Hi All,
On November 5th, I entered the Appeal Court buoyed by your emails of support – – many thanks!
A panel of three Judges. The hearing was longer than I expected, more than three hours with one ten-minute break.
The prosecutor was again brought in from Ottawa.
I am satisfied. The questions were probing, whereas in the earlier hearing in Queen’s Bench there was not sufficient challenge to the legitimacy of some statements.
I still have wonder at my good fortune in connecting with lawyer Steve Seiferling. He knows Privacy Law inside out. He was able to answer and explain everything that came his way.
His strategy: (this is the way I understand it, not his words) there is one gateway. Build an impenetrable barrier at that one gateway, everything on the other side is irrelevant, if you can’t pass through the gateway. Keep the arguments clear and concise on that point. Don’t get entangled in ideas and arguments that only exist if you can pass through the gateway (which you can’t).
The gateway: the case law that establishes the Charter Right to Privacy of personal information says that the COLLECTION of personal information is illegal unless the citizen provides it on a VOLUNTARY basis. The Government cannot force citizens to provide personal information.
R. v. Plant, [1993] 3 S.C.R. 281
“In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.”
It does not matter to what use the information is put, or how secure or insecure is the data base, and so on . . . the citizen has a Charter Right to NOT provide personal information to the state. To me, it is stated quite eloquently and simply in the R vs Plant judgment.
The opening debate was whether or not Section 8 of the Charter applies in this case. Provincial Court Judge Whelan (first level of trial) said yes, unequivocally. Court of Queen’s Bench Judge Konkin (second level of trial) said yes and then equivocated at another place in his judgment .
The lawyer and the prosecutor (Nov 5) provided case law examples to support their opposing positions: Section 8 applies, Section 8 does not apply.
The State collects information from people:
- suspected of criminal activity
- in regulatory matters
- in censuses and surveys
Differences arise because of the conditions that surround the collection of the personal information. An abbreviated explanation:
- In criminal matters, investigative powers are subject to (limited by) Section 8
- In regulatory matters, there is a benefit to the person (e.g. they receive a driver’s license)
- (Steve argues) In the case of collecting information for statistical purposes there is no benefit to the person, nor criminal activity involved. The threshold for the protection of personal information should, if anything, be HIGHER in this case.
Whether there is a REASONABLE EXPECTATION of privacy was argued. (This was discussed in our network, see the posting Charter argument, Privacy of personal information, REASONABLE R. v. Edwards, [1996] 1 S.C.R. 128 )
Whether there was a “search”. (Section 8 is protection against unwarranted “search and seizure”, in this case, of personal information.) The Crown Prosecutor argued that your breath is “something” but it cannot be captured. Similarly, an idea is something that cannot be captured. Personal information does not exist until you are asked to provide it, it is an idea that you have to bring to mind. Section 8 does not apply because nothing was seized because I didn’t write anything down on the census form! If I had filled out the census form, there would have been a seizure (Prosecutor’s argument).
The argument fared poorly under questioning. (I would have liked to add “We would not be here if there was nothing that the State could seize.”)
That the Government, Minister Tony Clement, announced that the census long form is no longer mandatory was raised. (I always want to add: but they did not actually change the law. They did something better (if you want to build detailed information files on individuals): they changed the census long form (collection once every 5 years) to the “national household SURVEY”, enabling data collection to be carried out every week, every month, every year.)
American jurisprudence (Morales) was raised. But their constitutional law is quite different from Canadian. (a cautionary note from a Chief Justice on this topic is found in the legal argument in the posting Charter argument, Privacy of personal information, REASONABLE R. v. Edwards, [1996] 1 S.C.R. 128 )
To my mind, the Judges carry the same misinformation (out-dated) as most people. Fortunately a comment was made in passing by one of the Justices: the census records are in aggregate. There are no identifiable, individual records. This misconception is critical and it is widely held. By his enunciating it, it was possible to offer a correction: as of the 2006 census the individual data files are complete with the name of the person a part of the record. Reading body language, I think this caused an adjustment in thinking.
The prosecutor made much of the fact that I didn’t answer ANY of the questions. I wanted to interject: “I did not have the option of answering only SOME of the questions!”. But aaah! That is on the other side of the gateway.
Well! I guess you do not want to hear all 3 hours of it!
Expect the Appeal Court decision . . . . (Steve suggests) four or five months maybe.
Both of us are decidedly cautious in predicting the outcome, after twice having our confidence blown in the earlier court appearances! How about 51% versus 49% chance of success?!
I believe that the battle to protect the Charter Right to privacy of personal information must be fought. We are all at risk when our country starts the construction of detailed files on individuals. History is clear on that point.