“Die Gedanken Sind Frei…My thoughts freely flower…
Die Gedanken Sind Frei…My thoughts give me power
Never to cater… To Duke or Dictator
No man can deny…Die Gedanken Sind Frei;"
---Anthem of the German Student Movement in pre-war Germany (as translated by Pete Seeger)
The violation of our thoughts and the paralytic fear caused to our spirits by excessive state oversight are as much acts of aggression as the breach of physical integrity caused by rape. If we have one boast over totalitarian regimes, one over-riding advantage, it is not in matters of materialism. It relates to matters of the mind and of the spirit. To those issues of natural law that, having a broad base in morality, protect our individuality and conscience against direct and indirect interference by government. All human progress centers around one continual rebellion. People, as citizens, in revolt against oppressive laws and insisting upon a personal accountability to conscience above the state. Liberty, inalienable, as the way of life.
Government was to exist for man, not man for government. The aim of the state was to be security for the individual and freedom for the development of his talents. The individual was to be protected from authority itself.
Our own Charter of Rights recognizes this and builds in protections in sections 2 & 7. Among the Fundamental Freedoms (sec.2) enshrined are those of conscience, thought and association. Legal Rights enshrined in sec.7 include the protection of liberty and freedom from unreasonable search, conceived as intellectual as well as physical, and that all state acts be governed by the principles of fundamental justice. The Charter was an extraordinary achievement in 1981, but Trudeau and the other framers of the Charter could never have imagined the amount of centralized information, illegal cross-departmental sharing and electronic eavesdropping available just 22 years later
This summer, for whatever reason, we at the Institute have seen an unusual number of files that demonstrate a disturbing pattern of overbearing government pressure on individuals.
Ø A businesswoman hit with penalties for failure to file revenue information forms she never received, forms which themselves demand an unacceptable amount of information on people she does business with. Citizens now have to be not only tax collectors for the government, but informers as well.
Ø A businessman terrified because of a call from law-enforcement officials wanting to question him on matters overheard in a wire-tap of a third party. He had never even been informed that he was being listened to as required by law.
Ø A retiree who received tickets in the mail for improperly wearing his seatbelt. When asked when these supposed contraventions occurred, he was informed that he had been caught on camera.
Ø A graduate student who was called to answer questions by a government functionary on information that was supposedly confidential in a file on him resting with another government department.
Ø Three people receive seizures on their bank accounts from Revenue for amounts outstanding under $1000 each and without receiving any prior notice or calls.
Add to these individual cases, the giant databases being created by the CCRA which has repeatedly refused to limit its use to anti-terrorism measures as requested by Canada’s privacy commissioner and civil-rights advocates such as former solicitor-general Warren Allmand. The precedents set could ultimately open the door to practices that exist in other societies where police routinely check anyone of interest to the state on any pretext. In addition, the government may be implementing measures to monitor e-mails and cell phone calls. This in addition to the current Canadian Security Establishment monitoring of some 50% of all overseas land line calls and 25% of cell calls with some 20% of these being sent to the NSA in Washington for transcription. Study is under way by the Immigration Department to establish a national identity card and to allow RCMP video surveillance on public streets. Finally, the government is looking at empowering a host of regulatory functions to be made by Order-In- Council without the approval or consent of Parliament.
As lawyer Clayton Ruby put it, « We may be losing sight of what our democracy is all about. » One thing is clear, we will inevitably be victims of what is bureaucratically called « function creep ». Information collected ostensibly for one purpose, in these cases legitimately to stop terrorists and foreign enemies, inevitably ends up being used for a host of other purposes.
These concerns are not new in our recent history. Despite the historic advance by the proclamation of our Charter, it came too late to strengthen the Protection of Privacy Act in the late seventies or to amend Criminal Code wiretap provisions adopted thereafter. We in this country have a seemingly hard time when it comes to bold initiatives to protect the individual from state intrusion.
The original wiretap provisions were restrictive as to use, time limit, purposes, evidence and notice. The final version however doubled the length of time that electronic surveillance could be used and tripled the extensions of notice to those under scrutiny. While limiting the evidentiary uses of what was recorded it softened the corroborative provisions. It also expanded the types of offences for which wiretaps were available and placed the authorization of them in a closed-door star-chamber proceeding between law-enforcement officer and magistrate.
