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Politics Privacy watchdogs warn Ottawa not to expand surveillance powers

Privacy commissioner Daniel Therrien responds to a questions during a press conference Tuesday September 27, 2016 in Ottawa.

Adrian Wyld/THE CANADIAN PRESS

Canada's 14 privacy commissioners have formed a united front to argue that an ongoing review of the country's national-security regime should not lead to increased powers to break through encryption devices or to gather more personal information on law-abiding citizens.

Led by federal Privacy Commissioner Daniel Therrien, the group is arguing that police and security agencies have yet to make a clear case for new tools to investigate terrorists and criminals. According to the watchdogs, ordinary Canadians stand to be the main victims of any new powers awarded to law-enforcement authorities.

"This is not the time to further expand state powers and reduce individual rights," Mr. Therrien said at a news conference in Ottawa on Tuesday, flanked by his Ontario and Quebec counterparts. "This is the time to enhance both legal standards and oversight to ensure we do not repeat past mistakes and achieve real balance between security and respect for basic individual rights."

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Mr. Therrien and all provincial and territorial privacy commissioners have signed on to a joint submission to the federal government's ongoing public consultation on Canada's national-security framework. The submission states that many mistakes were made by countries around the world after the attacks of Sept. 11, 2001, leading to a new regime of "mass surveillance."

"We have seen too many cases of inappropriate and sometimes illegal conduct by state officials that have impacted on the rights of ordinary citizens not suspected of criminal or terrorist activities," Mr. Therrien said.

Referring to a recent court ruling that Canada's spy agency had unlawfully held on to the private data on Canadians, Mr. Therrien made an analogy with intelligence agencies in Eastern European communist regimes, stating: "I don't think this is the kind of society we want to live in."

Mr. Therrien said encryption is at the heart of a burgeoning electronic economy and that the tool benefits first and foremost honest citizens who want and need to engage in safe communications. He said criminals and terrorists already have access to a wide array of encryption tools to hide from law-enforcement authorities, and that there are limits to the ability of police to break through them regardless of any single country's laws.

As such, he argued that Canadian authorities should not adopt legislation that offers police a "backdoor" access to all devices used in the country.

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"There is more of a risk for the population at large if you create a systematic backdoor as opposed to looking at individual cases," Mr. Therrien said. "Encryption is not only used by criminals and terrorists, encryption is a benefit for the population at large."

The privacy commissioners are also arguing that it would be a mistake for the government to reduce the legal requirements for police to obtain search warrants, arguing that only judges offer the necessary independence to approve or reject these requests.

In particular, Quebec Information Commissioner Jean Chartier said he was concerned by recent revelations that police forces had obtained warrants to gather information on the sources of a number of print and television reporters in the province, including lists of phone numbers that were used.

"When it comes to metadata, people often say that it only refers to a computer's IP address or a list of phone numbers, and that it doesn't include personal information," he said. "In fact, it can tell you someone's religious beliefs or sexual orientation or health problems."

The RCMP, which is arguing it needs new tools to bypass encryption devices to conduct key investigations, did not have any comment on the submission of the privacy commissioners.

Public Safety Minister Ralph Goodale said the Liberal government will not make any compromises on issues of rights as it updates its national-security framework.

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"We have two critical objectives to achieve: No. 1, keep Canadians safe, and [No. 2] – simultaneously and equally important – make sure that Canadians' rights and freedoms are respected, along with the open, generous and inclusive nature of our democratic society," Mr. Goodale said after a cabinet meeting.

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