(If you want to see why I have a problem with Bill C-30, you just have to read my previous posts or check out my YouTube video on the topic.)
I have tried to be productive in my criticism and, that end, offer the following to replace the warrantless access to subscriber information in the current bill. I have taken into account many of the productive conversations I've had with members of the policing community and the privacy community.
What follows would be an amendment to the Criminal Code of Canada that creates a new form of production order -- a subscriber information production order -- and can, in my view, just be dropped into the Code. It offers judicial oversight, real accountability and notice to the subscriber that their information has been obtained. It is limited only to serious crimes or where the information sought would identify the victim of a serious crime, but can't be used for fishing expeditions. And unlike a search warrant, it is effective nation-wide. And it includes the possibility of obtaining such an order from a judge over the telephone in urgent situations.
I welcome any comments you may have...
Subscriber information production order
*(1) A justice or judge, including a designated judge under the Canadian Security Intelligence Act, may order a telecommunications service provider to produce subscriber information.
Production to peace officer
(2) The order shall require the subscriber information or information regarding multiple subscribers to be produced within the time, at the place and in the form specified and given
(a) to a peace officer named in the order; or(b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.Conditions for issuance of order
(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that
(a) there are reasonable grounds to believe that an offense designated under this Section has been, is being or is about to be committed;(b) there are reasonable grounds to believe that the subscriber information will afford evidence respecting the identity of the person or persons believed to be responsible for the commission of the offence, or the identity of the persons believed to be the victim or the intended victim of such offense;(c) there are reasonable grounds to believe that the person who is subject to the order has possession or control of the documents or data; and(d) the issuing of the order will not unduly infringe the relevant subscriber’s rights set out in the Charter of Rights and Freedoms, including freedom of expression, based on the totality of the circumstances.Terms and conditions
(4) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client.
Power to revoke, renew or vary order
(5) The justice or judge who made the order, or a judge of the same territorial division, may revoke, renew or vary the order on an ex parte application made by the peace officer or public officer named in the order.
Notice
(6) Unless the justice or judge who made the order, or a judge of the same territorial division orders otherwise, any person whose information is obtained as a result of such order shall be notified of the order and the disclosure of his or her subscriber information within six months of the date of the order. An order to delay the giving of notice under this paragraph shall only be applicable for a maximum of six months and shall only be made if such justice or judge is satisfied, based on information on oath in writing, that the giving of such notice will likely compromise an active investigation or prosecution of an offence under this or any other Act of Parliament.
Probative force of copies
(7) Every copy of a document produced under this section, on proof by affidavit that it is a true copy, is admissible in evidence in proceedings under this or any other Act of Parliament and has the same probative force as the original document would have if it had been proved in the ordinary way.
Return of copies
(8) Copies of documents produced under this section need not be returned.
Subscriber information
(9) For the purposes of this section, “subscriber information” means the name, address, telephone number and electronic mail address of any subscriber to any of the service provider’s telecommunications services and the Internet protocol address and local service provider identifier that are associated with the subscriber’s service and equipment.
Use and retention of subscriber information
(10) Unless otherwise ordered by the justice or judge who made the order, or a judge of the same territorial division,
(a) subscriber information obtained pursuant to an order under this Section shall only be used for the investigation and prosecution of the offense or offenses referred to in the information used to obtain the order; and(b) if the person about whom the subscriber information relates has not been charged with an offense referred to in the information to obtain the order, subscriber information shall only be retained until six months following the date on which the relevant person is notified pursuant to paragraph (6) herein.Designated offences
(11) For the purposes of this Section, a designated offense means
(a) any offence that may be prosecuted as an indictable offence under this or any other Act of Parliament, or(b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a).Tele-production Orders
(12) Section 487.1 respecting telewarrants shall apply with respect to subscriber information production orders, mutatis mutandis, in the same manner as such section applies with respect to search warrants.
National effect
(13) A subscriber information production order issued under this Section shall be applicable with respect to the telecommunciations service provider in any territorial division of Canada without requirement of endorsement by a justice or judge in the territorial division where the telecommunications service provider is located.
Compensation
(14) The telecommunciations service provider named in a subscriber information production order shall be compensated for the production of subscriber information in the manner and in the amount prescribed. Nothing herein shall require a telecommunications service provider to collect or retain any subscriber information beyond that which is ordinarily collected or retained in the course of the telecommunciations service provider’s business.
Report to Parliament
(15) Each calendar year, the Minister shall lay before Parliament a report regarding the use of subscriber information production orders, which report shall include:
(a) the number of subscriber information production orders issued in total for the previous calendar year;(b) the number of subscriber information production orders issued per designated offense for the previous calendar year;(c) the number of subscriber information production orders issued per territorial division of Canada for the previous calendar year;(d) the number of and nature of the charges, prosecutions and convictions respecting each use of subscriber information production orders, including information respecting cases where charges do not result; and(d) any other information the Minister considers relevant regarding the use of subscriber information production orders.
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