When a member of the Commons Justice Committee argued to former U.S. Attorney-General Ramsay Clark that these provisions were necessary since some criminals use wiretaps, Mr. Clark responded that certain criminals also practice murder but that did not make it an appropriate tool for government.
At the Institute we have seen the looks of fear, anger, bewilderment and powerlessness on the faces of ordinary people caught up in government webs and fishing expeditions. It should make us ashamed as Canadians.
Let the detectives detect and the investigators investigate and the collectors collect, but within limits and within appropriate due process. Let us never become so falsely pious as to forget that today’s laws are merely the limits on our actions placed by those in power who profited from a yesteryear when these laws did not exist and now seek to protect their own gains by limiting access for others. If state authorities cannot catch certain people under rules that protect the majority of law abiding citizens so be it. As with capital punishment, far better to let five guilty men live than to execute one innocent. We must not allow the reach of the state to extend like monstrous, serpentine tentacles suffocating all breath out of our collective conscience.
Few threats to our public security are as grave as the ability of unseen forces to intrude into our lives and thoughts. Few fears are more paralysing to the commonweal than the possibility of violation of our most sacred trusts by officials of the state who shield themselves behind screens of parliamentary immunity or national security.
It is the unfortunate history of man that even slight abuses of the authority of the state lead, imperceptibly at first, and torrentially later, to the abridgment of basic freedoms. Beyond that, there is the more subtle and immeasurable effect upon those who tend to adhere to the most orthodox and uncontroversial views and associations in order to avoid any governmental oversight and inquiry in the future. This deadening of the spirit of our land, though not the direct result of state intrusion, does not relieve the state of it’s culpability in initiating these reactions and releasing these viruses of fear into our body politic. Few tax avoiders, criminals or political subversives do as much damage to the fabric of our society and the quality of our national character as some of the methods employed to investigate them.
We are so burdened by regulations and so abused by government intrusion that we have become a bland and smug society that substitutes pallid orthodoxy for independence of thought and rigid complacency for boldness of decision, both of which are demanded even for an effective public service. The greatest danger to our free society lurks in the insidious encroachment by zealous bureaucrats operating without understanding or guidance from compassionate authority. Interestingly, senior law-enforcement officials we work with in civilian liason seem to understand this better than many elected officials.
We have, as free people, the inherent right to be let alone. The paramountcy of the right of privacy is sometimes explicit and sometimes implicit but always foundational for the protection of freedom of conscience and the dignity of the individual. As Justice Louis Brandeis wrote, « …we must recognize the significance of man’s spiritual nature. We must always protect people’s beliefs, thoughts, emotions and sensations. All civilized systems of law confer upon man, as against their Governments, the right to be let alone. The most comprehensive of rights and the most valued by civilized men. »
This idea has been, in Nehru’s words, « the golden thread » connecting all human progress from Magna Carta in the 13th century, to the Puritan revolts in the 17th, to the American and French revolutions in the 18th,the rise of industrial liberalism in the 19th, and the independence movements of the 20th.
The primacy of the interests of the individual over those of the state.
Much of our liberty comes down to the right of privacy. This right is reflected from folklore going back as far as Sir William Staunford saying that « …my house is to me as my castle… » This right of privacy extends to the right to be let alone in one’s belief and in one’s conscience, as well as in one’s home and on one’s phone.
This right has suffered greatly in recent years as various state authorities added new law and regulation to an already burdensome public corpus. New laws and regulations allowing for more intrusion and invasion of the individual whether by extending electronic oversight, sharing of previously confidential information between government departments or passing retroactive regulations that most of the citizenry is unaware of yet penalized by. Government seeks to control our actions in our cars, offices, and homes.
