Under Bill C-2, law-enforcement officers would be granted a wide range of powers and no longer need a warrant to obtain certain information.JASON FRANSON/The Canadian Press
Ottawa’s proposed Strong Borders Act could clash with Charter rights, the Justice Department says, while government officials confirmed the bill would permit law enforcement to make a wide range of demands without a warrant.
Privacy lawyers say a legal challenge to Bill C-2 is inevitable and that warrantless powers granted to the police, spy agency and other public officers are far broader than declared by the government when it launched the bill.
For example, law-enforcement officers could demand answers to whether people have used medical services, rented a car, stayed in a hotel, or banked at a particular location, without a warrant, government officials said Thursday in a briefing for journalists.
An assessment published the same day by the Department of Justice of whether the bill is compliant with the Charter of Rights and Freedoms found that various provisions in the legislation could conflict with the Charter, including clauses protecting Canadians against “unreasonable searches and seizures.”
Under Bill C-2, law-enforcement officers, including the RCMP and CSIS, would be able to demand whether a person has provided services to a particular client and if they have any information about them. They could also find out the province and municipality where the service was provided.
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The Department of Justice’s assessment says this “could be perceived as having effects under Section 8” of the Charter, which protects Canadians’ privacy rights and outlaws unreasonable search and seizure.
However, the assessment argues that the information law enforcement officers could seek without a warrant would be limited and not reveal details about services provided, or contents of communications. It adds reasonable suspicion that an offence may be committed would first be required to seek such information, which would prevent the power from being used for “fishing expeditions.”
A police officer would still be able to receive such information voluntarily, as they can do now, the assessment says.
Among the points of potential conflict with Section 8 of the Charter are new powers in the bill allowing the opening of mail – for example if Canada Post employees suspect it contains drugs or other contraband.
The assessment also warns that powers in the bill allowing the government to cancel or suspend people’s immigration documents, or impose conditions on their holders, such as medical assessments, could “interfere with inherently personal choices,” such as whether to undergo certain medical procedures.
It says this could conflict with Charter protections of life, liberty and security.
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Lawyers with expertise in privacy law predicted Thursday that a legal challenge under the Charter of Rights of Freedoms is a certainty.
“The warrantless information demand powers alone – which would apply to offline service providers like doctors, lawyers, and psychologists – could reveal deeply personal, private information to law enforcement and spy agencies without any court oversight,” said Aislin Jackson, policy staff counsel at the BC Civil Liberties Association.
“This flies in the face of Charter informational privacy principles that the Supreme Court of Canada upheld just last year.”
Public Safety Minister Gary Anandasangaree, who introduced the Strong Borders Act in the Commons earlier this month, said it would confer very limited powers for law enforcement to obtain information from telecom providers without a warrant.
“It would enable law enforcement to go to a service provider and ask if the phone number they have is with that company. It is simply a yes-or-no question,” he said.
But at a background briefing for journalists on Thursday, government officials said the scope of the bill is far wider. They predicted that internet service providers would be the most likely to receive such requests for information, but confirmed that others providing services to the public, such as psychiatrists, psychologists and other medical professionals, could also receive a demand for basic information about a client without a warrant.
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They said the police would first have to have reasonable grounds to suspect that the information they are seeking will help them investigate an offence under an act of Parliament. And a medical provider could refuse to produce the information and could go to court to challenge it. However, the onus would be on the service provider to challenge the demand.
The “warrantless information demand powers in Bill C-2 are guaranteed to spark a constitutional challenge,” said Michael Geist, the University of Ottawa’s Canada Research Chair in Internet Law.
“The Supreme Court has been clear about the privacy rights of Canadians. By targeting the information held by doctors, lawyers, financial institutions and anyone else providing a service, the government is rejecting those privacy rights and proposing an unprecedented framework that will affect millions of Canadians.”
Government officials said the bill would not change the scope of what CSIS can obtain voluntarily now. But it would enshrine in the bill the agency’s ability to demand such information without a warrant, and ensure that their powers do not lag behind those of the police or other law-enforcement agencies.
The bill would allow CSIS, for example, to pinpoint the location of a bank account, or mailbox being used by people posing a threat, so they could then seek a warrant to get further access.
CSIS would still be subject to limitations they currently face – for example, a bar on investigating people taking part in protests who make inflammatory remarks. They would also face continuing monitoring by the National Security and Intelligence Review Agency, a watchdog, government officials said.