Privacy is the foundation of freedom of thought, freedom of expression, personal autonomy and human dignity. When citizens know (or have strong grounds to believe) that they are monitored, they behave differently, speak differently, and think differently.
The privacy rights of Canadians have long been protected by the common law, and, since 1982, by Section 8 of the Charter: “Everyone has the right to be secure against unreasonable search or seizure.”
Since 1982, the Supreme Court of Canada has strongly protected the privacy of Canadians in its rulings.
In Hunter v. Southam Inc. (1984), the Supreme Court held that Section 8 of the Charter protects against unjustified state intrusions upon a “reasonable expectation of privacy” wherever it exists — including in personal data, devices and communications.
In R v. Duarte (1990), the court held that secret electronic surveillance by the state violates Section 8 of the Charter. The court’s summary of that decision states, “The regulation of electronic surveillance is not directed at protecting a person from the risk that someone will repeat his words but from the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit his words.” Further, the court ruled that government cannot circumvent Section 8 by relying on intermediaries to obtain information that it could not legally access.
In R. v. Spencer (2014), the Supreme Court ruled that police could not request or access subscriber information held by internet service providers without a warrant — even if the internet service provider provided it voluntarily upon request.
In R. v. Marakah (2017), the court ruled that the sender of a text message retains a reasonable expectation of privacy even when his or her message is held on another person’s device. Police therefore require a warrant to search recipients’ phones for senders’ texts.
Each of these Supreme Court rulings marked a significant expansion of personal digital privacy rights.
Nevertheless, Canadians’ privacy rights are increasingly threatened by federal legislation that expands state access to personal information.
An Act respecting cyber security (Bill C-8), the Lawful Access Act (Bill C-22) and the Safe Social Media Act (Bill C-34) are recent examples of federal legislation that have been resoundingly denounced by privacy experts, tech companies and civil liberties organizations. These bills will expand law enforcement access to electronic data held by internet and electronic service providers, and form the building blocks of the surveillance state.
Bill C-8, passed on June 15, authorizes sweeping government powers over telecommunications systems and permits enforcement officials to access records and systems in the name of national and cyber security.
Bill C-22, currently before the Senate, would lower the threshold for obtaining subscriber information from electronic service providers from “reasonable grounds to believe” to the weaker standard of “reasonable grounds to suspect” that a crime has or will occur. Bill C-22 would also authorize new warrantless demands for information and allow the government to order that service providers retain Canadians’ metadata for up to six months.
Bill C-34, now at second reading in the House of Commons, would open the door to requiring all Canadians to prove their ages and identities to access social media platforms, leading to increased collection of personal information by social media platforms, AI companies and perhaps even government institutions. It would also create a new Digital Safety Commission with vast but largely undefined powers to regulate the internet and punish non-compliance with fines of up to $10 million or three per cent of a company’s global revenues.
Together, these laws form the foundation of an emerging surveillance state that can resemble the “social credit” system in communist China.
Some existing older laws create similar risks. The federal anti-money-laundering regime, set out in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, requires extensive collection and sharing of personal financial information. Under the Customs Act, border officials exercise broad authority to search our smartphones.
Presented as necessary for the ever-popular cause of safety and security, these new and existing older federal laws authorize broader government access to Canadians’ digital lives, enabling government to monitor communications, financial transactions and online activities. Canadians should reject the false choice between privacy and security.
Protecting privacy is essential not only to safeguarding personal information, but to preserving freedom itself. Governments can and should enable more effective measures to fight crime without violating constitutional safeguards.
John Carpay, BA, LLB, is President of the Justice Centre for Constitutional Freedoms.
