Category Archives: Democracy

Jun 04 2014
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Democracy, Politics, Privacy

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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May 27 2014
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Democracy, Privacy

Lest we forget our rights in the Internet age

 

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My human nature abhors a snoop, unless he would be me. I am as compelled to conceal most details of my admittedly humdrum life as I am to blow the lid off someone else’s potentially dangerous cache of secrets. 

This is why, when it comes to privacy in the age of the Internet, I do not worry overmuch about irreconcilable urges. Everyone, it seems, has them.

Earlier this month, the European Union’s Court of Justice ruled that a Spanish guy does, indeed, possess the “right to be forgotten” in cyberspace, just as he had argued, setting a precedent that could spell profound implications for privacy advocates and free-speech supporters, alike. 

According to an online news item in the Guardian, “In what could be a landmark case for internet privacy, a European court has ruled that Google must amend some of its search results. . .The test case. . .was brought by a Spanish man, Mario Costeja González, after he failed to secure the deletion of an auction notice of his repossessed home dating from 1998 on the website of a mass circulation newspaper in Catalonia. . .

(In) the advisory judgement. . .individuals have a right to control their private data, especially if they are not public figures.”

The Guardian piece goes on to report that “More and more individuals are claiming they have a ‘right to be forgotten’, particularly when the internet pulls up personal information which may appear one-sided or unfair.”

For its part, Google characterized the ruling as “disappointing” and indicated it would take its time “analysing the implications”.

Meanwhile, Wikipedia founder Jimmy Wales was simply gobsmacked. 

“(This is) one of the most wide-sweeping internet censorship rulings that I’ve ever seen,” he told BBC Radio 5 last week. “If you really dig into it, it doesn’t make a lot of sense. They’re asking Google. . .you can complain about something and just say it’s irrelevant, and Google has to make some kind of a determination about that. That’s a very hard and difficult thing for Google to do – particularly if it’s at risk of being held legally liable if it gets it wrong in some way.”

Moreover, he said, “Normally we would think whoever is publishing the information, they have the primary responsibility – Google just helps us to find the things that are online. . .I would expect that Google is going to resist these claims quite vigorously. I think they would be foolish not to because if they have to start coping with everybody who whines about a picture they posted last week, it’s going to be very difficult for Google.”

Still, if some authorities think it’s perfectly okay to require search engines like Google to scrub the past clean on demand, others seem determined to obtain access to the unfiltered mausoleums of information that represent the virtual lives of nearly three billion IT-savvy earthlings. 

The Government of Canada, for one, is doing its level best to shine daylight on two bills (C-13 and C-31) that would expand the snooping powers of police. According to a report in the Globe and Mail last week, these controversial pieces of legislation will “give police and other law-enforcement officials new powers to request and monitor the private data of Canadians, despite objections from privacy watchdogs.”

Where is, these watchdogs wonder, our ‘“right to be forgotten”?

In a letter, earlier this month, to Conservative MP Mike Wallace, chair of the Commons justice committee, Ontario’s Information and Privacy Commissioner Ann Cavoukian stated, “The time for dressing up overreaching surveillance powers in the sheep-like clothing of sanctimony about the serious harms caused by child pornography and cyberbullying is long past.”

In her own statement last week, British Columbia’s privacy commissioner, Elizabeth Denham, advised the feds to “separate the provisions addressing cyberbullying from those that extend law enforcement powers,” arguing that “any proposed increase to those powers must be critically examined and vigorously debated.” 

She added: “It is up to government and law enforcement agencies to make the case to Canadians as to why increased police powers are necessary.”

Canada’s various privacy commissioners and the likes of Jimmy Wales may argue interminably about which is more dangerous to a healthy democracy: Too much of an individual’s personal information concentrated hands of a powerful few; or not enough accurate information about an individual’s actions available to the great, unwashed masses.

The good news is, perhaps only, that the debate is far from settled. 

 

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May 12 2014
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Democracy, Politics

Quizzing the nation’s happy, ignorant citizens

 

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Canada may only rate a “gentleman’s C” for the democratic timber of her governance. In fact, when it comes to fair, just and responsible representation, the Great White North may be slipping up in all sorts of ways. But do we care?

Over the past few years, the tone of discourse on Parliament Hill has fractured into dozens of discordant shards, each cutting away at the comforting conceit that this country is not only a paragon of egalitarian virtue – it’s a courteous one at that.

From bitterly partisan attacks on former Parliamentary Budget Officer Kevin Page  – who had the gall to do his job well – to salvos lobbed earlier this month at Supreme Court Chief Justice Beverley McLachlin – who deigned to question the prime minister on a matter of procedure – evidence of the federal government’s disdain for any authority other than its own is mounting. 

And yet, we tell ourselves: Don’t worry, be happy.

Not long ago, the Ottawa-based Centre for the Study of Living Standards – an independent think tank whose projects are financed by a variety of public and private sources – concluded that “Canadians are happy and getting happier.” 

Based on the results of a survey it conducted in 2012, it noted that “more than nine out of 10 Canadians aged 12 and over (92.3 per cent) reported that they were satisfied or very satisfied with their lives.”

