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Can Harper’s choice for privacy watchdog provide accountability?

Prime Minister Stephen Harper stands during question period in the House of Commons on Parliament Hill in Ottawa on Monday, May 26, 2014.

Sean Kilpatrick/The Canadian Press

Trust us. That's been the Conservative government's response to creeping concerns that big-data surveillance is silently eroding Canadians' privacy rights.

And now, Prime Minister Stephen Harper has selected as watchdog over those rights, as Privacy Commissioner, an official who has for years advised the government, behind closed doors, on the activities of government that put those rights most at risk.

Trust us. Mr. Harper's nominee, Daniel Therrien, is competent and experienced.

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But this is not a job where simply trusting the government will do. The office of the privacy commissioner is one of a handful of flimsy mechanisms supposed to provide accountability. Mr. Therrien is, by all accounts, competent and experienced. But he is, by all appearances, unqualified to provide accountability.

The new Privacy Commissioner will step into the post just as Canadians are beginning to learn that their government collects a vast amount of their data, and just as the government is about to pass legislation – in a disconcertingly sneaky way, camouflaged as cyberbullying legislation – to make it easier for authorities to collect such data.

Privacy Commissioners also watch companies' use of personal information, and government storing of personal data. But the big issue the next commissioner faces, said Halifax privacy lawyer David Fraser, is the balance of privacy rights with the "surveillance state."

In walks the unknown Mr. Therrien. On Tuesday, he'll spend an hour – one hour – before a committee of MPs, and for the very the first time will air his views on privacy in public.

For nine years, he's been the Assistant Deputy Attorney General for Public Safety, Defence, and Immigration. That made him the senior legal advisor for issues at the heart of privacy, around the RCMP, the spies at CSIS, and electronic eavesdroppers at CSEC.

He negotiated with the U.S. the exchange of personal information under Mr. Harper's Border Vision accord, a point of concern for past Privacy Commissioners.

He also would have played a substantial role in the effort to expand powers to obtain information on Canadians' phone calls, e-mails, and Internet activities, now in the controversial Bill C-13 before Parliament.

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In short, Mr. Therrien has played a big role in building the current state of privacy rights. That gives him expertise but means he'd have to overcome human nature to take a detached eye to his past work.

He might face actual conflicts of interest, too. As a lawyer, his "client" has been the departments most often involved in privacy cases, including litigation, so he might have to recuse himself often. And he's barred from using his former client's confidences, so unless the government waives solicitor-client privilege, he must both conceal and reveal its privacy practices.

Mr. Therrien might be able to overcome all that. Lawyers move from defence to prosecution. There's no reason to believe he's anything but fair-minded. Perhaps he can be unusually clear-headed and critically minded about his past work, switching instantly to watchdog. But Canadians can't just be asked to assume he will.

The government argues Mr. Therrien was selected through a rigorous process – but it was a backroom vetting fit for choosing a mandarin. The Privacy Commissioner isn't a mandarin, rather a parliamentary officer, and public watchdog. NDP Leader Thomas Mulcair has opposed the choice.

In these complex issues, Canadians must be able to trust the privacy commissioner will be on their side. After all, Mr. Harper and his ministers routinely refuse to discuss surveillance issues, despite concerns raised by leaks and courts, and instead insist the public should be reassured by the oversight of watchdogs like the CSEC Commissioner.

Governments, Liberal and Conservative, have for a decade tried to pass a law to make it easier for authorities to collect Internet and phone data. After the Conservatives' first controversial attempt died, they slipped it into Bill C-13, ostensibly aimed at combating cyberbullying – before the Commons now. That doesn't exactly provide reason to trust the government is being forthright.

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But there shouldn't be any need to just trust the government's choice of privacy watchdog. The point of a Privacy Commissioner is to provide accountability. And accountability is crucial to democracy, the system built on the idea that the public cannot just trust those who govern.

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About the Author
Chief political writer

Campbell Clark has been a political writer in The Globe and Mail’s Ottawa bureau since 2000. Before that he worked for The Montreal Gazette and the National Post. He writes about Canadian politics and foreign policy. More

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