Chapter 5: Assessment — The Committee’s Observations on the Debate about National Security and Canadians’ Right to Privacy
Special Report on the Lawful Access to Communications by Security and Intelligence Organizations
The Committee’s Observations on the Debate about National Security and Canadians’ Right to Privacy
193. The Committee agrees with the Privacy Commissioner’s statement that there are ways to ensure that privacy and national security are respected concurrently, rather than one traded-off at the expense of another. The Committee is encouraged to note that none of the witnesses who appeared for this review depicted the balance of privacy and national security as a zero-sum game. Privacy advocates acknowledged that, in certain circumstances, security agencies required access to private communications in support of their national security investigations. National security practitioners regularly stressed the need for their electronic surveillance activities to be compliant with the Charter, serve a legitimate purpose, and be necessary and proportionate. All agreed that reducing the debate to a competing narrative of Canadians being either for “Big Brother” or for the protection of privacy was unhelpful. In the Committee’s view, this suggests there is scope for key stakeholders to have a principled discussion about the way forward.
194. In order to do so, the Committee believes that it will be important for the government to close the gap between what Canadians assume security and intelligence organizations are able to do and the current reality. The Committee is aware that the RCMP and CSIS are unwilling and in some cases unable to share information publicly about investigative techniques and operational vulnerabilities. The Committee believes the rationale for limiting such information in the public sphere is largely reasonable. However, the information vacuum that this creates may perpetuate inaccurate assumptions that the capacity and resources of security and intelligence agencies are greater than they are. In the Committee’s view, assertions about a “golden age of surveillance” may have been accurate a decade ago, but they do not fully reflect the current challenges faced by national security practitioners today.
195. The Committee believes the modernization of lawful access legislation is an issue in which transparency about technical details and capabilities will matter in order to dispel incorrect assumptions and address cybersecurity and privacy concerns. If the government is to make meaningful progress on lawful access reform, this will not be an effort in which it can rely on high level talking points when it engages with key stakeholders. The Committee notes that other like minded democracies have made progress in this regard, particularly the U.K. in the drafting, passage, and recent review of its Investigatory Powers Act. There are principled approaches to transparency that Canada can follow.
196. The Committee also believes there remains room for improvement in how the RCMP and CSIS interpret and respond to Canadians’ concerns about privacy. For example, the Committee observed that CSIS and the RCMP regularly cited judicial authorization and the 62 Special Report on the Lawful Access to Communications by Security and Intelligence Organizations complexity of the warrant process as evidence that privacy concerns had been addressed in the context of the use of lawful access techniques. The Committee suggests that this response, while reasonable, may not be effective, as it does not explicitly detail how either organization has assessed privacy concerns. In another example, when the BCCLA cited the Federal Court’s 2016 ruling on CSIS’ duty of candour, CSIS responded that it had since restored trust with the Court. In the Committee’s view, this is not the point; the point is that amongst Canadians who are concerned about privacy, CSIS still has work to do to restore their trust.
197. Finally, the Committee notes Professor Goold’s observation that privacy advocates often feel the need to “be on the defensive” when the government contemplates modernizing lawful access legislation. The Committee believes that if the government is to make any progress in advancing lawful access reform, a key pillar of its strategy should be to determine how to engage and communicate effectively with Canadians, particularly those who are concerned about privacy and the Charter, with a view to identifying and proactively addressing instances where both sides are talking past one another.