In fact, the Center reported, “According to a Gallup World Poll taken in February 2012, Canada is the second happiest country in the world preceded only by Denmark. Our ranking has increased from fifth place (2007-8 Gallup World Poll), indicating that Canada is becoming happier relative to its international peers.”

The regional variations were also striking. The traditionally poorer provinces – where consistently good governance tends to be diamond-rare – were happier than the wealthier ones. “Based on the 2003-2011 period average, Nova Scotia, Quebec and Newfoundland and Labrador had the highest average levels of life satisfaction, while British Columbia, Ontario and Nunavut had the lowest,” the Centre observed. “Between 2003 and 2011, life satisfaction increased by a statistically significant amount in Quebec and the Yukon.”

Clearly, it’s not the calibre of our politics that keeps us up at night. 

Last week, the Centre released another report – this one on “sustainable governance indicators” for Germany’s Bertelsmann Foundation. In it, the authors Andrew Sharpe, Anke Kessler and Martin Thunert conclude that “A strong case can be made that the quality of governance provided by the government of Canada deteriorated somewhat from May 2011 to May 2013. While the government has constructed high-quality governance structures and implemented effective policies in many areas over many decades, the actions of the Conservative government since winning a majority of the seats in the House of Commons in May 2011 have jeopardized this situation.”

Indeed, say the authors, “There are numerous examples in which Canada’s government has demonstrated a lack of commitment both to the use of evidence in its decision-making and to the provision of high-quality data.”

There is, for example, the elimination of the once-mandatory long form census, without which economists, educators, actuaries, scientists and my Aunt Mabel are in the dark about practically everything that’s necessary to maintaining a high standard of living.

There’s also the Tory fascination with putting bad guys in jail and throwing away the key, even though what statistics we still collect clearly show that incidents of violent crime in Canada are on a 40-year downslope.

Then, of course, there’s the environment to which our official attitudes have cooled even as the Earth has grown demonstrably warmer. 

“The government’s skeptical attitude toward global warming and apparent unwillingness to offer an effective strategy for the reduction of greenhouse gas emissions, as manifested by its repeal of the Kyoto Accord, are seen by many as inconsistent with sustainable governance,” notes the Center’s report.

Still, why don’t more of us care? We should. 

Sustainable democratic governance is the wellspring of everything we take for granted and on which we, nevertheless, depend. 

We may have a right to pursue that which makes us happy, but not to the extent of deluding ourselves about the condition of the public institutions that make the pursuit possible.

 

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Apr 29 2014
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Democracy, Politics

Canada’s feuding, fuming democracy 

 

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That there is no love lost between Canada’s top jurists and its prime minister became brilliantly obvious last week when the Supreme Court of Canada squashed the federal Tories’ fondly held Senate reform ambitions.

Less obvious was whether the executive and judicial branches of government in this country will ever find common ground on any issue of substance that’s dear to a true, blue Harperite heart. 

Senate reform was the fifth, straight juridical mauling of the Conservatives in recent months, and, like all the others, the outcome was hardly surprising. In its ruling, the court was unequivocal about the limits of legislative meddling.    

“The framers sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives,” it declared (as quoted by the Globe and Mail). “The provinces must have a say in constitutional changes that engage their interests.”

To the federal government’s contention that the nation badly needs a more accountable, more transparent Senate whose newly elected members must serve short sprints – rather than lifelong marathons – in office, the Supremes responded that “the purpose of the (government) bills is clear: to bring about a Senate with a popular mandate. . .Legal analysis of the constitutional nature and effects of proposed legislation cannot be premised on the assumption that the legislation will fail to bring about the changes it seeks to achieve.”

As for the populist notion of abolition (enthusiastically endorsed by the NDP and others), it would  “fundamentally alter our constitutional architecture – by removing the bicameral form of government that gives shape to the Constitution Act, 1867. (Abolition) requires the unanimous consent of the Senate, the House of Commons, and the legislative assemblies of all Canadian provinces.”

With that, Prime Minister Stephen Harper bid farewell, once and for all, to a cherished plank of his policy platform. “We know that there is no consensus among the provinces on reform, no consensus on abolition, and no desire of anyone to reopen the Constitution and have a bunch of constitutional negotiations,” he said following the court’s announcement. “I think it’s a decision that the vast majority of Canadians will be very disappointed with, but obviously we will respect that decision.” 

In fact, despite their rhetoric and table pounding, the Tories never really formulated a clear idea about how to reform the Senate without dismantling the constitutional protections of a sizable number of Canadians. Every notion it floated was predicated on the faulty and profoundly self-important assumption that worthwhile changes to the institution did not require much, if any, consultation with the provinces.

The arrogance of that central conceit – that under Stephen Harper, the executive can conduct itself as it sees fit without recourse to any other branch of government – evidently rubbed the court the wrong way, as it has in four other cases since late March. 

When Peter MacKay, minister of justice, barred first-time, non-violent federal convict from obtaining early parole, the court ruled unanimously on March 20 to reverse the decision. 

