Defining Privacy
A critical investigation of Canadian political discourse

Critical-Discourse-Analysis

4.3 Explanation

Fairclough’s final stage of CDA is again structured with guiding questions, although loosely. The first purpose of the explanation stage is to determine how relations of power at the situational, institutional, and societal levels shape the discourse under study (Fairclough Language and Power 175). The second purpose is concerned with uncovering the ideological character embedded in the cognition of the discourse participants (Fairclough Language and Power 175). And the third purpose involves an examination of the effect of the discourse on sustaining or transforming existing power relations (Fairclough Language and Power 175).

Relations of Power

The power relations that most visibly shape the discourse of privacy occur at the situational level, between the government and the opposition parties in the House of Commons. The entire structure of the system of parliamentary democracy is designed to concentrate power in the hands of the party who wins the highest number of seats in an election. The result is that the government who holds the majority has the clear advantage in a debate, not because they can speak more but because they have more votes. This has a direct effect on the entire legislative power in the House of Commons, though there are checks and balances at the levels of the Senate and the Governor General. Yet, an analysis of the discourse of Hansard is still of value, precisely because the structured nature of debate allows for the expression of different points of view. Because of the nature of the party system in the House, these view points tend not to vary from person to person, but rather from party to party. This was evinced in the last section through the appearance of very repetitive statements by members of both the CPC and the NDP. This repetition is a result of the ability of each party’s Whip to enforce discipline among the members of the party.

The nature of the discursive practice of debate influences the relations of power between the discourse participants, but also at the level of the institution, in the relations between the House and the people they are elected to represent. The fact that motions, and ultimately legislation, must be considered and decided upon through the practice of debate constrains the types of issues that can be discussed. Anything that is brought up through the course of a debate must be able to withstand the practical argumentation required by virtue of the discourse type. Motions must be practical, affirmative, and actionable, leaving little opportunity to discuss issues in abstraction, such as ethics and philosophy. While there are other venues within the institution of Parliament to address such issues, such as reports by Standing Committees, the discourse type of debate constrains what can be discussed in the situational context of the House of Commons.

This has an impact on the societal relations of power between the institution of Parliament and the citizens of Canada. The legislative power of the House of Commons determines what may or may not be done in society. This power is enacted through the discursive practice of debate, which influences what types of issues can be discussed, which is further influenced by whichever party holds the majority in the House, which is influenced by the ability of certain people to occupy the social role of politician through getting elected.

The relations of institutional and societal power also extend across social orders of discourse. While Parliament is responsible for creating legislation, the courts are responsible for interpreting it. In terms of CDA, the discourse of legislation is produced by Parliament, but interpreted by the courts, which eventually leads to a further interpretation by Parliament. But the structures of these two institutions are very different. As it was discussed earlier in this section, the deliberative nature of parliamentary discourse is focused on using practical argumentation to make a decision about what ought to be done in a certain situation. This is entirely different from the nature of judicial discourse, which instead is focused on the defence or condemnation of someone’s actions (Fairclough and Fairclough 90). While parliamentary discourse is forward-looking and normatively focused on decisions that will impact large groups of people, judicial discourse focuses on looking back on an event with the intent of determining what should be done about a specific individual or group. The entire structure of both the institutions of politics and justice are strongly influenced by their respective discursive practices, and these discursive practices are dramatically different. The interpretation of discourse is highly dependent on the cognition and ideology of the discourse participants, which is in turn influenced by the structure of the institution within which the discourse occurs. The interpretation of discourse across these two institutions will be influenced by each discourse participant’s understanding of the nature of the institutions themselves, which in these two situations, may be very different.

The struggle for power between political and judicial orders of discourse is further evident in the ability of the court to effectively question the meaning of the legislation it is meant to enforce. In R. v. Spencer, Justice Cromwell pointed out a circularity in PIPEDA between s. 5(3) and s. 7(3)(c.1)(ii), where the interpretation of both sections relies on an understanding of the concept of a reasonable expectation of privacy. While the ruling does not change the legislation, it does set a strong legal precedent, which influences the results of any future interpretation of the law where the circumstances are similar. This has the effect of rendering that provision useless, as it is indefensible in terms of the courts, even though it remains in the legislation.

