Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764 Supreme Court of Canada

Source: http://scc.lexum.org/en/2000/2000scc57/2000scc57.html






Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764







The Attorney General of Canada Applicant







v.







Stephen Joseph Harper Respondent











Indexed as: Harper v. Canada (Attorney General)







Neutral citation: 2000 SCC 57.







File No.: 28210.







2000: November 10.







Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.







motion for a stay







Practice ‑‑ Stay ‑‑ Federal elections ‑‑ Spending limits ‑‑ Plaintiff granted interlocutory injunction against enforcement of third‑party spending limits pending decision on his constitutional challenge to legislation ‑‑ Whether injunction should be stayed.











The respondent sought a declaration that the provisions in the Canada Elections Act, S.C. 2000, c. 9, imposing limits on third‑party spending on advertising in the course of a federal election campaign are unconstitutional because they unjustifiably limit the right of free expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The issue has gone to trial but judgment has not yet been rendered. An election writ has been issued with a polling date of November 27, 2000. The respondent immediately applied for an interlocutory injunction restraining the enforcement of the third‑party spending limits, pending the decision in the action. The same judge who heard the trial granted the injunction, which was upheld by the Court of Appeal. The Attorney General of Canada applies to this Court for leave to appeal from the interlocutory injunction and, in the interim, for a stay of the injunction.







Held (Major J. dissenting): The stay should be granted.







Per McLachlin C.J., L’Heureux‑Dubé, Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ.: In considering whether an injunction should be granted, and by extension whether an injunction should be stayed pending appeal, the Court considers: (i) whether there is a serious issue to be tried; (ii) whether absent an injunction there will be irreparable harm to the individual seeking the injunction; and (iii) the balance of (in)convenience. This case turns on an analysis of the third ground -‑ the balance of (in)convenience.











The public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to freedom of expression caused by those limits. To leave the injunction in place is to grant substantial success to the respondent even though the trial has not been completed. It is taken as given at this stage that the legislation imposing spending limits on third parties will serve a valid public purpose. Weighing these factors against the partial limitation on freedom of expression imposed by the restrictions, the balance of convenience favours staying the injunction. Courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.







Per Major J. (dissenting): The interim injunction furthers the Charter’s guarantee of freedom of expression, and the respondent has displaced the assumption that the government suffers a greater harm than he does. Thus, the balance of convenience tips sharply in favour of the respondent. The chambers judge made no error and was entitled to reach the conclusion that the balance of convenience favoured injunctive relief. We should be loathe to interfere with political speech, especially in the midst of a federal election.







The Attorney General admitted that there was a violation of s. 2(b) of the Charter, but did not offer any evidence to show that the injunction would cause some harm. The presumption that legislation generally identified as serving a public interest is prima facie valid should not be conclusive where it competes against the acknowledged impediment to an individual’s free speech unless there is some evidence demonstrating an impediment of a public interest. Furthermore, the assumption that the public interest will suffer irreparable harm when an injunction stops an authority from protecting the public good can be overcome when an applicant demonstrates that the injunction itself serves the public interest. Finally, this case falls within an exception to the principle that the effect of democratically enacted legislation should not be suspended before a finding of unconstitutionality or invalidity.







Cases Cited







By McLachlin C.J. et al.







Applied: Gould v. Attorney General of Canada, [1984] 2 S.C.R. 124; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; Haig v. Canada, [1993] 2 S.C.R. 995; RJR‑-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; referred to: Thomson Newspapers Co. v. Canada (Attorney General), Bulletin of Proceedings of the Supreme Court of Canada, 1997, p. 882.







By Major J. (dissenting)







Switzman v. Elbling, [1957] S.C.R. 285; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; RJR-‑MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042; Attorney General of Canada v. Gould, [1984] 1 F.C. 1133, aff’d [1984] 2 S.C.R. 124.







Statutes and Regulations Cited







Canada Elections Act, S.C. 2000, c. 9, s. 350(1), (2), (3), (4).







Canadian Charter of Rights and Freedoms, ss. 1, 2(b).







Authors Cited







Berryman, Jeffrey. The Law of Equitable Remedies. Toronto: Irwin Law, 2000.











Cassels, Jamie. “An Inconvenient Balance: The Injunction as a Charter Remedy”, in Jeffrey Berryman, ed., Remedies: Issues and Perspectives. Scarborough, Ont.: Carswell, 1991, 271.







Roach, Kent. Constitutional Remedies in Canada. Aurora, Ont.: Canada Law Book (loose‑leaf updated 2000, release 7).







Sharpe, Robert J. Injunctions and Specific Performance. Aurora, Ont.: Canada Law Book (loose‑leaf updated 1999, release 7).







MOTION to stay a judgment of the Alberta Court of Appeal, [2000] A.J. No. 1240 (QL), affirming an order of the Court of Queen’s Bench, [2000] A.J. No. 1226 (QL), enjoining the enforcement of s. 350(1), (2), (3) and (4) of the Canada Elections Act. Motion granted, Major J. dissenting.







Written submissions by Graham Garton, Q.C., and Thomas W. Wakeling, for the applicant.







Written submissions by Alan D. Hunter, Q.C., and Eric Groody, for the respondent.







The following is the order delivered by











1 The Chief Justice and L’Heureux-Dubé, Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ. – On May 31, 2000, Parliament passed the Canada Elections Act, S.C. 2000, c. 9 (the “Act”), imposing limits on third-party spending on advertising in the course of a federal election campaign. The law came into force on September 1, 2000. Our reasons in this application relate solely to the issue of whether an injunction which suspended the enforcement of certain provisions pertaining to third-party spending limits should be stayed. They do not deal with the granting of leave to appeal the injunction order nor any ensuing appeal. They also do not deal with the question of whether the Act is unconstitutional.







2 The respondent Stephen Joseph Harper commenced an action on June 7, 2000 before the Alberta Court of Queen’s Bench, seeking a declaration that the spending limits are unconstitutional because they unjustifiably limit the right of free expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The trial commenced on October 2 and adjourned on October 13, after nine days of evidence.







3 On October 22, an election writ was issued, with a polling date of November 27, 2000. Mr. Harper applied to the same trial judge (Cairns J.), who heard the action seeking a declaration that the spending limits are unconstitutional, for an interlocutory injunction restraining the Chief Electoral Officer of Canada and the Commissioner of Canada Elections from enforcing the third-party spending limits, pending the decision in the action. The trial judge granted the injunction ([2000] A.J. No. 1226 (QL)), and the Alberta Court of Appeal upheld it ([2000] A.J. No. 1240 (QL)). The Attorney General of Canada now applies to this Court, seeking leave to appeal from the interlocutory injunction and, in the interim, a stay of the injunction. The application for leave to appeal is granted, by separate order, released concurrently. This leaves the question of whether the injunction restraining the enforcement of the law imposing spending limits should be stayed.











4 In considering whether an injunction should be granted, and by extension whether an injunction should be stayed pending appeal, the Court considers: (i) whether there is a serious issue to be tried; (ii) whether absent an injunction there will be irreparable harm to the individual seeking the injunction; and (iii) the balance of (in)convenience. Without prejudging the appeal, we are satisfied there is a serious issue to be tried. The issue is no less than the constitutionality of provisions of the electoral law passed by the Parliament of Canada which no court has held to be invalid. This is a serious issue not only because the constitutionality of the provisions is challenged, but because it is common ground that the determination of the constitutionality will turn on the application of s. 1 of the Charter, which is always a complex factual and legal analysis. We also assume that the provisions in issue may occasion “irreparable harm” to the capacity of third parties to participate as they wish in the election campaign to the extent of the spending limits on advertising imposed on them. This leaves the third ground, the balance of convenience.







5 Applications for interlocutory injunctions against enforcement of still-valid legislation under constitutional attack raise special considerations when it comes to determining the balance of convenience. On the one hand stands the benefit flowing from the law. On the other stand the rights that the law is alleged to infringe. An interlocutory injunction may have the effect of depriving the public of the benefit of a statute which has been duly enacted and which may in the end be held valid, and of granting effective victory to the applicant before the case has been judicially decided. Conversely, denying or staying the injunction may deprive plaintiffs of constitutional rights simply because the courts cannot move quickly enough: R. J. Sharpe, Injunctions and Specific Performance (loose-leaf ed.), at para. 3.1220.











6 The trial judge found that the freedom of speech interest raised by the applicant Harper to be of great importance. On the other side of the balance, he found that the Attorney General of Canada had called no evidence on the harm that would result from suspending the operation of the law. In the absence of evidence, he characterized this harm as “notional unproven unfairness” (para. 35). Accordingly, he found that the balance of convenience favoured the grant of an injunction.







7 We cannot, with respect, agree. This application is governed by the principles set forth in previous cases. On appeal the applicant Harper may seek alteration of these principles, but for the moment they govern. Applying these principles, the balance of convenience in this case favours granting the stay of the injunction. One of these principles is the rule against granting the equivalent of final relief in interlocutory challenges to electoral statutes, even in the course of elections governed by those statutes: Gould v. Attorney General of Canada, [1984] 2 S.C.R. 124; see also Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, per Beetz J., at p. 144; Haig v. Canada, [1993] 2 S.C.R. 995. In this case, allowing the injunction to stay in place will in effect give Mr. Harper the ultimate relief he seeks in his action, at least with respect to the current election. The trial judge, however, did not address this factor, nor the case law which addresses it.







8 It may also be noted that, in Thomson Newspapers Co. v. Canada (Attorney General), S.C.C., No. 25593, May 7, 1997 (published in the Bulletin of Proceedings of the Supreme Court of Canada, 1997, at p. 882), this Court refused to grant a stay suspending the enforcement of the provisions mandating publication bans on opinion polls set forth in the Canada Elections Act, R.S.C., 1985, c. E-2, s. 322.1. In so doing, the Court relied on its previous decision in Gould, supra. The Court refused the stay even though the ultimate decision found the poll prohibition to be unconstitutional.











