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Conservatives Won’t Listen to Their Own Privacy Expert on Surveillance Bill

The Harper government's new choice for Privacy Commissioner has privacy advocates concerned for a number of reasons, chief among them the government actually ignoring its own selection committee's recommendation and the new commish's inexperience with...
June 4, 2014, 5:27pm

Last week Canadians were treated to the news that the Harper government had selected a new Privacy Commissioner, Daniel Therrien. It was a move that deeply concerned privacy advocates. Yesterday, he testified at a House of Commons committee about the kind of commissioner he'd be, and managed to not further deepen that concern. One day down, 2554 to go. Nice one, Dan!

Therrien's nomination for commissioner alarmed privacy experts and civil liberties groups for a number of reasons. The process was opaque, and the government actually ignored its own selection committee's recommendation. Therrien has also previously given legal advice to Canada's spy agencies, leaving him open to potential conflicts of interest. He has no history of working as an advocate for privacy rights, instead working in national security. To boot, the appointment schedule left no acting Privacy Commissioner to officially testify on the government's C-13 lawful access bill, a piece of legislation that's been widely criticized as damaging to Canadians' privacy.


Yesterday, Therrien sided with pretty much everyone except Justice Minister Peter MacKay, telling MPs that C-13 should be split in two, with one law covering cyberbullying and another law covering the other 70-odd pages that expand warrantless police surveillance powers.

Therrien said: "I think I would agree in the end that there needs to be more transparency and I would agree with the Canadian Bar Association that the bill should be divided," with the troublesome lawful-access provisions coming under independent review.

The Harper government has a long history of conflict with officials who cause trouble with facts, figures, evidence, and inquiry, so it was easy to dismiss this latest appointment as a manoeuvre to nip any kind of that opposition in the bud. As David Murakami Wood, a Canada Research Chair in Surveillance Studies at Queen's University told me via email:

"They have systematically rubbished or removed any ombudsmen who have criticised them or even just produced factual research which contradicts what they say (like Statistics Canada). The former Privacy Commissioner was a human rights lawyer with a record of standing up for people. Harper's nominee is a career government lawyer with a record of standing up for the government."

But with yesterday's hour-long testimony, Therrien attempted to establish himself as a centrist, measured defender of liberty and security, telling MPs "I hope to demonstrate my impartiality through my actions," would "champion" privacy rights, and would be loyal to Parliament alone.


He defended his record as a career lawyer and advisor for the national security apparatus, saying that "privacy is a fundamental human right, and my career has been about respect for human rights in the application of various government programs affecting liberty and security."

I spoke to Micheal Vonn, Policy Director at the BC Civil Liberties Association, to try to situate Therrien's appearance today within the larger privacy context in Canada. She argued that while it was "nice to have Therrien on the pile regarding splitting C-13 into two, this position was already well-established and obvious" as the right thing to do. In that sense, taking that position alone doesn't make him a champion of privacy—it just makes him a sensible person.

Given Therrien's lack of recognition and experience in the pro-privacy community, Vonn expressed concern over his ability to be a trustworthy Privacy Commissioner from the outset. This is important because Canadians currently find themselves in the middle of a "last-minute cluster fiasco, with a whole raft of important privacy legislation coming along" in the form of bills C-13, S-4, and C-31 as just a few examples, Vonn said. Furthermore, since Therrien's term will be seven years, he'll be the lead watchdog for quite some time as Parliament updates Canada's laws to adapt to digital reality.

The Conservatives will very likely be pushing through their flawed bill C-13 no matter what their own hand-picked privacy expert says. Their dismissal of one effective privacy commissioner just in time to appoint an unknown other, with neither of them officially giving input, is suspiciously convenient at best. At its worst, it's another sad example of the Harper government's tendency to classify any and all opposition as illegitimate. When Canadians are presented with an emotionally-charged, deceptive "cyberbullying" bill that promises to impinge on our basic freedoms without ample justification, we'd better hope that we can trust the person in charge of impartially sticking up for us in Parliament. At this crucial moment, not many privacy experts have expressed that trust. This is concerning.

While the new guy tasked with defending our fundamental right to privacy didn't exactly roll over yesterday, it remains to be seen how he'll perform in the long run. In light of the very qualified field of candidates he was selected from, the government's curveball nomination leaves Mr. Therrien with a lot to prove. For the $296,000 salary we're paying him, Canadians deserve someone not only capable, but wholly dedicated to keeping our privacy rights intact.

Chris Malmo is a donor relations coordinator at OpenMedia.