Who watches the watchdog?

 

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The degree to which Daniel Therrien will faithfully execute the duties of his office as Canada’s incoming privacy commissioner rests entirely on his appreciation of the meaning of one word.

Call it independence or objectivity or dispassion, but the mandate and mission of this parliamentary watchdog are both clear and specific. 

They go like this, straight from the official record: “The mandate of the Office of the Privacy Commissioner of Canada (OPC) is overseeing compliance with both the Privacy Act, which covers the personal information-handling practices of federal government departments and agencies, and the Personal Information Protection and Electronics Documents Act (PIPEDA), Canada’s private sector privacy law. The mission. . .is to protect and promote the privacy rights of individuals.” 

In this, “the Commissioner works independently from any other part of the government to investigate complaints from individuals with respect to the federal public sector and Sutherland private sector.” 

So, then, what are Canadians to make of Prime Minister Stephen Harper’s choice to succeed Interim Commissioner Chantal Bernier? By all appearances, the two could not possess more divergent pedigrees. 

Like her predecessor, Jennifer Stoddart, Ms. Bernier comes from the traditional, bible-thumping school of public watchdoggery, preaching the gospel of accountability in all things government-related, come what may. 

In contrast, Mr. Therrien’s resume reads like that of a consummate insider, a man who appears to be more comfortable with going along to get along. His official bio, posted to the Prime Minister of Canada’s website, is unapologetic, even cheerful:

“In his current role, among other notable achievements, Mr. Therrien co-led the negotiating team responsible for the adoption of privacy principles governing the sharing of information between Canada and the U.S. under the Beyond the Border Accord, an umbrella agreement to enhance trade and security which includes 33 specific arrangements. These principles provide for the implementation, harmonization and augmentation of safeguards found in Canadian and U.S. Privacy legislation.”

To his supporters (among them, somewhat incongruously, is Liberal Leader Justin Trudeau), Mr. Therrien is the model of perspicacity, experience and knowledge – exactly what the office he will soon fill needs. To his detractors, he’s a catastrophe waiting to happen.

In a letter to Mr. Harper, NDP Leader Thomas Mulcair asserted, among other things, that Mr. Therrien “has nether the neutrality nor the necessary detachment to hold this position.” 

Michael Geist, an electronic security consultant, also expressed concerns. “Surely, the government is sending a bit of a signal that in an environment when there were other privacy commissioners and people with deep backgrounds on the privacy side, that they’ve chosen to focus on someone whose most recent emphasis has been on safety and security,” he told the Toronto Star last week. 

In a different time, none of this would have captured the public’s imagination quite so compellingly. After all, the privacy office, itself, wields more moral than legal persuasion over the affairs of public servants. It reports to Parliament, which is, for the moment, numerically weighted in favour of the sitting government. 

Still, the digital age – the age of whistle-blowers like Edward Snowdon and Julian Assange – has produced its very own brand of fear and loathing, where big brothers lurk around every street corner just under the closed circuit TV monitors that record you picking your nose as you jaywalk to work. 

Now, along with all the other bad news to digest, comes a front-page report in the New York Times this week that alleges the National Security Agency in the United States is “harvesting huge numbers of images of people from communications that it intercepts through its global surveillance operations for use in sophisticated facial recognition programs, according to top-secret documents.”

In this environment, Mr. Therrien’s nomination deserves the scrutiny it’s getting.

He may well be the dutiful, responsible, careful thinker his backers describe. He may be better-equipped to exercise his duties than any parliamentary watchdog, before or since. He may be a mandarin who manages to cross over from public servant to ombudsman, seamlessly. 

But will he be independent, the essence of his task? 

Time – that commodity this democracy is running down every day – will tell.

 

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