Conservatives and New Democrats don’t agree on much, but it appears both have issues with provisions tucked into Bill C-2, the Carney government’s Strong Borders Act.
The 140-page bill would modify many existing laws, from the Criminal Code to the Immigration and Refugee Protection Act, the Canada Post Corporation Act and the Oceans Act.
Much of it is about the border and the movement of people and goods, licit and illicit, across that border, as its full name suggests: An Act respecting certain measures relating to the security of the border between Canada and the United States and respecting other related security measures.
But some MPs are having difficulty seeing how everything in the bill is at all “related” to the border.
Strong Borders Act raises concern about police access to personal data
“I think the title of the act is for show for the Trump administration,” said New Democrat MP Jenny Kwan. “A lot of the components in the bill target Canada’s own processes that have nothing to do with the U.S.”
Conservative MP Michelle Rempel Garner said C-2 includes “snooping provisions” that are “a massive poison pill.”
Perhaps the most controversial parts of the bill relate to police powers and “lawful access,” the ability for police to demand subscriber information from internet providers and other online companies.
Police have been seeking such powers for two decades in Canada, and there have been several attempts to pass legislation.
The last determined effort to expand police powers over the internet was made by Stephen Harper’s government in 2014, when it was packaged as the Protecting Children from Internet Predators Act. It fell apart after Public Safety Minister Vic Toews challenged critics to either “stand with us or stand with the child pornographers.”
The Carney government also turned to the spectre of child pornography to make the case for their bill.
And indeed, those who work in child protection have long advocated for a version of lawful access that would compel internet providers to co-operate with law enforcement.
“There are pieces of information that are only in the possession of [internet] companies,” said Monique St. Germain, a lawyer with the Canadian Centre for Child Protection.
She said it can take months to obtain authorizations to link a computer’s IP address to a suspect, and sometimes that means important evidence is lost.
Critics say new border legislation aligns Canada’s immigration system with the U.S.
And Thomas Carrique of the Canadian Association of Chiefs of Police says communications and encryption technology used by criminals have raced ahead of existing legislation.
“We are certainly not advocating to have unfettered access,” he said. “[C-2] lays out in law what the police would have access to based on reasonable suspicion. And in a modern technical society, this is bare-minimum information.”
But the Supreme Court of Canada ruled its landmark 2014 decision R v. Spencer that the information police hope to gain through the border bill is within the bounds of a person’s reasonable expectation of privacy.
“I frankly thought that the prospect of government going back to legislation without a warrant, without court oversight, was simply gone,” said Michael Geist, who holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa.
He says it now feels like there’s an effort to “sneak” old provisions from failed legislation into this bill — “about which there’s very little to do with lawful access.”
He expects Canadians will “feel that they’ve been duped” as they learn that a bill “designed to deal with the border and border safety” has elements that “have nothing to do with the border.”
The data at issue would not include the actual content of messages exchanged over the internet. In order to listen to conversations or read emails, police would still need a warrant.
Rather it is biographical information about the sender that is at issue, and there is a debate about how significant the privacy interest in that is.
“I think what’s being asked is relatively limited, but I acknowledge that’s not a universally shared view,” said Richard Fadden, former director of Canada’s intelligence agency, CSIS.
“If you go back 20 or 30 years you had telephone books which allowed the police to do more or less the same.”
But Geist said police could obtain a lot more through C-2 than they ever could through an old phone book.
He said law enforcement could ask an internet company what kind of things a customer has been doing online, when they were doing them and where.
Geist says providers would also have to disclose what communications services the subscriber users, such as a Gmail account.
Public safety minister says border bill is in line with Charter
Shakir Rahim, a lawyer with the Canadian Civil Liberties Association, said such information provides “a trove of background about our lives” and that his group has “serious concerns that this bill is not compliant with the Charter.”
Rahim says the requirement to get a warrant offers “some level of protection” that such access is being sought in a targeted way.
“But this legislation changes that. It takes away that protection,” he said.
That problem is compounded, says Geist, by the very low bar set to allow police to demand such information — “any violation of any act of Parliament” — giving the example of camping without a permit.
Rempel Garner raised those concerns in the House of Commons.
“Whether or not I use an online service, where I use an online service, if I depart from an online service, if I start an online service, how long I use an online service, everything that C-2 says it would do — that is my personal information,” she said.
“That is none of the government’s business, certainly not without a warrant. There has to be a line drawn here.”
Conservatives express privacy concerns over border bill
Public Safety Minister Gary Anandasangaree, who has a background in asylum and human rights law, said he would never advance a bill that threatens civil liberties.
“It needed to be in line with the values of the Canadian Charter of Rights and Freedoms,” he said the day the bill was tabled. “I fundamentally believe that we can strike a balance that, while expanding powers in certain instances, does have the safeguards and the protections in place like protecting individual freedoms or rights.”
The NDP’s Kwan isn’t convinced.
“I know the minister says this and believes it,” she said. “But in reality, if you look at the bill, the minister is creating a situation where your personal info is being disclosed without your consent.”
Even some who broadly support the lawful access provisions in C-2 wish they had been presented in a separate bill.
Fadden says CSIS is too busy to waste time on fishing expeditions, and he would expect the agency to set its own protocols that agents would have to comply with before contacting internet providers.
He doesn’t dismiss the risk of abuse and overreach, but argues that those risks also exist under the present system of warrants.
Still, he wishes the changes hadn’t been buried in an omnibus bill ostensibly about the border.
“I understand the desire to do it that way, but I don’t think it allows for people to understand what’s being proposed,” Fadden said.
“I’m not sure when parliamentary committees look at the bill in the aggregate, particularly given its focus on borders, that this will get the attention that it deserves … people from the civil liberties side are raising concerns that merit discussion.”
