Canada: New Investigative Powers For Canadian Public Authorities: A Step Too Far?

Included in the federal government's controversial Bill C-131 is a long list of new investigative powers that public authorities may employ to gain access to a broad range of private information, including Internet usage, location tracking and financial data. In addition, the standard to be applied by the courts in granting such production and preservation orders, along with warrants to employ tracking devices, is that an offence has been or will be committed (i.e., anticipatory breach) under the Criminal Code or any other federal legislation. These powers go way beyond what might otherwise reasonably be expected to support the bill's cyber-bullying and online crime provisions.

Included in the bill, which appears destined to be passed in the fall session of the House of Commons,2 are the following provisions (in part):

  • A Broad Definition of Public Officer: The bill's definition of "public officer" includes any individual appointed or designated to administer or enforce a Canadian or provincial law. This will empower a broad range of individuals, including those working for the Competition Bureau, the Canada Revenue Agency, Health Canada, the Canadian Security Intelligence Service, the Communications Security Establishment, and Fisheries and Oceans Canada, amongst others, to use a range of information production and preservation orders if they suspect a criminal offence or regulatory breach may be in the offing.
  • No Civil or Criminal Liability for Voluntary Disclosure: A person who voluntarily provides information to a peace officer or public officer upon request, including telecommunications carriers, Internet service providers (ISPs) and social media platform operators, shall not incur any criminal or civil liability for doing so (provided the disclosure is not prohibited by law).
  • Transmission Data Available on Reasonable Suspicion: "Transmission data" is defined so as to include a broad range of what is otherwise known as "metadata," including telephone numbers called or texted, duration of calls, origin and destination IP addresses, websites visited, type of application being used, type of Internet communication, and unique mobile device identifiers.

This is information that tends to reveal intimate details of the individual's lifestyle and personal choices and "engages a high level of informational privacy."3 This information is as sensitive as the content of emails, phone calls and text messages (if not more so), yet the bill will let peace officers and public officers access it upon satisfying a judge that an offence has been or will be committed.  

This is a significantly lower standard of proof (reasonable suspicion) than is normally required to obtain a search warrant (reasonable and probable grounds), and is a broad investigative power typically reserved only for the least sensitive of personal information gained using non-invasive processes. Transmission data does not include data that reveals the communication's substance, meaning or purpose. A search warrant would be required to obtain production of such "content" information.

  • Tracking Data Available on Reasonable Suspicion: "Tracking data" is defined so as to include the detailed location information that is constantly generated by GPS devices that are increasingly incorporated into our phones, tablets, watches, automobiles, and boats.

The location information generated by these devices is recorded and analyzed by a range of service providers, including telecommunication companies, mobile device manufacturers, social networking sites and insurance companies (amongst others). Bill C‐13 will let police and public officers access this information upon a reasonable suspicion that the information will assist in the investigation of a possible offence. Again, this is a broad investigative power typically reserved for the least sensitive of personal information.

Bill C‐13's provisions will dramatically expand the government's capacity to invade the privacy of Canadians. Whilst few would argue against the need to provide for effective investigation and prosecution of online crime, especially in such areas as cyber-bullying and child pornography, applying such wide-ranging and invasive powers to situations where there is merely a suspicion of a breach or potential breach of any federal legislation, coupled with a significantly reduced standard of review required to obtain such orders (and the secrecy provisions in respect thereof), represents a dangerous new direction in the government's intervention into the private affairs of its citizens.

Although public opposition to the bill has been less than strident, one might expect that its constitutionality will inevitably be challenged if it is passed and implemented in its current form. The Supreme Court has been rightfully vigilant in protecting citizens from unreasonable search and seizure contrary to s. 8 of the Canadian Charter of Rights and Freedoms,4 and it appears the court will have yet another opportunity to consider such rights in the context of this legislation's provisions in due course.

Footnotes

1 Bill C-13: http://www.parl.gc.ca/LEGISinfo/BillDetails.aspx?billId=6301394&Language=E&Mode=1

2 Report 6 presented to the House of Commons on June 16, 2014, following second reading: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=6669867&Language=E&Mode=1&Parl=41&Ses=2

3 R v. Spencer, 2014 SCC 43, par. 51: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14233/index.do

4 Part I, Constitution Act, 1982: http://laws-lois.justice.gc.ca/eng/const/page-15.html

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