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Ottawa, March 7, 2003 - The Privacy Commissioner of Canada, George Radwanski, today made public the following letter that he sent to the Hon. Martin Cauchon, Minister of Justice and Attorney General of Canada, on February 20, 2003. He has to date received no reply. The Privacy Commissioner's Charter challenge against RCMP video surveillance of public streets will begin next Wednesday, March 12, in the Supreme Court of British Columbia in Kelowna, with a hearing on the federal Government's motion to dismiss the case.
February 20, 2003
Dear Minister Cauchon:
In four separate conversations, I have requested that you instruct the Department of Justice to end its attempt, on your behalf, to prevent my Charter challenge against video surveillance of public streets by the RCMP in Kelowna, B.C. from being decided on its merits by the Supreme Court of British Columbia.
To date, I have not yet received a favourable response to this request. Since we are now scheduled to go to court in the week of March 10 for a hearing on a motion on your behalf to have the case dismissed on grounds of alleged lack of standing on my part as Privacy Commissioner of Canada, I am now writing to make a final formal attempt to persuade you to reconsider your position on this matter.
As you know, the position that is being taken on your behalf is that the Privacy Commissioner of Canada is a statutory body created under the Privacy Act and that, since the Privacy Act makes no explicit reference to initiating legal action under the Canadian Charter of Rights and Freedoms, the Privacy Commissioner lacks the right to do so.
My legal advisors assure me that this position has no merit in law. Nevertheless, I am concerned that by adopting this course of action, presumably with a view to a succession of appeals in the event of an unfavourable outcome, you and the Government are seeking to delay a hearing on the substantive Charter issues for years.
I respectfully suggest that this is highly inappropriate, and contrary to the legitimate rights and interests of Canadians.
As a practical matter, the attack on my standing to bring this action makes little apparent sense. It is indisputable that the duties of the Privacy Commissioner of Canada include many important activities that are not expressly enumerated in the Privacy Act. These include, but are not limited to, overseeing compliance with the Personal Information Protection and Electronic Documents Act; reviewing Privacy Impact Assessments on new Government initiatives that must be submitted to me and my Office under the Treasury Board policy announced last spring; appearing before Parliamentary committees to testify about the privacy implications of legislation that is before Parliament; being briefed by, and providing advice to, Government departments regarding policy matters that might affect the privacy rights of Canadians.
At the level of principle, I find it extraordinary that you are taking the position that the Privacy Commissioner of Canada should not have the right to ask the courts whether a serious intrusion on privacy by agents of the state is contrary to the privacy protections in the Canadian Charter of Rights and Freedoms.
As you know, I and my Office initiated this legal action because we received an opinion from retired Supreme Court Justice Gérard La Forest, who wrote many of the Court's most important decisions regarding privacy rights under the Charter, advising that continuous video surveillance of law-abiding citizens on public streets by the police appears to be a clear contravention of the Charter.
There is reason to believe that as Privacy Commissioner of Canada, mandated by Parliament to oversee and defend the privacy rights of all Canadians, I am the only person who is realistically in a position to bring this action and make it possible for this important question of privacy rights to be definitively determined by the Courts.
If a private citizen residing outside Kelowna attempted to bring this issue to court, I have no doubt that you and the Government would dispute his or her standing to do so. On the other hand, while many residents of Kelowna have expressed their concerns about video surveillance to me and my Office, it is not very attractive for people living in such a relatively small and close-knit community to contemplate initiating a legal action that would antagonize the mayor, the RCMP and elements of the business community. As well, the legal costs of undertaking a Charter challenge are prohibitive for most private citizens.
It is also important to note that, because police video surveillance of public streets is becoming something of a fad, there are municipalities and police forces across Canada that are anxiously awaiting a definitive determination by the courts as to whether or not this practice is consistent with the Charter. They need to know the outcome of this case before deciding whether to invest in such initiatives, and prolonged delay does them a disservice.
If you believe, as Minister of Justice and Attorney General of Canada, that continuous police video surveillance of law-abiding citizens is in fact lawful under the Charter, then I respectfully suggest that the appropriate course is to cause this view to be vigourously argued before the Court as expeditiously as possible. On the other hand, if you believe - as the present recourse to obstructive tactics appears to indicate - that this intrusion on privacy rights is unlikely to survive a Charter challenge, then I would ask you to publicly say so and to direct the RCMP in Kelowna to cease this activity, thereby sending the right message to police forces and municipalities across Canada. I believe that Canadians are entitled to expect no less.
Since the case is scheduled to go to court the week of March 10, the matter is now extremely pressing. I would therefore be grateful for your prompt reply.
(Original signed by)
Privacy Commissioner of Canada
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