You may recall that the government introduced Bill C-2, the Strong Borders Act<\/a> as its very first substantive bill in Parliament following the recent election. It seemingly came out of the blue and its proposed changes to the law related to law enforcement and national security access to information were roundly condemned. As a result, the bill has languished and has not been referred to committee.\u00a0<\/span><\/p>\n In another strange move, the government tabled a new bill (Bill C-12) that essentially was the Strong Borders Act but without the lawful access parts, apparently so they can fast track the other parts of Bill C-2. The new Bill C-12 is currently being considered by the <\/span>House of Commons Standing Committee\u00a0 on Public Safety and National Security<\/span><\/a>.\u00a0<\/span><\/p>\n Most of us assumed that was the end of lawful access. Apparently not.\u00a0<\/span><\/p>\n Earlier this week, Public Safety Minister Gary Anandasangree, Transport Minister Steve McKinnon, Secretary of State for Combatting Crime MP Ruby Sahota held a press conference defending \u201clawful access\u201d and calling for the Conservatives to get onboard. If it hadn\u2019t been for Michael Geist\u2019s eagle-eyed attention to this topic, it might have been completely missed. The full press conference is on YouTube and I\u2019ll link to it below.<\/span><\/p>\n The press conference was filled with misinformation about their own proposals and about the current state of the law.\u00a0 There are some things that are defensible, but they just can\u2019t get out of their own way. Having watched it a couple of times, it was like they really don\u2019t know much about their own bill or how law enforcement currently operates.\u00a0\u00a0<\/span><\/p>\n Everything said in the press conference seemed to relate to the provisions in Part 14 of Bill C-2, which are principally new demands and orders for customer information. I did not hear anything said that was a clear reference to Part 15 of Bill C-2, which would create a whole new law called the \u201cSupporting Authorized Access to Information Act\u201d.\u00a0 And what\u2019s also weird about that is the politicians there are associated with the Department of Public Safety, which we are told is the author of Part 15. Part 14 of Bill C-2 was written by and is the responsibility of the Department of Justice, which was absent from the press conference.\u00a0<\/span><\/p>\n The press conference was full of confused political puffery. And some statements were entirely incorrect and would leave any viewer misled. They accused others of engaging in dispensing misinformation, which is just rich.<\/span><\/p>\n They repeatedly said that the new tools for law enforcement have judicial oversight. Here is Secretary of State for Combatting Crime MP Ruby Sahota:<\/span><\/p>\n \u201cThey have also made it extremely clear that these tools are not warrantless surveillance. They are used with judicial authorization and clear legal thresholds, including modernized production and (…) preservation orders, clarified duties for surveillance providers, and access to basic subscriber information only on judicial order with strong safeguards.\u201d<\/span><\/p>\n I assume instead of \u201csurveillance providers\u201d, she meant to say \u201cservice providers\u201d.\u00a0<\/span><\/p>\n \u201cBill C2 gives police the tools they need with oversight Canadians expect.(…) Judicial authorization,(…) clear legal thresholds, strict limits on what can be accessed and when, and no warrantless surveillance full stop.(…)\u201d<\/span><\/p>\n The WARRANTLESS information demand is just that. No warrant. No judicial authorization required.\u00a0<\/span><\/p>\n They said that we\u2019re just talking about getting customer names and addresses, so no big deal.\u00a0<\/span><\/p>\n \u201cWe’re trying to connect phone numbers to names and addresses, and then judicial authorization would have to get involved even further in order if that person was a suspect and we needed further information. So it’s not about encrypted, you know, data or information. It is about connecting a name or an IP address to a phone– to an– I mean, an IP address or a number to a name and an address. That’s all this is about.\u201d<\/span><\/p>\n This also is incorrect and significantly misleading. Customer names and addresses from telcos are certainly \u201cin scope\u201d, but these provisions are not at all limited to telcos. This applies to anyone who \u201cprovides services to the public.\u201d You know who also provides services to the public? Your doctor. It can be used with telcos, and it can be used with your doctor\u2019s office.\u00a0<\/span><\/p>\n <\/p>\n And there was also some horrific misinformation about the tools the police currently have to do their jobs.<\/span><\/p>\n \u201cThe regime we have today is unacceptable. So I’d like to share some examples so that I can bring the issue to light. I find that there’s not been a lot of coverage on extortion, but you’ve definitely been hearing about it in the House. That’s because many of our communities are suffering from these cases. And what’s unacceptable right now is it taking six months for the police to be able to get judicial authorization, to be able to connect a phone number to someone who’s extorting an individual in my riding, who has been out of their home because their home has been shot up and it’s dangerous for their kids to live there. They can’t go to school in a regular routine. They can’t operate their business. And that’s unacceptable. And I believe in Canada, our law enforcement should have the capabilities of being able to track down violent criminals such as these.