Madame Chief Justice Beverley McLachlin² (by David G. Chow)

A fictional news-story with real possibility[i]:

Madame Chief Justice Beverley McLachlin²

Move over Dolly[ii], local biotechnology laboratory Doppelganger has made a colossal leap for humankind, creating Canada's first ever human clone from abandoned DNA collected from garbage. Since the Supreme Court's ruling on trash in 2009 (R. v. Patrick[iii]), investigators for the biotechnology giant have seized mammoth quantities of information from trash located on the fringe of properties across Canada. Ironically, Canada's first bio-baby was cloned from DNA obtained from the garbage of Madame Chief Justice Beverley McLachlin, who sat on the unanimous court panel which decided there was no reasonable expectation of privacy in garbage abandoned for collection at the property line.

"This isn't just any baby McLachlin", pipes Doppelganger spokesperson Reginald Pompernickel, "this is an uber-child".

"You see, not only did we collect the Chief Justice's DNA from discarded biological material, we managed to cobble together a host of additional information which aided in the construction of what we expect to be a near perfect biological specimen".

Though Pompernickel was unwilling to divulge particulars, Doppelganger insiders report that its scientists managed to identify and eliminate a host of potentially problematic genetic maladies.

"Put it this way", beams Pompernickel, "do you think the six million dollar version of Beverley McLachlin is going to be an asthmatic"?

Over the years, collecting bags of information has become an industry for more than sanitation engineers, bottle pickers, identity thieves, mischievous children, alley cats and police. The Government of Canada has recently begun surveying waste to discover important demographic trends. Last month, the Alberta Government tabled legislation extending rules on trash to permit specially designated Waste Officers to enter onto private property to collect any garbage in plain view of the public. Calgary's Mayor lauded the initiative, saying "waste in plain view on private property is an eyesore for those enjoying the splendour of our public streets".

The garbage debate has percolated steadily since the Supreme Court of Canada trashed Russell Stephen Patrick's appeal on April 9th, 2009. And things are sure to heat up, as lawyers for both Canada's top judge and Ontario's Child Welfare Services prepare a host of legal challenges against Doppelganger. Chief spokesperson for the Supreme Court of Canada, Ingrid Ingersporin expressed her concerns on behalf of Justice Beverley McLachlin: "her Ladyship was shocked to learn that her information was used in this way and is presently considering her legal position".

Doppelganger's in-house counsel, Artemis Ledingbringer responded: "Unfortunately for the Chief Justice, she had done everything she could to commit her bags of waste to the municipal collection system. They were unprotected and within easy reach of anyone walking in the public space along her property line and therefore, she had objectively abandoned her privacy interest in the contents of her garbage. According to Madame Justice McLachlin, and every other Supreme Court Justice, since she abandoned her property, Doppelganger had every right to collect it. What we do with it is our business".

Some have chided Doppelganger for using biological information obtained from garbage found on the fringe of private property. Alberta's Justice Minister said, "what I fail to understand is why Doppelganger would stoop to such ends when it has a library of genetic profiles voluntarily submitted by numerous persons, including myself and Calgary's Chief of Police".

Alberta's voluntary DNA collection program began as a springboard for discussion about proposed legislation requiring all Canadians to submit a DNA profile for storage on a nationwide database. After all, if government officials are prepared to submit, why not all Canadians?

"All I can say about that", responded Pompernickel, "is that it is not always cost-effective to perfect certain genotypes".

Though the Chief Justice may be concerned about her six-million dollar double, it appears she has good genes.

Submitted by:

David G. Chow
Barrister
Fagan & Chow

www.faganandchow.com

[i] Though this article is completely fictitious it represents, in the writer's view, a sardonic response to the the Supreme Court's decision in R. v. Russell Stephen Patrick. I am hoping this spoof will inspire dialogue on what I perceive to be serious privacy related problems emanating from the Supreme Court judgment. Additionally, I am grateful to lawyer Michael Bates who supplied me with the rather witty title for this exposition: Madame Chief Justice Beverley McLachlin².
[ii] http://en.wikipedia.org/wiki/Dolly_the_sheep
[iii] [2009] S.C.J. No. 17 (S.C.C.)

