Fresh off appearing before a Senate committee on AI on Wednesday, yesterday I provided expert testimony to the Standing Committee on Public Safety and National Security as part of its study on Bill C-22, the government’s latest lawful access plan. Appearing alongside David Fraser and Robert Diab (the same trio that discussed the bill on my Law Bytes podcast), I opened my remarks by noting that technologies change, the governments may change, but the challenge with lawful access has always been the same: to give law enforcement and security agencies the tools they need to address serious crime while respecting Canadians’ privacy rights and the constitutional framework the Supreme Court has built around privacy in decisions such as Spencer and Bykovets. I focused on three major concerns with the bill, including mandatory metadata retention, the inadequacy of the systemic vulnerability safeguards, and the lowering of the production order threshold for subscriber information. My full opening statement is embedded below.
Come back with a warrant by Rosalyn Davis (CC BY-NC-SA 2.0) https://flic.kr/p/aoPzWb
Lawful Access
Wilful Blindness?: How the Lawful Access Charter Statement Skips Bill C-22’s Most Constitutionally Vulnerable Provisions
The committee hearings on Bill C-22, the lawful access bill, kick off later today with an appearance by Justice Minister Sean Fraser and Public Safety Minister Gary Anandasangaree, who will presumably use the opportunity to affirm their support for the bill and reject concerns that certain elements are inconsistent with the Charter of Rights and Freedoms. That position reflects the government’s Charter statement on the bill, which was released late last month. The statement walks through the Charter implications of new provisions such as the confirmation of service demand, yet what makes it particularly notable is that it avoids addressing some of the bill’s biggest concerns altogether with scant or no attention paid to mandated metadata collection and the risks associated with systemic vulnerabilities. Indeed, it is as if the government believes that if it ignores the potential violation of fundamental rights, the issue magically disappears.
Lawful Access Heads to Committee: The Opposition Found Its Voice, the Government Never Found Its Defence
After several days of debate in which the opposition to lawful access seemed half-hearted at best, the Conservatives woke up on Monday. MP after MP rose to argue, correctly, that Bill C-22 represents an unprecedented surveillance threat: mandated metadata retention (including location information) for up to a year, security vulnerabilities built into the interception architecture the bill requires, and a weakened legal standard for access to subscriber information. After days of debate with the government visibly struggling to defend its own legislation, this is precisely what the opposition should be targeting (coverage from day one, day two, day three).
A Standard That Doesn’t Exist: Parliamentary Secretary for Justice Offers Misleading Defence of Bill C-22’s Lower Threshold for Subscriber Information
The lawful access debate continued for a third day on Friday with Bloc MP Claude DeBellefeuille asking Patricia Lattanzio, the Parliamentary Secretary to the Minister of Justice, a critical question: why has the government chosen “the lowest possible threshold for obtaining information, that of reasonable grounds to suspect, rather than the more stringent threshold of reasonable grounds to believe.” She added that she did not understand the choice and would like a clear answer (I focused on this issue in a previous post). In keeping with the government’s discouraging defence of lawful access thus far (my posts on day one and day two of debate) Lattanzio’s response went for deception rather than clarity. After noting that reasonable grounds to suspect already appears in parts of the Criminal Code, she offered the government’s substantive defence of the lower threshold in a single sentence: “We also think that ‘reasonable grounds to suspect’ is higher than the threshold of mere suspicion.” The problem is that mere suspicion isn’t a threshold for search at all, but rather the standard the courts point to when a search is unconstitutional.
More Surveillance Demands to Come?: Government Admits Bill C-22’s Lawful Access Provisions Could Be Expanded
Debate on Bill C-22, the Lawful Access Act, continued this week with Public Safety Minister Gary Anandasangaree and Secretary of State for Combatting Crime Ruby Sahota leading the government’s case on Wednesday. I posted earlier on the first day of debate, which was notable for what the government chose not to say, as Justice Minister Fraser devoted just a single paragraph to the bill’s expansive metadata retention provisions and offered only process answers to questions about systemic vulnerability risks. The government continues to do its best to ignore the metadata issue, but the most alarming outcome of the debate was the admission that the current bill may only be the starting point, with support for an even broader scope in follow-up regulations or legislation.
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