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Kathy Caldwell

This poetic trace was used in:
Poem 27:
I don’t get it I don’t get it I don’t get it I don’t get it

Police Request for Passenger’s Name during Highway Traffic Stop of Driver

I cannot distinguish the request for Mr. Harris’ name in this case from the questions in Mellenthin.  I appreciate that in one sense all that was asked of Mr. Harris was his identity.  Arguably, it is an exaggeration to say that that question constituted a “general inquisition” or “non-consensual dragnet” as per Mellenthin and R. v. Pinto, supra.  I acknowledge that the question is a simple one; however, providing that information not only in theory carries with it profound implications but, as seen in this case, can in reality have such implications. Ultimately, as Mr. Justice Hill held in Pinto, Mr. Harris was entitled to sit in silence while the Highway Traffic Act violation was investigated.

In Hunter v Southam Inc (1984), 14 C.C.C. (3d) 97 at 108-9, the Supreme Court of Canada noted that a major purpose of section 8 is the protection of privacy of the individual. The Crown argued in this case that there is no reasonable expectation of privacy in a name.  R. v. Plant, [1993] 3 S.C.R. 281 at para. 20 was cited in support:

…[S]ection 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.  This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.

It was argued that the state is privy to everyone’s name from the moment of birth, that this is information that individuals cannot control from dissemination to the state, and that it isn’t information which would reveal any details of lifestyle and personal choices.

To some extent, I agree with this submission.  Clearly, the state is aware of our names from birth, and the name itself does not encompass details of lifestyle or personal choice.   Plant, however, did not limit private information to information of such details.  

I disagree, however, that individuals cannot control its dissemination.  In fact, I find the contrary.  Questions about identity by the police when an individual is not detained are permissible because the individual can decide whether to answer or not and does not feel compelled to provide the information.  The fundamental difference in situations such as this one is that the individual does not perceive that he has a choice and feels compelled to answer.

In my view, there is a right to privacy in a name to the extent that individuals have a right to decide whether to reveal that information in a given situation.

I find, then, that the request for Mr. Harris’ name constituted an unreasonable search and seizure.