In response to the Office of the Privacy Commissioner of Canada’s call for input on online reputation and privacy, FIPA’s submission discusses some of the considerations we must make when we discuss the mitigation of online reputational risks, and the rights and interests we must seek to balance.
FIPA is highlighting the importance of both the right to privacy and the open court principle in our submission to a consultation the Court Services Online (CSO) system, being held by the Chief Judge of the BC Provincial Court of BC.
The open court principle is fundamental in a democratic society, as it allows citizens to scrutinize the workings of the court to ensure the rule of law is being applied. Under it, the courts—along with their records and proceedings—must be open to the public (with certain limited exceptions).
However, by putting court records online—especially non-conviction information from criminal cases—the Court found that employers and landlords were doing informal criminal record checks on potential employees and tenants. There have also been instances where people have experienced a great deal of pain and suffering as a result of information contained in online court records.
You can find FIPA’s submission on CSO here. In short, our recommendations are as follows:
- People involved in Provincial court criminal proceedings should be provided with accessible, easily understood information about what types of information about them will be made available online, and what they can do to control that information before they take part in any proceedings.
- Peace Bonds should not be made available on CSO. If the Court decides to make them available, they should only the available for the life of the Peace Bond, and initials should be used instead of names.
- To avoid undermining the existing system of police information checks, non-conviction information should not be made available on CSO.
- The Court should consult with the Office of the Information and Privacy Commissioner before posting new types of records online, in order to produce a document akin to a Privacy Impact Assessment (PIA) for internal use.
The following is a joint statement sent to Canada’s major federal parties, and signed by FIPA alongside a number of other organizations interested in improving Canada’s access to information system. Read on to learn more, or read the press release at cjfe.org.
The deficit of trust between Canada’s voters and its elected officials has never been higher, largely due to a breakdown in the system of accountability. Key to this is the fact that, after years of neglect, Canada’s access to information system is in crisis. The undersigned organisations are calling on the main political parties in Canada to make concrete commitments to reform Canada’s access to information system.
A strong access to information system is vital to maintaining a healthy democracy. Elections depend on the ability of individuals to understand how government has performed and the background to policy decisions. Journalists and civil society rely on requests for information to monitor public bodies and to uncover malfeasance. Vital oversight functions are curtailed in the absence of an effective right to information system. The current system is failing Canadians.
Our country deserves an open and accountable government. We call on all political parties to make a clear electoral promise to undertake a comprehensive process of consultation leading to reform of the Access to Information Act and to express specific support for the rapid adoption of the following four reforms after the election:
- Strengthen the Information Commissioner: Grant the Office of the Information Commissioner (OIC) order-making power and expand the OIC’s mandate to include promoting the right to information.
- Eliminate loopholes: Repeal all blanket exclusions from the Access to Information Act and amend the regime of exceptions so that they apply only where release of the information would pose a real risk of harm to a legitimate interest set out in the Act. Also, make all exceptions subject to an override, whereby information will be released if its disclosure is in the overall public interest.
- Expand the scope of the Act: Extend the Access to Information Act to apply to all public authorities, including ministers’ offices, the Prime Minister’s Office and Cabinet, and other bodies which perform a public function or receive significant public funding.
- Document decisions: Commit to requiring public officials to document and preserve records of their communications and decision-making, regardless of the medium of communication.
Canadians of all political stripes want honest and transparent government, and have spent decades waiting for a government willing to deliver it. We urge all parties to endorse these four reform commitments, and to support a comprehensive review of the Access to Information Act in the aftermath of the election.
l’Association des journalistes indépendants du Québec (AJIQ)
BC Civil Liberties Association (BCCLA)
BC Freedom of Information and Privacy Association (FIPA)
Canadian Association of Journalists (CAJ)
Canadian Journalists for Free Expression (CJFE)
Canadian Media Guild (CMG)
Canadian Taxpayers Federation (CTF)
Centre for Law and Democracy (CLD)
Centre for Social Justice
Evidence for Democracy
Fédération professionnelle des journalistes du Québec (FPJQ)
International Civil Liberties Monitoring Group
Lawyers’ Rights Watch Canada
Our Right to Know
Our Right to Know
Politics of Evidence Working Group
Right to Know Coalition of Nova Scotia
World Association of Community Radio Broadcasters (AMARC)
How has Canada’s access to information system fallen by the wayside?
- A ranking of the world’s access to information laws by the Centre for Law and Democracy rated Canada 59th globally. This is down from 51st place just three years ago, as more and more countries leapfrog ahead of us.
