Court vs. Harper

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Here we go again: the Supreme Court of Canada and the government of Stephen Harper look like they’re once again on a collision course over Tory policy.

It’s already been a rough few months. The court refused to allow Harper’s pick for a new member of the bench, and virtually torpedoed the Harper plan to reform the Senate.

After finding the country’s prostitution laws to be unconstitutional, the court now appears to be heading for a showdown with the government based on new prostitution legislation that doesn’t address the concerns pointed out by the court the last time around.

And on Friday, the court essentially said that the federal government’s willingness to allow authorities to peer into the wireless world without warrants

was a violation of the Canadian Charter of Rights and Freedoms.

Even as the Tories work to bring in broader legislation about warrantless searches — rules that would essentially indemnify Internet and telephone providers from “voluntarily” handing over information about their subscribers after receiving an official request — the Supreme Court was torpedoing existing legislation that has made similar allowances, although not quite so broadly, in the past.

The court, as part of a recent child pornography case, has said people have a reasonable expectation of privacy when they are working online, and if the police or other authorities want companies to hand over information about people working via a specific Internet service provider (ISP) address, they need both a warrant and enough information to convince a judge that a warrant is necessary.

The court — unanimously backing both the decision and the reasons — spelled out its rationale with care.

“The request by the police had no lawful authority in the sense that while the police could ask, they had no authority to compel compliance with that request. In the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. Therefore, the request by the police that the ISP voluntarily disclose such information amounts to a search.”

And searches need warrants.

In this particular case, the court allowed the information gathered by police to be used, and upheld the conviction in the case.

But the determination that Internet companies can’t simply release private information because of a police request will have interesting ramifications.

On a broader level, it shakes the underpinnings of a much larger issue. It suggests that, in the Supreme Court of Canada’s eyes, metadata — the sort of bare-bones information like email addresses and cellphone numbers that Western intelligence agencies, including Canadian agencies, feel they can collect with impunity — is actually protected by the Charter.

And the federal government’s new, even broader law, allowing companies to “voluntarily” surrender information on their subscribers, seems already to be in peril.

With so many court losses, (even with a substantial number of the Supreme Court judges being Harper appointees, meaning claims of Liberal bias fall short), has this become the government that can’t legally shoot straight?

Organizations: Supreme Court of Canada, Canadian Charter

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