9 Another principle set out in the cases is that in considering the grant of an interlocutory injunction suspending the operation of a validly enacted but challenged law, it is wrong to insist on proof that the law will produce a public good. Rather, at this stage of the proceeding, this is presumed. As Sopinka and Cory JJ. stated in RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at pp. 348-49:







When the nature and declared purpose of legislation is to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect. It must be assumed to do so. In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a public benefit.











It follows that in assessing the balance of convenience, the motions judge must proceed on the assumption that the law -- in this case the spending limits imposed by s. 350 of the Act -- is directed to the public good and serves a valid public purpose. This applies to violations of the s. 2(b) right of freedom of expression; indeed, the violation at issue in RJR--MacDonald was of s. 2(b). The assumption of the public interest in enforcing the law weighs heavily in the balance. Courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.











10 Again, the trial judge appears not to have applied this principle in weighing the benefits of the law against its impact on free expression. Instead of assuming that the legislation has the effect of promoting the public interest as RJR--MacDonald directs, the trial judge based his conclusion on the fact that the Government “has not adduced any evidence to illustrate unfairness in any of these elections in Canada caused by third-party spending limits” (para. 33). He went on to repeat that the “Government simply asserts that third-party spending limits, if not controlled, may (and that is notional only) impact adversely on the fairness of elections” (para. 34), and moved directly from this to the conclusion that leaving the spending limits in place “would clearly cause more harm in the public interest than the notional unproven unfairness suggested by the Government” (para. 35). Moreover, the trial judge made no mention of the fact that the law may be seen not only as limiting free expression but as regulating it in order to permit all voices during an election to be heard fairly.







11 Applying the principles enunciated in previous decisions of this Court, and without prejudging the outcome of any appeal from the injunction, we are satisfied that the public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to freedom of expression caused by those limits. To leave the injunction in place is to grant substantial success to the applicant Harper even though the trial has not been completed. Moreover, applying RJR--MacDonald, we must take as given at this stage that the legislation imposing spending limits on third parties will serve a valid public purpose. Weighing these factors against the partial limitation on freedom of expression imposed by the restrictions, we conclude that the balance of convenience favours staying the injunction granted by the trial judge.







Conclusion







12 We therefore conclude that a stay of the order enjoining the enforcement of s. 350(1), (2), (3) and (4) of the Canada Elections Act should be granted.







The following are the reasons delivered by











13 Major J. (dissenting) — The facts that accompany this application by the Attorney General of Canada for a stay of the injunction obtained in Alberta are not in dispute. The chambers judge, relying on the pleadings and the evidence at the trial, faced the concession that the plaintiff Mr. Harper’s freedom of expression was restricted by the legislation. Weighed against this was the inability of the Attorney General to demonstrate that the injunction would cause any inconvenience (see [2000] A.J. No. 1226 (QL), at paras. 34-35, per Cairns J.):







The Government simply asserts that third-party spending limits, if not controlled, may (and this is notional only) impact adversely on the fairness of elections. Yet, it can point to no evidence to illustrate unfairness in the Canadian elections caused by third-party spending.







In my judgment, the spending limits having the deleterious effect of fettering the core freedom of expression and speech as enshrined in the Charter, as they do and as admitted by the Attorney General of Canada, would clearly cause more harm in the public interest than the notional unproven unfairness suggested by the Government.







14 As described in the reasons of the majority, an injunction should be granted where: (1) there is a serious question to be tried, (2) there is irreparable harm to the person seeking the injunction if no injunction is issued, and (3) the balance of convenience favours an injunction.







15 It is on the determination of the balance of convenience that I disagree with the majority. The chambers judge, who was also the trial judge in the recently concluded trial, was in a unique position to weigh the balance of convenience.











16 The trial judge did not, nor do I, intend the interim injunction to reflect on the validity of the new elections legislation. The question of whether the limits on election spending are constitutional will only be decided once there is a determination on the merits.







17 It is inescapable to me that the balance of convenience tips sharply in favour of the plaintiff. The proposition advanced to counter the obvious inconvenience to Mr. Harper is that legislation generally identified as serving a public interest carries a prima facie assumption of validity. But that presumption should not be conclusive where, as here, it competes against the acknowledged impediment to the plaintiff’s free speech unless there is some evidence demonstrating an impediment of a public interest. Here there is none.







18 The chambers judge was careful to note that the interim injunction was just that. He stated that his ultimate disposition may be that the legislation is constitutional. But he could not ignore the evidence produced during the two-week trial to the extent it bore on granting an interim injunction.







19 The interim injunction would safeguard important constitutional rights guaranteed by the Canadian Charter of Rights and Freedoms and protect the freedom of political speech during a federal election. The law is clear that — in the absence of an error in principle — the trial judge has the discretion, and is entitled to appellate deference.











20 In this application, we are dealing with one of the most valuable forms of speech: political speech. Canadians cherish the unimpeded diffusion of political ideas and opinions, and this Court has long recognized that freedom of expression is “essential to the working of a parliamentary democracy such as ours” (Switzman v. Elbling, [1957] S.C.R. 285, per Abbott J., at p. 326). Hence we must tread carefully in limiting political speech. It is speech that we recognize as invaluable, given its significance in our democratic process. We should be loathe to interfere with it, especially in the midst of a federal election.







21 I am of the view that the trial judge did not err in applying the three-part test for an injunction in a constitutional context, as set out in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, and RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, both cases that the trial judge referred to and relied upon. As stated, I agree with the majority that the first two requirements are met.







22 The third requirement is that the balance of convenience favours granting the injunction. This requirement subsumes the question of what irreparable harm the defendant faces. After nine days of trial, there was no evidence before the Alberta Court of Queen’s Bench that the injunction would cause any “inconvenience” or “irreparable harm”. Nor has the Attorney General in this application referred this Court to any evidence showing what harm would result from the injunction. Instead, the Attorney General states as a conclusion that suspending the spending limits would result in unfairness, and so the legislation must be applied “in the interests of fairness for all”.







23 The Attorney General admitted that there was a violation of s. 2(b), and offered not a scintilla of evidence showing that the injunction would cause some harm. In this light, the trial judge concluded that the balance of convenience favoured injunctive relief. Given the restriction upon a cherished constitutional freedom and the absence of anything tilting the other way, Cairns J. was entitled to reach this conclusion.











24 I acknowledge that in the majority of cases, it may be acceptable to assume that there is irreparable harm to the public interest when an injunction stops an authority from protecting the public good: RJR--MacDonald, supra, at p. 346. But that is an assumption only (as Sopinka and Cory JJ. suggest at p. 349), and it can be overcome when an applicant demonstrates that the injunction itself serves the public interest. In this case, the injunction furthers the Charter’s guarantee of freedom of expression, and Mr. Harper has displaced the assumption that the government suffers a greater harm than he does.











25 I find that the suggestion of “irreparable harm” to the government or the public interest is strained and unpersuasive. To date, Canadian federal elections have not been governed by limits on third-party spending. It is difficult to see how the consequences of undergoing one more election without these limits would somehow cause “irreparable harm” to our democratic institutions, particularly since no such harm occurred in past elections. In my view, the public interest favours granting, rather than refusing, the injunction. Dean Cassels is right to suggest that the “public interest” does not belong exclusively to the Attorney General, and I agree with his rejection of the “assumption that only one party speaks for the public interest” (J. Cassels, “An Inconvenient Balance: The Injunction as a Charter Remedy”, in J. Berryman, ed., Remedies: Issues and Perspectives (1991), 271, at pp. 303-5). The question is: will the injunction serve the public good by protecting constitutional rights? Given the need to protect free speech, particularly during an election, it seems reasonable to require the Attorney General to provide something more than a pro forma statement about unfairness. In the absence of anything beyond speculation, and in the face of a serious denial of Charter-protected freedoms, the balance of convenience clearly favours the injunction. I would add that while the Attorney General argues that the public interest is served by seeing the legislation enforced, that argument is countered by the compelling public interest in seeing fundamental Charter-protected freedoms upheld: J. Berryman, The Law of Equitable Remedies (2000), at p. 51.







26 “Because the granting of an interlocutory injunction is a discretionary matter appellate courts have limited the role of review”: Berryman, The Law of Equitable Remedies, supra, at p. 37. This Court endorsed the deferential approach in Metropolitan Stores, supra, at pp. 154-56. The standard is high; the reviewing court “must not interfere with [the trial judge’s exercise of discretion] merely on the ground that the members of the appellate court would have exercised the discretion differently”: Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042 (H.L.), per Lord Diplock, at p. 1046. To interfere, there must be a clear mistake on the law or the evidence, or some other glaring error. There is no such mistake here.







27 Cairns J. is entitled to appellate deference. He was, in fact, unusually well-placed to grant the injunction. The typical judge faced with this sort of injunction would not have the benefit of having presided over the trial on the merits of the constitutional challenge.







28 It is true, as the majority suggests, that in all but exceptional cases, the effect of democratically enacted legislation should not be suspended before a finding of unconstitutionality or invalidity: Attorney General of Canada v. Gould, [1984] 1 F.C. 1133 (C.A.), aff’d [1984] 2 S.C.R. 124. But this case falls in the narrow category of exceptions. I reach that conclusion for three reasons.











29 First, there is the timing of the challenge. The new Canada Elections Act, S.C. 2000, c. 9, was given royal assent on May 31, 2000. The plaintiff’s statement of claim was issued within seven days. The legislation would ordinarily have come into force after the November 27 general election, but it was activated, so to speak, by publication of notice in the Canada Gazette on September 1, 2000. The Attorney General of Canada introduced this legislation in a manner that virtually sealed it from meaningful constitutional scrutiny before the election. These circumstances demand scrutiny. The prospect arises that governments could pass unconstitutional laws immediately prior to an election and leave affected citizens with no remedy. The state could effectively place its election legislation beyond constitutional scrutiny by virtue of when that legislation is enacted. I note that the situation here is unlike that in Gould, supra, where the impugned provision had been in force for years but was challenged only on the eve of an election.