- A recent study by the Toronto Star of 28,000 access to information requests revealed that 57 per cent of all data released was censored in some way, and 18 per cent could not be found at all.
- In some cases, government departments have told Canadians they would have to wait more than a thousand days for a response to their access to information request, well beyond the 30 days set out in law.
- Last November, Information Commissioner of Canada Suzanne Legault warned that an increase in the number of complaints to her office had led to a critical shortage of resources. Rather than offering more funding, MPs suggested increasing the price of filing a request for information, in order to discourage use of the system.
This letter of concern was sent to:
The Right Honourable Stephen Harper, Prime Minister of Canada
The Honourable Thomas Mulcair, leader of the Official Opposition
Mr. Justin Trudeau, leader of the Liberal Party of Canada
Ms. Elizabeth May, leader of the Green Party of Canada
FIPA prepared a submission on Bill C-51 to the Standing Committee on Public Safety and National Security, asking the committee to withdraw the bill. Our submission is attached and below.
FIPA is a non-partisan, non-profit society that was established in 1991 to promote and defend freedom of information and privacy rights in Canada. Our goal is to empower citizens by increasing their access to information and their control over their own personal information. We serve a wide variety of individuals and organizations through programs of public education, public assistance, research, and law reform.
While our work focuses primarily on access and information rights in British Columbia, we have also played an active role in federal sphere, including in relation to the Personal Information Protection and Protection of Electronic Documents Act (PIPEDA) last month, and also on the issues related to lawful access going back to 2002.
We will keep our points brief, as many of the serious concerns about this bill have already been eloquently expressed by a number of individuals and organizations.
We hope you will look carefully at all the submissions, and hopefully recommend that this unjustified and unjustifiable piece of legislation be withdrawn.
What others have said about Bill C-51
For unknown reasons, this Committee has declined to call any of the Privacy Commissioners as witnesses, including the Privacy Commissioner of Canada. Fortunately, every Commissioner in the country has taken the initiative to sign a public statement on the many shortcomings of C-51, including a joint letter to this Committee.
Perhaps the most chilling paragraph in their letter to you is the following:
Bill C-51 challenges fundamental rights and freedoms on several fronts, but the focus of our concern is on its mandate for overbroad, unregulated and intrusive sharing of the personal information of ordinary Canadians. If enacted, the portion of Bill C-51 comprising the Security of Canada Information Sharing Act (SCISA) would significantly expand the power of the state to surveil and profile ordinary, law-abiding Canadians.
Pointing out that Bill C-51 would allow virtually unlimited surveillance of law-abiding Canadians, the Commissioners point out that this massive state surveillance “…would be inconsistent with the rule of law in our democratic state and contrary to the expectations of Canadians.”
Some of their key points relate to the excessive breadth of concept of what “undermines the security of Canada.” They also criticize the overbreadth of the scope for information sharing under the bill, and recommend that the proposed Security of Canada Information Sharing Act be withdrawn.
You have already heard from Professors Forcese and Roach about the shortcomings of C-51, and we will not repeat their remarks, but refer you to their excellent online blog for the catalog of shortcomings and overreach.
Professor Michael Geist has put together a trenchant criticism of the privacy shortcomings of this bill, and you can find it set out on his blog.
He refers to the proposed Security of Canada Information Sharing Act as a piece of legislation which would “eviscerate” the protections provided to personal information by the Privacy Act. We agree with his analysis and his conclusion.
Comparison between Bill C-51 and the successor to the War Measures Act
As the government has not seen fit to provide actual justification for the introduction of this bill beyond vague assertions of threats and platitudes about how security does not necessarily infringe on civil liberties, we thought it would be instructive to compare this Bill to current Canadians laws which provide extraordinary power to the government in emergency situations. Presumably the current situation is not an emergency, or else the government would have actually used its extraordinary powers under the Emergencies Act.
The preamble is an important tool in statutory interpretation, and a guide to the intention of P:arliament in enacting the law.
The preamble of the Emergencies Act is set out below.
WHEREAS the safety and security of the individual, the protection of the values of the body politic and the preservation of the sovereignty, security and territorial integrity of the state are fundamental obligations of government;
AND WHEREAS the fulfilment of those obligations in Canada may be seriously threatened by a national emergency and, in order to ensure safety and security during such an emergency, the Governor in Council should be authorized, subject to the supervision of Parliament, to take special temporary measures that may not be appropriate in normal times;
AND WHEREAS the Governor in Council, in taking such special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency.
