Law Student Association Orientation Week

Remarks to the McGill University Faculty of Law

August 30, 2013
Montreal, Quebec

Address by Jennifer Stoddart
Privacy Commissioner of Canada

(Check against delivery)


Introduction

First of all, I would like to thank Dean Jutras and the organizers of Orientation Week for inviting me to today’s event.

I never pass up an opportunity to spend time with bright-eyed young jurists and future lawyers. Your passion is contagious and your perspective on the world always inspires.

Nowadays, it seems to me that a legal education is designed to train thinkers—there is more emphasis on legal reasoning than just legal knowledge.

The new principles and methods you will be introduced to are the foundation on which you will build your career. And a solid legal foundation is very important.

The headlines on your screen often relate in some way to the law. The flouting or modification of the social consensus that law is supposed to embody in our democracies is always news.

These headlines are often about conflict, change, power struggles, aggression and human arrogance.

I think a legal education allows us to sort through the various facets of the world that are presented to us.

I am thinking specifically about the facts we manage to ascertain, the diversity of opinions and the sources of that diversity.

What is behind those opinions, or behind the differing presentations of the same facts? How do we connect all these dots?

This summer has been yet another busy one for my Office – between the development of the latest Google product, Google Glass; discussions about how to best address cyberbullying; and questions and issues flowing from the revelations of Edward Snowden about the reach of the U.S. National Security Agency’s Internet surveillance programs.

All these issues have implications for Canadians’ privacy.

Snowden revelations

My attention was caught by a statement, published by Mr. Snowden on Wikileaks on August 1st and reported by the Guardian. I quote:

“Over the past eight weeks we have seen the Obama administration show no respect for international or domestic law, but in the end the law is winning. I thank the Russian Federation for granting me asylum in accordance with its laws and international obligations.”

“In the end, the law is winning,” he says.

It will be fascinating for you to be at law school when the approach to legal education has evolved from being chiefly the transmission of positive law, to teaching an understanding of how formal law works in the context which surrounds it: a context which necessarily includes such factors as legitimacy, ethics, application transparency, personalization, disparate impacts and functionality.

Legal education now includes, from what I understand, looking at causes, drivers and effects of law on various constituencies.

All those considerations can be bought to bear on the analysis of the complex quadrille which will be performed by Edward Snowden, Wikileaks, the NSA as part of the U.S. Government, and the Russian government.

So everything that you learn here will be useful someday – yes, even the parts of the standard legal curriculum that don't seem especially interesting to you right now.

I remember that one of the most difficult courses for me was tax law. This was not the fault of the teacher, though.

He was a practitioner who was patient, clear and courteous with his students. With effort, I somehow scraped through!

Ironically, notions learned in tax law are the ones I use over and over in my personal and professional life: residency, employment income and capital gains, deductions and tax credits, specialized tax regimes amortization and so on.

Surveillance in Canada and the U.S.

I would like spend a few more minutes talking about the NSA issue because I think it is an interesting example of how the law and privacy intersect.

As I said earlier, Edward Snowden’s comments about the reported scope of collection of information by the NSA do raise privacy issues.

Canadians have fully embraced online culture and the mobile technologies that fuel it. We have some of the highest rates of internet connectivity and social network usage in the world.

But every digital transaction leaves a trace. And, as this summer's news clearly underscores, those digital tracks, or metadata, are of great interest to our security agencies.

I understand a senior U.S. official noted that, in order to find the needle, we need the whole haystack.

That is the technological reality, one that has clearly eclipsed many of the legal controls that were put in place in the 1970s.

Of course, this is not solely an American story.

While the U.S. has the NSA, Canada has a body called Communications Security Establishment Canada (CSEC).

It has a mandate to acquire and use information from the “global information infrastructure” for the purpose of providing foreign intelligence.

In an attempt to ensure this is done in a way that respects Canadian laws and values, the government created the Office of the Communications Security Establishment Commissioner.

This Office is led by a commissioner dedicated to reviewing CSEC’s activities.

To underscore the importance of the commissioner’s role, the legislation requires the government to appoint a supernumerary judge or a retired judge of a superior court to the position.

That is because questions of law in the framework of global communications and national security can be extremely complex.

