Filtering by Tag: Conservative Party

Bill C-13: Voluntary Disclosure - Rob Nicholson's Misstatements

Rob Nicholson.jpg

Earlier this week Justice Minister Peter MacKay introduced Bill C-13, the Conservative's much touted cyber bullying legislation.  It’s a massive bill which would amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act.

The Conservatives have offered up C-13 as a necessary tool to address the serious problem of online harassment. And there’s a justifiable and strong will among Canadians to modernize the Code to tackle the serious problem of Internet harassment and abuse.

However, only a small part of C-13 actually deals with the problem of cyber bullying.  As I wrote earlier this week C-13 is a wolf in sheep’s clothing.  The majority of C-13 is actually devoted to expanding police powers relating to the search and seizure of personal Internet data.

As I wrote in iPolitics today, new laws are needed to stop cyber-bullying. Unfortunately, most of C-13 has little to do with protecting victims. Instead, this bill would recklessly expand the surveillance powers of the state. It sacrifices personal privacy. It limits or eliminates judicial oversight. It is inconsistent with recent Supreme Court jurisprudence. It's a dangerous bill.

The Conservative party’s arguments in support of C-13  are equally dangerous - they misstate and misrepresent the legislation and its potential impact on the privacy interests.

Voluntary Disclosure

One of the troubling aspects of C-13 is the provisions that would expand the ability of police to obtain Internet data in the absence of any judicial oversight.

During the first debate on C-13  Minister of Defence Rob Nicholson defended the voluntary disclosure provisions, saying:

Mr. Speaker, it is certainly politics as usual for the Liberal Party. I will give the member this: certainly his comments are completely consistent with the Liberal approach over the last seven and a half years, which is to look for anything, any excuse, anything the Liberals can hang their hat on to oppose government legislation that would either crack down on crime or would update the Criminal Code, and in this case, go against cyberbullying. They are always looking for something, and the ironic part about it is the part that this individual is criticizing. He has got it way off base.

In terms of the bill, the old Bill C-30 that he referred to, the provisions that he and others criticized the most are not in the bill. The provisions here need judicial authorization.

I bring the hon. member's attention to one section that was actually passed by a Liberal government. He had a problem with the voluntary production of preservation orders. I would refer him to section 487.014, which says:

For greater certainty, no production order is necessary for a peace officer or a public officer enforcing or administering this or any other Act...to ask a person to voluntarily provide to the officer...

We are only adding it to preservation orders. What is this individual's problem? It is already in the Criminal Code.

The problem with Mr. Nicholson’s statements is that they are simply untrue.  

Obfuscation on the part of the Conservatives about C-13 should not be surprising.  After all not only is C-13 itself an expert lesson in trickery and deception - its a trojan horse.

Escaping the notice of Mr Nicholson, the voluntary disclosure provisions proposed in C-13 remove the necessity for a police officer to actually be enforcing the Criminal Code before seeking disclosure of personal Internet data.  Further, the bill provides blanket civil and criminal immunity for any telecommunications company who feeds information to the police.

487.0195 (1) For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.

(2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.

The Criminal Code currently limits the ability of police to seek voluntary disclosure of data by a telecommunication company to circumstances where they are engaged in legitimate investigations (‘enforcing or administering this or any other Act of Parliament’).  

This very reasonable limit on police power serves to prevent fishing expeditions and the mass collection of data.  C-13 expands the permitted scope of voluntary disclosure by removing the requirement that police actually be engaged in an investigation.  

In essence, the police will now be able to ask companies to turn over data on anyone, anywhere, at any time, for any reason (or no reason).

The limitation of any liability for complicit telecommunications companies makes matters even worse.  Simply put, the C-13 leaves no legal incentive for companies to be cautious in the dissemination of data — and no recourse for individuals whose privacy is compromised.

This is all especially troubling given the recent evidence that the Conservative government was complicit in spying activities on Canadian soil.

Mr. Nicholson misleading defence of C-13 demonstrates that he is either grossly uninformed about his own party’s legislation or he that he takes his audience for fools.  

Bill C-13 does not “only adding it to preservation orders” to the voluntary disclosure regime.  It does much, much more -  it represents a dangerous erosion of personal privacy.  

Mr. Nicholson's statements only serve to better expose C-13 for what it is - a trojan horse for expanded police power.