30 Another compelling factor is that the judge who handled the application for an interlocutory injunction knew the case; he had recently presided over a two-week trial in which the constitutionality of the legislation was debated in great detail. That fact distinguishes this case from Gould, supra, where the judge who granted the injunction had not heard arguments on the constitutionality of the provisions governing prisoners’ voting rights. The fact that the same judge heard both the trial and the application for an injunction here argues in favour of considerable deference to his decision.











31 Finally, there is the nature of the constitutional challenge at issue. The speech that is limited here is political expression. It is the epitome of speech that furthers the aspirations of a democratic society. That expression would be limited at its most important moment, during an election, while the Attorney General offers no evidence that the injunction would cause harm.







32 The majority, at para. 7, accepts the Attorney General’s submission that an injunction “effectively grants [Mr. Harper] the final relief that he seeks in the trial still under way”. I do not, because the “final” question is the constitutionality of the legislation, and that question cannot be answered in these interlocutory proceedings. In any event, it could equally be said that staying the injunction gives the government the final relief it is most concerned about. That argument cuts both ways and does not get us far.







33 This Court, as Professor Roach points out in Constitutional Remedies in Canada (loose-leaf ed.), at p. 7-7, has “clearly rejected reliance on a presumption that legislation is constitutional in deciding interlocutory applications”. In Metropolitan Stores, supra, at p. 124, Beetz J. held that “the presumption of constitutional validity . . . is not compatible with the innovative and evolutive character of [the Charter]”. It could be said that the majority improperly veers toward an automatic presumption of constitutionality.







34 In RJR–MacDonald, at pp. 333-34, Sopinka and Cory JJ. considered the factors that must govern the balancing process:







On one hand, courts must be sensitive to and cautious of making rulings which deprive legislation enacted by elected officials of its effect.











On the other hand, the Charter charges the courts with the responsibility of safeguarding fundamental rights. For the courts to insist rigidly that all legislation be enforced to the letter until the moment that it is struck down as unconstitutional might in some instances be to condone the most blatant violation of Charter rights. Such a practice would undermine the spirit and purpose of the Charter and might encourage a government to prolong unduly final resolution of the dispute.







I find those words apt. I would deny the application for a stay.







Motion granted, Major J. dissenting.







Solicitor for the applicant: The Deputy Attorney General of Canada, Ottawa.







Solicitors for the respondent: Gowling Lafleur Henderson, Calgary.

This is a list of major political scandals in Canada:

This is a list of major political scandals in Canada:




Contents [hide]

1 Federal

2 Alberta

3 British Columbia

4 New Brunswick

5 Ontario

6 Nova Scotia

7 Quebec

8 Saskatchewan

9 References

10 External links





 FederalPacific Scandal - allegations of bribes being taken by the government of Sir John A. Macdonald (1870s)

Scandal in the Department of Customs and Excise that led to the King-Byng Affair, 1926

Munsinger Affair - Canada's first national political sex scandal (1960s)

Tunagate - tainted tuna (1985)

Grant Bristow - Canadian Security Intelligence Service infiltration of Reform Party of Canada and covert founding of Heritage Front

Airbus affair - 1995 - Prime Minister Brian Mulroney was implicated in a kickback scheme to purchase Airbus planes for Air Canada

APEC Inquiry - 1997 - Royal Canadian Mounted Police conduct at the APEC summit in Vancouver.

Shawinigate - 1999 - An alleged conflict of interest lobbying effort by Prime Minister Jean Chrétien.

Sponsorship scandal - 2004 - misuse and misdirection of funds disbursed through the Liberal government's 1990s sponsorship program. Investigated by the Gomery Commission.

Shoe Store Project - 2007 - Prime Minister's Office under Stephen Harper plans $2M, government-controlled media centre to replace current National Press Theatre (which is run by press gallery staff, instead of those from the PMO).[1]

Julie Couillard scandal - 2007 - Conservative Foreign Minister Maxime Bernier resigned after leaving sensitive NATO documents in the home of Julie Couillard, an ex-girlfriend with links to the Hells Angels biker gang.

In and Out scandal - 2007 - alleged circumvention of election finance rules by the Conservatives in the 2006 election campaign.

Robocall scandal - 2012 - Allegations of whitespread voter fraud occuring during the 2011 Canadian federal election. Robotic and live calls to voters are claimed to have been made in 38 ridings. Currently under investigation by the RCMP and Elections Canada.

The ETS Scandal - An ongoing Canadian political scandal involving alleged wrongdoing by Canadian government officials in the award of a $400-million information technology services contract and allegations of political interference in the ensuing cover-up.

[edit] AlbertaAlberta and Great Waterways Railway scandal - a 1910 scandal that resulted in the resignation of the government of Alexander Cameron Rutherford

Sexual Sterilization Act of Alberta - a 1928 law that resulted in close to 3,000 young people being classified as "mentally unfit" and without their knowledge or consent were sterilized to prevent them from breeding their "bad blood."

John Brownlee sex scandal - John Edward Brownlee, Premier of Alberta, sued for seduction of a young woman and found guilty (early 1930s)

Dar Heatherington - forced to resign from Lethbridge city council in 2004 after being convicted of public mischief.

[edit] British ColumbiaSommers Affair - influence peddling and abuse of privilege on timber licenses by Forest Minister

Driver's Licensing Scandal - widespread bribery of license examiners by new Canadians and their translators

Gracie's Finger - Gerrymandering in Vancouver-Little Mountain

Lillooet Cattle Trail - cost overruns, poor design and other scandalous aspects on most expensive provincial infrastructure project in 19th Century BC

Solidarity Crisis - crisis was launched by Premier Bennett overstaying his mandate, triggering a constitutional crisis

Fantasy Gardens (Social Credit Party) - improper sale of property and influence-peddling by Premier Bill Vander Zalm, in connection with Asian gambling lord Tan Yu

Stephen Rogers (Social Credit Party) - resigns as environment minister after a conflict of interest due to owning shares in a company[2]

Cliff Michael (Social Credit Party) - resigns from cabinet due to conflict of interest over the sale of some land[2]

Reid affair (Social Credit Party) - Bill Reid forced to resign after a report showed that he was diverting lottery funds into a company owned by his former campaign manager

Bud Smith resigns after tapes and transcripts of him talking disparagingly about a lawyer hired by the oppsition NDP to investigate the Reid Affair

Robin Blencoe - (NDP) - allegations of harassing an office employee [2]

Phil Gaglardi (Social Credit Party) - improper use of expenses

British Columbia Resources Investment Corporation (BCRIC or "Brick") (Social Credit Party) - public boondoggle involving publicly-distributed and soon-worthless shares of former Crown Corporation

Bingogate - New Democratic Party of British Columbia - skimming of charity funds (1990s)

Doman Scandal - (Social Credit Party) - insider trading; Premier Bill Bennett indicted but acquitted

Coquihalla Highway - (Social Credit Party) - cost overruns and graft

Casinogate - New Democratic Party - Premier Glen Clark was charged but acquitted of breach of trust in connection with his official duties.[3] Collusion between Global television and the RCMP in trying to incriminate Clark is alleged by many commentators.

FastCat Fiasco (aka "Ferrygate" or simply "the Fast Ferries") - 1990s construction of a fleet of high speed ferry vessels that ended up being massively over-budget and actually slower than existing ferries

Gordon Wilson-Judy Tyabji Affair (British Columbia Liberal Party) - semi-secret romance between the Opposition Leader and his House Whip leads to their downfall

BC Legislature Raids ("Railgate") (BC Liberal Party) - raids on offices of senior political aides in the legislature connected to everything from marijuana grow-ops to questions connected with the sale of BC Rail to Canadian National.

Gordon Campbell (BC Premier, arrested in Hawaii for DUI) (Liberals). Also implicated in Railgate (see previous).

[edit] New BrunswickKarl Toft - serial pedophile molested over 200 boys while an employee in charge at the government run Kingsclear Youth Training Centre between the mid 1960s and the mid 1980s

Richard Hatfield - premier charged with possession of marijuana in 1984

OntarioOntario Bond Scandal - United Farmers of Ontario (early 1920s)

Patti Starr scandal in the late 1980s - illegal use of charitable funds for political campaigns donations

Ipperwash Crisis - incident involving the shooting death of Dudley George, an unarmed Native activist, by an Ontario Provincial Police officer in 1995

Kimberly Rogers - After a disputed welfare fraud conviction, Rogers committed suicide in her Sudbury apartment while under house arrest in 2001, leading to extensive controversy around the Mike Harris government's 1996 welfare reforms, as well as an inquest which made several still-unimplemented recommendations for changes to the system.

Toronto Computer Leasing Inquiry - judicial inquiry into improper computer leasing contracts made by Toronto's municipal government in 1999

Walkerton water scandal in the year 2000

Toronto Police Drug Scandal - multiple scandals broke out in early 2004, as a result of internal affairs and RCMP investigations. Allegations of the sale of narcotics, fake search warrants, raid tip-offs and mob gambling debts involved many dozens of Toronto police officers, including former chief William J. McCormack's son, Michael, who was eventually brought up on 23 charges. As a result of the scandal, the plainclothes downtown unit which many of the charged officers worked out of was disbanded. The court cases relating to these charges continue.

 Nova ScotiaThe Thornhill Affair - involved Roland Thornhill, who resigned as Deputy Premier in the 1990s after allegations dealing with a debt settlement from 1980 was brought into question.

The Billy Joe MacLean Affair(The BJM Affair) - MLA Billy Joe MacLean was expelled from the Assembly after Premier John Buchanan's Progressive Conservative government introduced legislation prohibiting anyone from sitting in the assembly who had been indicted by the courts. MacLean pleaded guilty to four counts of submitting forged documents - went to the Supreme Court of Nova Scotia, which upheld Macleans expulsion, but declared the law that prohibited him from running as a candidate to be unconstitutional - MacLean ran for and re-entered the legislature in 1993.[4]

 QuebecDuplessis Orphans of 1940s through 1960s - Maurice Duplessis government and the Roman Catholic Church.

