Friday, October 28, 2011

"Canadians expect their government to respect their fundamental rights and freedoms"

Two things here today on freedom of the press and privacy rights.

Dean Del Mastro and his Conservative confreres on the access to information parliamentary committee are trying to get up into CBC's business - to an even greater extent than they already have been - by seeking to have CBC turn over files to them. These files relate to access to information requests made to the CBC, many of those requests being subject to dispute. CBC claims that its journalistic independence is at issue. But Del Mastro and his lackeys want to have a look see. Even though the Broadcasting Act "enshrines the CBC’s independence by barring cabinet ministers from accessing its journalistic, creative and programming information." And even though the CBC and the information commissioner are in court dealing with the dispute over the release of information.

Talk about a dangerous adventure the Conservatives are embarked upon. Del Mastro and his co-lurkers believe they should step in themselves as authorities on the propriety of CBC's refusals to produce information. They don't have any such capability and it's why we have an information commissioner in the first place. Expertise lies there. The information commissioner seems to be handling it via the courts, exhausting the proper avenues. Yet here we have the Conservatives on the outskirts of that process, injecting themselves as interlopers and busybodies. It's offensive to both freedom of the press and access to information principles. I sincerely hope people are taking note.

Item two. Privacy commissioner Jennifer Stoddart released an excellent letter Wednesday asking the Public Safety Minister Vic Toews to take her views into account as the government is about to release its lawful access legislation. Its former versions are what concern her and privacy advocates across the country (who represent Canadians' privacy interests). To think the Conservatives will now significantly depart from those versions which presented significant challenges to individual privacy rights is a leap. Here are some of the key excerpts which explain some of the concerns here:
Canadians expect their government to respect their fundamental rights and freedoms. Your government has made firm and repeated commitments to the importance of privacy. Consequently, when new surveillance powers are proposed in law, the burden of proof is with government to demonstrate the necessity, legal proportionality and practical effectiveness of these new powers. The government must also be prepared to demonstrate how the model it is proposing is the least privacy-invasive alternative possible.

Despite repeated calls, no systematic case has yet been made to justify the extent of the new investigative capabilities that would have been created by the bills. Canadian authorities have yet to provide the public with evidence to suggest that CSIS or Canadian police cannot perform their duties under the current regime. One-off cases and isolated incidents should not prove the rule, nor should exigent or emergency circumstances, for which there are already Criminal Code provisions.

As well, if the concern of law enforcement agencies is that it is difficult to obtain warrants or judicial authorization in a timely way, these administrative challenges should be addressed by administrative solutions rather than by weakening long-standing legal principles that uphold Canadians’ fundamental freedoms.

I am also concerned about the adoption of lower thresholds for obtaining personal information from commercial enterprises. The new powers envisaged are not limited to specific, serious offences or urgent or exceptional situations. In the case of access to subscriber data, there is not even a requirement for the commission of a crime to justify access to personal information – real names, home address, unlisted numbers, email addresses, IP addresses and much more – without a warrant. Only prior court authorization provides the rigorous privacy protection Canadians expect.

In my view, the government has not convincingly demonstrated that there are no less privacy-invasive alternatives available to achieve its stated purpose.
Scrapping the long form census was supposedly all about privacy rights despite those claims being totally unsubstantiated. They tear down programs on the one hand under the guise of protecting privacy. Yet - while we await the lawful access legislation - it's a fair bet that they're about to create a whole new set of real privacy vulnerabilities. For a government that claims to care about such things, their consistency is sorely lacking.


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