Privacy

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One of the most interesting human rights debates of the early 1970s centred on privacy. Writing for the Canadian Bar Review in 1968, Stanley M. Beck documented the extensive use of listening devices by private agencies. Examples ranged from car salesmen who bugged cars to determine how much customers would pay for them, to dance studios that eavesdropped on customers’ conversations to determine the most effective sales pitch. The police also employed electronic listening devices (though by the late 1960s, their use had secured only six or seven convictions). In British Columbia, a public inquiry was instituted after a private investigator was caught bugging the Pulp and Paper Workers of Canada. The media also uncovered evidence that the police had used wiretaps against two Ontario magistrates for nearly two months without authorization. At the time, there was no legislative restraint on the private or public use of listening devices.

As federal minister of justice in 1969, John Turner highlighted the dangers of electronic eavesdropping in a speech before the Canadian Bar Association:

“A remote-controlled amplifier and microphone, no larger than the head of a pin, can capture a conversation of people and transmit it by wire for twenty-five miles. A parabolic microphone without wires or radio transmitter can catch the conversation of two people in a boat in mid-lake, and record it on shore. The switching of a single wire can convert any telephone in Canada into a live microphone conducting sounds, even when the telephone is in its cradle. Cameras the size of a cigarette can photograph a room two blocks away by moonlight. Infra-red light techniques permit a room to be watched and photographed from an adjoining room through apparently opaque walls. Radio pills substituted for the subject’s aspirins and lodged in his stomach can transform him into a living electronic beacon. The investigator’s dream – making his subject a walking transmitter, and enabling the investigator to hear everything the subject says to anybody else, or even what he mutters to himself – can be realized by the wiring of a person’s clothing. We are told that there are transmitters so small they can be mounted as a tooth in a dental bridge … The Orwellian society of 1984 may be here already.”

A year later, the Canadian Bar Association’s civil liberties section introduced a resolution at the annual general meeting, suggesting that the federal government introduce legislation on privacy and freedom of information.

In 1968, Parliament’s Standing Committee on Justice and Legal Affairs began to call on the government to create privacy legislation. Following discussions at the Canadian Bar Association’s meeting of that year, the federal Department of Justice began to work on a draft privacy bill. In 1971, Ottawa began a protracted struggle to pass legislation regarding privacy. John Turner introduced Canada’s first privacy bill in Parliament, only to see it die on the order paper. A year later the government introduced another privacy bill, which also died on the order paper. Finally, in May 1973, Otto Lang, now minister of justice, introduced Bill C-175 and the Protection of Privacy Act was passed within a year.

Most of the privacy bills introduced between 1971 and 1973 shared the same essential characteristics. They made it illegal to use wiretaps and other electronic listening devices without the consent of the target (the penalty for doing so was five years in prison). They provided fines and jail time for anyone who possessed such devices or who disclosed illegally acquired information. However, they applied solely to the private use of wiretapping, leaving the police free to employ the technology if they had a warrant. This exception met with opposition: many people noted that electronic surveillance had a poor track record in achieving convictions and suggested that the police had no need of it (others noted that Canada had little by way of organized crime). Wiretapping was controversial because it did not discriminate when it intercepted communication: people who spoke with the target would automatically be recorded, even if they were not connected to the crime (thus violating their right to privacy). The Standing Committee on Justice and Legal Affairs vigorously debated whether a judge or a politician (the attorney general) should be responsible for approving warrants. David Orlikow, director of the Jewish Labour Committee, argued that the task should fall to politicians (not judges) and that they should be accountable for their decisions. The privacy bills also contained a contentious clause that allowed the solicitor general to issue warrants for reasons of national security – a vague concept that the bills did not define. The clause gave the solicitor general virtually unfettered discretion in issuing warrants.

The 1973 Protection of Privacy Act banned all private use of electronic eavesdropping, and though it was applauded by human rights activists, several organizations voiced concern regarding the lack of restraints placed on the police. The Canadian Federation of Civil Liberties and Human Rights Associations recommended that Ottawa create an independent tribunal to approve police wiretapping (rather than judges or politicians). The federation also opposed section 178.5 of the act, which allowed the police to use listening devices without authorization for thirty-six hours in exceptional circumstances (the federation suggested that the time period be reduced to twelve hours). It also opposed the national security clause, arguing that the solicitor general’s judgment could be affected by political considerations. Most offensive, however, and an issue of constant concern for human rights activists during this period, was the option to admit illegally obtained evidence in court.

By the end of the 1970s, only three provinces – British Columbia, Manitoba, and Saskatchewan – had their own privacy laws (although by 1979 New Brunswick and Nova Scotia had passed freedom of information legislation that allowed the judicial review of bureaucratic decisions). In 1968, British Columbia became the first province to regulate electronic eavesdropping (following a public inquiry), allowing one person to sue another for unreasonable invasion of privacy. Manitoba and Saskatchewan introduced similar legislation in 1970 and 1974 respectively. However, the Saskatchewan statute’s list of what constituted an “invasion of privacy” was longer than that of Manitoba. The Manitoba version was broader in scope, specifying that an offence need not be “willful” and permitting wiretaps to be used in the public interest.


Further Reading

Flinn, Andrew, and Harriet Jones, eds. Freedom of Information: Open Access, Empty Archives? London: Routledge, 2009.

Hayward, Robert J. “Federal Access and Privacy Legislation and the Public Archives of Canada.” Archivaria 18, 1 (1984): 47-58.

Hazell, Robert, and Ben Worthy. “Assessing the Performance of Freedom of Information.” Government Information Quarterly 27, 4 (2011): 352-359.

Larsen, Mike, and Kevin Walby, eds. Brokering Access: Power, Politics and Freedom of Information Process in Canada. Vancouer: UBC Press, 2012.