Backgrounder: Bill C-2 raises privacy concerns

CCF Counsel Josh Dehaas said that although the bill aims to fix real problems like reducing the amount of fentanyl in communities, it needs amendments to better protect Canadians’ privacy.

“At best, this law would allow police and CSIS agents to take shortcuts in their investigations that will lead to accidental privacy breaches,” he explained. “At worst, this bill could allow the government to build a surveillance state.”

CCF Litigation Director Christine Van Geyn, who recently authored the report Safety Above All: How the Culture of Safetyism is Eroding Civil Liberties in Canada, warned that many provisions of the act open the government up to possible Charter litigation.

“Safety and privacy are in tension, and this bill gets the balance wrong by giving too little weight to fundamental privacy rights,” Van Geyn said. “The government still has an opportunity to make amendments to this bill to give due and necessary protections to privacy. If it doesn’t, we may need to sue.”

Joanna Baron, the CCF’s Executive Director, said governments need to think more about privacy.

“We're watching the government systematically chip away at Canadians' privacy rights—from seizing Freedom Convoy bank accounts to police drone surveillance of drivers. Bill C-2 would take this erosion to a whole new level. Canadians need to wake up and demand better before these powers become permanent,” she said. “I encourage anyone worried about their privacy to start by arming themselves with information by taking the CCF’s free privacy course,” Baron added.

Here are several areas of concerns with Bill C-2:

Secret spying software regime

Part 15 of the bill would create a new statute called the Supporting Authorized Access to Information Act to govern what is known as “lawful access.” This statute would give CSIS and police powers to obtain information from electronic service providers, which are defined as any service that involves creating, storing, transmitting, or making available information in electronic or digital form, such as WhatsApp, Gmail and TikTok. The statute would allow a minister to make secret orders to install devices or software to collect information. Service providers could be fined for publicly disclosing the details. According to law professor Professor Robert Diab, because the Act would give the minister in charge the power to define, by regulation, “the meaning of any term or expression for the purposes of this Act, including ‘authentication’, ‘encryption’ and ‘systemic vulnerability’,” there is a possibility they could create a “back door” that would allow spy agencies and police secret, real-time access to data. The CCF is concerned that innocent Canadians may face warrantless searches of their private online data, in violation of section 8 of the Charter, and that service providers would be prevented from disclosing this to the public.

Enlisting financial institutions into warrantless searches

Part 16 of the bill would amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to allow the RCMP or other prescribed government agents to write to financial institutions to warn them that a person may be committing terrorist financing, money laundering or sanctions evasion. The law would enlist banks into the collection of information about that person without their knowledge, and would prevent them from “tipping off” the person suspected of the crime. The CCF is concerned this would lead to routine warrantless searches.

Banning large cash deposits

Part 11 of the bill would amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to ban most businesses, with exceptions such as financial institutions, from accepting payments, donations or deposits of $10,000 or more made in cash. Paying for items in cash is inherently more private than paying for items electronically because electronic payment creates a digital record. The CCF is concerned that this could be a slippery slope to a cashless society where governments can more easily monitor how we spend our money.

New powers to open mail

Part 4 of the bill would allow Canada Post to open letter mail, rather than just parcels, if there are reasonable grounds to suspect that a letter contains dangerous goods or contraband. While opening letter mail may be necessary to reduce the amount of fentanyl harming Canadians, there are no safeguards built into the bill to prevent Canada Post employees from reading private letters. This should be rectified. For example, the act could restrict employees to only opening letter mail under video recording, and require that a copy of that video be provided to the recipient of the letter to show that their private letters were not read by employees.

Warrantless information demands

Section 487.0121 of the bill would allow police officers to demand that anyone who provides services to the public hand over the following subscriber information:

• whether the person provides or has provided services to a particular person or account;
• dates during which services were provided;
• the province, country or municipality where the services were provided, and
• whether the person is in possession of other information in relation to those services.

Police would require reasonable grounds to suspect that an offence has been committed, but they would not need authorization from a neutral third party such as a justice to confirm that reasonable suspicion exists before making the demand. The person or business receiving the demand would face a $5,000 fine if they do not hand over the information, and they would have only five days to file an application asking a judge to review the request. The definition of service provider is so broad that this could allow police to demand to know whether a certain medical provider has treated a person, whether a particular dating app provides services to a person, or whether a person has donated to a particular cause on GoFundMe.com. The CCF is concerned that the warrantless information demands process is not tailored enough to prevent snooping, and that the five-day deadline for challenging the demand is far too onerous.

‘Voluntary’ information demands

Part 14 of the bill states that police do not need judicial authorization to ask a person to voluntarily provide information. As Professor Robert Diab has pointed out, the Supreme Court of Canada has already said that Parliament cannot render these sorts of searches legal simply by declaring so in legislation. If a person has a reasonable expectation of privacy in the information, this may be a warrantless search. The CCF is concerned that this section will cause unsophisticated information holders and law enforcement agents to believe that warrantless searches have been greenlit when such searches violate section 8 of the Charter.

The Canadian Constitution Foundation (CCF) is a registered charity, independent and non-partisan. We defend the constitutional rights and freedoms of Canadians in the courts of law and public opinion.

Josh Dehaas
Counsel
Canadian Constitution Foundation
1-888-695-9105 x. 104
jdehaas@theccf.ca

Joanna Baron
Executive Director
Canadian Constitution Foundation
1-888-695-9105 x. 101
jbaron@theccf.ca