The Ottawa Citizen reported recently that the federal Government Operations Centre (GOC) is requesting the assistance of federal agencies in « compiling a comprehensive listing of all known demonstrations which will occur either in [their] geographical area or that may touch on [their] mandate ».  According to the Citizen reporter, this move « significantly expands its surveillance activities to include all demonstrations by any person or group ».  This raises a host of interesting issues, but I am particularly intrigued by Professor Wesley Wark’s comments:

Wesley Wark, an intelligence specialist at the University of Ottawa, said such an order is illegal. ”œThe very nature of the blanket request and its unlimited scope I think puts it way over the line in terms of lawful activity,” said Wark. ”œI think it’s a clear breach of our Charter rights.”

Wark said the only lawful way a Canadian government agency, with the appropriate mandate, would have to monitor a demonstration would be if that agency could establish that the protest would constitute some kind of threat to civil order.

Leaving aside questions regarding the jurisdiction of the GOC, as far as I can tell (and I am happy to be corrected), the GOC seems to be requesting information on the existence of protests, the way it collects information on the occurrence of floods or earthquakes. Whether or not I think that’s a good idea or conceivably necessary, I am not entirely sure that alone amounts to ‘monitoring’ or ‘surveillance’ in any constitutionally-problematic sense, much less that it would constitute a « clear breach » of the Charter.

As I understand the purpose of a public protest or demonstration, it is to attract attention, and normally the government’s attention in particular.  All of the meaningful protests I have seen have been ringed around by police officers, that is, agents of the state.  I do not mean to alarm anyone, but they know that the protest is occurring because they have eyes and can see things that are happening, like a massive group of people chanting with megaphones and waving flags and congesting traffic and such. Presumably they record the occasion in some fashion, if only in their diaries.

So perhaps there is a plausible argument as to why the government taking note of the existence of a public protest might be of obvious constitutional concern, but it escapes me at present.

Now, if the government’s activities in this area should go beyond merely recording the occasion of protests and their general tenor, and instead involved ‘monitoring’ and ‘surveillance’ in the sense of collecting information about identifiable groups or people, that might be very different from a constitutional standpoint.

While public protests and demonstrations typically involve those seeking to attract attention to their cause, they are often an instrument for people who are shut out from the halls of democratic, social and economic power.  Political expression, association and assembly are critically important aspects of our democratic tradition, especially for the relatively powerless, and any laws impacting on those freedoms should be closely scrutinized. I think there’s a much more plausible basis for asserting that compiling information about identifiable individuals or groups involved in protests may well have such a chilling effect on legitimate expression and assembly, particularly with respect to those generally mistrustful of the government, or who believe (reasonably or not) they have reason to fear government retribution.

Whether such a chilling effect alone would be sufficient to ground a Charter breach under section 2, much less an obvious one, much less one that could obviously not be justified under section 1, is another question.

At least one court has found that a ‘chilling effect’ alone is not enough to constitute a breach of sections 2(b) and (c) (see CCLA v. AG), in the context of government surveillance no less. As the court there noted, such arguments have been by and large confined to situations where the government has prohibited some harmful speech in a less than precise way, creating a risk that (legitimate) speech will be chilled as a result (see e.g. Whatcott, Taylor, Keegstra and Sharpe). Moreover, a ‘chilling’ effect may further exacerbate the harm of restrictions on freedom of expression, as Professors Roach and Forcese argue with regards to Bill C-51.  In such cases, however, section 2 is already engaged, and considerations of chilled speech will primarily be relevant in determining whether an overt prohibition on speech constitutes a ‘reasonable’ limit on freedom of expression (or assembly) under section 1.

However, I think the notion that a ‘chill’ on speech or assembly cannot amount to a breach of the Charter, standing alone, has probably been overtaken by the Supreme Court’s willingness to entertain such arguments, at least where there is some evidence or a common sense basis to support them (see Khawaja at paras 76-84). It has been a big part of US First Amendment jurisprudence for some time now, and has much to recommend it. So, while perhaps not a ‘clearly’ unjustifiable breach, there may well be something to the section 2 concern, should the government engage in meaningful ‘monitoring’ or ‘surveillance’ in such a way as to capture information about individual protestors or specific groups.

Second, collecting such information could conceivably constitute an unreasonable search and seizure under section 8, which arises upon an invasion of a person’s reasonable expectation of privacy. While such an expectation of privacy might be quite limited for those trying to be as conspicuous as possible in a public place, it is not nothing (see the Opinion of LaForest J. here with respect to CCTV cameras).

I will not delve into the issue in detail, but will point to the recent decision of R. v. Spencer (see paras 42-45), in which the Supreme Court said this about privacy in public places:

La Forest J. (who, while dissenting on the issue of exclusion of the evidence under s. 24(2), concurred with respect to the existence of a reasonable expectation of privacy), explained that ”œ[i]n a variety of public contexts, we may expect to be casually observed, but may justifiably be outraged by intensive scrutiny. In these public acts we do not expect to be personally identified and subject to extensive surveillance, but seek to merge into the ”˜situational landscape’”: p. 558 (emphasis added) (…). The mere fact that someone leaves the privacy of their home and enters a public space does not mean that the person abandons all of his or her privacy rights, despite the fact that as a practical matter, such a person may not be able to control who observes him or her in public. Thus, in order to uphold the protection of privacy rights in some contexts, we must recognize anonymity as one conception of privacy (…)

So, should the government’s monitoring and surveillance of public protests involve keeping a dossier on leading figures, or filming the protests in such a way that persons can be identified, or sending around drones with facial recognition technology, or what have you, there may well be a section 8 problem.

But unless I’ve missed something in the media coverage of the GOC’s direction, this is at best speculation at this stage, albeit an important topic to speculate about. (And of course, just because something is not self-evidently unconstitutional, does not mean it is not cause for concern.)

All of which is to say that just because you or I do not like something does not necessarily render it unconstitutional, and it would be worthwhile for journalists to question such assertions. In particular, if someone tells you that something is a « clear breach » of the Charter you might ask them what provision they’re referring to and why they think that.  Professor Wark is an expert in his field and I am not. There might be some very good reason why he believes that recording the mere incidence of protests is a clear constitutional breach, or alternatively, why something more is happening which raises more obvious constitutional problems. But we won’t know unless someone asks him.

Benjamin Oliphant
Benjamin Oliphant is a lawyer and writer, whose practice and scholarship focuses on constitutional, administrative, labour and employment law. He has authored or co-authored articles in various journals, including the McGill Law Journal, the Queen's Law Journal and the Canadian Labour and Employment Law Journal, and is an adjunct professor at the UBC Allard School of Law.  

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