This preamble sets out the need in times of emergency to take “temporary measures” to ensure safety and security AND “protection of the values of the body politic,” which may not be appropriate in normal times. The contrast with what is contained in C-51 is startling.
The preamble to the proposed SCISA (s.2 of C-51) reads as follows:
Whereas the people of Canada are entitled to live free from threats to their lives and their security;
Whereas activities that undermine the security of Canada are often carried out in a clandestine, deceptive or hostile manner, are increasingly global, complex and sophisticated, and often emerge and evolve rapidly;
Whereas there is no more fundamental role for a government than protecting its country and its people;
Whereas Canada is not to be used as a conduit for the carrying out of activities that threaten the security of another state;
Whereas protecting Canada and its people against activities that undermine the security of Canada often transcends the mandate and capability of any one Government of Canada institution;
Whereas Parliament recognizes that information needs to be shared — and disparate information needs to be collated — in order to enable the Government to protect Canada and its people against activities that undermine the security of Canada;
Whereas information in respect of activities that undermine the security of Canada is to be shared in a manner that is consistent with the Canadian Charter of Rights and Freedoms and the protection of privacy;
And whereas Government of Canada institutions are accountable for the effective and responsible sharing of information;
This section repeatedly states that the primary obligation of government is to protect itself and its people, while suggesting in its first paragraph that there is form of guarantee to be free from even threats to Canadians’ lives and security. Eventually the preamble does acknowledge, somewhat grudgingly, that its exercise of these new information sharing powers is subject to the Charter of Rights and Freedoms, and that the massively increased information sharing is to somehow be done in a way that is consistent with “the protection of privacy”.
Presumably this choice of words, rather than actually citing the Privacy Act or its principles, will allow government to share information according to its interpretation of what constitutes “the protection of privacy.”
- Consultation with the provinces and territories
The Premiers of British Columbia and Quebec have voiced concern about Bill C-51, but have no direct mechanism to bring these concerns to the federal government other than normal intergovernmental channels.
In contrast, s. 44 of the Emergencies Act provides that:
- Before the Governor in Council issues or continues a declaration of a war emergency, the lieutenant governor in council of each province shall be consulted with respect to the proposed action to the extent that, in the opinion of the Governor in Council, it is appropriate and practicable to do so in the circumstances.
Note the use of the word ‘shall’, making this consultation mandatory. The method and timing are left to the discretion of Cabinet, but this does not remove the obligation to consult.
There is no equivalent to this in C-51.
- Time-limited Powers
The government also has to seek Parliamentary confirmation of a declaration of emergency under the Emergencies Act. It must put a motion before each House, “together with an explanation of the reasons for issuing the declaration and a report on any consultation with the lieutenant governors in council of the provinces” seven sitting days after the declaration is issued.
First of all, under the Emergencies Act, before proclaiming that a “war emergency” exists, the government must believe, “on reasonable grounds, that a war emergency exists and necessitates the taking of special temporary measures for dealing with the emergency.”  The declaration must also “specify the state of affairs constituting the emergency” without jeopardizing any special temporary measures proposed to be taken for dealing with the emergency.” 
These declarations only last 120 days, but can be renewed. In contrast, C-51’s provisions do not have any kind of time limit or even a sunset clause.
- Parliamentary oversight
Bill C-51 provides no element of parliamentary oversight, despite a massive increase in surveillance and other powers to be exercised in vaguely defined circumstances.
This compares unfavourably with what Parliament saw fit to provide in an actual emergency in time of war, which is presumably a more serious threat to this country and its people than whatever threats we are currently facing.
Not only that, but this part of the Emergencies Act includes a Parliamentary Review Committee that examines the “exercise of powers and the performance of duties and functions pursuant to a declaration of emergency.”
This Committee would have members from all parties in both Commons and Senate. Those members would be sworn to secrecy and its meeting would be private, but the Review Committee would report to Parliament on how the government is exercising its powers and functions every 60 days for as long as the declaration of war is in effect.
The Review Committee also has the power to revoke or amend government regulations referred to it.
Once the war emergency is over, the Emergencies Act requires the government hold an inquiry within sixty days “into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.”
Nothing like this exists in C-51, nor has the government provided any rational explanation of why not.
The B.C. Freedom of Information and Privacy Association asks this Committee to recommend the government withdraw this bill.
 Emergencies Act R.S.C., 1985, c. 22 (4th Supp.)
 Emergencies Act, s.58(1)
 Emergencies Act, s.38(1)
 Emergencies Act s.38 (2)
 Emergencies Act s.62
 Emergencies Act s.62(6)
 Emergencies Act s.63