Surveillance

• Author: Craig Forcese
• Profession: Faculty of Law, Common Law. University of Ottawa
• Pages: 434-476

CHA PTER 11

SU RV EILL A NC E

The ability to forest all threats to n ational secur ity often hi nges on the

timely ava ilability of information. The Government of Canada’s 2004

national securit y strategy urges,

[i]ntelligence i s the foundation of our abilit y to t ake effective meas -

ures to provide for the security of Canada and Canadians. To manage

risk ef fectively, we need the best possible information about threats

we face and about the intentions, capabilities and activities of those

who would do u s harm. The be st decisions regarding the scop e and

design of security program s, the allocation of resources and the de-

ployment of asset s cannot be m ade unless decision makers are as

informed as pos sible.1

As this passage sug gests, national securit y investigations tend to

be prospective, aimed at anticipating and pre-empting threats. In this

environment, surveillance and monitoring of anticipated threats, and

timely distribution of relevant i nformation between secur ity and in-

telligence agencies is essenti al.2 That was the lesson — and the great

failure — of 9/11.

1 Canada, Sec uring an Open Society: Canad a’s Na tional Security Policy (2004) at 15,

online: ww w.army.dnd.ca/ lf/Downloads /natsecurnat _e.pdf [Securing an Ope n

Society].

2 See also on this point, Stanley A. Cohen, Privacy, Crime and Terror: Legal Rights and

Security in a Time of Peril (Ma rkham, ON: LexisNexi s Butterworths, 2005) at 57.

434

Surveillance 435

Surveillance and information sharing necess arily trench, however,

on individual privacy. Excessive sur vei llance and information sharing

raise the spectre of an omniscient state. Inform ation collected initial ly

for a public i nterest purpose might be deployed more cynica lly in the

future. A s Alan Dershowitz w rites, “experience teaches us that infor-

mation secured for t he l imited purpose of preventing on ly terrorism

will often be used by the government to prosecute other less ser ious

crimes, such as d rugs, pornography and fraud.”3 On this same theme,

Canada’s privacy commissioner warned in 2005 that “the logic of anti-

terrorism could permeate all spheres of law en forcement and public

safety and this could result in la rge-scale systems of surveillance that

will increa singly erode privacy rights in Canada.”4

Democracies tend, therefore, to be suspicious of the surveillance

state. In Dershowitz’s words, t he “history of creeping expansion and mis-

use of power creates an understandable sen se of mistrust t hat anim ates

much of the opposition to changes th at might increa se the effectiveness

of mea sures to prevent ter rorism, ranging from surveillance, to prof‌il-

ing, to interrogation methods designed to gather preventive intelligence

rather than evidence for use at trial s.” In fact, a 2006 survey reported

that “more than h alf of Canad ians don’t trust t he government to protect

their personal inform ation, while nearly 50 per cent believe anti-terror-

ism laws drafted to guard national sec urity violate their pr ivacy.”5

As in other areas of national security, the ch allenge lies in ba lancing

competing interests. This chapter begins with an overview of privacy

law protections, before examining specif‌ic “lawf ul access” law s — that

is, legal regimes permitting electronic surveil lance for law enforcement

or national s ecurity reasons.6 Chapter 12 t hen ex amines national se-

curity information sharing with in and between governments.

3 Alan Dershow itz, “Can’t Live with Big Brother” Nati onal Post (7 September

2006) A23.

4 Opening St atement by Jennifer Stoddart , Privacy Commissione r of Canada,

Independ ent Review Mechanism for the Na tional Security Activities of th e RCMP,

Commission of I nquiry into the Actions of Ca nadian Off‌icial s in Relation to

Maher Arar (16 November 2005), online: w ww.privcom.gc.ca/speech/ 2005/sp-

d_ 051116_ e. asp .

5 Carly Weeks, “Canad ians Leery of Anti-t error Laws, Poll Shows” Ottawa Citizen

(14 November 2006) A5.

6 For an extremely det ailed, magisteri al study of many of the same is sues dis-

cussed in t his chapter, see Cohen, Privacy, Crime and Terror, above note 2.

NATIONAL SECUR ITY LAW436

PART I: PRIVACY PROTECTIONS

A. INTER NATIONAL PRIVACY LAW

Privacy rights are entrenched in inter national human rights law. Art icle

12 of the Universal Declaration of Human Rights7 provides that “no one

should be subjected to arbitrary interference with his privacy, family,

home or correspondence, nor to attacks on his honour or reputation.

Everyone has t he right to the protection of the law against such inter-

ferences or attacks.” The International Covenant on Civil and Political

Rights contains identical langu age.8

International “soft-law” sta ndards also exist. Notable a mong these

are the Organization for Economic Cooperation and Development’s

Guidelines Governing the Protection of Privacy and Transborder Data

Flows of Personal Data.9 These g uidelines provide th at “there should

be li mits to the collection of personal data and any such data should

be obtained by lawf ul and fair mean s and, where appropriate, with the

knowledge and consent of the data subject.”10 This person should be

notif‌ied of the use to which this information wi ll be put, and any sub-

sequent disclosure of this informat ion should b e consi stent with th is

use.11 The United Nations General As sembly has also proposed guide-

lines with sim ilar provisions.12

B. CONSTITUTIONAL PRIVACY PROTECTIONS

1) Reasonable Expectation of Privacy

In Canada, privacy ha s been given constitutional protection in the Can-

a di a n C h ar t er o f R ig h ts a nd Fr e ed o ms .13 Se c ti o n 8 of t h e Charte r guarantees

7 A/RE S/217 A (III) (1948). A s discussed in Ch apter 2, the UDHR is viewed in

whole or in part an ex pression of customary i nternational law, and therefore

binding on all st ates.

8 (1976), 999 U.N.T.S. 172, Art. 17 [ICCPR].

9 Paris, 1981, online: ww w.o ecd.org/document/18/0,234 0,en_2649_34255_

1815186_1_1_1_1,00.html.

10 Ibid., Pri nciple 7.

11 Ibid., Pri nciples 9 & 10.

12 United Nations Ge neral Assembly, Guidelines Concerning Compu terized Personal

Data Files, 14 December 1990, online: w ww.unhchr.ch/html/ menu3/b/71.htm.

13 Part I of the Constit ution Act, 1982, being Schedule B to the Can ada Act 1982

(U.K.) 1982, c. 11.