[edit] SaskatchewanProgressive Conservative Party of Saskatchewan scandals - Scandals that emerged in the 1990s involving Grant Devine's Progressive Conservative government implicating 16 MLAs, with the chief conviction that of Deputy Premier Eric Berntson in 1999.

Colin Thatcher

 References1.^ PM plans own media centre, Toronto Star, Oct. 15, 2007.

2.^ a b Justine Hunter (1991-09-24). "Scandal, retirement take toll on politicians seeking re-election". the Vancouver Sun. p. B7.

3.^ BC Supreme Court "Reasons for Judgment"

4.^ [1] Canadian Parliamentary Review, "The Legislature, Charter and Billy Joe MacLean"

[edit] External linkscbc.ca Top 10 Canadian Corruption Scandals

cbc.ca Scandals, Boondoggles and White Elephants

How do I file a complaint about an alleged violation of the Canada Elections Act?

How do I file a complaint about an alleged violation of the Canada Elections Act?


If you have information about an offence that you believe was committed under the Canada Elections Act, please send it to the Office of the Commissioner of Canada Elections:



Commissioner of Canada Elections

c/o Elections Canada

257 Slater Street

Ottawa, Ontario

K1A 0M6

Fax: 1-800-663-4908

E-mail: commissionersoffice@elections.ca



To respond to complaints about alleged offences, the Commissioner requires the following minimum information:



1.Your name, mailing address, telephone number, e-mail address and fax number (if applicable).

If you are submitting the complaint on behalf of another person or organization, please also include the name of that person or organization (the complainant) and their contact information (mailing address, telephone number, e-mail address and fax number, if applicable).



2.A factual description of the events, circumstances or actions that you believe gave rise to the alleged offence.

Please include any specific dates, places or documents that you believe are relevant. This information will enable the Commissioner to assess your complaint; without it, assessment of your complaint may be delayed.



3.If you know it, the section of the Canada Elections Act related to your complaint, or the nature of the alleged offence.

The Commissioner must receive a complaint about an alleged offence within 10 years of the offence being committed. Keep in mind that the passage of time may significantly affect the Commissioner's ability to deal with a complaint.



If you have a complaint about how an election was conducted but you do not believe it is an offence, please send it to the Chief Electoral Officer (see below).








--------------------------------------------------------------------------------



How do I file a complaint or comment about the conduct of a federal election?

To provide feedback on an election worker or on how a federal election was run, or to file a formal complaint, please contact the Chief Electoral Officer using this e-mail form or write to:



Chief Electoral Officer of Canada

Elections Canada

257 Slater Street

Ottawa, Ontario

K1A 0M6



The Chief Electoral Officer handles complaints that are not believed to be violations of the Canada Elections Act. To report an alleged violation of the Canada Elections Act, please contact the Office of the Commissioner of Canada Elections (details above).

Canadians Reject Components of Bill C-30, Deem it Too Intrusive Half of respondents believe the House of Commons should not pass the proposed legislation.

Canadians Reject Components of Bill C-30, Deem it Too Intrusive


Half of respondents believe the House of Commons should not pass the proposed legislation.

Canadians have not reacted well to the proposed Bill C-30, and many are voicing disagreement with several components of the legislation, a new Angus Reid Public Opinion poll has found.



In the online survey of a representative sample of 1,011 Canadian adults, 45 per cent of respondents have followed stories related to Bill C-30 “very closely” or “moderately closely.” Respondents aged 17-to-34 (47%) and those over the age of 55 (also 47%) are more likely to have been paying attention to the debate on this proposed legislation.



Respondents to this survey were provided with seven elements of Bill C-30 and asked whether they agreed or disagreed with each one. Only three components get the thumbs-up from a majority of Canadians: allowing police to get warrants to obtain information transmitted over the Internet and data related to its transmission, including locations of individuals and transactions (68%), changing the definition of hate propaganda to include communication targeting sex, age and gender (63%) and allowing courts to compel other parties to preserve electronic evidence (57%).



Canadians are almost evenly divided on providing for an internal audit of warrantless requests that will go to a government minister and oversight review body (Agree 40%, Disagree 43%).



Respondents were not satisfied with the remaining elements, with 57 per cent disagreeing with forcing Internet providers and other makers of technology to provide a “back door” to make communications accessible to police, and 62 per cent rejecting a requirement for telecommunications and Internet providers to give subscriber data to police, national security agencies and the Competition Bureau without a warrant, including names, phone numbers and IP addresses.



The most unpopular measure included in Bill C-30 is requiring telecommunications providers to disclose, without a warrant, six types of identifiers from subscriber data (Name, Address, Telephone number, Email address, IP address and Local service provider identifier). Almost two thirds of Canadians (64%) disagree with this idea.



Most Canadians (53%) believe Bill C-30 is too intrusive, and that the government should not be able to track the movements of Canadians or reading their e-mails without a warrant. Only one third (27%) believe Bill C-30 is necessary because many criminal activities, including child pornography, have evolved with technology and police need broader tools to deal with these crimes.



The regions that show the highest level of rejection for Bill C-30 are Alberta (66%), Atlantic Canada (63%) and Ontario (58%).



When asked how the House of Commons should deal with Bill C-30, half of Canadians (51%) want their federal lawmakers to defeat the legislation, while 35 per cent would prefer to pass it. Once again, Alberta, Atlantic Canada and Ontario are the areas where Bill C-30 is regarded in a negative light.



Analysis



While Canadians are content with the measures related to obtaining warrants, changing the definition of hate propaganda and preserving electronic evidence that are included in Bill C-30, the public provides a negative review of the more contentious aspects of the proposed legislation. The idea of surrendering subscriber data and identifiers without a warrant is rejected by almost two thirds of Canadians.



Strong majorities of people who voted for the New Democratic Party (NDP) and the Liberal Party in the last federal election brand Bill C-30 as too intrusive (62% and 58% respectively), but it is important to note that Conservative voters are not as supportive of this government initiative as they have been with others in the past. Almost half of Tory voters (47%) think the proposed legislation is too intrusive. Conservatives are evenly split on what the House of Commons should do with Bill C-30. New Democrats and Grits clearly want to see it defeated.



Alberta, traditionally a Conservative stronghold, is not on the government’s side on this issue. Albertans are more likely to wish for the defeat of Bill C-30 than Ontarians, British Columbians and Quebecers.



Full Report, Detailed Tables and Methodology (PDF

Strip searches & Waterloo Regional Police’s

Perhaps the “monster” in the room is that police routinely strip search people despite the Supreme Court saying they are not supposed to.




Because of a drawing of a picture of a gun to chase off “bad guys and monsters” by his four-year-old daughter, Jessie Sansone was arrested outside her school, handcuffed, hauled to a police station.



He was told to disrobe and subjected to a strip search in which his testicles were lifted and he was required to bend over.



It was egregious, invasive, unwarranted and unnecessary.



No matter how hard they try, Waterloo Regional Police’s strip-searching of the 26-year-old is indefensible and just plain wrong.



In fact a Supreme Court of Canada ruling in 2001 clearly states “strip searches (are) inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they can’t be carried out simply as a matter of routine policy.”



But they happen all the time.



In one instance this month, it meant a drunk driving charge from 2010 was thrown out thanks to a smart defence lawyer using case law from the Supreme Court.



“What the community would find alarming is what I perceive as a systemic problem in the conduct of police strip searches of short-term detainees,” Justice J.M. Grossman said while staying proceedings against Regan McGee. “Despite the efforts of the judicial system to denounce such instances and the efforts of the police service boards to enact appropriate policy to guide the police, the right to be free from such significant intrusions into personal privacy and integrity is not being taken seriously enough.”



Systemic?



“I am left with the inevitable conclusion that the failure to abide by the constitutional limits for the strip search of short-term detainees is not an exceptional error on (a sergeant’s) part but rather is part of a larger more systemic problem,” said the judge. “It is clear to me that his practice is one which he not only generally follows but is an accepted one in his profession.”



The Toronto Police Accountability Bulletin reports in 2009 “Toronto police conducted 29,789 Level 3 searches (strip searches) and 31,072 in 2010.” Former Toronto mayor John Sewell says 60% of people arrested in Toronto face what “is certainly not a rare occurrence.”



Toronto Police Service’s Board Chair Dr. Alok Mukherjee is awaiting a report from Chief Bill Blair which upon completion will “ascertain whether the information ... merits any further consideration or action by the board.”



Canadian Association of Chiefs of Police spokesman Tim Smith confirmed that there “is no national standard” for strip searches and “it’s totally up to each individual service.”



But it isn’t.



That police don’t seem to oblige the high court might mean it’s time for a judicial inquiry to present clarity of the exact strip searching threshold?



With an Ottawa police officer before the courts, it’s also important for police, who also face scrutiny from the SIU — which has sexual assault as part of its mandate — to understand when an unlawful strip search crosses over to a sexual assault?



In Toronto, despite complaints from dozens of men and women during the G20 being strip searched but not charged, it has never been made public how many and if they were appropriate or constitutional?



In McGee’s case, defence counsel Calvin Barry successfully argued in his client’s case it was highly inappropriate. The judge agreed, calling it a “serious and flagrant” violation of the charter.



“Despite the considerable body of reported cases in which the courts have time and again frowned upon the way police have conducted such strip searches, it is apparent to me something is missing in their conduct whereby the rights of short-term detainees are not being taken seriously,” said Grossman. “Whether it is a lack of training or an attitude, I cannot say. However, to be frank, what I can say, is that the message does not appear to be getting through.”



It clearly did not get through to Waterloo Police since, in 2007, Joel Elliot, 32, was awarded $32,000 in damages after being strip searched. His naked body was made fun of and he was threatened with a stun gun.



It will be interesting to see if another monster cheque is one day written to the latest recipient of an inappropriate police strip search?



Perhaps it should be enough for his daughter to one day go to art school?

