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INTRODUCTION

For the last several years, the debate about privacy rights in Canada has gone underground. Experts have discussed it at academic conferences; ethicists have promoted their views before consultative bodies; government officials have dealt with it as a pro forma part of their jobs in meeting the requirements of the Privacy Act. The provincial and federal privacy commissioners and their staffs have tried to beat the drum to raise public awareness about current threats to personal privacy and the need to revisit privacy legislation that is in some cases, 15 years old. So far, they have not really been listened to either by the legislators or by the population at large. A thorough public airing of the nature of privacy in Canada is long overdue.

That is the reason for this report.

The history behind it began in June 1996, when the members of the Standing Committee on Human Rights and the Status of Persons with Disabilities were a committee of Parliament in search of a subject for study. Like many Canadians, we were curious about the impact of technologies on the broader elements of human existence. What is the impact of new technologies on human rights?

We called together two panels of eminent Canadians who gave us overviews of the impact of biomedical and information technologies on human rights. What we heard was alarming. The view of Jerry Bickenbach of Queen's University was echoed by the others that "technology isn't extraordinary. What's important and what's difficult are the social and ethical consequences of it."1 Anne Summers, the former head of the Ontario Medical Society's ethics committee, told us that "our current society is totally unprepared" to debate these issues and to make decisions about new technologies in this context.2 Everyone who provided their views at these roundtables agreed that education must be the basis for choice in determining how, as a society, we want to treat technology.3

After a third group of experts discussed the nature of legislative change, it was obvious that human rights protections are evolving at a snail's pace compared to the rapid advances of technology. But as Bill Black of the Law Faculty of UBC told us "the challenge... is not to develop new principles but ... to apply those [existing] principles to new areas".4

In one way or another, all these roundtables highlighted threats to privacy and made us uncomfortably aware of new forms of technology that seemed to infringe upon individuals'personal lives. We also heard of the benefits that technology can bring. For the federal Privacy Commissioner, Bruce Phillips new technologies "have the power to heal, of course, but they also have the power to enslave. You have to ask yourself whether we're converting ploughshares into swords instead of the other way around."5 Until the present, however, most privacy initiatives in Canada have revolved around the need to ensure protection of personal information gathered by the public and private sectors. And even this has not kept pace with the times - or the technology.

We felt it was time to broaden the privacy debate beyond this narrow concept of data protection, and explore the role of privacy as a human right and social value. Marcia Rioux of the Roeher Institute summed it up as "a question of ethics, values, standards and principles that one would want to maintain at a national level, at a provincial level, and indeed at an international level."6 As members of the parliamentary committee responsible for human rights, we strongly believe in the value of discussing privacy in the languge of human rights. We know that this is of critical importance since the language of debate influences the definition of the issues, the policy options, and the decisions for future directions.

We have spent the last 10 months exploring the changing face of privacy. First of all, we asked privacy experts to enlighten us on the state of the debate and the nature of emerging issues. They told us in no uncertain terms that privacy is, indeed both a fundamental human right and a broad assertion of personal freedom. No invasion of this right should occur unless there is overwhelming proof of its necessity. And yet, they observed, privacy is not an absolute right although it remains a core human value, it must also constantly weigh in the balance with competing rights and interests.

Our sense of urgency grew when we began to look at how our emerging technological society is striking that balance. We learned more about the data trails created by new forms of electronic commerce, new surveillance technologies capable of recording conversations through walls, seeing around corners or in the dark and the implications of decoding that most personal source of information, the individual human genome. No doubt new technologies offer valuable advantages, efficiencies and conveniences. But must the benefits of these new technologies come with a privacy price tag? Where do we draw the line?

This is why we decided, as a committee of Parliament, that we had to get a sense of what today's citizens think about privacy. This is why we decided to travel across the country and to invite as many voices as we could to join us in our dialogue. We contacted individuals representing the broadest possible cross-section of society: human rights and privacy commissions, advocates, bankers and executives from business, insurance and Crown corporations, people with disabilities, educators, public servants, health care professionals, labour activists, lawyers, media professionals and multicultural organizations, police forces, technology firms, telecommunications and cable companies and students. We asked them to give us their views.

While it is important to remember that processes are only a means to an end, this Committee learned a lot from the very model that we used for our consultations. We cast aside the traditional Committee format where witnesses present briefs and answer questions. Instead, we invited our participants to join us in small, informal group discussions led by experts. The members of the Standing Committee later summarized the groups' findings in an open townhall meeting.

To focus the debate and to identify the social and personal impact of technology in the context of privacy and human rights issues, everyone, as a basis for discussion, used case studies that attempted to illustrate the benefits and detriments of three technologies on peoples' lives.7 We chose advanced video surveillance, genetic testing and smart cards as examples of technologies on the cutting-edge where real choices will soon have to be made.

Everyone, including members of the Committee, participated fully and freely during these meetings. This created a dynamic environment that encouraged debate and the exploration of differences of opinion. The greatest benefit of the process was the opportunity for people to participate in an informed discussion about important public policy issues. We finished our townhall meetings with the feeling that we had experienced a valuable educational opportunity as legislators that we hope was shared by people who met with us.

Those who attended our townhalls lost no time in setting out their value systems, their ethical priorities and dilemmas and in asking and debating the critical questions: Do Canadians value their right to privacy? Do they believe that privacy is in jeopardy? How far is too far when it comes to trading off the benefits of new - or old - technologies for our sense of personal privacy? In short, is privacy an inalienable right - or a token that can be bartered for social and economic benefits?

While we know that we could never capture the thoughtfulness and eloquence of our participants in this report, we have used their ideas as its core and the foundation for its conclusions. They provided us with a way to formulate an ethical and legislative framework that can enable Canada to navigate the waters of technological change in a manner that is consistent with the most deeply held values of our society.

1
Standing Committee on Human Rights and the Status of Persons with Disabilities, Evidence Meeting No. 13, pp. 24-25. (hereafter cited as Evidence, 13:24-25)

2
Evidence, 13:24

3
13:27

4
Evidence, 24:12

5
24:15

6
24:20

7
The case studies, as well as backgrounders on the three issues are contained in Appendix I.

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