Advocacy groups and others ranging from those concerned with civil rights, refugees, and migrants are raising the alarm in opposition to the Liberal omnibus bill covering border security, arguing the proposed changes could undermine Charter rights and privacy rights.
“This government, in its first few weeks, is showing itself to be the most anti-privacy government in Canada that we’ve seen in decades,” said Michael Geist, a professor at the University of Ottawa who specializes in internet and intellectual property law.
“Even the [Stephen] Harper government required warrants for certain information under some of their proposals … and they certainly did not attempt to bury these provisions in omnibus bills that have nothing to do with the issue,” he told The Hill Times.
The 127-page Bill C-2, the Strong Borders Act, introduced by Public Safety Minister Gary Anandasangaree (Scarborough—Guildwood—Rouge Park, Ont.), completed first reading in the House on June 3, and is in the process of second reading on June 19. The bill proposes sweeping changes to this country’s border and immigration systems, including changes to the Customs Act, the Controlled Drugs and Substances Act, the Canada Post Corporation Act, the Oceans Act, the Department of Citizenship and Immigration Act, the Immigration and Refugee Protection Act, the Criminal Code, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the Sex Offender Information Registration Act, the Office of the Superintendent of Financial Institutions Act, the Personal Information Protection and Electronic Documents Act, and the Mutual Legal Assistance in Criminal Matters Act.
In regard to border security, the bill would allow the Canadian Coast Guard to conduct security patrols, and to share information with defence and intelligence agencies. New rules would allow border officers to enter and examine premises under the control of transporters and warehouse operators.
One important change proposed in the bill is a new definition of “subscriber information” within the Criminal Code. There is currently no definition of subscriber information in the Criminal Code, but the Supreme Court defined it as “the name, address, and telephone number” of a customer associated with a particular Internet Protocol (IP) address, in June 2014. In the landmark case of R. v. Spencer, 2014, the Supreme Court unanimously held that internet users were entitled to a reasonable expectation of privacy in subscriber information held by internet service providers.
Bill C-2 proposes an expanded definition of subscriber information to also include data that the subscriber or client provided to the person in order to receive the services, which would include any pseudonym, “identifiers assigned,” including account numbers, and “information relating to the services provided to the client,” such as the types of services, timeline of services, and information that identifies specific devices or equipment.
The amendments in the bill would also authorize police—upon forming a reasonable suspicion that an offence has been or will be committed—to collect subscriber information without a warrant.
The Department of Justice acknowledged that various parts of the bill—such as the retrieval of information without a warrant—could conflict with the Canadian Charter of Rights and Freedoms in an assessment of the bill that was released on June 19, the Globe and Mail reported on June 20. The assessment also said that reasonable suspicion that an offence may be committed would be required to seek the information.
Geist told The Hill Times that most people had the sense that the issue around warrantless access to subscriber data was over following the Supreme Court’s 2014 ruling, but Bill C-2 has resurfaced provisions that “may be, in some ways, the worst and most dangerous iteration of lawful access we’ve seen.”
Michael Geist, a University of Ottawa professor who specializes in internet and intellectual property law, says Bill C-2 has resurfaced provisions that ‘may be, in some ways, the worst and most dangerous iteration of lawful access we’ve seen.’ The Hill Times photograph by Andrew Meade
“This particular bill goes much further than we have seen in prior iterations of lawful access,” said Geist. “While prior iterations specifically focused on telecom providers, this legislation covers any service provider. Literally any service provider. We’re talking about hospitals and physicians and libraries and educational institutions and financial institutions. I mean, heck, your gardener or dry cleaner is covered by this legislation, and all of this with the prospect of demands for information without court oversight.”Four coalitions, representing nearly 250 civil society groups, called for the government to scrap Bill C-2 during a joint press conference on Parliament Hill on June 18. Karen Cocq, a spokesperson for the Migrant Rights Network, said that Bill C-2 is not a border bill, and is instead a “power grab and an attack on fundamental human rights and civil liberties for every living person in this country.”
Besides the provisions in the bill that would allow police or the Canadian Security Intelligence Service to demand online data without a warrant, other objections from the Migrant Rights Network include the proposed changes regarding asylum seekers crossing the United States border into Canada.
The bill proposes that people who enter Canada from the U.S. on foot between ports of entry would have only 14 days to file an asylum claim. This deadline is intended to help “protect the asylum system against sudden increases in claims,” according to Public Safety Canada.
The Migrant Rights Network argues that this deadline for asylum claims could potentially trap vulnerable people fleeing from “xenophobic policies” in the U.S.