Making Bad - The Big Brother Relationship Between Regulating Behaviour and the Infosphere (By David G. Chow)

It’s 10:21am in Puerto Vallarta. The sun smiles upon the ocean lapping gleefully against the sugary sands. From my twenty-fourth floor perch I watch a man with sun drenched skin sporting a tangled web of dishevelled dreadlocks emerge from a pop-tent erected just meters away from waves licking the coastline. He stretches while meandering towards the blue-green waters of the Pacific, submerging himself knee-deep in the salty water. He has been there all week. After sunset his beachfront refuge is marked by a small fire, the thump of bass pounding rhythmically from a portable radio and the occasional echo of drunken laughter. By day the man lounges with Apollo and frolics with Poseidon and by night he dances with Dionysus. His friends, a combination of locals and toothless drifters – one a former member of an East Los Angeles street gang – join him for a taste of Jose Cuervo and campfire wieners.

It’s 7:47am in Puerto Vallarta. From my twenty-fourth floor vantage I see the deep blue of the man’s pop-tent billowing easily in the morning breeze. The earth is virtually unchanged. The sands extend for miles, the ocean remains an endless expanse and all things below are but tiny flecks passing across my retina. The world is simple and serene – its beauty nothing more than the touch of sunlight glinting warmly off sand particles as they are captured by the slow cadence of the Pacific’s fingers dragging them into the deep blue yonder. As I watch the waves gently foam along the coastline it strikes me that the universe has no appreciation for the laws of man. The earth’s gravitational pull applies to all things on this planet. Gaia turns on her axis and rotates around the sun. As the sands are captured by Poseidon’s staccato rhythm they are moments later catapulted back to shore by the perpetual movement of the currents. The Albatross is as much a part of the earth’s seemingly endless cycle of decay and renewal as the algae coalescing along the rocks, the plankton bobbing near the surface of the ocean, the sands and the grass paving the earth’s floor, the tiny particles of hydrogen, oxygen and carbon dioxide floating in the atmosphere and the man with the blue tent now lounging in nature’s warm embrace.

This is Mexico. A tourist Mecca, but nevertheless considered by the developed Western world to be a developing country. Not all of the water is purified, not all roads are paved, cable television is not nearly as abundant or robust as the endless smattering of images crossing television screens in the United States or Canada and the average family does not own more than one car per person, or even one for that matter. In Puerto Vallarta, however, a man is free to camp beneath the sun and moon just meters away from the ocean, under the hulking omnipresence of multi-million dollar towers occupied predominately by affluent outlanders seeking reprieve from their more hostile Northern climates. And the truth is, though Canadians have at their disposal the freedom to watch endless hours of television, walk long stretches of shopping malls and have easy access to any number of motor cars capable of vomiting large quantities of harmful gasses into the earth’s atmosphere, they don’t have the freedom to pitch a tent in just any local park or public place.

Substitute khaki shorts for a fleece, sunscreen for a toque and imagine this same man, sporting the same dreadlocks and leathery skin living in a pop-tent under the shadow of rows of condominiums lining Princes Island Park in Calgary, Alberta. In your mind’s eye, imagine this man spends his days lounging by the Bow River and his evenings imbibing alcoholic beverages with locals whilst listening to the drawl and twang of Canadian country singer Paul Brandt. I suspect before the close of his first evening this man would attract the ire of any number of uptight Calgarians concerned about the safety and sterility of their downtown haven. Unlike the beach dweller in Puerto Vallarta, who incidentally was not once bothered by the Policia or the Federales, a squatter in Princes Island Park would almost certainly be accosted by any number of a veritable gaggle of law enforcement officials, including City Police, Bylaw enforcers, Sheriffs, Parks and Recreation officers or perhaps even an employee of Fish and Wildlife Services. The sheer number of potential ticketable sins carbon-copied in triplicate is staggering.