One day later, the Globe reports, “Prime Minister Stephen Harper appointed Justice Marc Nadon to the court, to fill a Quebec vacancy. The question was whether, as a judge on the Federal Court of Appeal, he was eligible to represent Quebec. (The Supreme Court ruled 6-1) that he was ineligible because he did not have the special qualifications required for Quebec judges on the Supreme Court.”

Meanwhile, as the Globe chronicles, “Under the Truth in Sentencing Act, the government tried to stop judges from routinely giving extra credit to offenders for the time they serve in custody before sentencing. (The court ruled) 7-0 that judges have discretion under the act to routinely give 1.5 days credit for every day served.”

Finally, “A prisoner wanted to challenge his transfer to a maximum-security jail from a medium-security one. The federal government said he had to go through a slow process that involved the Federal Court. (The court ruled) 8-0 that prisoners’ ancient right to habeas corpus gives them prompt access to superior courts in whatever province they are in.”

Of course, amity between branches of government is not a prerequisite for maintaining a hale and hardy democracy (just the opposite, one could argue). 

If that’s true, then Canada’s successful union is the very picture of health.

 

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Apr 28 2014
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Democracy, Politics

Can Elections Canada walk and chew gum?

 

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Conservative Senator Linda Frum’s dislike of collegial discourse is almost as sharp as her contempt for logical debate, which, given the lamentable quality of political talent these days, perfectly qualifies her to sit in this country’s Red Chamber.   

Installed in 2009 by Stephen Harper to, presumably, bolster the PMO’s determination to transform all parliamentarians into caterers of official government policy or, in the alternative, portray the hold-outs as renegades against the group-think her party expects of everyone in its orbit, Senator Frum has revealed her colours in recent comments before the nation.

Speaking to Chief Electoral Officer Marc Mayrand during a Senate hearing on the “Fair Elections Act” (Bill C-23) 11 days ago, she effused: “Your concerns about section 18 removing your ability in future get-out-the-vote initiatives. Do you not see why there is a conflict of interest between you as a chief electoral administrator being in charge of the administrations of free and fair elections and also you being invested in get-out-the-vote initiatives so that you have then a vested interest in seeing the numbers increase? And that that balance. . .You don’t see the conflict there?”

Ms. Frum later defended her bizarre assertion (that Elections Canada’s CEO ought not be permitted to simultaneously walk and chew gum, electorally speaking, lest his enthusiasm for greater voter turnout somehow corrupts our representative democracy) in the Twitterverse. 

“Elections Canada should not have a vested interest in recording a high voter turnout. That’s a conflict,” she tweeted on April 9, to which political consultant Bruce Anderson remarked, “Don’t we all have a vested interest in a high voter turnout?”

Ms. Frum: “Absolutely we do. Who is suggesting otherwise?”

Mr. Anderson: “You did Senator: ‘Elections Canada should not have a vested interest in recording a high voter turnout.’” 

Ms. Frum: “Sigh. If u don’t agree – fine. But stop pretending u don’t know what I’m saying. It’s not EC’s role to motivate ppl to vote.”

Mr. Anderson: “Not pretending. . .with respect, I truly don’t know why a high turnout is a conflict 4 EC. But agree to disagree.”

Mr. Anderson was not the only witness to this carefully staged play who was left bothered and bemused by Ms. Frum’s political performance. Still, she refused to relent. In a guest editorial for the Globe and Mail, some days later, she noted that “Elections Canada is a bureaucracy with two missions: to ensure the integrity of the voting process and also to promote voter turnout,” before declaring that the two missions are fundamentally at odds with one another.

“You want the biggest vote total? Accept every ballot. You want to eliminate voter fraud? Eliminating improper ballots may reduce vote totals. In attempting to achieve a balance between these two different missions, the evidence suggests that Elections Canada has favoured its turnout goals over preserving the integrity of the process.”

What utter rot. Nothing prevents Elections Canada from both promoting the general vote and safeguarding the system. It’s not an either-or proposition. It’s a double-barreled responsibility that, when executed properly, enhances, rather than diminishes, the democratic process.

As one letter writer to the Globe astutely pointed out, “competing interests are not the same as a conflict of interest. Both are goods to be pursued to reach the goal of democratic elections.” 

Commented another: “Senator Frum’s argument does not demonstrate that there is an essential conflict of interest – rather that Elections Canada’s efforts to do both need to be administered more effectively. Conservatives cannot justify removing certain populations’ power to vote just because there are potential ways to be fraudulent.”

Rejoined yet another reader: “This is like saying judges should not be involved in preliminary hearings because they have a vested interest in the outcome. To be kind, the only thing Senator Frum’s argument supports is a bigger bureaucracy, not something one expects to hear from the ‘Government is the problem’ people.”

In fact, the contempt Ms. Frum displays is of the same species that routinely lumbers down Parliament Hill’s hallways en route to its familiar perches in the committee chambers and hearing rooms of Government – hers is a visceral contempt of the electors, themselves.

 

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