CCLA recognizes the legal duty of the Government to protect aviation security, and we believe compliance with the Charter is a prerequisite to effective national security.
As such, CCLA is concerned by reports the Federal Government installed equipment in airports that will enable CBSA to audio-tape private passenger conversations– reportedly without explaining whether this plan was subjected to rigorous scrutiny for compliance with the Canadian Charter of Rights and Freedoms, and without conducting a privacy impact assessment study. The taping of individual conversations is an intrusion into constitutionally protected privacy rights, and therefore must be shown to be necessary, proportional, and of minimal impairment.
This week Public Safety Minister Vic Toews announced a privacy impact assessment study will be done, and no audio recordings will take place pending completion of the study – CCLA welcomes this decision. CCLA believes that a democratic society demands transparency — in this case, a privacy impact study is required and to be effective must clearly weigh any potential security gains against the risks to Charter rights including privacy.
CCLA further argues that any new airport audio-recording plans must observe clear legal safeguards, including safeguards surrounding the use, storage, dissemination and destruction of such audio-recordings; safeguards regarding secondary uses and sharing with domestic and foreign intelligence agencies; and safeguards against arbitrary profiling of individuals. Additionally, the clear possibility for passenger comments to be misconstrued requires clear guidelines and procedures that will enable any passenger sanctioned on the basis of his or her audio-recorded comments to have an opportunity to verify, clarify, address and/or explain any recorded comments of concern.
CCLA has previously noted that the Supreme Court of Canada states that “privacy is at the heart of liberty in a modern [democratic] state”.In Canada, the right to information privacy is ‘the right of the individual to determine for himself or herself when, how, and to what extent he or she will release personal information about himself or herself’.
Although there is no enumerated right to privacy in the Charter, it is a component of other fundamental rights and freedoms enumerated in the Charter. For example, Justice L’Heureux Dube in R. v. Lavigne (a pre-PIPEDA case) stated,
“The importance of privacy as a fundamental value in our society is underscored by the protection afforded to everyone under section 8 of the Charter “to be secure against unreasonable search or seizure”. This value finds expression in such legislation as the Privacy Act, which restricts the purposes for which information may be used to those for which it was received.”
The Supreme Court of Canada has held that the purpose of section 8 is to “protect against intrusion of the State on an individual’s privacy”, and included in this protected zone of privacy is personal information “which tends to reveal intimate details of lifestyle and personal choices of individuals.”
Although individuals may have diminished expectations of privacy in some settings, like airports, this “does not vitiate the constitutional recognition of some expectation of privacy.”
The right to privacy is also protected in the right to life liberty and security of the person in section 7 of the Charter.
CCLA has consistently argued that aviation security measures must comply with the Canadian Charter of Rights and Freedoms. CCLA has also previously referred to the 2009 findings of Martin Scheinen, former UN Special Rapporteur on Counter-Terrorism, that mass surveillance and data collection, can “blur the lines between permissible targeted surveillance and problematic mass surveillance which can result in arbitrary or unlawful interference with privacy”. This is because information is collected on large groups of people; without judicial oversight or transparency or opportunities for redress; put to secondary uses; shared with third parties or states; used to create profiles on individuals that may violate their equality and privacy rights and result in other injustices.
We will continue to keep you posted on audio-recordings and other aviation security measures in Canada.
 R. v. Dyment,  2 SCR 417 para 28.
 Lavigne v. Canada (Office of the Commissioner of Official Languages),  2 S.C.R. 773, at paras. 24-26, as cited in the CCLA Factum, R. v. Chehil.
 Ibid, at para. 32, citing R. v. A.M.,  1 S.C.R. 569, at para. 65.
 Special Rapportuer February 2009 report, supra note 13, at paragraph 32.