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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