New Canadian Surveillance Bill Recipe for Government Abuse of Power

When Harper’s anti-terrorism czar Vic Toews tells Canadians that they should trust their government not to abuse the new set of Orwellian measures that he is proposing with his online surveillance bill, you know it’s time to sound the alarm!

In much the same way the Government deliberately stokes hysteria over terrorist threats to legitimize the re-enactment of the invasive clauses of the Anti-Terrorism Act, by claiming falsely that Police have already used them (Ottawa Citizen, Sept.6, 2011). The Minister of Public Safety has already obfuscated the real concerns regarding the threat to civil liberties posed by this bill, by invoking that old conservative standby of protecting helpless children from voracious sexual monsters that lurk under their beds and on the internet!!!!

Seemingly inspired, by the Peoples Republic of China’s approach to monitoring the internet, and ignoring all pretense of libertarian values (somehow Harper can justify this infringement, while calling the long form census an intolerable violation of individual privacy?), Towes’ bill proposes that the government be allowed to access and collect e-mails, phone numbers, addresses, etc., all without the hassle of seeking a judicial warrant.

Minister Toews defended the proposed law by claiming that it “strikes an appropriate balance” between privacy rights and protecting Canadians from all manner of web based threats. Except that it obviously favours the latter at the expense of the former. Consider that these draconian measures are being opposed by the one government official charged with protecting our privacy, the Privacy Commissioner.

In an open letter to the minister, Jennifer Stoddart chastised the government for going “far beyond simply maintaining investigative capacity or modernizing search powers. Rather, they added significant new capabilities for investigators to track, and search and seize digital information about individuals. And this is where, as a student and teacher of Canadian constitutional law my alarm bells are ringing”, because she also said the government simply “has not convincingly demonstrated that there are no less privacy-invasive alternatives available to achieve its stated purpose.” This last point could be fatal, if the measure ever comes before the courts on the grounds that it infringes the Charter of Rights & Freedoms.

Back in ’86 Chief Justice Dickson (with a great deal of help from a promising young law clerk named Joel Bakan author of The Corporation) laid down what would eventually become known as the Oakes test. Basically, could the government make the case that the curbing of a basic right guaranteed by the Charter on the grounds that it was “demonstrably justified in a free & democratic society?” This “test” also contains an important element established by the supreme court in numerous subsequent precedents, which is does the measure in question represent a “minimal impairment” to the human rights of the individual. In other words, are there alternative methods available to Parliament that would cause less damage to a person’s right to privacy? Every jurist worth her salt knows that this is the biggest obstacle to be overcome by the State in its attempts to limit our Charter rights.

This bill appears to be hopelessly flawed in that it will almost certainly lead to a chilling scenario of government abuse of surveillance powers that was described disturbingly by NDP Digital affairs critic Charlie Angus, as a case of “‘Not if, but just how extreme that abuse could be.”


Vic Toews

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