Why Care About What's Reasonable?

Posted on Friday, January 29, 2016

To date, the lawful access debate has been dominated by binary arguments.  Proponents argue that giving the state increased powers — such as allowing police to conduct some forms of online surveillance without a warrant, forcing telecommunications companies to retain information about their customers and provide this information to law enforcement agencies upon request, and expanding the powers of the Canadian Security and Intelligence Service — is necessary in order to protect children from online predators, to stop cyberbullying or to combat domestic terrorism, and oversight measures can prevent any unreasonable extensions of these new powers. In other words, lawful access powers are reasonable per se and that reasonableness can be protected by requiring additional oversight.  Opponents, on the other hand, argue that lawful access is unreasonable; not only does it invade privacy in general, the oversight measures that have been proposed are insufficient to protect the reasonable expectations of Canadians.

I argue that this focus on reasonableness draws attention away from the central problem with surveillance and lawful access, which is rooted in the conflict between the normative imperative to enforce the Criminal Code and the normative imperative to enforce the right to be secure against unreasonable search or seizure under section 8 of the Charter of Rights and Freedoms.

For example, while the Protecting Children From Internet Predators Act (Bill C-30) was being debated in 2012, the Office of the Privacy Commissioner (OPC) met with the Canadian Association of Chiefs of Police (CACP) to discuss the legislation. The CACP's position was that Bill C-30 was necessary to allow police officers to obtain information in a more timely manner. This suggests that the CACP believed that privacy rights hindered law enforcement agencies' ability to perform their work. However, most of the arguments made by the CACP and the OPC were aimed at the reasonableness of Bill C-30. These arguments would be more closely related to section 1 of the Charter, which applies "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" to the legal rights granted by the Charter, which is why section 8 specifically applies only to unreasonable search and seizure. Thus, the conflict between the normative imperative to enforce the Criminal Code and the normative imperative to apply section 8 of the Charter is primarily mediated by section 1 of the Charter. As a result of this, reasonableness often becomes the focus of the debates about lawful access and the conflict between policing and protection from unlawful search and seizure fades into the background.

From a legal perspective, the reasonable limits of search and seizure are determined by examining the facts of a specific cases and previous rulings on similar cases and extrapolating the standards for what can be considered reasonable surveillance. Political debates about lawful access, on the other hand, often revolve around the balance between privacy and security. As a result, the premise of the debate is that some sort of compromise must be negotiated in order to maintain the balance. The focus is on the reasonable limits permitted by section 1 of the Charter and the conflict between the broader principles of policing and protection from search and seizure  ̶  principles which are central to lawful access  ̶  receive relatively little attention outside the context of reasonableness.

In order to discuss the full implications of lawful access, I believe it is necessary to re-examine the right to protection from unreasonable search and seizure. Charter rights do not exist to undermine the security of Canadians. On the contrary, many of them exist in order to protect Canadians from potential government abuses. These rights are subject to reasonable limits in order to allow the state to carry out its function  ̶  as would be the case with policing and lawful access measures  ̶  but in order for the Charter to protect Canadians, the rights must be given priority over the limits. Otherwise, the Charter only exists to legitimize the actions of the state; the state can claim that it respects the rights of Canadians and that any encroachment upon these rights are perfectly reasonable. The onus should be on the government to prove that lawful access legislation does not significantly alter the relations of power between the state and the citizens, not just that lawful access is reasonable in certain circumstances.

By ignoring reasonableness and focusing instead on search and seizure in general, it may be possible to have more open and direct discussions about why some politicians and law enforcement agencies believe lawful access legislation is necessary to policing.

**Brent Nellis B.Sc (Ottawa), M.A. (Carleton), Ph.D. Candidate (Ottawa). His research focuses on the debates about lawful access legislation and I'm particularly interested in examining how claims made about government surveillance create groups of "victims" and "victimizers."

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