Bill C-2 also proposes giving cabinet the power to cancel existing permanent resident visas, study and work permits, temporary resident visas and other immigration status documents if the governor-in-council is of the opinion that “it is in the public interest to do so.”
Gauri Sreenivasan, co-executive director of the Canadian Council for Refugees, said during the press conference that Bill C-2 proposes changes that seriously weaken this country’s system for offering protection to refugees.
“The vagueness and the lack of safeguard in this creates reasonable fears that the government is giving itself powers to treat an individual or whole groups of applicants unfairly because of where they are from or how they arrive. This not only creates major risks of discrimination and injustice—particularly for racialized communities—it creates fear of injustice and fear of profiling and racism, which is corrosive to the public competency in the immigration system,” said Sreenivasan.
Supporters of Bill C-2 include the Canadian Centre for Child Protection (C3P). The organization issued a June 4 statement arguing the expanded capabilities proposed in the bill for law enforcement to access information from electronic service providers would help reduce barriers in investigating online crimes targeting children.
Lianna McDonald, C3P’s executive director, argued that the bill is detailed and does not lend itself to the “sweeping generalizations we see being made,” in an emailed statement to The Hill Times on June 18.
“For example, there is a section in Part 14 that allows police to ‘demand’ information, but the information that can be demanded under that section is extremely limited, and the demand is subject to being revoked or varied by a court if challenged. Other sections in Part 14 (which deal with police access to information) focus on the issuance of warrants or production orders (which are a form of warrant). And so, a framing that characterizes the collection of measures in Part 14 as ‘warrantless’ is not a fair representation,” said McDonald in the email.
“There is also a provision for warrantless access under ‘exigent circumstances,’ but that is not surprising. Exigent circumstances are not everyday, ordinary circumstances and any information obtained under this provision could only be used to prosecute someone if the court was satisfied an exigent circumstance did exist at the time.”
McDonald said she hopes the bill can help address the “growing complexity of investigating cross-border cybercrime in our communities.”
Less than one-quarter (23 per cent) of all police-reported online sexual offences against children in 2023 resulted in a charge being laid or recommended against an accused, according to Statistics Canada.
“The technology available to offenders has continued to rapidly evolve. But at the same time, the legal framework and rules by which police must operate have not kept pace nor functioned with the efficiency necessary to adequately safeguard the public in digital environments,” said McDonald in the email.
Since Bill C-2’s introduction, vocal critics of the legislation in the House have included NDP MP Jenny Kwan (Vancouver East, B.C.), her party’s critic for public safety, immigration, and citizenship. On June 11, Kwan told the House that the “so-called stronger borders act makes Harper’s Bill C-51 look like child’s play.”
“Bill C-2 is a sweeping attack on Canadian civil liberties. It would allow the RCMP and CSIS to make information demands from internet providers, banks, doctors, landlords and even therapists, without judicial oversight. This is not about border security. It is about government overreach and Big Brother tactics, plain and simple. It is a violation of our privacy, and it will be challenged in court,” she said in the House.
In response to Kwan, Anandasangaree defended the bill, saying the Strong Borders Act would help keep Canadians safe.
“The bill will go after transnational child sex offenders via information-sharing with our international policing partners, give law enforcement the tools it needs, choke off organized crime’s illegal profits with a crackdown on money laundering, grant our border officers provisions to search export containers and stop auto theft rings. We will do this while ensuring the Charter rights of Canadians and due process to make sure that our civil liberties and privacy rights are protected,” Anandasangaree told the House.
Changes proposed under Bill C-2, the Strong Borders Act
- A statutory definition of “subscriber information” under the Criminal Code to include data that the subscriber or client provided to the person in order to receive the services.
- Expanded powers for law enforcement to demand subscriber information and transmission data, and expanded investigative powers for police where ‘exigent circumstances’ exist.
- Expanded role for the Canadian Coast Guard in security patrols and information-gathering and sharing.
- An overhaul to Canada’s anti-money laundering regime by introducing mandatory Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) enrollment and periodic renewal for all reporting entities; and increased administrative monetary penalties for non-compliance, among other changes.
- Asylum claims from people who enter Canada from the United States along the land border between ports of entry and make a claim after 14 days would not be referred to the Immigration and Refugee Board (IRB) of Canada.
- Asylum claims made by people more than one year after first arriving in Canada after June 24, 2020, would not be referred to the IRB. This would apply to anyone, including students and temporary residents, regardless of whether they left the country and returned.
- People who are affected by these asylum ineligibility provisions may still apply for a pre-removal risk assessment.
The above is an incomplete list of some of the changes proposed under Bill C-2.
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