Open Letter - The Privacy Implications of Federal Government's Expansive Surveillance Proposal

October 31, 2011







VIA ELECTRONIC MAIL AND COURIER














The Honourable Vic Toews


Minister of Public Safety


269 Laurier Avenue West


Ottawa, Canada


K1A 0P8





The Honourable Robert Nicholson

Minister of Justice and Attorney General of Canada

284 Wellington Street

Ottawa, Ontario

K1A 0H8







Dear Ministers:



Introduction



As the Information and Privacy Commissioner of Ontario, I felt compelled to write to you today regarding the federal government’s insistence on enacting a highly intrusive surveillanceregime. I do so in full support of Canada’s Privacy Commissioner Stoddart and the open letter she sent to Minister Toews on October 26th.



At the outset, please note that my mandate includes commenting on developments that affect the personal privacy of Ontarians, and overseeing law enforcement compliance with privacy legislation in Ontario. The proposed surveillanceregime will have a substantial impact on the privacy rights of Ontarians, law enforcement functions, and the role of my office.



Media reports referring to Minister Toews’ rejection of Commissioner Stoddart’s concerns and quoting his defence of the regime suggest that the government will re-introduce Bills C-50, C-51, and C-52 (“the Bills”) in essentially the same form in which they appeared in the last Parliament. In my view, that would be highly regrettable for the people of Ontario and Canada. I am writing this open letter to outline my specific concerns and concrete recommendations.



I have first summarized the privacy concerns identified by my office into five categories, followed by an in-depth discussion of each.







Summary of Privacy Concerns:



Reconsidering the Privacy Implications of Expanded Surveillance and Access



Before providing a detailed analysis of the privacy issues, my concerns may be summarized as follows:



1.The proposed powers must not come at the expense of the necessary privacy safeguards guaranteed under the Canadian Charter of Rights and Freedoms; in order to maintain the integrity of this constitutional framework, the government must acknowledge the sensitivity of traffic data, stored data, and tracking data.





2.Intrusive proposals require essential matching legislative safeguards; the courts, affected individuals, future Parliaments, and the public must be well informed about the scope, effectiveness, and deleterious effects of intrusive powers. If Parliament enacts expansive new surveillance powers, we urge the federal government to publicly commit to enacting the necessary oversight legislation in tandem.





3.Even with matching oversight, the proposed surveillance and access powers will require more stringent conditions precedent to determine the situations when surveillance or access may be appropriate and necessary.





4.The government must not impose a mandatory surveillance capacity regime on the public and its telecommunication service providers (TSPs) without adequate safeguards to protect the future of freedom and privacy; a comprehensive and public cost-benefit analysis should precede rather than follow the making of so many significant public policy decisions. Public Parliamentary hearings should be scheduled to ensure that civil society, as well as industry, have a full opportunity to provide substantial input on all of the Bills including Bill C-52 (the Electronic Communications Act). In addition, the Electronic Communications Act should be amended to require that all interception-related capacity requirements be approved by Parliament before they can be imposed.





5.The proposal for warrantless access to subscriber information is untenable and should be withdrawn; it remains our view that the Electronic Communications Act should be amended to require that the provisions setting out TSP obligations concerning “subscriber information” be deleted and replaced with a court supervised regime

1) New Powers Must Not Come at the Expense of the Constitutional Framework



In a steady stream of communiqués dating back almost a decade and spanning 2002, 2005, 2007, 2009, and 2011, our office has cautioned against taking a legislative approach to new surveillance powers that undermines the judicially supervised rules and procedures which secure our shared rights to privacy, freedom and security of the person. Two of these were in joint communiqués led by the Privacy Commissioner of Canada, and signed by all the provincial and territorial privacy commissioners and ombudsmen (“privacy commissioners”). 1



Together, they accurately reflect the general nature of many of our current concerns and recommendations. (We also urge you to carefully consider the federal Privacy Commissioner’s November 2010 publication A Matter of Trust: Integrating Privacy and Public Safety in the 21st Century.)



The concerns voiced by Canada’s privacy commissioners have been echoed by legal and academic experts specializing in technology, privacy and the law and, most importantly, by thousands of concerned Canadians who wish to have both effective law enforcement and strong privacy protections.



In this context, there can be little doubt that the most recent iteration of the government’s approach to expansive surveillance legislation has significant implications for personal privacy, state powers, and the longstanding constitutional compromise between the two, as well as for the oversight functions of courts and privacy commissioners, and the future of innovation, costs and competiveness in the communications and technology fields.



The fact that the government appears to be committed to limiting real-time surveillance of private communications including in-transit e-mail under the “wiretapping” rules set out in Part VI of the Criminal Code is welcome news. We also welcome the absence of any public call for the creation of data retention rules with respect to subscribers and their day-to-day use of the new technologies. No such retention rules should be countenanced.



At the same time, we believe that critical elements of the proposed legislative regime suggest that the government misconceives how Canadians interact with new communications technologies and significantly underestimates the sensitivity of the personal information involved. The concomitant risks to privacy and other fundamental rights are significant.



Why? Because new surveillance powers leverage new and still evolving technologies. As a result, they significantly increase rather than merely maintain the state’s surveillance capacity. Accordingly, attempts to frame the public debate in terms of maintaining capacity are misleading:



The ways in which we communicate with each other have undergone such enormous changes that it is entirely fanciful to say that there are simple equivalents in the Internet and broader digital domain to the communications surveillance techniques used for conventional voice-based telephones. There are many new types of communication available between individuals, but nearly all of these are in forms that are very easily computer-readable and therefore capable of complex analysis by computers. The range of tools available to law enforcement to track and link activity and database content is now vast and growing all the time. The debate is thus not about maintenance of capability but trying to determine a proper balance in new circumstances.2



In this context, the legal distinction traditionally drawn between the content of a private communication such as is exchanged during a telephone call or via e-mail and the associated traffic data is being overtaken by social, economic and technological developments. What we refer to as trafficdata has evolved and it will continue to do so. Certainly, it is no longer confined to a list of phone numbers obtained by a dial recorder or rows of text on a telephone bill.



It extends digitally to link and trace the ongoing interactions of networks of users through unique identifying device numbers vis-à-vis their location in time, their location on and along the ground, their activity and interactivity within the Internet, and their relatedness within and across communities. The resulting digital trails are routinely retained by service providers and various third parties for weeks, months or even years. These trails paint a detailed and evolving picture that reflects on who we are.



Furthermore, there are strong indications that law enforcement’s appetite for the surveillance of live telephone communications is being dwarfed by their interest in accessing the private content in the mass of digital trails created every time an individual sends a message, surfs the Internet, e-banks or simply carries a 3G enabled device.3 Computer facilitated analysis of this data canreadily reveal the interwoven layers of core biographical information that animate communications data, particularly where the scrutiny extends for a significant period of time. As recognized by the United States Court of Appeals for the District of Columbia in a Fourth Amendment GPS vehicle tracking case being heard by the U.S. Supreme Court on November 8, 2011:





Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movements can reveal still more; a single trip to a gynaecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.4



Properly supervised, surveillance powers can be invaluable to law enforcement. However, it is equally true that where individuals are subject to unwarranted suspicions, evidence is poorly handled, or erroneous conclusions are hastily drawn, the consequences for innocent individuals can be devastating. Recent national security-related investigations make this all too clear (e.g., Maher Arar).



While we continue to support the vital law enforcement interest in pursuing electronic evidence and intelligence about serious wrongdoing, we also urge the government to ensure that any search, seizure, or surveillance of personal communications be subject to the most rigorous oversight. The constitutional values at stake demand such safeguards.



On the basis of all the above, we reject the Bills’ implicit claim that the so-called non-content data elements associated with new communication devices and services are of significantly lesser constitutional significance. Safeguards comparable to those necessary to properly regulate the wiretapping of a rotary phone are required with respect to 21st century communications, including, but not limited to, rigorous prior judicial scrutiny.





2) Intrusive Proposals Require Essential Matching Legislative Safeguards



Read together, the legislative proposals substantially diminish the privacy rights of Canadians. They do so by enhancing the capacity of the state to conduct surveillance, as well as access private information, while reducing the frequency and vigour of judicial scrutiny, thus making it easier for the state to subject more individuals to surveillance and scrutiny.



Are the current processes that provide for oversight of surveillance-related powers sufficient to keep pace with the proposed expansion of state power? With the anticipated re-introduction of the Bills, Canadians are being asked to rely on oversight regimes designed decades ago to provide sufficient safeguards for the protection of our fundamental rights and freedoms today. The supervision provided by prior judicial authorization, the criminal trial process, and complaint-driven oversight under police and privacy-related statutes, while critical, are fundamentally insufficient. Let me explain.



The proposed surveillance and access regime will frequently involve complex, highly technical, and sensitive information. Moreover, where prior judicial authorization is required, the relevant surveillance and access applications are necessarily held in camera and ex parte. Where the resultant surveillance and access activities produce legal charges that lead to a criminal trial, the trials invariably have a narrow focus on the accused. National security-related investigations, which often have a much broader focus, invariably proceed in secrecy, and are rarely subject to public scrutiny. In both contexts, innocent individuals subject to surreptitious invasions of their privacy may never be in a position to learn about, let alone file for or find any redress. In addition, existing complaint regimes are limited as to their reach, powers and remedies. Any in depth public scrutiny of such matters will be the rare exception to a general rule of confidentiality and secrecy.



Furthermore, under the Bills, local, provincial, and federal law enforcement agencies will be equally empowered to use these intrusive powers in pursuit of both domestic and international investigations. Without a focused harmonizing and coordinating authority, inconsistent policies and practices are likely to develop among the various jurisdictions. Inevitably, privacy rights and civil liberties will suffer from fragmented and inconsistent protections.



Canadians have a constitutional right to be secure from unreasonable search and seizure. The expansive surveillance proposals bring this right into question. And, since the state’s authority to intrude on privacy does not come with concomitant responsibilities with respect to accountability, notification and transparency, the net negative effect on human rights is likely to be compounded over time.



