New case law has arrived since the debate over the Lawful Access Bill ended this spring. Before commenting on it, I would like to make a small detour to clear up one point. The lack of a federal position paper that would canvass the rich body of case law might lead one to wonder about the approach taken to judicial review of legislation. It is most disconcerting to read a full 30 years after the Charter became part of the “People’s Package” making up our new Constitution that somehow it might not be entirely legitimate for courts to scrutinize legislation carefully when a challenger makes a Charter claim.6 Given that all governments in 1982 explicitly endorsed the Charter of Rights (with the exception of the Quebec government) and that surveys continually show that Canadians, especially Quebeckers, fully support the Charter, which makes up the “supreme law of Canada” (s. 52 Constitution Act), surely there can be no question of the courts applying that law, together with a statute, to the case before them. As Alberta’s Premier, Alison Redford, made clear earlier this year in a significant endorsement of the Charter at a national conference of lawyers: “our Charter is fundamental to our past success, and to our children’s ability to embrace our future with confidence.”7
Much of the beauty of the Charter as an instrument for guiding public policy is that its influence is not restricted to merely reacting to a Supreme Court decision. The Charter provides guidance which enables various actors to frame their debate and make careful decisions which hopefully will avoid the need for further court action. This idea is the notion of a “Charter dialogue.” As Justice Iacobucci states in Vriend v. Alberta: “A great value of judicial review and this dialogue among the branches is that each of the branches is made somewhat accountable to the other… This dialogue between and accountability… have the effect of enhancing the democratic process, not denying it.”
Recent case law further bolsters the position of privacy advocates that a genuine effort at balancing needs to occur with respect to proposed surveillance going beyond what is already in the Criminal Code. I recently had the wonderful opportunity to talk with two of Canada’s privacy commissioners, Ann Cavoukian, Ph.D., Information and Privacy Commissioner of Ontario and Jill Clayton, Information and Privacy Commissioner of Alberta, which expanded my thinking on the issues generally and helped me focus on the most recent cases. In R v. Tse the Supreme Court ruled that the failure of authorities to provide after-the-fact notice to targets of wiretaps, done without warrant, violated s. 8 of the Charter. Even though the Criminal Code provision under challenge included stringent conditions to ensure that relaxing the requirement for a warrant be used solely in difficult conditions, failure by government to include accountability measures was fatal to the section’s validity. The Court states that even in the exceptional circumstances where prior judicial authorization for the wiretap will not be essential to a “reasonable search”, additional safeguards will generally be required to prevent abuse. In this case, additional safeguards were necessary and no such adequate safeguards were inserted. This decision perhaps will provide an impetus to seeking out adequate safeguards for future federal legislative proposals.
Another case whose implications must still be worked through is the 2011 Ontario Court of Appeal decision, Jones v. Tsige, which carefully considered and utilized Charter jurisprudence and values to develop a tort of invasion of privacy, or “intrusion upon seclusion”. The Court’s recognition that substantial harm can be created by invasion of privacy by accessing personal records should reawaken any dormant concerns about just how valuable the privacy of ordinary citizens is.
In the unique situation Canadian democracy finds itself in, it is particularly important that new surveillance initiatives in Parliament be preceded by detailed papers outlining the proposals so that they can be studied and then commented upon by all who might be affected – in this case, potentially all Internet users. This is because a Canadian prime minister is granted powers that are hefty indeed. Numerous books and articles have commented on the democratic deficit and the need to “democratize our constitution” when it comes to what are essentially the law-making powers accruing to a prime minister. For instance, veteran political commentator Jeffrey Simpson, wrote in his book The Friendly Dictatorship ( 2001), “Canadian parliamentary democracy, as it has evolved, places more power in the hands of the prime minister than does any other democracy, far more than the U.S. President wields, but more, too, than political leaders exercise in other parliamentary regimes. Those seeking a check or balance against this almost unbridled prime-ministerial power remain frustrated…”
A more recent study, involving a thorough analysis by a number of political science experts, concludes that a Canadian prime minister indeed outpaces all other democratic leaders, rating a phenomenal score of 8.24 ( out of 9). The prime minister of Malta placed a distant second at 7.16 and the Swedish prime minister was well back of the pack at 6.01.8 What we might dub the “Northminster Model” means that Her Majesty’s Loyal Opposition will need all the help they can get when privacy initiative are brought forward.