Societally, this process of production and interpretation of discourses across and between institutions has a direct effect on the relations of power between all the participants, which in the case of legislative and judicial power, is everyone in Canada. This is especially salient in terms of the differing abilities of people in terms of the navigation of the complex and formal aspects of these institutions. Those who have had a reduced access to literacy acquisition will have the least power in a system defined by complex rules of formal language.

Ideology

Even in the disagreement between the Official Opposition and the government on the semantic difference between the ‘warrantless disclosure’ or the ‘voluntary disclosure’ of personal information, it is evident that both parties are operating under the narrow assumption of privacy as secrecy. While this is most clearly shown by the use of the phrase ‘nothing to hide’ in CPC MP Wallace’s statement, it is also evident in the repeated references to ‘law-abiding Canadians’ by members of the of both the CPC and the NDP. This separation of Canadians into categories of ‘law-abiding’ and ‘criminal’ uncovers a hidden ideological discourse that an individual should only expect privacy when they abide by the law. As it was discussed in Chapter 2, this narrow conception of privacy has deep implications for society, especially in terms of freedom of expression. Surveillance has a chilling effect on society, and the fact that 1.2 million requests were made for personal information in 2011 alone is indicative that the government, and the House as whole, has no ideological basis for the other dimensions of privacy, the most important of these being that an individual’s privacy is inherently connected to their expectations of anonymity, regardless of whether or not they are abiding by the law. Throughout the course of the debate, parties from both sides of the House agreed that the police have the power to get a warrant when they have suspicions about criminal behaviour. It is unclear why they would need to compartmentalize the expectation of privacy within of certain groups of Canadians in order to allow law enforcement to use the tools that are already legally afforded to them.

This exchange, as well as the CPC comments about the Charter being responsible for the protection of personal information, exposes a deep misunderstanding about the nature of the Charter among all of the MPs who participated in the debate. While s. 8 of the Charter has been used in jurisprudence in support of privacy, it has not been declared a right. Not one MP pointed this out. Nor was Wallace’s claim that he would ‘have’ to give information to the police, when s. 7 of the Charter has been declared by the Supreme Court as supporting the right to be silent in matters involving the police. The comments, and the fact that they weren’t refuted, exposes an ideology in the House that rights only apply to people who abide by the law. This contradicts the very nature of the Charter, as it applies to all citizens of Canada. And, as it was already mentioned, there are numerous Charter rights that apply specifically to people who have been accused, charged, and convicted of a crime.

Sustaining Power

The discourse that there is a difference in the rights afforded to different groups of Canadians is harmful. The continual reference that privacy is a right afforded only to law abiding citizens creates a pervasive and influential hidden discourse, which serves to normalize the concept as a matter of common sense.

This marginalizes the perception of the privacy rights afforded to those who have been accused, convicted or charged with a crime, contributing to a social ordering of discourse that preferences the general rights of ‘non-criminals’, while diminishing the value of the rights of ‘criminals’. This is despite the alternative discourse in the jurisprudence, such as R. v. Spencer, which maintains that the privacy interest of all citizens, despite their ability to ‘abide by the law’, is protected.

While the normative structure of the House of Commons is understood as a place where the law is the supreme authority, in reality, the MPs do not have a clear understanding of the law in terms of the protection of privacy, or for that matter, what is and isn’t a right in Canada, and who those rights apply to.

The power in this discourse is in the representation. The ideological character is completely lost when all of the parties in the House maintain the discourse through the repeated references of the relationship between ‘privacy rights’ and ‘law-abiding Canadians’. The discourse of privacy in the House of Commons is relegated to the narrow definition of privacy as secrecy for those who abide by the law. The effect of this order of discourse affects not just the structure of the Parliament, but the structure of the institutions involved in justice and law enforcement, which in turn affects the cognition and ideology of everyone who comes into contact with those institutions. The more this discourse is represented as a matter of common sense, the harder it will be to change.

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