Wednesday, August 24, 2016

God Help Us



In the wake of 911, it's increasingly clear that the Charter of Rights and Freedoms is seminal to Canadian democracy. The latest example of the Charter's importance is illustrated by a request from the Canadian Association of Chiefs of Police. Nadar R.Hassan and Stephen Aylward write:

Last week, the Canadian Association of Chiefs of Police adopted a startling resolution calling for legislation that, on judicial authorization, would “compel the holder of an encryption key or password to reveal it to law enforcement.” Public Safety Minister Ralph Goodale invited public debate on the proposal.

Police are responding to new challenges wrought by modern technology. Encryption renders data unintelligible without the user’s password. Even with a warrant to seize and search a cellphone or computer, police cannot gain access to the valuable information stored on those devices unless they can guess the password (or hack into the device, as the FBI recently did with a locked iPhone in the San Bernardino case).

Police worry criminals are “going dark”— i.e., using encryption to evade detection and prosecution. Compelling suspects to surrender their cellphone and computer passwords is an enticing solution to this problem. But it is one that ought to be unacceptable in a free and democratic society.

What is at stake is a basic principle of British Common Law:

The police chiefs’ proposal would lead to a radical erosion of our constitutional rights protected under the Canadian Charter of Rights and Freedoms. When the state accuses us of a crime, we are entitled to say, “prove it.” The Supreme Court of Canada has said this right — the right against self-incrimination — is the organizing principle of our criminal justice system. An accused person is under no obligation to assist the state in her or his own prosecution, whether by answering questions about where she was the previous night or by revealing passcodes.

Canadian law jealously protects the right against self-incrimination for reasons that are both historical and principled. The right against self-incrimination has its roots in the revulsion towards the 17th century courts of the Star Chamber, which would detain supposed enemies of the state on mere suspicion, compel them to swear an oath, and then require them on pain of punishment to answer questions.

Our constitutional law protects the right against self-incrimination because we recognize there is a power imbalance in criminal prosecutions, which frequently pit a single (often marginalized) individual against the overwhelming power of the state. The right against self-incrimination is the great equalizer. It ensures an individual is put through the criminal process only once police have built a case. It also protects the dignity of the accused and limits the risk that state officials will abuse their power.

Since the 1970's, economic power has been concentrated in fewer and fewer hands. Since 911, there has been a push to concentrate judicial power in fewer and fewer hands. We've seen the effects of the so called economic revolution. God help us if a similar judicial revolution takes hold.

Image: tvoinnews.com

15 comments:

Steve said...

After we sign the TPP it will be intersting to see what happens to a Charter Challange to the Digital Millium Copyright Act.

Owen Gray said...

Given what's happening in the United States, Steve, I wouldn't consider the TPP a done deal.

Toby said...

Remember when the police made similar arguments about the mail. Privacy of the mail was almost sacred. Court orders were required to intercept mail although we can assume that police did occasionally steam envelopes in order to take a peak. Now, with the Internet, everybody, from family on up to corporations and security outfits think they have a right to my e-mail and everything I do with my computer. We are in the age of thought police. We constantly hear the stupid argument about "if you have nothing to hide . . . ."

Some of us like privacy. It is a simple as that.

Owen Gray said...

I agree, Toby. It's just that simple.

The Mound of Sound said...


It's how this process lends itself to incrementalism that most troubles me, Owen. Eventually, bit by bit, this road leads to identity chips and endless turnstiles. That sounds fantastic today but it may be viewed much differently in 20 years as we're steadily conditioned to accept it.

Owen Gray said...

It's the frog -- or lobsters -- in the pot, as Jacques Parizeau used to say, Mound.

Anonymous said...


Owen,

I find it troubling that Goodale is suggesting we have a public debate of the issue.

Why do we need a debate? He should just do his job and protect the rights of Canadians.



Pamela Mac Neil said...

The governments response to the chiefs of police requesting that the government create legislation so that law enforcers can demand our passwords and we would have to give it, will tell Canadians everything we need to know about our future.

Will we have a democracy or will we have a police state. Legislation that violates the Charter of Rights and Freedoms is not constitutional. Better still why would any government want to create legislation that violates Canadians rights. Why indeed.

Goodale has said that this request from the chiefs of police will be discussed at the Bill C-51 public consultation. My guess is that the liberal government will okay this request on some level and they will incorporate it into Bill C-51 written in double speak language. That way they will not have to create seperate legislation for it.

Am I being too extreme? Have you ever seen a more unconstitutional piece of legislation then Bill C-51 yet the liberals want to keep it, but apparently with amendments. I don't trust them at all.

Harpers attempt to create unconstitutional legislation and signing "trade" deals that support special interests, destroy Canadian sovereignty and gave him more power, can be seen throughout his 9+ yrs in government. So to Trudeau.

The Neoliberal power elites who dictates what Trudeau's policies will be must be rubbing their hands in glee because Trudeau is someone who they can completely manipulate. Have him sign and ratify the many "trade" deals including the TPP, no problem. He has no clue about the corporations having judicial power over Canadian law .He thinks he's promoting free trade.

His idea of the liberal government, now being "open and transparent" is about him attending festivals, parades and concerts.The really important policies that effect Canada's democracy are nothing close to "open and transparent," but I don't think he knows that.

It is the Neoliberal power elite who are in charge in Canada and they need and desire to eliminate independent nation states. As a consequence of this they not only create a police state to stop dissent in the event the masses figure out what is really happening and revolt, but they want full control under corporate rule fronted by our very own government.

Our governments, including the present, have been sacrificing us on the global neoliberal alter for easily over 10+ yrs. The neoliberal elite is coming to the end of their pursuit of domination in Canada.Trudeau is instrumental in helping them finalize their agenda. This takeover is being done without a shot being fired. Our servile PM is handing us over on a silver platter.

You may think I'm being too paranoid Owen, but I think the liberals will give the chiefs of police what they want.

Owen Gray said...

I share your fear, Pam. And I hope our fear is misplaced.

Owen Gray said...

The idea of debating the request makes it sound like it's reasonable, Anon. These days insanity poses as reason.

Pamela Mac Neil said...

I just wanted to say Owen, that Anon's statement when talking about Goodale that "He should just do his job and protect the rights of Canadians." This one sentence encapsulates what the role our government should be, protector of our rights. Instead today our government is actually a threat to our rights.

Owen Gray said...

It's our good fortune to have the Charter and the Supreme Court, Pam. They take defending our rights seriously.

Pamela Mac Neil said...

Yes you're right Owen. I'll have to remember that. They have both been powerful judicial allies in supporting our rights and stopping governments who attempt to violate those rights.

Steve said...

Desperate time call for desperate measures, I call for more Patron.

Owen Gray said...

I'm sure you're not alone, Steve.