The Cadre +

1 December 1998

Big brother and privacy: who wins?

By JANICE MUIR

rivacy. The right to be P lieve that in a free and

democratic society, indi- viduals are protected from un- necessary encroachments from the State. Is it a myth, or do people really have the right to be protected from zealous representatives of the Queen?

Justice Gerard V. La Forest knows the answers. In Charlottetown recently for the Chief Justice Thane A. Campbell Lectureship in Law, the former Supreme Court judge endorsed the need for courts to remainas “guardians of the constitutional-values of society.”

In his presentation, Jus- tice La Forest told over 200 in attendance that “the broad and general rightto be secure from unreasonable search and sei- zure guaranteed by section 8 is meant to keep pace with tech- nological development, and accordingly, to ensure that we

are ever protected against un- ~

authorized intrusions upon our privacy and agents of the state, whatever technical forms the means of invasion may take.”

Citing the bugging of telephones as a “massive 1n- vasion of privacy,” Justice La Forest spoke of the individu- al’s right to a legitimate and reasonable expectation to pri- vacy. He said the courts should be concerned about allowing the police to intercept private communication solely on the basis of their own reasonable belief that valuable evidence stands to be gained.

“Weall havea profound interest in privacy. It serves as

a shield for us against state powers. As we pursue our rights and activities without government intrusion, the courts must ensure privacy for all people. The courts are guardians of the constitutional SEEDER AEE, ERECT PEYOTE SEE

Society has come to realize that privacy is at the heart of liberty ina

modern state... Privacy is

essential for

the well being

of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to ry into the lives

of the citizen

go to the essence of a democratic state.

cE EEE ADEE IIE LET EM values in society. That is the

price of freedom,” he said. Further, Justice La For- est said that “electronic sur- veillance is indiscriminately acquisitive; its reach extends to the conversations of the in- nocent and the guilty alike.” He added that the indis-

criminate acquisitiveness of P°

electronic surveillance invites

the courts to redouble their vigilance, and to be especially sensitive of the potential of certain practices to undermine the expectation of Canadians that their communications are inviolable.

"Privacy is central to a free and democratic society. It safeguards human dignity by providing all individuals with a shield against forced intrusions into their personal space. Pri- vacy guarantees that individu- als may move freely, think freely and participate equally in democratic decision mak- ing. In particular, the Charter limits the actions of govern- ment. Section 8 of the Charter specifically guarantees privacy rights over property, over the

person and over information. "Informational privacy

is built on the principle, and upheld by the Supreme Court, that all information about an individual is fundamentally his or her own property. In other words, noone should have more control over the personal in- formation than the person it concerns.

“It is sad to reflect that, even with the assistance of the Charter, the courts have failed to take the steps necessary to avoid this danger, and that if Canadians are to receive ad- equate protection against the insidious threat to individual privacy posed by electronic surveillance, they must turn to Parliamentto provide additional safeguards. There is a biting irony in this. The Charter was designed to protect us from ssible inroads on individual rights by Parliament.”

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