Privacy laws need more scrutiny

Today, thirty years after the Canadian Charter of Rights and Freedoms became law, many principles enshrined in our Constitution are deeply woven into the fabric of Canadian society. Equality rights. Language rights. Freedom of speech. Freedom of religion. The right to vote. The right to a fair trial. The presumption of innocence. No cruel and unusual punishment, no arbitrary imprisonment. And no unreasonable search and seizure.

While you won't find the right to privacy explicitly listed anywhere in the Charter it is nonetheless tangled up with it. Specifically, the right to be free against unreasonable search and seizure, found in section 8 of the Charter, is dependent on an individual's reasonable expectation of privacy.

Simply put, the right to be free from unreasonable search and seizure means that the government and people who act for them cannot perform a search of you, your house, your online activity or anything else just because they want to. They have to have a reason - and that reason has to be more important than your right to privacy. In today's digital society, balancing public safety with privacy rights is no easy feat.

Just a few weeks ago the government introduced Bill C-30, legislation arguably aimed at protecting children from internet predators. The bill requires telecommunications service providers to hand over customer names, addresses, telephone numbers, email addresses, IP addresses, and local service provider information - all without a warrant - upon request. The bill does not require that there be reasonable cause for suspicion. To say that critics of the bill insist that there needs to be a better balance between public safety and an individual's right to privacy would be an understatement.

Despite public outrage, the majority government of the day is free to pass the legislation as is, without responding to its critics. But even if it does pass as it is, that won't be where the story ends. Laws, you see, can be challenged under our Constitution.

Just days ago the Supreme Court of Canada struck down a section of the Criminal Code, ruling that it violated our right to be secure against unreasonable search or seizure. The section in question dealt with wiretaps but the Court was faced with the same difficult question that legislators must deal with when crafting the "protecting children from internet predators act" - how to strike a reasonable balance between an individual's right to be free from unreasonable searches or seizures and society's interest in preventing serious harm.

In a nutshell the SCC found that if it is feasible to obtain prior authorization - as in a warrant - such authorization is a precondition for a search and seizure to be reasonable. Prior authorization ensures that a neutral third party has the opportunity to determine that there is a good, sound reason necessitating the search in the first place. The court went on to recognize that the need for prior authorization is even more important for "covert interceptions", as they create a very serious intrusion into the privacy rights of those affected.

At the same time, the court recognized that urgent circumstances sometimes exist that could validate a warrantless search. Evidence before the court indicated that wiretaps such as the one before the court were most often used for situations involving kidnapping, child protection and hostage taking. The court did not go so far as to say that law enforcement must always immediately apply for judicial authorization - each case will depend on its own unique circumstances.

It is important to note that the section was ultimately struck down even though it already had a number of safeguards in place to ensure that it was only used in emergency situations. However, it failed to ensure an adequate level of accountability after the fact and for that reason was struck down as being unconstitutional.

In the coming days and months it will be interesting to see what, if any, impact this latest SCC ruling will have on the progression of Bill C-30. It is clear that some modernization of our laws is required to ensure that law enforcement agencies have the proper tools to deal with the complexities of the digital age. What is less clear is whether, under the Charter, the gathering of private information - without a warrant and without reasonable suspicion of any crime having been committed - will ever be considered a reasonable intrusion into our private lives.

The Public Legal Education Association of Saskatchewan (PLEA) was incorporated in 1980 as a non-profit, non-government organization that exists to educate, inform and empower through law-related education.