Lawful access proposals provide too little protection against intrusion: PIAC

The Public Interest Advocacy Centre addresses the Department of Justice’s lawful access proposals (CNM, Sept. 6/02). An edited excerpt of its submission follows. The guiding principles for lawful access in Canada have already been established in the Canadian Charter of Rights and Freedoms, and Supreme Court jurisprudence interpreting these fundamental rights and freedoms. Under section 8 of the Charter, "everyone has the right to the secure against unreasonable search and seizure", "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". A significant body of jurisprudence has developed under this principle, providing helpful guidance as to where the line is to be drawn between reasonable and unreasonable intrusions by the state into the personal lives of individuals. The Supreme Court of Canada has repeatedly confirmed the importance of privacy as an essential aspect of an individual’s liberty in a free and democratic society... The Court has also emphasized the importance of prior judicial authorization as an essential safeguard against undue invasion of individual privacy by the state: "The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement." In R. v. Oakes, the Court established a clear test for the determination of whether a given infringement of Charter rights is reasonable and demonstrably justified. This test requires a sufficiently important objective served by the infringement, a rational connection between the means and the ends, and minimal impairment of the right in question. We agree with the Privacy Commissioner of Canada that any new privacy-invasive measure that purports to enhance security must meet the following test: it must be demonstrably necessary in order to meet some specific need; it must be demonstrably likely to be effective in achieving its intended purpose. In other words, it must be likely to actually make us significantly safer, not just make us feel safer; the intrusion on privacy must be proportional to the security benefit to be derived; and it must be demonstrable that no other, less privacy-intrusive, measure would suffice to achieve the same purpose. ...t is PIAC’s view that the Government’s proposals for greater lawful access to private communications have not been demonstrably justified, according to the test articulated by both the Supreme Court of Canada and the Privacy Commissioner of Canada. In particular, it is not clear that greater access by law enforcement to electronic communications will in fact, or is even likely to, increase the security of Canadians; the privacy intrusions that would result from these proposals are clearly significant, while the security benefit to be derived therefrom is unclear; it has not been demonstrated that no other, less privacy-intrusive, measure (e.g., focused on technological and/or administrative impediments) would suffice to achieve the same purpose of enhanced security. We fully appreciate the need for law enforcement agencies to be able to protect citizens against criminal activity without undue effort. We are as interested as everyone in the security and safety of Canadians. However, we strongly oppose measures that provide law enforcement agencies with greater powers of intrusion into the private lives of individuals, without adequate safeguards against the abuse of such powers.

Lawful access proposals provide too little protection against intrusion: PIAC

Broadcast | January 23, 2003

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