When watching the watchers, don’t include the judge
Last week, in a case challenging the constitutionality of Manitoba’s COVID-19 lockdown rules, Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench said that he had reason to believe he was being surveilled.
John Carpay, the president of the Justice Centre for Constitutional Freedoms (JCCF), which was acting for the applicants, acknowledged that he had retained a private investigation firm to observe top officials in the Manitoba government for public non-compliance with their own COVID restrictions. Carpay said he had included Joyal in the list of people to be observed and apologized to him for doing so. Carpay told the court that he had made the decision to hire an investigator unilaterally.
Surveilling a sitting judge is wrong. Justice must be done and must manifestly appear to be done. Any hint that a party or lawyer might be attempting to influence a judge outside of the courtroom, even if that is not the motivation, is an affront to the integrity of the judicial process. That the president of the Justice Centre was surveilling the judge was a shock to many, including two of the applicants’ lawyers and the JCCF’S board of directors, on which I sit.
Carpay has since taken indefinite leave from his responsibilities at the JCCF. The board has instituted a review of the centre’s operations and decision-making and appointed an interim president. In the meantime, lawyers doing the JCCF’S work representing Canadians whose fundamental freedoms have been infringed by governments at all levels, including by lockdown restrictions and other COVID rules, will soldier on
It’s easy to condemn the surveillance of the judge. But what about the others? Politicians and officials around the country, including Alberta Premier Jason Kenney, Ontario Premier Doug Ford and Prime Minister Justin Trudeau have been accused of breaking their own COVID rules. Carpay, a tireless champion of constitutional freedoms who founded the JCCF over a decade ago, said that his purpose was to determine the truth about reports that high-ranking public officials in Manitoba were doing the same.
Surveillance is not illegal as a general rule, although there are exceptions. You can observe anyone in public and describe what you see. When reporters do that, we call it news. Traditionally in common law, there is no property in information about what happens in plain sight. “The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff ’s land,“wrote Chief Justice John Latham of the High Court of Australia in a notable 1937 case. “Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff ’s ground.”
Modern laws modify this position to varying degrees. In British Columbia, for instance, you can be sued for violating someone’s privacy, which the Privacy Act says could be “by eavesdropping or surveillance,” depending upon what is “reasonable in the circumstances,” and whether information published “was of public interest.” In any event, surveillance is commonly used to gather evidence in certain kinds of litigation, such as personal injury and insurance claims.
But not everything that is legal is necessarily a good thing. People may be at liberty to report what happens in plain sight, but when governments embrace and encourage it, the result is a surveillance state. During the pandemic, governments have monitored the behaviour of people in parks, businesses, restaurants and their own homes, and have encouraged people to watch and report their neighbours’ COVID transgressions.
Churches that were applicants in the case before Joyal have had their goings-on tracked, videoed and used as evidence against them in court. According to the CBC, as of May, Manitoba’s COVID snitch line had received more than 165,000 calls.
Like the dark reality of East Germany or the dystopia of George Orwell’s Nineteen Eighty-four, a snitch society is a place where people have lost trust in public institutions and each other. “It was almost normal for people over 30 to be frightened of their own children,” wrote Orwell. “And with good reason, for hardly a week passed in which ‘The Times’ did not carry a paragraph describing how some eavesdropping little sneak — ‘child hero’ was the phrase generally used — had overheard some compromising remark and denounced its parents to the Thought Police.”
Whether for COVID compliance or political correctness — which now seem close to the same thing — a culture of surveillance destroys privacy, liberty and social cohesion. Surveillance by government begets surveillance of government. If they are watching us, should we not be watching them? But don’t include the judge.