I apologize.
The right to privacy is protected under article 17 of the International Covenant on Civil and Political Rights, to which Canada is a state party. Though there is no equivalent protection found under the Canadian Charter of Rights and Freedoms, the right to privacy is an enabling right to the fundamental freedoms set out under section 2, namely the “freedom of thought, belief, opinion and expression” and “freedom of association”. Privacy is likewise an enabling right for freedom of information and the “free unhindered development of one's personality”.
To exchange human rights, freedoms, liberties, and democratic safeguards for national security is not justifiable. “No law, no matter how well-crafted or comprehensive, can prevent all terrorist acts from occurring.” As such, the public must be mindful that the blind relinquishment of its civil liberties may not protect them from threats to national security.
A balanced approach is needed to ensure adequate measures are in place to prevent and address any such threats while protecting the fundamental human rights and freedoms of its populace. “When States fail to strike a balance between human rights and security in the context of countering terrorism, they risk impeding the very rights they purport to protect”, for what is national security without human security and what is human security without human rights?
According to the Special Rapporteur on the right to privacy, Professor Joe Cannataci, in limiting one's right to privacy in the name of national security, several factors must be considered, including the adequacy of oversight mechanisms, the distinction between targeted surveillance and mass surveillance, the proportionality of such measures in a democratic society, and the cost-effectiveness and the overall efficacy of such measures.
Introducing sweeping changes to the way in which personal data is shared among government agencies in Canada should be coupled with a commensurate review mechanism for ensuring the information shared is accurate, is done so within the limits prescribed by law, and is done so with minimal impairment to the rights and freedoms set out under the charter.
Distinguishing between targeted and mass surveillance is essential to preventing the net from being cast too wide and encasing innocent civilians undeserving of the erosion of their civil liberties. Failing to do so assumes in a sense that all are guilty until proven innocent, perverting a fundamental and long-standing principle of justice.
In terms of proportionality, there should be minimal impairment to the rights affected and the solution must not be worse than the problem. Has this test been met by the SCISA, wherein personal data can be shared across government agencies without any guarantee as to the accuracy of the information shared or express restrictions regarding the sharing of information with private actors and foreign governments? Much like a child's game of telephone, the original content of a message risks becoming distorted, potentially having significant consequences for the individual concerned.
In his first report to the Human Rights Council, Special Rapporteur Joe Cannataci expressed concern that:
the ordinary citizen may often get caught in the cross-fire [of mass surveillance] and his or her personal data and on-line activities may end up being monitored in the name of national security in a way which is unnecessary, disproportionate and excessive.
The final point regarding cost-effectiveness is not one on which I can comment as an expert, though from a common sense point of view, concentrating resources where they are most needed—i.e., on targeted surveillance—limits the risk of overlooking a potential threat due to an information overload. In other words, we must ask ourselves what utility is served by mass surveillance? Does it result in greater protection for national security, or does an information overload spread resources so thin that it renders government efforts less effective in responding to potential threats?
As mentioned, Canada has international obligations to respect the right to privacy under the International Covenant on Civil and Political Rights. A corresponding treaty body, the Human Rights Committee, monitors the compliance of state parties with provisions within the covenant. In its concluding observations to Canada's periodic report, the Human Rights Committee expressed concerns that:
...Bill C-51's amendments to the Canadian Security Intelligence Act confer a broad mandate and powers on the Canadian Security Intelligence Service to act domestically and abroad, thus potentially resulting in mass surveillance and targeting activities that are protected under the Covenant without sufficient and clear legal safeguards...including under the Security of Canada Information Sharing Act, an increased sharing of information among federal government agencies on the basis of a very broad definition of activities that undermine the security of Canada, which does not fully prevent that inaccurate or irrelevant information is shared....
In its general comment number 16, the committee has also clarified that:
Effective measures have to be taken by States to ensure that information concerning a person's private life does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the Covenant.
Before Bill C-51 was passed, the improper sharing of information by the Government of Canada led to serious human rights abuses against Canadian citizens, including Almalki, El-Maati, Nureddin, and Arar.
The SCISA develops further authority for the government to share personal data without developing corresponding legal safeguards to prevent the repetition of similar gross injustices.
Now that we have identified some of the inconsistencies between the SCISA and Canada's international human rights obligations, let us look to potential solutions.
