Privacy as Modesty and the Uninterrogated Equality Rights of LE
posted by:Jane Bailey // 11:59 PM // February 27, 2007 // ID TRAIL MIX
On August 25, 1995, LE, a 42-year-old single mother of two, attempted to pay for a cab with an invalid credit card.  The cab driver refused LE’s subsequent offer to pay with cash she had quickly arranged to borrow from another tenant in her building. Instead, the driver notified the police. After a CPIC search, the officer called to the scene found evidence of an outstanding warrant for failing to appear at trial relating to charges of obtaining credit by false pretences. In the 18 hours that followed, LE was strip searched, confined to a cell under video surveillance, denied a blanket despite the cold temperature in the cell (since apparently no blankets were available at the time), after which she was observed pretending to hang herself from the cell bars with her bra strap, forcibly stripped of her clothing after she refused to remove them, told not to position herself in the cell so as to escape video surveillance (which she refused to do) and ultimately handcuffed naked to the cell bars where she was visible to all those passing by for at least 20 minutes until blankets (ironically) were taped to the outside of the bars, according to the trial judge, “in order to give [her] some privacy” [para. 41].
LE’s civil action alleging, amongst other things, negligence, assault and breach of her ss. 7 and 12 Charter rights was dismissed. Almost as disturbing as the facts of the case itself, are the motifs of privacy’s gendered legacy present in the trial and Court of Appeal decisions. Even more fundamentally, what emerges from the case is a transparent example of what Lise Gotell has referred to as the “nothingness” of privacy as it is currently framed in law and the seeming futility of purely privacy-based claims for members of many equality-seeking communities [(2006) 43 Alta. L.R. 743].
The trial judge found that the authorities’ forcible removal of LE’s clothing was consistent with an established policy of removing the clothing of both male and female prisoners who have attempted suicide or who, as in LE’s case, have pretended to attempt suicide. The judge further found that the policy was reasonable and noted that LE was left “without the blankets protecting her modesty for a period not exceeding 20 minutes”[para. 42]. LE’s “modesty” is referred to four more times in the reasons of the Court of Appeal – generally in the context of the Court’s conclusion that the trial judge adequately considered LE’s privacy and dignity claims. As Anita Allen and Erin Mack have carefully demonstrated, the gendered legacy of privacy has frequently meant that privacy claims are afforded different content, depending upon the gender of the person asserting them [(1990) 10 N. Ill. U. Rev. 441]. The privacy of male claimants has typically been understood in the case law as necessary for independence and autonomy of choice, while for women “privacy” has too often been analysed as necessary for maintaining “modesty” – a term simply serving as code for a classed and raced analysis that saw women’s forced seclusion in the “privacy” of the home as the preferable means to protect their most highly prized possession – their “virtue”. To understand what happened to LE as primarily an affront to her “modesty” is to ignore both its impact on her status as a thinking, independent, autonomous human being, as well as the way in which that affront depended for its dehumanizing impact on the stereotypical shaming associated with public exposure of women’s bodies.
Apart from the unnamed, but gendered characterization of privacy in the judgments, the Court of Appeal’s perhaps most jarring line states: “[LE] properly conceded in oral argument before this court that there is no free-standing right to dignity or privacy under the Charter or at common law” [para. 63]. In the absence of a s. 8 claim relating to unreasonable search and seizure or a claim premised on some other specific statutory authority (like that provided, for example, to convicted sex offenders whose information or DNA is sought for inclusion in a government-run registry or databank), as far as the law is concerned, it seems women in the position of LE can really only talk about whether the conduct of authorities is consistent with Charter values – with privacy being one of them. Unless they can wedge their claims into one of these other pigeon-holes, they have no independent legal grounds for asserting a claim that being handcuffed naked to cell bars in full view of passersby, while also under video surveillance, constitutes a violation of their privacy. (And presumably, similarly, no independent basis for asserting a claim that a policy that automatically requires stripping prisoners of their clothing after they have attempted suicide or feigned such an attempt, violates the “right” to privacy – since no such independent right exists.) Interestingly, the Court of Appeal’s jarring statement was more recently relied upon by a court as the basis for striking out a privacy claim asserted by a Black woman lawyer in relation to alleged racist epithets by another lawyer [ OJ No. 4134].
It is striking to so directly confront the idea that for Canadians privacy is little more than an interpretive principle for assessing the conduct of the authorities unless the claim arises in the context of a “search and seizure” or under a specific statute that adverts to a right of privacy, when so many of us (particularly in socially disadvantaged communities) are so regularly exposed to exercises of authority that have little or nothing to do with these situations. In the context of claims such as LE’s, where the gendered and raced legacy of privacy and dignity are so evident, I cannot help but revert again to the need for an understanding of privacy and dignity premised upon and framed within the “free-standing right” to substantive equality. Under that rubric, we might interrogate some different questions. While the policy of stripping all prisoners who attempt or feign an attempted suicide is facially written to apply equally to men and women, we must ask against persons of which race and gender is it statistically more likely to be applied? And how might such a policy’s meaning and effect be interpreted differently if it were considered in the context of gender and race inequality and the discriminatory sexualized stereotypes of Aboriginal and Black women that Gotell, and Allen and Mack have shown to be the basis for denying some women even the minimalist patriarchal protection of “modesty” historically afforded middle class white women? How are we to understand the meaning of privacy and dignity for those of us in equality-seeking communities unless the law is required to interrogate them in context?
It seems the best hope for privacy and dignity is equality.
 The following discussion is based on: LE v. Lee,  O.J. No. 4533 (SCJ) ; rev’d  O.J. No. 4239 (SCJ, Div Ct); rev’d (2005) 77 O.R. (2d) 621 (CA); leave to appeal refused,  SCCA No. 516. Prior to dismissing LE’s application for leave to appeal, the SCC had dismissed a motion by Aboriginal Legal Services of Toronto, Inc. to intervene on the application for leave to appeal.