We have been too willing to sacrifice the rights of all in the search for the few who may be crossing some newly defined line of legality or propriety. We have created an atmosphere antagonistic to a climate of tolerance for unorthodox ways of life and the free communication of ideas so vital to a democracy. It will drive away the best of our spirit. As long ago as 1954 Albert Einstein wrote, “If I would be a young man again and had to decide how to make a living, I would not try to become a scientist or scholar or teacher. I would rather choose to be a plumber or a peddler in the hope to find that modest degree of independence still available under those circumstances.”
The right of a citizen to be protected from molestation by the state is sacrosanct. Even the humblest share this with the most powerful. Each is entitled to the same deference. The law must always be exercised with a light touch not a heavy hand. The state is the servant of the people, not the all-powerful being that can require the citizen to do it’s bidding or suffer the consequences.
Our whole train of western progress has recognized this one abiding standard of decency. The individual conscience above the corporate imperatives of the state. Thomas Hobbes, who felt that civil obedience is the highest duty of a citizen, recognized that a point could be reached where conscience demanded that the command of the leviathan state must be disobeyed. John Locke, the intellectual father of western liberalism, wrote that if the state should require anything which appears unlawful to the private person, he is not obliged to obey that law against his conscience. Thoreau wrote that « … under a government which imprisons any unjustly, the true place for a just man is also prison… » Gandhi’s concept of satyagraba championed the moral right to disregard unjust laws. «The laws of the state are to be obeyed not out of fear of sanctions, but out of a consideration that they are good for the welfare of society. In order to register protest against the actions of the law-makers, each free man and woman is open to withdraw their co-operation from the state by disobeying such laws whose breach does not involve moral turpitude. »
Justice William O. Douglas once wrote “In a civilized society the means are all important. It may seem unimportant that one person’s guilt is established through questionable means, but in the sweep of history a nation that accepts indiscriminate practices as normal, a country that engages in wire-tapping, a people that exalts ends over means, have no claim to a position of moral leadership among the nations.”
How then do we balance the need for a legal order and the priority of freedom? One standard. The state may do nothing that contravenes the guarantees implicit in the concept of ordered liberty and fundamental justice, and must never engage in anything repugnant to the conscience of the people. Ordered liberty and fundamental justice imply that law must apply with equal protection to those who dissent from it. Our laws, and the regulations to enforce them, must be motivated by the overriding principle that society exists only to aid the fullest individual achievement of which its members are capable. Our starting point is always the individual, not the state.
The humblest citizen, confronted by state force exercised in a secretive, dictatorial, star-chamber manner, is protected in the heart of our legal order by the principle that he may forsake the orderly processes of society and proceed as if the statute did not exist and be discharged from punishment or prosecution because laws and legislation, rules and regulations that infringe to whatever degree on the sanctity of the individual, must be opposed at every stage of their execution
Canadians have in recent years been subject to the tendency to suffer through extreme ordinances and statutes whether in criminal justice, domestic security or revenue collection. Many of our rights, particularly that of privacy, have been sacrificed for the supposed necessity of the conduct of the processes of government and protection from foreign threats. In fact these have been, with rare exceptions, mere excuses for greater tax collection, career advancements and political revenge.
The risk, the great and agonizing danger in our system, is that our citizens get caught in a treadmill. While seeking elusive administrative and legal remedies against prejudices they have suffered, their constitutional rights are compromised by the intolerably long process of legal procedures. Relief often comes too late. The system is imploding from its own weight. We are in danger of allowing the administration of justice to be, in the words of Viscount Buckmaster, « …a mystery to the uninitiated and a snare to the unwary… »
The right to be let alone is the beginning of all freedom. If we have to live our lives weighing every action, every communication, every human contact, wondering what agents of the state might find out about it, how they would analyse it, judge it, tamper with it, and somehow use it to our detriment, we are not truly free. As Felix Frankfurter put it,” The security of one’s privacy against arbitrary intrusion by the state is basic to a free society. Any intrusion based solely on the authority of law-enforcement officials is inconsistent with the conception of human rights enshrined in our history and in the basic constitutional documents of free nations.”
The standard is raised high and the task is daunting. But our resolve of eternal vigilance for its protection is our only assurance against what the 18th century Italian legal philosopher Beccaria called “…the tyranny of the mendacity and mediocrity of the mindless…”