the sphere of autonomy, does judicial acknowledgement of the sphere also imply the protection of it by privacy and, therefore, the existence of a broader scope to privacy under the Canadian Charter of Rights?

Given this, in the S.A.B. ruling, however, the connection between our autonomy in decision and the lack of similar autonomy in our corporeal substance is not set out clearly. I am not contesting the outcome of the ruling. I just wish the Court had shown its work more clearly - to discuss the relationship between the section 8 privacy and freedom from unreasonable search and seizure and the section 7 liberty which gives us an irreducable sphere of autonomy in personal decision making which may very well also include a privacy right.

Are the different privacies so different that they can be ruled upon without a comprehensive statement connecting them?