\u201d<\/span><\/p>\n I am sorry. If it is taking the police six months to get a warrant after a house has been shot up \u2026 the police simply are not doing their jobs and are not using the tools they currently have. A police officer in a squad car can pick up the phone and get a production order, if circumstances exist for dispensing with the formalities of a personal appearance before a justice of the peace.\u00a0<\/span><\/p>\n The Honourable Ruby Sahota is the MP for Brampton North Caledon in Ontario. The local police of her jurisdiction is the Peel Regional Police. I\u2019ve seen many production orders obtained by officers in the Peel Regional Police. I really, really doubt that it takes six months of effort to get a production order. Most of them are issued within a very short period of time from the alleged offence. Just for illustration purposes to find something on the public record, I did a really quick search in a public legal database and found a case from Brampton that will illustrate the current process. The case is called R v Owen, 2017 ONCJ 729<\/a>.\u00a0<\/span><\/p>\n <\/p>\n But setting that aside, that\u2019s nowhere near six months. The laws in effect in 2015 are essentially the same laws we have now, that the government wants the police to be able to side-step. Suggesting it takes six months to get a production order is an outrageous statement from the \u201cSecretary of State for Combatting Crime.\u201d It\u2019s so outrageous that I assume it\u2019s an outright lie.\u00a0<\/span><\/p>\n Here\u2019s what\u2019s currently in the criminal code, which authorizes the cops to go to a judge and get an order for customer name and address \u2013 or any other information \u2013 if they have reasonable grounds to believe an offence has been committed and the addressee of the order has the data. What\u2019s proposed in Bill C-2 is an order based solely on a hunch \u2013 reasonable grounds to suspect an offence has taken place. And the scope of the production is much broader. Fewer grounds and more information.\u00a0<\/span><\/p>\n Look, if the government thinks their proposal has merit and should proceed through parliament, they should be prepared to actually justify the new powers. And they should do it with facts and not political puffery or straight BS.\u00a0<\/span><\/p>\n I will assume \u2013 at least for now \u2013 that the Minister of Public Safety is being honest when he acknowledges that the current bill is flawed and is willing to listen to feedback to make it acceptable:<\/span><\/p>\n \u201cUm, it is not a perfect piece of legislation. So, we are open to to uh to feedback from uh from our partners, from uh uh from civil liberties groups, from other uh entities that may have an interest um in this area. And we will work across party lines to make sure that we have consensus on on having a lawful access regime that is acceptable to Canadians.\u201d<\/span><\/p>\n I\u2019ll link below to my previous episodes where I discuss, in some depth, Part 14 and Part 15 of Bill C-2, in case you want the straight goods on what\u2019s in the Bill. So far, nobody has accused me of making stuff up.\u00a0<\/span><\/p>\n My previous video on Part 14 of <\/span>Bill C-2<\/span>: https:\/\/youtu.be\/wOgo4TuoJec<\/a>![](\"https:\/\/blogger.googleusercontent.com\/img\/b\/R29vZ2xl\/AVvXsEjxM3qxK5fJqDEJymJISakdfLK_vDdlL9MkNIZpZKlQYZ1GOvr2x8kDtJuL97iE8fPvNfdLlXRLdsNOx_JuNTzsPBV4y5zwzaHdM801SoOZDTZRLH6Adn5GiZ5dfYTX1KhUfRJ9rAsRkY1-WZ_C9VgBYp-kD48UTdTqweDDCyC9Ahs3xCu1iCUZyw\/s320\/Slide2.PNG\")
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And it\u2019s not limited to \u201ccustomer names and addresses\u201d. Creates a mandatory disclosure of \u201csubscriber information\u201d that is defined so broadly that it includes ALL \u201cinformation that the subscriber or client provided to the person in order to receive the services\u201d. Yes, that\u2019s the medical history form you filled out when you first visited the clinic. It includes the types of services the clinic provided to you and information about any specialists you were referred to. The scope of this is breathtaking. It does require judicial authorization, but with the lowest burden of proof our legal system has. Something just more than a hunch. And the judge can\u2019t say \u201chey, all you need is a name and address\u201d so we\u2019ll limit the order to that. Nope, the order is for all SUBSCRIBER INFORMATION.\u00a0<\/span><\/p>\n![](\"https:\/\/blogger.googleusercontent.com\/img\/b\/R29vZ2xl\/AVvXsEgKUy9E82-y6WH2JfYzTdyjazAzsLeiNFMful5-zO6IDfAhYqmqhnv4UzadqKZfwCyp9arjzGN0_MzPJPEpBk05rtn9-uSlAaZCncB1x62VvN43Uda3tU2nlY7V0Ly9EPGMosrFyk1MsqNOFcwvIQ8eVZRnxmgqf8prs8-RhbwcZZjtC0FVphheYg\/s320\/Slide3.PNG\")
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The investigation began on March 23, 2015 of an unknown individual suspected of downloading images of child abuse. They had an IP address connected with the suspected crime, but didn\u2019t know who it was connected to. They could determine the internet service provider. After some investigating, the Peel Police sent a preservation demand to the internet service provider, requiring the ISP to preserve the account information while they got a production order. On April 7, they applied for a production order to get the customer name and address from the internet service provider. The order was issued the next day. Less than a week later, on April 17, the internet service provider provided the information. Three days after that, on April 20, the police had a warrant to search the home. (I should note that the reason why the Owen decision goes into so much detail was that the production order and the search warrant were thrown out because the police misled the court in getting them.)<\/span><\/p>\n
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