In the aftermath of the Supreme Court of Canada’s Spencer decision, I argued that the decision upholding the reasonable expectation of privacy in subscriber information contradicted the government’s claims supporting Bills C-13 and S-4, leaving the government’s lawful access strategy in tatters. I noted that it faced a choice:
The Canadian government could adopt the “bury our heads in the sand approach” by leaving the provision unchanged, knowing that it will be unused or subject to challenge. That would run counter to the spirit of the Supreme Court ruling, however, and do nothing to assist law enforcement.
Yesterday, the government did just that, as Bill C-13 passed another legislative hurdle with the reported committee version of the bill was approved by the House. During the debate, the government insisted that the legislation is consistent with the Spencer decision. While it is true that the voluntary warrantless disclosure provision does not directly contradict the Spencer decision, the reality is that it has been rendered largely moot. In other words, the government is touting a legislative solution to assist law enforcement that the police will not use and that telecom companies will ignore.
