Big Brother Canadian Style - Too much law, too little justice

By Beryl Wajsman on February 14, 2012

“A dictatorship of data rather than jackboots is no less a dictatorship.”

~ Prof. Arthur R. Miller, “The Assault on Privacy”

When the first Earl of Masefield, William Murray, exclaimed “Fiat justitita, ruat coelum--let justice be done though the heavens fall” he was fighting for the justice of equitable consideration grounded in the individual rights of man based on natural law that is the proudest legacy of liberalism. Words for the ages. Today, we in Canada, are threatened with a new legal assault masquerading as a necessary protection against internet predators. The new Conservative legislation allowing security authorities access to information on personal computer use and cellphone conversations without reasonable cause nor necessity of warrant is nothing more than the imposition of constructs, and constraints, of social engineering driven by the proponents of of the politics of fear.

Just as C-10 propagated the myth of a rising crime rate, when quite the opposite was true, as the rationale for more prisons and mandatory minimum sentences, this proposal puts forward the proposition that child pornography  is on the rise and fundamental privacy rights must suffer in this struggle. They just don’t get it.

Whether experts will ever agree on the statistics, governments must stop imposing restraints on citizens through false promises that all criminality can be stopped by statist control. It is not true. Never has been and Canadians are adult enough to understand that not all problems can be solved. The compromise of the sovereignty of our individual consequence is too high a price to pay even if it was. We in Canada recognized this decades ago. Our Charter includes constitutional protections against unreasonable search and seizure, and furthermore in section 8 specifically guarantees  protection of “personal areas of autonomy.” This bill is a clear violation of those protections.

Minister Toews claims that without these draconian powers police simply cannot proceed in some cases. Well, so be it. Not every case should proceed if basic rights are violated. A just society understands that the rights of the worst of us must be protected if the rights of the innocent are to be guaranteed. Due process is the shield for all.

Famed US Justice William O. Douglas once wrote in “International Dissent”, that the right to privacy is the most cherished of all rights of free people. He continued that the means used by a criminal justice system are all important. That it is through the means that, “we determine if a nation has a seat at the table of civilized countries.” The Tory claim that this legislation is necessary to bring Canada into the digital age and in line with similar legislation in some half dozen western nations speaks more to the incivility of those foreign pieces of legislation – and the need for their repeal - than to the necessity for us to have one here at home. The foundational  principle of civil liberties is that it is better for nine guilty people to go free than for one innocent to be convicted through improper means destructive of basic freedoms.

 Canada has already been called a “controlled democracy” due to the power over our elected representatives held by party leaders. This legislation, coming on the heels of C-10, will increase our control state through a system that will persist in exercising oversight and intervention in our private domains. This Bill will encourage the growth of government intrusions into our personal prerogatives and permit the slow undoing of basic liberties. It is a little known fact that American military radar with the capacity to produce images through walls will soon be available to police departments. One can only imagine the next piece of legislation to come.

 Several years ago Canada’s Privacy Commissioner Jennifer Stoddard slammed the use of workplace cameras by an Internet service provider to spy on its staff. Though she has no law-ordering powers her findings can be enforced by the Federal Court of Canada. Her statement that the use of cameras was a “fundamental breach of the right of privacy of employees” has been called one of the most “forthcoming” decisions in this area by many legal experts. She relied on the very same section 8 Charter protection of privacy that is now being threatened by this legislation.

We have seen far too great a growth in  collective social experimentation at the expense of the protection of individual civil expression, and protection, which formed the heart of the Charter revolution. A revolution that was meant to expand the degree of freedom and dignity that is the basic entitlement of each citizen of a liberal democracy.  

Coercions of, and restrictions to, our personal freedoms compromise the supremacy of individual sovereignty. That sovereignty is our only surety for the national culture of conscience we all seek to build. For only when laws are grounded in foundational principles respecting the primacy of the natural liberties of one, can the many ever hope for comfort.  

If we fail to stop this tsunami of invasive rule and regulation, we will have a citizenry that lives in fearful timidity of state rape. A timidity that will be ready to accept and parrot the most dangerous orthodoxies merely to be left alone. We have already seen too much of it. Sadly, regardless of which party was in power, Canadians have  impotently accepted open abuse of public prerogative. We have seen it in Federal Ministers pre-judging citizens’ guilt in open pronouncements; in unsanctioned RCMP raids on reporters homes; in Revenue departments compromising longstanding privacy protections on taxpayers files through information exchange; in CRTC judgments deciding what words we are allowed to be heard on airwaves; in government bans on reception of foreign satellite television signals and even in personal travel information being passed by the airlines into permanent CCRA and CSIS files. Canadians are in danger, in Andrew Coyne’s succinct formulation, of succumbing to a “totalitarian mindset made plain.”

 The heart of the matter is whether in a representative democracy the curtailing of freedoms and the regulation of non-invasive actions can be reconciled with a state’s primordial obligation of protecting, and expanding, the amount of liberty and dignity which all citizens have a right to demand. With so many  laws so badly drawn. With others intentionally vague meant to do nothing more than act as fodder for election ads, the people are at the mercy of elected officials who are always relieved to let the courts sort matters out as long as they can get some publicity. This does not meet their duty.

As early as 1970 Prof. Arthur R. Miller concluded his seminal work “The Assault on Privacy” with these words:  “A dictatorship of data banks and test tubes rather than of hobnailed jackboots will not make it any less a dictatorship.” Upon reading the book  Sen. Sam Ervin, then Chairman of the Senate Subcommitte on Constitutional Rights and later Chairman of the Watergate Committee, wrote, “We must bring to an end the legal abuses of technology before the light of liberty is extinguished in our land.” 

So long as modern life grows more complex demands on the law, and by the law, will continue to increase. That much is inevitable. And as George Bernard Shaw said, “Liberty demands responsibility, that is why so many  dread it.” We must not dread it. We must embrace it. And demonstrate the requisite vigilance to protect it, for when law and liberty are separated, neither is safe.

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Beryl P. Wajsman

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