To its credit, the government has responded to recent court rulings 5 by including a provision in Bill C-50 that will require that: (i) a person who has been the target of a warrantless exceptional circumstances interception must be notified of the interception within a specified period; and (ii) the relevant Minister must report publicly on police resort to such warrantless wiretaps.



At the same time, we note that these notice and reporting mechanisms are confined to providing a modest degree of notice, transparency and accountability (restricted as they are to only notifying the target of the surveillance, and confined as they are to limited numeric reporting) with respect to a single surveillance power – the power to intercept a private communication. In addition, the reporting practices of provincial and federal Attorneys General with respect to the use of these Part VI wiretap powers have varied considerably (as seen in jurisdictions where the required annual reports have sometimes not appeared until several years have passed).



In this context, we call for the government’s public commitment to the enactment of sufficient safeguards to match the array of new and existing powers.



Support for this call can be found in recent U.S. and Canadian court decisions. In a unanimous decision of September 6, 2011 requiring the U.S. Department of Justice to publicly disclose information showing the government’s use of cell phone location data in criminal prosecutions resulting in a guilty plea or a conviction, the United States Court of Appeals for the District of Columbia determined that:



The disclosure sought by the plaintiffs would inform … ongoing public policy discussion by shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool. It would, for example, provide information about the kinds of crimes the government uses cell phone tracking data to investigate. As the plaintiffs note, with respect to wiretapping Congress has balanced privacy interests with law enforcement needs by permitting the government to use that technique for only the more serious offenses … and the plaintiffs (and others) may decide to argue for similar legislation to govern cell phone tracking. Disclosure would also provide information regarding how often prosecutions against people who have been tracked are successful, thus shedding some light on the efficacy of the technique and whether pursuing it is worthwhile in light of the privacy implications. 6



And, as indicated above, recent rulings of the Superior Courts of Ontario and British Columbia have determined that notice and reporting safeguards are constitutionally required with respect to intrusive surveillance powers, such as the power Parliament granted peace officers in section 184.4 of the Criminal Code (a power to conduct warrantless wiretapping in certain exceptional circumstances). For example, in R. v. Six Accused Persons, the B.C. Supreme Court determined that:



Although the Crown submits that in most cases where … persons whose communications have been intercepted will receive de facto notification by way of the prosecution of the underlying offence, that submission fails to recognize that the communications of persons other than the alleged perpetrator may have been intercepted. It also fails to address situations where, for whatever reason, the police may have erred in their assessment of the need to intercept private communications, intercepted more communications than those to which they were lawfully entitled or over a longer period of time, or those that were intercepted under circumstances which did not result in a prosecution.



In any or all of those circumstances, the police would be answerable to no one. Further, the fact that there is no obligation to disclose surreptitious invasions of privacy to those persons whose communications have been intercepted removes an important safeguard to the potential abuse of power that can arise without accountability.



This case is illustrative of some of those concerns … To this day, many of the persons whose communications were intercepted by the police are unlikely to know of that invasion of their privacy. That circumstance is exacerbated by the police having engaged in the automatic monitoring of all calls to the telephones they had identified as being appropriate for interception. Any discovery by third parties of the police having intercepted their private communications would be fortuitous.



Requirements to notify persons whose private communications have been intercepted of the fact of that interception afford an important constitutional and accountability safeguard to the potential abuse of state power in invading the privacy of its citizens.



The interception of private communications in exigent circumstances is not like situations of hot pursuit, entry into a dwelling place to respond to a 9-1-1 call, or searches incidental to arrest when public safety is engaged. In those circumstances, the person who has been the subject of a search will immediately be aware of both the circumstances and consequences of police action. The invasion of privacy by interception of private communications will, however, be undetectable, unknown and undiscoverable by those targeted unless the state seeks to rely on the results of its intentionally secretive activities in a subsequent prosecution.



I am accordingly satisfied that the failure of … the [Criminal Code] to provide notification of surreptitious interception of private communications to those persons whose communications are intercepted is a serious impediment to the constitutional validity of s. 184.4.

…..

If the intention of Parliament in requiring the provision of [public] reports [enumerating resort to surveillance powers] is to oversee the frequency and circumstances of the interception of private communications by the police, the failure to provide a similar reporting requirement under s. 184.4 of the Code removes the potential for that oversight. As with the failure to require notification of those intercepted of the fact of an interception, the lack of any reporting requirement undermines both constitutionality and police accountability. 7



Bearing all of the above in mind, and in addition to the adjustments we call for to Bills C-51 and C-52, we renew our call for the creation of an independent, arm’s-length Surveillance and Access Review Agency (SARA), with a legislative mandate to supervise state access to the highly sensitive personal information associated with digital communications and to report annually to Parliament and the public on the use of the surveillance and access powers. 8



In establishing SARA, Parliament would require law enforcement and security agencies who obtain any communication-related data from TSPs to notify all of the individuals whose personal

information is involved within one year of the information being obtained unless the individual cannot readily be identified or reasonably located, or notification would prejudice an ongoing investigation. Notification of all readily identifiable individuals would be required within five years of the information being obtained unless, on application to SARA, it is determined that the public interest in non-disclosure outweighs the right to notification.



In this context, TSPs should be required to publish annual reports on how many interception and access orders (and requests) they receive a year from which law enforcement and security agencies, in respect of how many individuals; and how many orders (and requests) result in the disclosure of personal information, and in respect of how many individuals.



In renewing the call for the creation of SARA, we acknowledge that the preparation and enactment of the necessary legislative framework will take time and that, in the meantime, the government may well decide to proceed with its plan to substantially reshape the state’s capacity to conduct surveillance. To the extent that you are not prepared to redraft the Bills to ensure that the new surveillance powers are justified and that the necessary safeguards are in place before the regime comes into force, we strongly urge you to publicly commit to enact a SARA Act in tandem with the proposed surveillance and access regime, even as you move to amend the current legislative proposals to provide additional if limited safeguards on it coming into force, as further discussed below.



3) Even with Matching Oversight, the Proposed Powers Require Adjustment



Bill C-51, the Investigative Powers for the 21st Century Act, will amend the Criminal Code, giving “peace officers” and “public officers” new avenues to obtain access to information generated electronically. As such, a wide range of officers, extending well beyond police, will be empowered to:



•Issue preservation demands on their own say so with respect to a wide array of primarily corporate-held data in the course of investigating any offence, including on behalf of a foreign state, and impose any conditions in the demand that they consider appropriate, including conditions prohibiting the disclosure of its existence or some or all of its contents,

•Apply for new suspicion-based preservation and production orders to preserve and gain access to information about transmission, traffic, communication, tracking, transaction and financial data,

•Apply for new suspicion-based warrants to enable the remote live tracking of vehicles and other things,

•Apply for belief-based warrants to enable the remote live tracking of individuals by tracking the location of cell phones or other things they usually carry or wear, and

•Apply for non-disclosure/secrecy orders with respect to all of the above.

It is our view that, as a general rule, law enforcement access to data, particularly communications-related data, as well as the new tracking powers, should be subject to prior judicial scrutiny, limited to the investigation of serious crime, generally subject to higher belief rather than suspicion-based thresholds, and come with additional oversight and accountability-related safeguards.



In this context, I note that an August 22, 2011 U.S. District Court decision invites us to raise the question as to the constitutionality of the proposed suspicion-based, as well as belief-based, production order making powers. 9 In this case, the U.S. government had asked the Court for “orders directing Verizon Wireless, a cell-phone service provider, to disclose recorded information of cell-site-location records for one of its customers pursuant … to the Stored Communications Act or ‘SCA’).” The proposed order sought stored, historical cell-site-location records tied to a period in excess of 113 days. On its face, the SCA provides that such an order “may be issued by … a court of competent jurisdiction … only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” (Emphasis added.) The Court determined that “the Fourth Amendment to the United States Constitution requires a warrant and a showing of probable cause before the Government may obtain the cell-site-location records requested here.”



As the Court clearly understood, the problem with these kinds of production orders is their implication for the privacy of society at large and, in my view, the concerns expressed by the Court with respect to Americans apply equally with respect to Canadians:



The vast majority of Americans own cell phones. Many Americans have abandoned land line phones entirely, and use cell phones for all telephonic communications. Typically people carry these phones at all times: at work, in the car, during travel, and at home. For many Americans, there is no time in the day when they are more than a few feet away from their cell phones.



Cell phones work by communicating with cell-sites operated by cell-phone service providers. Each cell-site operates at a certain location and covers a certain range of distance. The number of cell-sites that must be placed within a particular area, and thus the distance between cell-sites, is determined by several factors, including population density.



If a user’s cell phone has communicated with a particular cell-site, this strongly suggests that the user has physically been within the particular cell-site’s geographical range. By technical and practical necessity, cell-phone service providers keep historical records of which cell-sites each of their users’ cell phones have communicated.

The implication of these facts is that cellular service providers have records of the geographic location of almost every American at almost every time of day and night. And under current statutes and law enforcement practices, these records can be obtained without a search warrant and its requisite showing of probable cause.



What does this mean for ordinary Americans? That at all times, our physical movements are being monitored and recorded, and once the Government can make a showing of less-than-probable-cause, it may obtain these records of our movements, study the map our lives, and learn the many things we reveal about ourselves through our physical presence.



In the same vein, in the Maynard case now pending before the U.S. Supreme Court, the reasoning of the United States Court of Appeals for the District of Columbia provokes questions as to the constitutionality of the proposed suspicion-based, as well as belief-based, tracking warrants. As the Appeal Court found in Maynard, “prolonged GPS monitoring [of a person’s vehicle travelling on public roads] defeats an expectation of privacy that our society recognizes as reasonable” and must comply with Fourth Amendment standards.