 

The PMO, Arthur Hamilton, the Senate, and the Razor's Edge

The octopus like Senate scandal has directed its tentacles of suspicion at a wide range of individuals: Stephen Harper, the PMO, Duffy, Wallin, Brazeau, Wright, and most recently the Conservative Party's lawyer Authur Hamilton. 

In an excellent series of recent articles (here and herePostmedia's Stephen Maher details some of the concerns that have emerged regarding Mr. Hamilton.  Maher is right to ask questions about Hamilton.

As a starting point it must be acknowledged that there is a vacuum of information with respect to some of the specifics of the relationship between Hamilton and the PMO's office.  None the less, Maher's reports and Duff's disclosure of Hamilton's involvement in the sordid incidents at the heart of the scandal merit reflection.

The CBC recently asks: Who is Arthur Hamilton.  Mr. Hamilton seems to be the Conservative Party's go to lawyer:

 

 

Any consideration of Hamilton's transfer of $13,560 from his firms accounts to pay Duffy's legal bills or his other involvement in the current scandal must be viewed in light of his past and substantial involvement with the Conservative Party.

Harper's centralized system of control is also relevant when considering the flow and control of information (after all this is the 'Harper Government'). 

It must also be remembered that Hamilton is not Stephen Harper's lawyer.  He is counsel for the Conservative Party.  However, Harper and the Conservative Party are not entirely distinct entities.  There comes a point when Hamilton and Harper must have shared information relating to the current Senate scandal.  This is the real issue and an issue that could put the lie to Harper's version of history.  

Inferences about the flow of information between Harper and Hamilton can be found in the rules that govern lawyers.  Lawyers in Ontario are governed by the Law Society of Upper Canada and must follow the Rules of Professional Conduct.  

Lawyers have concurrent obligations to their clients and to the administration of justice.  Sometimes lawyers are required to walk the razor's edge in order to comply with both of these competing duties.  It is however, a path that should not be sought out.  One can be forgiven for wondering if Hamilton is walking the razor's edge.  

Lawyers have a duty of honesty and candour with their clients.  In relation to a lawyer acting for an organization rule 2.02 of the Rules of Professional Conduct advises:

While the organization or corporation will act and give instructions through its officers, directors, employees, members, agents, or representatives, the lawyer should ensure that it is the interests of the organization that are to be served and protected. Further, given that an organization depends upon persons to give instructions, the lawyer should ensure that the person giving instructions for the organization is acting within that person’s actual or ostensible authority.

Was the Duffy payment in the interests of the Conservative Party?  Was Wright acting with appropriate authority?  What inquiries were made?  

 

Lawyers are also bound by rule 2.02(5) which deals with dishonesty and fraud by a client.  A lawyer shall not

 

(a) knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct; 

This rule applies whether the lawyer’s knowledge is actual or in the form of wilful blindness.  The Law Society instructs that once a lawyer acting for an organization learns that the organization has acted, is acting, or intends to act in a wrongful manner, then the lawyer must report the matter “up the ladder” of responsibility within the organization until the matter is dealt with appropriately.  This ladder leads to Harper. 

 

The Rules speak of dishonesty.  Stephen Harper has called Wright's act a 'deception'.  This sort of deception is surely captured under rule 2.02(5).  

Did Hamilton know of the deception?  Was he willfully bind to it?  Did Hamilton report up the ladder as required? 

Given the history and background between Hamilton and the Conservative Party there can be legitimate questions raised about the duty of candour and potential organizational dishonesty.   

A lawyer and his organizational client cannot structure affairs in such a way as to insulate those in power from responsibility.   A lawyer should not be their client's dupe.

As Maher and the opposition parties have pointed out - there is reason to question Hamilton's involvement in the Senate affair.  This is not necessarily to call into question Hamilton's compliance with his duties.  Quite the opposite in fact.  The reason questions about Hamilton's involvement must be asked is to test Harper's assertions of innocents and naïvety.  

If one assumes that Hamilton acted ethically, at some point he must have gone 'up the ladder' and had conversations with Harper.  These conversations could not have possibly occurred given Harpers version of history (although that is in and of itself a bit of a moving target).  The conflict is obvious.  

Were there conversations between Hamilton and Harper or between Hamilton and others in the PMO's office?  If so when and about what?  If not, given the admitted deception, why not?

Hamilton may very well be walking the razor.  Ironically he may be walking the very razor that proves fatal to Mr. Harper's story.