The least serious offences are municipal infractions, which include violations of Calgary's Parks and Pathways Bylaw, Public Behaviour Bylaw and Community Standards Bylaw. Conviction generally attract specified penalties, but could result in fines up to $10,000.00 or up to 6 months imprisonment in default of payment. The next serious offences are Provincial infractions, such as those found in Alberta's Gaming and Liquor Act. Convictions for these quasi-criminal offences can attract fines up to $10,000.00, up to 6 months imprisonment or a combination of both fine and imprisonment. Of course, the most serious offences are those legislated in the Criminal Code of Canada. Though the Federal scheme only demands payment of fines up to $2,000.00 (a mere pittance when compared against the municipal or provincial legislation) and a maximum 6 months imprisonment, the accused is liable to winning the lifetime stigma of a criminal record -- the existence of which can be an insurmountable barrier to many of life's great rewards. Even a minor criminal record can be a major impediment to a multitude of pursuits, such as employment, education and travel. But the reality is, punishment after conviction is only the final result of the hurt capable of being wrought upon individuals by State agents enforcing even the most trivial Government decree.

The purpose of this paper is not to suggest that Canadians should tolerate the invasion of tent cities in local parks; rather, it is to discuss the Big Brother[i] relationship between the regulation of human behaviour and the collection of personal information by the Government. The aim is to highlight at least some of the dangers to civil liberties caused by living in an over regulated information society. At end of the day, the question remains: how much law is too much?

Criminal records are public documents. Information technology, however, allows the State to accumulate near limitless non-public data on individuals, including records pertaining to whether a particular person has been charged with an offence, investigated for a crime, questioned by police, been the subject of a complaint, been in the mere presence of another person with a criminal record or has even been the victim of a crime. The State knows where you live, work, how many people you live with, what you drive, whether you prefer to fund catholic or public schools, whether you own firearms and has the means to access a wealth of other personal data including your internet surfing habits, telephone records, health records and credit information. The kind and quantity of information capable of being gathered and stored is mind boggling -- in fact, most people probably have no idea how much data various organizations, including the Government, have stored on a hard drive no bigger than a desktop computer.

The very machines used to gather, store and analyze personal information evolved from computer technology first invented by Herman Hollerith, the German born founder of IBM ("International Business Machines"). Hollerinth's idea was motivated by a desire to develop a machine that could "count people as they had never been counted before, with a magical ability to identify and quantify"[ii]. A prototype of Hollerinth's tabulating machine was constructed in 1884. It had the ability to sort and resort information contained on punch cards to ultimately render a portrait of an entire population or even isolate a single person from the whole. Punch cards were a kind of primitive hard drive, whose informational storage capacity was limited only by the number of punch-holes designating certain traits. The irony is, IBM was an American company whose technology was first seized upon by Nazi Germany to profile its entire population, which included identifying any person with a Jewish background.

But Canadians are different! Our Government wouldn't dare utilize information technology to profile its population for insidious ends. Or would it? Does it even recognize the end as being insidious?

Returning to our notional man seeking refuge in Princes Island Park, the hurt wrought by issuing any number of tickets designed to control human behaviour is pervasive. The first and most obvious injury is caused by State agents commanding the man to vacate his riverfront sanctuary. He must now seek shelter elsewhere. Doubtless, the Ticketer will supply him with the address of Calgary's local drop-in centre -- a downtown oasis populated by an assortment of people, ranging from backpackers and drifters to scallywags afflicted by a host of serious psychological and substance abuse issues. As the man navigates his way to this ne'er-do-well's paradise, data collected prior to his release is digitally transmitted to a database where it is stored on an information grid capable of being accessed by a plethora of government personal. Though the short-term utility of this information may only suffice to ticket the man, the long-term value of monitoring through the infosphere is all-encompassing. For example, should the man be accused of any future offences, the term "no fixed address" is a powerful tool for justifying pre-trial detention. After all, a person without a home is less likely to attend court. Should the man fail to pay fines, his information will happily be updated to reflect a warrant pre-authorizing the State to arrest and jail him for days in default of payment. The reality is, for most citizens living outside the daily grind of western culture, secondary taxation equals hardship; jail is the only real way to make right the wrong of violating a government diktat. When the man is arrested, he will be subject to the humiliation of being searched, handcuffed and carted away in a mobile cage like a stray animal, before being processed like inventory in a local department store and locked away with hoards of other alleged criminals and social misfits. He may even be subject to a more intrusive strip search or body cavity search.

Even after society has exacted its pound of flesh, our notional man is forever tattooed with information labelling him misfit or perhaps even criminal. Police now have records to justify prolonged questioning, detention, a variety of searches (including those for officer safety) and perhaps even arrest. All of this for violating any number of seemingly trivial government decrees. At least to this writer, it is nothing short of alarmingly draconian that the State has so many tools to collect information capable of being used to interfere with the private lives of citizens.

