The Supreme Court Acted While Elected MP’s Couldn’t

On May 2, 2011, Canadians went to the polls to vote for their federal party of choice after hastily double-checking the names of their local candidates. The Conservatives came out ahead with 39.6% of the popular vote, which translated into 53.9% of seats in Parliament, a majority government.

Opposition parties, once able to attempt at bargaining with a Conservative minority, were reduced to the role of pundits, affording them four years to provide arguments why Harper should lose in 2015, and to occasionally present private member’s bills likely to be defeated.

Thus, when the Harper government introduced two controversial bills this year–C-13, the cyberbullying bill; and S-4, the Digital Privacy Act–opposition MPs were able to do little more than join the chorus of privacy experts, commissioners, and the media in decrying the legislation.

By chance, the Supreme Court made a ruling last month in R. v Spencer, a child pornography case, which undermined the government’s legal argument behind sharing personal data of internet subscribers, a practice which would likely have become more prevalent under both bills before the ruling.

While the court satisfied Harper’s critics, it remains an indictment of the electoral system when we must rely on unelected levers to check the power of a party most Canadians did not vote for.

The Cyberbullying Bill and the Digital Privacy Act

Public pressure is another lever which could sometimes exert itself upon a party in complete control of Parliament. Yet despite continuous revelations of privacy breaches domestically and abroad, Canadians remain apathetic. Recently, telecom companies revealed that government agencies made 1.2 million warrantless requests for subscriber data in 2011 alone. Bill C-13 and S-4 would likely have made this practice more frequent, the former giving internet providers immunity for handing over subscriber information without a court order to law enforcement, the latter providing the same immunity to companies sharing such information with one another.

Subscriber information includes a person’s name, address, e-mail, phone number, service provider, and IP address. An IP address is a number which identifies the senders and receivers of data across the internet. So when law enforcement finds, for example, a child pornographer’s IP address, or if a movie studio finds that of someone pirating their films, they could then request the suspect’s service provider to share their name, address, etc.

But an IP address can reveal a lot more about a person, such as the web sites they visit, the organizations they belong to, and even their physical location.

The government’s argument has been that requesting the basic information of an internet user based on an IP address is like looking somebody up in a phone book; which would be true if every time you left the house, talked to someone, read an article in a magazine, bought something, or looked in a store window you left a lasting record of who you are, where you live, and what you’ve been doing.

The Conservatives have insisted the laws be updated to reflect the digital age, even while ignoring the realities of digital communication.

The Supreme Court disagreed with the government. The Spencer ruling found such requests to be unconstitutional, and law enforcement agencies must obtain a warrant from now on. The decision undermined the immunities offered by C-13 and S-4.

It is reassuring that the separation of powers intrinsic to a free country allow for the courts to halt the unconstitutional practices and legislation of a majority government. It would be better still if it did not take a(n alleged) child pornography enthusiast with a good lawyer to force the courts to defend the freedom from unreasonable searches; a principle intrinsic to any free country, and older than this one.

The Case of the New Prostitution Legislation

Not all conflicts between legislation and the constitutional rights they tread upon are resolved as quickly as the Spencer ruling addressed the warrantless access provisions of C-13 and S-4.

Recently, new laws on prostitution have been put forward by the government, after the Supreme Court mandated reforms in 2013, declaring that laws on the books were unconstitutional because they put the lives of sex workers at risk. The Harper government responded with legislation based on the “Nordic model”, which focuses on the prohibition of the purchasing of sex, as opposed to the sale.

Any law based on the practices of our taller and more socially progressive Viking friends certainly sounds like a good idea, except that the Nordic model has proven ineffective at regulating the sex trade, and has put sex workers in further peril, which defies the reasoning behind the court’s mandate.

And the courts may say so, sometime in the future, but for that we will likely have to wait for the legislation to pass, and for individual cases to make their way up to the Supreme Court again, before it can overrule the law.

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Stephen Harper Is Not The Problem

None of which is to say that the Harper government has done anything necessarily wrong here. An election was held, a majority government formed, and it is their right to formulate their own legal interpretations, legislate accordingly, and have their bills tested by the courts, be it the Supreme Court or the court of public opinion.

Despite the flaws with C-13, S-4, or the prostitution bill, Stephen Harper is not the problem.

The problem is not that a party with the majority of seats in Parliament considers itself to have a mandate to legislate in the way it sees fit. When the majority of eligible voters cast their ballots in 2011, the stakes were known, the possible outcomes clearly defined. The problem is that a party with a minority of the popular vote is given such a mandate.

To a certain extent, the ‘dictatorship of the majority,’ the power of the many over that of the few, is a flaw built into any democracy. But an electoral system where governing parties are determined by who has the most MPs, and where the votes of millions of Canadians who supported losing local candidates are made irrelevant, we end up with the power of the many over that of the most.

About Anthony Matijas

Anthony Matijas is semi-sentient spambot trying to write his way into his programmer's heart. Follow him on Twitter @A_Matijas. Read more of his posts on PP [here]