Meera Nair

privacy in Canada – part two

In Posts on June 1, 2014 at 7:23 pm

The current legislative situation regarding privacy confounds many Canadians, given that Prime Minister Harper and key players in his coterie have staunchly argued on the principles of privacy to dismantle past measures of data collection, even when those measures were supported by Conservative allies. Specifically, the long-form census and the long-gun registry were discarded despite opposition from prominent experts in the areas of finance and law enforcement.

In 2010, amidst a firestorm of criticism, the Prime Minister cancelled the mandatory long-form census and replaced it with an optional household survey. Objections poured forth from the provinces, municipalities, communities, businesses, educators, social advocates, health organizations, and more, including a former Bank of Canada governor.

Most telling, Munir Sheikh resigned his position as Chief Statistician of Statistics Canada, rather than acquiesce to a decision that could only damage Canadian wellbeing. Effective policy cannot be made without reliable data. (Indeed, Prime Minister Harper is likely feeling that headache now, as he tries to combat the problems of the temporary foreign worker visa program, without accurate information concerning where needs can be filled without placing Canadians at a disadvantage.)

The Prime Minister viewed the census as an intrusion into Canadian privacy, despite the rigorous controls enforced by Statistics Canada with respect to disclosure of the data. (Individual information was never revealed; only aggregate information was provided through a controlled request system.) Writing for the Progressive Economics Forum at that time, Armine Yalnizyan explored the Canadian system in detail and in comparison to other systems, and made plain that while personal data is gathered, the results are never personal. No privacy commissioner had ever seen fit to question the operations of Statistics Canada. Yet discarding the census was clearly a matter of principle, or so it must be seen. Tony Clement, then-Minister of Industry, made these remarks to the Standing Committee for Industry, Science and Technology:

Our government’s reason for replacing the mandatory census with a voluntary national survey on the long form is clear. We do not believe it is appropriate to compel Canadians to divulge extensive private and personal information.

So despite compromising effective decision making in his own government, Prime Minister Harper stood resolutely on the issue of privacy.

For those who might still have doubts, the demise of the long-gun registry offers further illustration of our Prime Minister’s formerly adamant views on privacy. A dogged six year battle (from 2006-2012) was needed to remove the registry from use. And, not content to merely end the requirement of registration, Prime Minister Harper sought to ensure that all existing data be destroyed. According to Jason Kenney, then-Minister for Citizenship and Immigration:

… we can protect the privacy rights of Canadians, and there are hundreds of thousands of law-abiding Canadians who are legitimate firearms owners who believe that database undermines their privacy rights, and our commitment was, for that reason, to get rid of that data.

When the registry was eliminated in 2012, it was over and above the objections of Canadian law enforcement agencies. For instance, an RCMP evaluation of the registry argued that it served a vital function towards public safety:

The program is often misperceived by the media and the public as being solely a registry. The administration of this national public safety program might better be compared with a provincial Motor Vehicles Branch, which is also involved in safety training, licensing and registration and is an important resource to law enforcement. …  There continues to be public safety threats in Canada caused by both the deliberate and accidental misuse of firearms, mostly through non-restricted firearms (long guns). … Regulation of firearms provides for greater accountability for the firearm (p.17)

The Canadian Association of Chiefs of Police also came out forcefully in favour of the registry. Bill Blair, then head of the association, indicated that “officers use the registry up to 11,000 times a day, both to investigate and prevent crime.”

With the Prime Minister favouring a law-and-order agenda in Canada, it is more than odd that he chose to ignore the opinions of those involved in law-and-order. One can only infer that privacy reigned supreme among Prime Minister Harper’s principles and was not to be compromised, even for political gain.

Returning to current events, perhaps knowing that she would not be permitted to speak to the Standing Committee, Ontario Privacy Commissioner Dr. Ann Cavoukian does not mince words in a letter to the Committee Chair, dated to 16 May 2014. Calling for revision of the pending legislation, she concludes with:

Canadians have a constitutional right to be secure from unreasonable search and seizure, including with respect to personal information held by third parties. The expansive surveillance proposals and entrenchment of sweeping immunity for digital service providers brings this right into question.

Cavoukian, along with the Canadian Bar Association and others, have encouraged the Government to separate Bill C-13 into separate pieces of legislation, one to address cyberbullying and the other for lawful access. Minister MacKay has refused such proposals; perhaps Prime Minister Harper may yet see wisdom in such a move.

Update – June 3  Jill Clayton, Elizabeth Denham and Ann Cavoukian (privacy commissioners of Alberta, BC and Ontario, respectively) ask the Standing Committee to “… postpone hearings on Bill C-13 until such a time as the Privacy Commissioner of Canada can appear and speak to this Bill …” ; their letter (dated 2 June 2014)  is available here.

Update – June 13 — a tumultuous ten days  

The contested appointment of a new privacy commissioner, with a somewhat surprising outcome, the unwillingness of the government to amend either C-13 or S-4, and a timely reminder from the Supreme Court of Canada that Canadians have an expectation of privacy, means that there will be continued pressure upon the government to reconsider its actions. With unanimity, the Justices declared: “The two circumstances relevant to determining the reasonableness of … expectation of privacy in this case are the nature of the privacy interest at stake and the statutory and contractual framework governing the ISP’s disclosure of subscriber information.”

Josh Wingrove, writing for the Globe and Mail, solicited opinion from privacy expert David Fraser; he emphasizes that this alone does not “throw out” parts of S-4 and C-13, but “… adds to the ammunition critics have had with respect to a number of the provisions.” Fraser provides ongoing analysis at his blog; among his preliminary remarks was this gem: “Contrary to the views of most police agencies and the government of Canada, this information is not innocuous phone book information but, ‘rather, it was the identity of an Internet subscriber which corresponded to particular Internet usage.'”

 

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