The Court’s holding was echoed as recently as September 21, 2011 in a report issued by the Liberty and Security Committee of the U.S. Constitution Project. This bi-partisan committee, whose members include two former members of Congress, former FBI director William Sessions, a former U.S. Court of Appeals judge and a former chair of the American Conservative Union, concludes that “when powerful tracking technologies to conduct pervasive surveillance are paired with [a computer’s] analytic capability and a digital database, such monitoring can violate an individual’s reasonable expectation of privacy even in a public place.”



The Committee recommends that, if the U.S. Supreme Court does not adopt the proper approach in the Maynard case, Congress should do so by enacting legislation requiring court warrants for any location tracking lasting more than 24 hours.10



Consistent with these developments, in my view, it is essential that more stringent conditions precedent be enacted in relation to the proposed surveillance and access powers. The use of production orders and tracking warrants should be confined to investigations in respect of the list of serious offences in section 183 of the Criminal Code. Before issuing such orders or warrants, a superior court judge ought to be satisfied that:



•There are reasonable and probable grounds to believe that an offence under section 183 of the Criminal Code has been or is being committed,

•Other less intrusive investigative methods are likely to prove impracticable,

•Measures will be taken to safeguard the privacy of the personal information obtained, particularly of non-suspects, and

•The intrusion is otherwise in the best interests of the administration of justice.

As indicated, Bill C-51 also proposes to create a new set of powers that police could invoke to require data managers to locate and hold personal information in documents or databanks. Government has argued that these preservation powers are necessary to support the production order powers discussed above. In our view, any power to issue a preservation demand or order should be confined to the same list of serious offences in section 183 of the Criminal Code.



In addition, in order to address the risk to accountability that non-disclosure or secrecy orders entail, we recommend that all those whose personal information is obtained under a surveillance and access regime should be entitled to notification at the appropriate time. And, in accord with our SARA-related recommendations, state use of these powers and access to this personal information should be superintended and reviewed by an independent agency.



It is also noteworthy that in introducing sections 487.0195(1) and (2) to the Criminal Code, Bill C-51 provides broad immunity from “any criminal or civil liability” to any person who voluntarily preserves data or provides a document to an officer. The person is no longer required to show that he or she acted on reasonable grounds per the operation of what is now section 487.014 with section 25 of the Criminal Code. The person need only show that his or her cooperation was not “prohibited by law.” In our view, individuals and entities responsible for safeguarding personal information of members of the public must act reasonably before they should be entitled to such immunity. A reasonableness standard provides volunteers with significant protection while helping to rule out the possibility that, for example, malicious or incompetent decision makers will enjoy undeserved immunity.



Accordingly, section 487.0195(2) should be amended to provide that:



A person who preserves data or provides a document in the circumstances described in subsection (1) does not incur any criminal or civil liability for doing so if he or she acted reasonably in the circumstances.



Bill C-50, the Improving Access to Investigative Tools for Serious Crimes Act, will amend the Criminal Code, first by providing that if a wiretap authorization is granted under Part VI, the judge may at the same time issue one or more Bill C-51-related warrants or orders that relate to the investigation in respect of which the wiretap authorization is given. That is, in obtaining a wiretap warrant, police may also contemporaneously obtain companion production orders and tracking warrants, all from a single judge. Rules respecting secrecy and confidentiality that apply in respect of a wiretap authorization will also apply in respect of a request for a related warrant or order. In addition, the Bill will permit a peace officer or a public officer to install and make use of a number recorder without a warrant in exigent circumstances. The Bill will also extend to one year the maximum period of validity of a warrant for a tracking device and a number recorder if the warrant is issued in respect of a terrorism offence or an offence relating to a criminal organization (the maximum is now 60 days).

The critical development brought forward in Bill C-50 is that the efficiencies it may purchase in streamlining the conduct of judicially authorized state surveillance and access may come at some cost to the rigour of prior judicial scrutiny. In some cases, a single judge hearing a multitude of inter-related applications may be better informed about the extent of the overarching surveillance employed. At the same time, the demands on judges are likely to grow. In the context of what are necessarily ex parte and in camera proceedings, there will be an increased risk that a greater degree of intrusive surveillance and access will be granted in cases where it is not warranted. While we do not oppose Bill C-50 per se, its enactment will likely intensify the effect of the new surveillance regime. Such intensification increases the need for the adoption of matching safeguards under a SARA Act.



4) Surveillance Must Not Undercut the Future of Freedom, Innovation and Privacy



In addition to the controversial plan to provide law enforcement with warrantless access to subscriber information (discussed in section 5 below), the Electronic Communications Act sets in motion a fundamental change to the way communication services are regulated. It does so by entrenching the power of security officials to require TSPs to:



•Build in and continuously maintain a wide array of yet to be specified interception capabilities into all their networks, systems and software for the purpose of allowing authorized agencies to intercept, isolate and accurately correlate multiple communications per court orders,

•Notify law enforcement and CSIS officials regarding changes to state provided equipment or systems where those changes are likely to reduce interception capability;

•Assist designated persons who will have warrantless access to TSP facilities, systems, documents and information to test, inspect, and access TSP facilities, services and systems for regulatory purposes,

•Provide prescribed specialized telecommunications support to CSIS and law enforcement agencies,

•Submit lists of TSP personnel to CSIS and/or the RCMP for the purposes of conducting security assessments of employees who may assist in the interception of communications, and

•Comply with prescribed confidentiality and security measures. 11

The Electronic Communications Act will also establish numerous offences and violations and subject TSPs, their officers, directors, and employees to prosecution and fines for failing to comply with obligations, including those relating to systems requirements.



Each additional day in breach of the statute will add to the count of violations and increase the exposure of TSPs, their officers, directors, and employees to fines of up to $50,000 per offence for an individual and $250,000 for a corporation. The Electronic Communications Act will allow the state to seek a court injunction ordering a TSP to cease operating a transmission apparatus, or to refrain from acquiring, installing or operating new software, if the TSP is contravening or likely to contravene interception requirements.



It is also noteworthy that the Electronic Communications Act does not address the financial and commercial implications of these proposals, either to businesses, consumers, or taxpayers. It only authorizes the payment of some monies to compensate TSPs in relation to: (i) compliance with a Ministerial order to provide interception capabilities additional to those prescribed; (ii) the provision of subscriber information; and (iii) the provision of certain specialized telecommunications support. Reports about the cost of related proposals in the U.S. and the U.K. warrant careful consideration in Canada.



In October of 2010, it was reported that, in response to the Obama administration’s intention to submit comparable surveillance legislation, American TSPs are “likely to object to increased government intervention in the design or launch of services. Such a change … could have major repercussions for industry innovation, costs and competitiveness.”12



In the U.K., a related though more intrusive data retention and “Interception Modernization Program” was being considered until it was abandoned by the British government in late 2009 because of concerns about cost, controversy and feasibility. Prior to this, it was reported that development costs will be high (2 to 13 billion pounds). “The bulk of the costs will be incurred by [TSPs]. The most ignored cost comes in the form of opportunity costs as engineers will be tasked to develop this [surveillance] solution instead of developing their core business, i.e. new ways to enhance the networks for advancing consumer and business interests.”13



None of these immediate financial costs would necessarily translate into privacy issues per se if it were not for the fact that the Electronic Communications Act risks causing additional marketplace distortions by effectively prohibiting the use and development of any systems or software that might impair a TSP’s capacity to facilitate simultaneous multiple intercepts. While the goal of facilitating compliance with court ordered surveillance is valid, there is a significant risk that in implementing this legislation, the authorities will impede the development and use of new communications technologies and services, particularly, for example, privacy enhancing technologies and services such as those that provide for encryption.



In this regard, the Electronic Communications Act requires that a TSP must “use the means in its control” to provide an intercepted communication “in the same form as it was before the communication was treated by the service provider” by way of encoding, compression, or encryption. A TSP is not required to make the form of an intercepted communication the same as it was before the communication was treated if it would be required to develop or acquire new decryption techniques or tools. The legislation appears to allow companies like Research in Motion to continue to provide existing encryption protected communication services. It remains to be seen what the future holds for new companies and new strong encryption techniques and services in the field of communications. For example, there is a risk that the Electronic Communications Act will set the stage for rules requiring back-door state access to encryption services.



It is evident that many of the critical details flowing from the Electronic Communications Act will be left to policies, procedures, regulations and evolving relationships between TSPs and the state. In passing so many significant public policy decisions on to security-oriented officials, Parliamentarians and the public risk being left out of the decision-making process and Canadians risk seeing TSPs transformed into agents of the state. This represents a significant and needless risk to a free and open society.



We only have to look to recent U.S. history to consider the implications. Many will now be familiar with reports of the secretive and controversial assistance that major telecommunications carriers provided the National Security Agency in the conduct of warrantless eavesdropping on international calls by suspected terrorists after 9/11. As recognized by U.S. courts, such surveillance has the potential to expose “journalistic sources, witnesses, experts, foreign government officials, and victims of human rights abuses located outside the United States” to “violence and retaliation by their own governments, non-state actors, and the U.S. government.” 14



While the Electronic Communications Act will be subject to a form of Parliamentary review five years out, in the meantime, if passed, it will substantially alter the design and operation of communication systems, the role and function of TSPs, their ability to be transparent, and the relationship between citizens, TSPs and the state.



A comprehensive and public cost benefit analysis should precede rather than follow the making of so many significant public policy decisions. Before imposing the kind of interception capacity regime the Electronic Communications Act would impose on TSPs, Parliament should ensure that such a capacity regime will be proportionate and designed to ensure not only appropriate surveillance capacity but also necessary competiveness and privacy.



It follows that the Parliamentary committee eventually mandated to consider the kinds of proposals in the Electronic Communications Act should be adequately resourced to ensure that civil society, as well as industry, has a full opportunity to provide substantial input.



In addition, the Electronic Communications Act should be amended to require that all interception-related capacity requirements be publicly vetted for their impact on privacy and competiveness before they are imposed (in the future, SARA should have a role to play in reporting on the impact of capacity-related requirements). Such requirements should be provided for in the form of draft regulations which would only come into force after a vote by Parliament to approve them as a whole.



