John Carpay: Our privacy had decent protection until the Liberals stepped in

In this file photo taken on February 25, 2019 a visitor uses his phone at the Mobile World Congress (MWC) in Barcelona. Photo by PAU BARRENA/AFP via Getty Images

Article content

Privacy is the foundation of freedom of thought, freedom of expression, personal autonomy and human dignity. When citizens know (or have strong grounds to believe) that they are monitored, they behave differently, speak differently, and think differently.

Article content

The privacy rights of Canadians have long been protected by the common law, and, since 1982, by Section 8 of the Charter: “Everyone has the right to be secure against unreasonable search or seizure.”

Article content

Article content

Article content

Since 1982, the Supreme Court of Canada has strongly protected the privacy of Canadians in its rulings.

Article content

Article content

In Hunter v. Southam Inc. (1984), the Supreme Court held that Section 8 of the Charter protects against unjustified state intrusions upon a “reasonable expectation of privacy” wherever it exists — including in personal data, devices and communications.

Article content

In R v. Duarte (1990), the court held that secret electronic surveillance by the state violates Section 8 of the Charter. The court’s summary of that decision states, “The regulation of electronic surveillance is not directed at protecting a person from the risk that someone will repeat his words but from the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit his words.” Further, the court ruled that government cannot circumvent Section 8 by relying on intermediaries to obtain information that it could not legally access.

Article content

In R. v. Spencer (2014), the Supreme Court ruled that police could not request or access subscriber information held by internet service providers without a warrant — even if the internet service provider provided it voluntarily upon request.

Article content

Article content

In R. v. Marakah (2017), the court ruled that the sender of a text message retains a reasonable expectation of privacy even when his or her message is held on another person’s device. Police therefore require a warrant to search recipients’ phones for senders’ texts.

Article content

Each of these Supreme Court rulings marked a significant expansion of personal digital privacy rights.

Article content

Nevertheless, Canadians’ privacy rights are increasingly threatened by federal legislation that expands state access to personal information.

Article content

An Act respecting cyber security (Bill C-8), the Lawful Access Act (Bill C-22) and the Safe Social Media Act (Bill C-34) are recent examples of federal legislation that have been resoundingly denounced by privacy experts, tech companies and civil liberties organizations. These bills will expand law enforcement access to electronic data held by internet and electronic service providers, and form the building blocks of the surveillance state.

Article content

Bill C-8, passed on June 15, authorizes sweeping government powers over telecommunications systems and permits enforcement officials to access records and systems in the name of national and cyber security.