The government of Canada – specifically the Minister of Justice – just released its “Charter Statement” regarding Bill C-2, the Strong Borders Act. I’m particularly focused on the “lawful access” provisions in the Bill, and I read it with interest to see how the government thinks the expanded government access to data is compatible with Section 8 of the Charter. Section 8 prohibits unreasonable searches and seizures.
In the Charter Statement, the Minister significantly mischaracterizes his own bill in a manner that makes it appear more Charter-compliant. It could be a handful of honest mistakes, but I’m getting more cynical as my hair gets more grey. (The two may be connected, now that I think about it.)
Anyways, it’s not a huge “GOTCHA!”, but they should acknowledge the mistakes and fix them.
Some background on what Charter Statements are about can be found in the Charter Statement itself:
Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
So in this particular Charter Statement, there are a couple of troubling and significant mis-statements about the Lawful Access provisions which – surprise! surprise! – make it appear more Charter-compliant.
When discussing the new production order for Subscriber Information, it says:
The judge would have to be satisfied that an offence has or will be committed and that there are reasonable grounds to suspect that the information will assist in the investigation of an offence.
This is not true. Not even close. The conditions for issuing an order are set out in the new, proposed subsection 487.0142(2), which says:
(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to suspect that(a) an offence has been or will be committed under this Act or any other Act of Parliament; and (b) the subscriber information is in the person’s possession or control and will assist in the investigation of the offence.
The judge only has to be satisfied based on a cop’s sworn say-so that there are reasonable grounds to suspect an offence has been or will be committed, and they have reasonable grounds to suspect the subscriber information will assist in the investigation. This is far from the judge having to be “satisfied” that an offence has been committed. The cop swearing the application doesn’t even have to be satisfied that an offence has been or will be committed. It’s enough that the judge believes that there are reasonable grounds to justify the cop’s tingling “Spidey sense”.
In the next paragraph about the production order for subscriber information, the Charter Statement says that this power will be used to “generate leads”, which sounds like a fishing expedition to me. I don’t think that’s a mistake.
We’ve been told that this power is to be used if the police have an IP address associated with someone they suspect is victimizing children, so they can identify THAT person, do an investigation and then get a search warrant. That’s not “generating leads”, as far as I understand that terminology.
The next material misstatement is in the last sentence of that paragraph, which says “if [the judge] chooses to issue an order, the judge would have discretion as to what information is specified in it.” I’m pretty sure that’s incorrect.
The new order power says it is for
ALL the subscriber information that relates to any information, including transmission data, that is specified in the order and that is in their possession or control when they receive the order.
ALL the subscriber information that relates to the identifier that is specified in the order. The form of the order, which is prescribed in the Act, does exactly that. The order is for ALL subscriber information, which is horribly broadly defined. I’m not seeing any discretion here.
I have some issues with the way certain things are characterized, like saying that information that can be subject to a warrantless demand by a cop is not sensitive information.
The way this provision is drafted, it can include going to a family doctor and saying “Do you provide services to David Fraser? What specialists (like psychiatrists) also provide him with services?” I would say I have a high expectation of privacy in that information. They can go to your bank and the definition of subscriber information can compel them to provide a list of all companies you do business with. That merely identifies the client and the services the client receives. But that’s sensitive information and goes well beyond going to a telco and asking “Do you provide service to this number, and what city does the customer live in?”
This is either sloppy or intended to be deceptive. If the government thinks this is defensible, they should defend it on its own actual, honest merits. In just about every lawful access provision in the Bill, they are lowering the bar to make it easier to get information, while widening the net to capture more information than they say they need.
I’ve said it before and I’ll say it again: Parts 14 and 15 need to be taken out of the Bill, put in their own Bill so we can discuss them. I want to have an honest debate with someone who is interested in an HONEST debate. Think about this …. Bill C-2 is the FIRST substantial bill that Mark Carney’s new government introduced in the House of Commons after getting elected. Correct me if I’m wrong – but I’m pretty sure I’m not – no liberal candidate or the present Prime Minister campaigned on any of the new police and national security powers mentioned in Parts 14 and 15 of Bill C-2.