A person's label in the infosphere is directly related to the level of tolerance, suspicion and exercise of discretion by law enforcement officials. Those with criminal records are subject to increased scrutiny. Those without criminal records may be the lucky benefactors of the exercise of discretion. There is thus a kind of symbiotic relationship between information and regulation. The more information collected about a person, the more likely it is the State will regulate that person; the more a person is regulated, the more information the State collects. And make no mistake, due to the vast array of legislation designed to regulate human behaviour, the Government is well situated to collect enormous amounts of information about its citizens.

As any honest practitioner in criminal justice understands, law enforcement officials take advantage of their power to enforce the various municipal, provincial and federal laws to conduct a kind of micro-census of Canadians. Many citizens, for example, might be surprised to learn that the primary objective of a simple traffic stop is not necessarily to ticket motorists for violating traffic safety legislation; rather it is to survey the occupants of the motor vehicle. This kind of micro-census renders a wealth of otherwise inaccessible data, including a description of the vehicle's occupants as well as information on who associates with who. Though most passengers in motor vehicles probably have no obligation to answer questions from inquisitive members of the local constabulary, the majority of ordinary citizens simply acquiesce. And notwithstanding that a person's association with anybody might be completely innocuous, if you are unlucky enough to be in the presence of Rotten Johnny, you may find yourself labelled on a government database as an associate of miscreants and near-do-wells.

When "...one-half million [German] census takers, recruited from the ranks of the nationally minded..." began collecting information about its citizens on June 16th, 1933, "[p]opulation statistics...crossed the fiery border from a science of anonymous masses to the investigation of individuals"[iii]. Today, the combination of information technology and the regulation of human behaviour in Canadian society effectively allows the State to conduct a less obvious, but no less detailed census of its population. In a civilization where citizens can be investigated, charged and punished merely for "...placing their feet on the top or surface of any table... in any public place"[iv], it is hard to imagine that it is truly possible for any person to exist independently outside the watchful eye of Big Brother. Since law enforcement officers can only act in the execution of their duty -- more law equals more power in the hands of those responsible for enforcing it.

Freedom requires a legal system and a rule of law, but there are limits. With the proliferation of so many rules designed to control human behaviour, one is left to wonder whether lawmakers (intentionally or not) are jeopardizing the rights of all Canadians to live in a free and democratic society. When law has amassed to such an extent that State agents are seemingly able by colour of right to invade the private lives of citizens for trivial things (such as exercising our God given right to exist under the stars), it seems to this writer that the future of our free and democratic society is on the verge of a dystopian nightmare.

It's 6:06pm in Calgary, Alberta. On the front page of my desk is the front page of the April 4th, 2009 edition of the Calgary Herald. It starkly reads, "Crime in Your community...Attempted Murders up 414%"[v]. Reminded of a quote by Homer Simpson -- "Oh, people can come up with statistics to prove anything; 14% of people know that" -- I laugh silently. The humorous interlude is short lived; for as I read the article I am disgusted by yet another tragically deficient press release seemingly concocted to convince me that I am living in a dangerous community. If I didn't know any better, I would agree wholeheartedly with the various doomsayers calling for more powerful legislation authorizing law enforcement officials to police our unsafe metropolis.

My mind returns the man camping on the sands of Puerto Vallarta. I imagine him diving into waves gently crashing against the shoreline. In Princes Island Park, Calgary, Alberta, Canada, the penalty for such nefarious conduct could attract a fine of up to $10,000.00[vi]. In Mexico, that man swims free....

Submitted by:

David G. Chow
Barrister
Fagan & Chow

http://www.faganandchow.com/


[i] See George Orwell’s famous dystopic novel, 1984.
[ii] Black, Edwin. IBM And The Holocaust - The Strategic Alliance Between Nazi German and America's Most Powerful Corporation. Crown Publishers, New York, 2001: pg. 24.
[iii] Ibid.,pg. 56 and 57.
[iv] Section 6(2) of Calgary's Public Behaviour Bylaw
[v] http://www.calgaryherald.com/news/Violent+crimes+rise+while+break+thefts+fall/1464174/story.html
[vi] Section 14 of Calgary's Parks and Pathways Bylaw