I would also add that, here in Canada, personal information held by government institutions is protected by the federal Privacy Act and provincial privacy legislation.

Additionally, individuals are protected vis-à-vis the state by sections 7 and 8 of the Canadian Charter of Rights and Freedoms, which respectively provide that

  • everyone has the right to life, liberty and security of the person and
  • the right not to be deprived thereof in accordance with the principles of fundamental justice, and
  • that everyone has the right to be secure from unreasonable search and seizure.

In the private sector context, we have the Personal Information Protection and Electronic Documents Act, or PIPEDA, and other similar laws in certain provinces.

I want to stress that my Office realizes that the right to privacy, though fundamental, is not absolute. It must be exercised in relation to other fundamental rights.

Public safety and privacy are not at odds. Rather, both must be integrated and accommodated so that they may continue to coexist in a free and democratic society.

And surveillance can, for example, help provide us with safer streets and stop terrorist attacks before they happen.

But we do need to stop and think about some critical questions. For example:

How does the law ensure that personal information or communications collected by a government agency, in pursuit of one specific mandate, is not then used for another purpose when shared with another organization?

Does the law stop a government (say a democratic one) from sharing personal information with a despotic one?

These are not just legal questions, but they do need legal answers.

Responding to cyber bullying

Another issue in the news over the summer which relates to both privacy and the law is cyber bullying.

Cyber bullying – and its potentially devastating impacts – has become a significant concern in schools across the country.

In this digital era, we increasingly see individuals:

  • posting content online;
  • uploading photos and videos;
  • writing blogs; and
  • creating their own websites.

And while we do see tremendous benefits from this powerful ability to communicate with the world, we have also discovered that having the ability to say anything about anyone to everyone is not without its downsides.

From my perspective, it raises troubling issues for privacy and human dignity.

Like most privacy laws around the globe, Canada’s federal private sector legislation, PIPEDA, does not apply to personal or domestic uses of personal information.

The current landscape raises a number of questions: What is the responsibility of the individual? How should responsibility be allocated between social networking platforms and those posting messages?

We are beginning to see the courts address some of these issues.

Last year, for example, the Supreme Court of Canada rendered a precedent-setting decision in A.B. v. Bragg Communications. My Office was an intervener.

The case involved the sexualized cyber bullying of a young teenage girl, A.B., by someone who set up a fake Facebook profile using a variation of her name, and her photo. The issue before the Court was whether the girl could seek to unmask the cyber bully while remaining anonymous.

The Supreme Court was unanimous in deciding that the girl could proceed anonymously in her efforts to find out the identity of the cyber bully. The Court’s decision means that Canadian children and youth who have been the victims of cyber bullying may seek justice without sacrificing their privacy.

Meanwhile, the federal government has been examining possible amendments to the Criminal Code to better address cyber bullying.

That being said, we would approach any proposed legislation on cyber-bullying critically and with an eye to two main concerns:

First, in any new Criminal Code offence, the scope should be carefully limited to clear invasions of personal privacy – for example, the online dissemination of intimate images without explicit consent.

And, second, that any new investigative powers or processes for acquiring personal information be subject to appropriate legal controls.

Google Glass

I mentioned at the beginning of this presentation that another issue my Office was involved with over the summer was Google Glass – an example of innovative wearable computing technologies being developed by a number of organizations.

In the interest of time, I will touch on this issue very briefly.

Back in June, my Office, along with 36 of our provincial and international counterparts, wrote to Google to urge the company to address privacy concerns related to Glass.

We subsequently met with Google and used the opportunity to urge the company to be more transparent with regard to Glass and any other new products going forward.

It is difficult to predict all the ways in which this technology may be used in the future, which is why we are encouraging Google – and other organizations – to build in privacy protections at the front end.

Importance of choices

As you can see, my chosen career path has allowed me to be part of many fascinating and important legal and policy questions.

Canadians today face threats to their privacy that are varied and vast.

These are issues that are critically important, not only to all of us as individuals, but also to some of the cornerstones of our society.

Privacy allows us to protect our reputation.

It also allows us to protect our position and our sense of self in our social environment.