5) Warrantless Access to Subscriber Information Must Be Withdrawn



In addition to providing the state with substantial control over the design and operation of TSP systems, the Electronic Communications Act will also provide law enforcement and CSIS officials with warrantless access to subscriber information for the purposes of performing any of their duties or functions. Subscriber information includes a named individual’s IP address or mobile ID number, or the name and contact information of a subscriber associated with an IP address or mobile ID number.



The Electronic Communications Act provides for attenuated post facto review of warrantless access to subscriber information. In doing so, it relies on provincial and territorial privacy commissioners to: (i) conduct audits to assess local and provincial police compliance with provisions of the statute empowering the collection and use of subscriber information; and (ii) review police reports generated to the extent that police decide that something has occurred with respect to their own exercise of these access powers that, in their opinion, ought to be brought to the attention of the responsible provincial minister (in Ontario, the attorney general).



Under section 20(6) of the legislation, the Privacy Commissioner of Canada must provide Parliament with an annual report identifying the provincial and territorial privacy commissioners who may receive any such opinion-based reports and the powers that they have to conduct section 20 compliance audits.



Like a number of other provincial and territorial privacy commissioners, I lack the necessary powers. In particular, under Ontario’s privacy statutes, I do not have any audit powers. Even those privacy commissioners with sufficient powers are likely to need additional resources in order to adequately perform the legislative duties imposed under section 20 of the Electronic Communications Act.



In a letter of March 9, 2011 signed by all the federal, provincial and territorial privacy commissioners, we joined our colleagues in calling on the federal government to commit to working with provincial and territorial governments to ensure that all of our offices have sufficient powers and resources should the Electronic Communications Act be enacted. It does not appear that any such commitment has been forthcoming.



Quite apart from the constitutional issues raised by the enactment of a regime of warrantless access, it is noteworthy that in some circumstances, aspects of post facto oversight of communications-related surveillance powers have been found by Superior Courts to be constitutionally required (see, for example R. v. Six Accused Persons, [2008] B.C.J. No. 293 and R. v. Riley, [2008] O.J. No. 2887). In the absence of the necessary provincial and territorial powers and resources, the Electronic Communications Act’s reliance on provincial and territorial privacy commissioners is untenable. In addition, the audit duties to be imposed on provincial and territorial privacy commissioners under section 20 may raise division of powers problems.

It remains our view that the Electronic Communications Act should be amended to require that provisions setting out TSP obligations concerning “subscriber information” should be deleted and replaced with a court supervised regime.



“Subscriber information” is personal information. To date, all individual customers enjoy the legal right to insist that, subject to narrowly defined exceptions, their subscriber information remains private and confidential. The law currently provides for warrant procedures, expedited tele-warrants, and an organization’s special exercise of discretion to disclose personal information to law enforcement without an individual’s consent, for example, in aid of an Internet-related child pornography investigation, or in comparable exigent-like circumstances. Granting law enforcement and intelligence officials an almost unfettered power to issue their own administrative “warrants” for the purposes of performing any of their duties or functions is a substantial departure from the legal and constitutional framework in Canada. Such a departure requires extraordinary justification and a substantial framework for accountability.



Consistent with our earlier comments, law enforcement and security agency access to informationlinkingsubscribers to devices (and vice versa) should generally be subject to prior judicial scrutiny accompanied by the appropriate checks and balances. Before issuing an order requiring the disclosure of subscriber information, a judge ought to be satisfied that:



•There are reasonable and probable grounds to believe that an offence under section 183 of the Criminal Code has been or is being committed,

•Measures will be taken to safeguard the privacy of the personal information obtained, particularly of any non-suspects, and

•The intrusion is otherwise in the best interests of the administration of justice.

In the alternative, if Parliament is determined to allow warrantless access to subscriber information, the legislative safeguards in section 20 of the Electronic Communications Act should be strengthened so that they provide a much greater degree of post facto oversight. In particular:



•The power to demand warrantless access to subscriber information should be narrowed to only apply in circumstances where access is necessary to the investigation of a specific and defined category of serious crime, for example, sexual offences involving children and minors, or to prevent or eliminate a significant and imminent risk of serious bodily harm.

•The “consistent use” limitation regarding subscriber information collected by law enforcement and security agencies should be strengthened. A use should only be considered as consistent if a reasonable person might reasonably have expected such a use.

•Law enforcement and security agencies should be required to securely destroy information that is provided in response to a subscriber information request one year after the individual has been notified of its collection, or once retention of the information is no longer necessary for the purpose for which the information was obtained, or for a use consistent with that purpose, whichever is later.

•The requirement that law enforcement and security agencies must report to attorneys general and privacy commissioners should be strengthened. Agencies should be expressly required to report any collection, use or retention practices that do not appear to be necessary and proportionate in relation to the duty or function for which they were originally obtained.

•In reporting to Parliament on the adequacy of audit and investigation powers available to provincial and territorial privacy commissioners, the Privacy Commissioner should also report on whether those commissioners consider themselves to have adequate resources to conduct the necessary audits and reviews.

•If, after consulting with a provincial or territorial commissioner, the Privacy Commissioner reports that her colleague does not have substantially similar powers, the subscriber information powers available to police services within that jurisdiction should automatically lapse until the Privacy Commissioner reports back that the provincial or territorial commissioner has been provided with those powers.

To the extent that Parliament chooses to rely on provincial and territorial privacy commissioners to perform post facto review of warrantless access to subscriber information, it follows that the federal government must commit to working with provincial and territorial governments to ensure that all of the relevant privacy commissioners have sufficient powers and resources. In this regard, please note that I have written two letters to Ontario’s Attorney General, asking that the Ontario government play its part in these important law reform and oversight-related issues. Copies of those letters are attached.



Conclusion



The surveillance regime being put forward is aimed at capturing the full range of content, communication and traffic data associated with digital communications. As communication services continue to evolve, thelegislation will empower the state to develop, update and enforce regulations directly aimed at shaping the technological capacities of telecommunication services so as to ensure that Web 2.0, 3.0 etc. communications can be readily intercepted, isolated and accurately correlated. In this context, it is reasonable to foresee that it will be much easier for the state to subject more individuals, including innocent individuals, to unwanted surveillance and scrutiny.



This debate is not about maintaining the state’s surveillance capabilities, but trying to determine the proper balance in the evolving information age. In the face of so many significant changes, with so much at stake, and with so much left to regulation and implementation by policy, we are concerned that the public, Parliament and industry will be hard pressed to keep abreast of the technological challenges, the financial costs, and the invasiveness of an expanding surveillance regime. It is essential that Parliament and the public be well informed on technological, legal, regulatory and financial issues. The implications for privacy and other human rights must also be fully addressed, by providing for the necessary transparency, accountability and oversight. No less than the future of privacy – the future of freedom, is at stake.



Yours sincerely,







Ann Cavoukian, Ph.D.

Commissioner



Enclosures (2)







c: The Honourable John Gerretsen, Attorney General of Ontario

William Baker, Deputy Minister, Public Safety Canada

Myles Kirvan, Deputy Minister of Justice & Deputy Attorney General of Canada

Murray Segal, Deputy Attorney General of Ontario





1 Copies of these five communiqués are available at:

December 20, 2002 - http://www.ipc.on.ca/english/Resources/Reports-and-Submissions/Reports-and-Submissions-Summary/?id=114; April 21, 2005 - http://www.ipc.on.ca/english/Resources/Reports-and-Submissions/Reports-and-Submissions-Summary/?id=105; October 10, 2007 - http://www.ipc.on.ca/english/Resources/Reports-and-Submissions/Reports-and-Submissions-Summary/?id=662; September 9-10, 2009 - http://www.priv.gc.ca/media/nr-c/2009/res_090910_e.cfm; and March 9, 2011 - http://www.priv.gc.ca/media/nr-c/2011/let_110309_e.cfm.

2 London School of Economics, Briefing on the Interception Modernisation Programme, June 2009, p. 6.



3 See “The Law Enforcement Surveillance Reporting Gap” by Christopher Soghoian , Indiana University Bloomington - Center for Applied Cybersecurity Research, April 10, 2011.



4 United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), cert. granted, United States v. Jones, 2011 WL 1456728 (June 27, 2011), U.S.S.C. Docket No. 10-1259.



5 See R. v. Six Accused Persons, [2008] B.C.J. No. 293 (S.C.) and R. v. Riley, [2008] O.J. No. 2887 (S.C.J).



6 American Civil Liberties Union v. United States, United States Court of Appeals for the District of Columbia Circuit, September 6, 2011, No. 10-5159.



7 R. v. Six Accused Persons, [2008] B.C.J. No. 293 (S.C.)



8 For more information about the functions and duties we propose for SARA, please see our April 21, 2005 letter to the then Minister of Justice and Attorney General of Canada.



9 In the matter of an application of the United States of America for an Order authorizing the release of historical cell-site information No. 10-MC-897, United States District Court, E.D. New York (August 22, 2011).



10 See the Liberty and Security Committee September 21st, 2011 Statement on Location Tracking at http://www.constitutionproject.org/pdf/LocationTrackingReport.pdf.



11 Note that, to date, security officials have been able to impose a similar framework largely outside Parliamentary scrutiny through, for example, the Solicitor General’s Enforcement Standards for Lawful Interception of Telecommunications, and Conditions of Licence for New Cellular and PCS Licences issued by the Minister of Industry under the Radiocommunication Act (see http://www.ic.gc.ca/eic/site/smt-gst.nsf/eng/sf09251.html).



12 “Officials Push to Bolster Law on Wiretapping”, Charlie Savage, New York Times, October 18, 2010.



13 London School of Economics, Briefing on the Interception Modernisation Programme, June 2009, p. 44-45.



14 Amnesty Int’l USA et al. v. Clapper et al., United States Court of Appeals for the Second Circuit, September 21st, 2011, 09-4112-cv, at pages 8-9 of Circuit Judge Lynch’s decision, quoting from Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011).