Commissioner Jill Clayton was particularly helpful in taking me through the rather torturous process of reviewing various Parliamentary bills on lawful access going all the way back to proposals made by the previous federal government in 2002. Every privacy commissioner in the country has made valiant efforts to draw attention to the dangers created by overly zealous attempts to modernize the regulation of telecommunications for law enforcement purposes. She told me that she came to the world of privacy and access oversight with a degree in history, so I felt I could count on her to properly recount the successive waves of surveillance initiatives. I gulped when I heard her say that she found looking back to be a somewhat disheartening experience. She pointed me to the various open letters sent by the group of Canada’s privacy commissioners in the recent past, warning that the proposed legislation in question would “substantially diminish the privacy rights of Canadians.”
Ontario Privacy Commissioner Ann Cavoukian made a number of striking observations which refuted the arguments of the advocates of the Lawful Access Bill. She pointed out that Canadian, American and European history shows that intrusive powers will be used not only to target criminals, but also people seen as “troublemakers,” including political activists, reporters, academics, and artists, as well as certain minorities. Hence, the importance of ensuring that forthcoming surveillance and intelligence powers come with the safeguards necessary to ensure their proportional, transparent and accountable use.
It is often suggested that people with “nothing to hide” – i.e. supposedly most ordinary citizens – have no reason to fear increased surveillance measures. In fact, there are many ways that the collection of pieces of personal information might be harmful. Further, as the Commissioner points out, privacy is about individual dignity and autonomy, concepts which include the right to exercise significant control over your own personal space and personal information. She connects her privacy overview to the recent Ontario Court of Appeal decision, R v. Ward, which stated that the right to privacy includes the concept of “public privacy” – the right to seek and find freedom from identification and surveillance with respect to activities engaged in within public spaces (R v. Ward).
Commissioner Cavoukian has played a particularly vital role in engaging with public officials and those with specific interests and viewpoints to understand their concerns and communicate the fundamental privacy and public security issues at stake. She, Commissioner Clayton, and the other privacy commissioners, can be counted on to voice their carefully considered concerns in the future as discussions and debates proceed. Commissioner Cavoukian emphasizes that the key is to adopt an engaged, principled and pragmatic approach and that she is optimistic that this approach will be reflected in the law Parliament ultimately enacts. Buoyed by her optimism, I too look forward to a federal position paper that will address the concerns voiced by privacy commissioners, other privacy advocates and ordinary citizens. But at the same time, I remain on red alert for any legislation that might seriously intrude on our right to privacy. If that were to transpire, some of us would need to exit the information highway and travel the back roads of the old hippie highway with Neil.
This article is dedicated to my friend and a champion of rights and freedoms, Boris Kelmer (1954-2008).
1 Orwell and Politics, Penguin Books, at 499-500.
2 CBC News, “Toews Surprised by Content of Online Surveillance Bill,” Posted Feb 18, 2012.
3 Olmsted v United States 277 US 438 (1928).
4 “Toews Surprised by Content of Online Survellance Bill, supra, see also Bill C-30, Protecting Children from Internet Predators Act.
5 Supreme Court of Canada Website / About the Court, “Remarks of the Right Honourable Beverly McLachlin, P.C., Chief Justice of the Supreme Court of Canada, Access to Information and Protection of Privacy in Canadian Democracy, May 5, 2009.
6 Maclean’s, “Harper v. The Judges,” Aug 21, 2012.
7 Lawyers’ Weekly, “Celebrate the Charter: Depends Who You Ask,” Aug 24, 2012 at p.1.
8 Eoin O’Malley, “The Power of Prime Ministers: Results of an Expert Survey,” 28 Intl Political Science Review at 7 – 27; Peter Aucoin, Mark D Jarvis, Lori Turnbull, Democratizing the Constitution, Emond Montgomery, 2011.