At the end of the day, privacy is the space we need so we can protect our freedom and our civil rights.

Before I close, I want to take a few minutes to talk about my career path and how some of what I have learned might help you as you embark upon your legal studies and professional lives.

At the time I went to law school, many of my classmates wanted to work in big law firms doing corporate law or litigation. This was viewed as being prestigious and well remunerated.

The choices that brought me to where I am today were unusual for someone of my generation, but are not at all so for young lawyers these days.

When I was ready to go on to graduate studies in the seventies, I had a hard time choosing between history and law.

At the time, Quebec was swept up by a wind of change – and the women’s movement was tackling the questions of social roles and sexual identity. I opted for the Université du Québec à Montréal, where I did a Master’s in History on the subject of women and work.

I then went to start a doctorate at L’Université de Paris VII (Jussieu), but I set that aside to come back to Montreal to study law here at McGill.

My year in Paris allowed me to step back and realize that what really interested me was law—and also that a law degree could open more doors for me than a Ph.D. in History. I realized that I liked being an actor in events that are significant to me. Law offered me the possibility of more action and more opportunity for participating in change.

When I graduated from law school, I could continue to teach history at the Université du Québec, join a major law firm, or become a federal public servant.

Once I had made the decision to join the public service, I told one of my mentors – a partner in a highly regarded, national law firm.

He then said to me: You may never practice law!

True enough – lawyers at that time were traditionally found in the courtroom. But I believed that as a public servant, I would still have the opportunity to practice law in my own way.

In the positions I held in the public service, I was a manager rather than a legal counsel. That is what I wanted.

My knowledge of the social sciences prepared me to look at the contextual background and implications of the law.

Working behind the scenes on cases that ended up making jurisprudence (that is to say, setting legal standards that are referred to as the accepted norms) or verifying draft legislation before it was introduced in the House of Commons or the National Assembly was deeply satisfying to me.

I had the good fortune to work for many years for both the federal and Quebec governments.

It is an environment where personal experiences, legal standards and emerging public law intermingle in new and exciting ways.

Importance of McGill

I believe this university’s Faculty of Law does an outstanding job of preparing future lawyers for the challenges of our modern age.

Of my classmates at McGill, one is now one of the most well regarded tax lawyers in this country, another is the managing partner of a large multinational law office and a third is one of Canada’s ambassadors. Another is a Superior Court judge; yet another is head of legal services for a major Crown corporation; yet another is an internationally recognized jurist.

Many of the lawyers who now work at the Office of the Privacy Commissioner of Canada's legal services branch attended McGill University.

They function easily in at least two languages, and also grasp the role the law plays in today’s increasingly computerized and globalized world. And of course they have the basics: superb analytical skills, the ability to express themselves clearly, and professionalism in all situations.

I would recommend that you take the time over the next few years to discover who your fellow students are, recognize their potential and listen to what they have to say. There are certainly among you some of the future great leaders, decision-makers and thinkers of your generation.

You have the opportunity to study at one of the few universities that offer training in both civil law and common law, in both of Canada’s official languages.

That will be a definite advantage for those of you who join the federal public service or work abroad. Most countries in Europe, some in Africa and Latin America have adopted civil law systems, which gives McGill graduates an advantage in the global context.

Conclusion

This is my tenth and last year as Commissioner.

In December, as my mandate comes to a close, it will be time for me to move on to new challenges, and for my Office to be led by someone else.

As I close my remarks here, I will offer you some advice — do what interests you.

The days can feel very long when you're doing something you don't enjoy.

You have a heavy workload ahead of you. But take advantage of the freedom and energy of your youth to follow your passions.

Your years spent at the Faculty of Law will give you the opportunity to get to know yourself better and gain a greater understanding of the profession we have chosen.

Find classmates who think like you do – but also ones who don’t.

All of these lifelong friends will support you but will also sometimes force you to rethink your values as you build your career on the legal foundation you will have established here at McGill.

Finally, follow your own path, regardless of what others might tell you.

You have the opportunity to follow your passions, and the energy to transform those passions into a lifetime of fulfillment.

I wish all of you well in your own journey.

Thank you for your attention. I look forward to hearing your thoughts and would be very pleased to answer any questions.

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