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Comment: Privacy commission must have Canadians’ confidence

It is not possible for reasonably informed Canadians to have any confidence in the appointment of Daniel Therrien as the new privacy commissioner of Canada.

It is not possible for reasonably informed Canadians to have any confidence in the appointment of Daniel Therrien as the new privacy commissioner of Canada.

We are in the post-Edward Snowden era in which privacy is one of the most critical human rights issues of the 21st century. There is a global privacy crisis and also a specifically Canadian crisis regarding government surveillance, national security secrecy and secret treaties, including a largely unknown and deeply worrying perimeter-security agreement with the United States.

Therrien might be a very respected and experienced lawyer. And it is not that Therrien has not given his able legal talents to these crucial privacy issues. It is that he has not been arguing on the side of privacy.

Since 2005, he has apparently very ably filled the post of assistant deputy attorney general, public safety, defence and immigration at the Department of Justice. The ministries in Therrien’s portfolio are well known for generating policies, practices and legislation that are highly problematic from a privacy perspective. In fact, you could say that Therrien has spent his recent career being among the chief defenders of governmental surveillance and national security secrecy.

The government’s announcement of Therrien’s nomination notes a single privacy-related achievement — his involvement in negotiating the “privacy principles” of the perimeter-security agreement. In fact, these privacy principles were considered a privacy fiasco by advocates who were quick to point out that principles such as the one allowing the U.S. to disclose information about Canadians with other countries enshrined the horrendous mistakes seen in the cases of Canadians rendered to torture, including Maher Arar.

It’s as if the drafters of the “privacy principles” of the perimeter-security agreement had never read the recommendations of the Arar Commission, or if they had, decided to ignore them.

The role of privacy commissioners and their empowering legislation is limited, but in the Canadian system, it is critically important. Arguably, never more so than now. Privacy advocates across the country have just issued the Ottawa Statement making an urgent call for needed privacy reforms, many of which Therrien would have spent the better part of this professional life opposing.

Canadians of all political stripes can plainly see the problem with asking someone to critique and investigate the very ministries and programs whose interests he has long served, or worse, the very programs and practices he developed. Clearly, this is not going to fly.

Therrien could have all the personal integrity in the world — which we have no reason to doubt — but nevertheless, he will be in a conflict of interest in the eyes of the public. This is an office that requires unimpeachable independence. Because of his background, there will inevitably be a perception of bias on the part of Therrien.

It is a very real possibility that, as commissioner, he would be called upon to review or critique programs that he used to defend for a living. His nomination sends a message to Canadians that the game is rigged and that the protection of their privacy rights is being undermined by the very system designed for their protection.

This undermining of public confidence in one of the key protectors of our privacy can be prevented. The government can withdraw the nomination or Therrien can recognize the untenable position he would find himself in as privacy commissioner and withdraw his name from consideration.

That is what needs to happen now.


Micheal Vonn is policy director at the B.C. Civil Liberties Association and Vincent Gogolek is executive director of the B.C. Freedom of Information and Privacy Association.