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Do We Still Have A Constitution?

by Daniel Johnson


The Canadian Federal Parliament's expanding pattern of ignoring constitutional provisions while drafting and passing legislation, and the Senate's growing tendency to acquiesce in these cases, is now reaching a new level. Usually in these cases, the legislation can be successfully challenged in the courts and sent back for changes to make them constitutional.

This is one of the primary functions of Canad'a court system, with the Supreme Court Of Canada as the ultimate decision maker in defending the constitution.

   The current Prime Minister has attempted to influence the court through threats, then by appointing members he believed would function at his command, and neither of these strategies have worked the way they were intended.

    So now they have decided that the decisions of the Supreme Court Of Canada are irrelevent. 

    A frightening example is the Federal Government's response to the recent Supreme Court Of Canada decision in the Spencer case, in which the court decided that police cannot gain IP information without a warrant.

    Police had been granted that right under Bill C-13, which should have been red-flagged by the Senate but has been effectively struck down, or at least that's what a decision by the Supreme Court Of Canada is supposed to mean. 

   In their decision they said  'in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.'

    The government's argument in this case was best made by the Parliamentary Secretary To The Minister Of Justice Bob Dechert 

"If you see a car driving down the street and you suspect that the driver is impaired, you copy down the licence number and provide that to police. I assume the police can also ask you for it. If I see, today, somebody harassing one of my neighbours on their front porch, and there's a car in the driveway, I assume I can note down that licence number and provide it to police, and by the same token the police can come to my door and say, “Did you see somebody harassing your neighbour; do you have any information that would lead us to that person's identity?”"
   
    This loose logic, that our private information isn't private, essentially justifies the violation of constitutional protections by the fact that those protections can be broken easily. 
    
  So they won't be changing Bill C-13 any time soon. But now, the situation is about to get much worse. 

    Parliament recently passed bill S-4, which expands the right to gain IP information without a warrant beyond police to private sector investigators and security companies, including insurance investigators, collection agents, etc., and would essentially gut all privacy protections against corporations. 

   On June 16, 2014, days after the Supreme Court decision in Spencer's favor, the Senate passed the bill, unchanged, after a few hours of hearings and repititious rhetoric in response, including the absurd claim that the bill was designed to protect privacy. 

Supreme Court Of Canada Decision, Mathew David Spencer VS The Queen, June 13, 2014.  http://www.canlii.org/en/ca/scc/doc/2014/2014scc43/2014scc43.html

Senate Of Canada, Documentation For Bill S-4  http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=6524312

Michael Geist Blog, Government Rejects Supreme Court Privacy Decision: Claims Ruling Has No Effect on Privacy Reform Tuesday June 17, 2014. http://www.michaelgeist.ca/content/view/7161/125/ 


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