A Preliminary Look at Bill C-59 and its Implications on Canadian Privacy Rights

By Natasha Anzik

 

The Liberals’ new national security legislation, Bill C-59, was tabled in the House of Commons on June 20th, 2017. The ten-part, 139-page legislation has taken a robust look at the current state of Canadian national security, proposing many changes and additions, but still leaves several gaps in the protection of Canadian privacy rights.

Last December the Asper Centre’s Privacy and National Security Working Group made a submission to the Department of Public Safety Canada and to the Department of Justice. This submission primarily dealt with the Charter implications of warrantless access to basic subscriber information, but also considered data retention and systems of review. Bill C-59 has also been criticized for its failure to address issues with regard to the Security of Canada Information Sharing Act, including its overbroad definition of security and the vast amount of information sharing permitted. While not discussed here, or as part of the Asper Centre’s submission, it is evidence of the breadth of issues that remain unresolved.

Basic Subscriber Information

The Asper Centre’s submission was made in response to Bill C-51 and the 2016 National Security Green Paper and called for several reformations to the accessibility of basic subscriber information (BSI) in order to be compliant with s. 8 of the Charter. BSI can simply be a name, address, telephone number, and matching an IP address. This seemingly unremarkable information, the working group argued, should be protected from warrantless access as the combination of this information can lead to inferences about an individual’s registered services, interests, organizational affiliations, and geographic location and therefore may engage one’s s. 8 Charter rights.

Issues were raised with respect to the Green Paper’s suggested lower evidentiary requirements for obtaining lawful access to BSI, and how this lower standard would run counter to the spirit of s. 8, which protects against unlawful searches. This argument was supported by the Supreme Court’s decision in R. v Spencer, which holds that subscriber information can carry a high expectation of privacy, and disclosure of this information is vulnerable to Charter challenges. As this decision was specific to Internet subscriber information, the working group recommended a consistent standard for the sharing, retention, and destruction of personal information across different platforms. Consistency across all law enforcement agencies would also help prevent backdoor information sharing. Another issue raised by the working group is that the metadata regime of the Criminal Code has historically been unclear, and interpreted to suggest that communications service providers can readily disclose subscriber information. The Asper Centre thus advocated for a federal law that clearly prohibits the voluntary disclosure of subscriber information by telecommunications companies, and requires judicial authorization for access.

The need for clarification of this area of law was echoed in the 2016 Green Paper. While the paper called for a clear law governing access to this information, Bill C-59 is notably silent on this issue. Although not considered now, its inclusion in the Green Paper suggests this issue will be addressed in future legislation, meanwhile this area of law will likely remain inconsistent and problematic for the privacy protection of Canadians.

While Bill C-59 does not address BSI specifically, the issue of access to information comes up in the regulation of the Communication Security Establishment’s (CSE) activities. The CSE is an intelligence network, focused on gathering information to protect Canada’s cyber security from external threats. The Bill provides for a large expansion of the powers of the CSE, but also provides several restrictions recognizing the potential for these expanded powers to engage the s.8 privacy rights of Canadians. One restriction includes limiting the CSE from directing their activities at Canada and people in Canada, but this does not prevent the agency from acquiring “publicly available information”, defined as information that can be made available upon request. Although the government argues that publicly available information would inherently have a lower expectation of privacy and therefore not engage s.8 of the Charter, this information could potentially include BSI that is voluntarily released by communication service provides. This allowance therefore could lead to privacy issues as described above. As the state of lawful access remains in flux, Canadians will remain vulnerable. These provisions will also be problematic in how they might inform the treatment of BSI in future legislation.

Systems of Review

One of the most prominent parts of the new Bill is its creation of the National Security and Intelligence Review Agency (NSIRA). The current system of review was an area of concern raised by the Asper Centre’s submission. The criticism focused on the limited powers of review allocated to the Privacy Commissioner and the review agencies for CSIS, the RCMP, and the CSE. This system not only creates a silo effect between agencies, but also demands increased resources and understanding to sufficiently oversee the mass of information in and between national security agencies. Bill C-59 addresses this issue and the need for increased accountability and public confidence in its creation of the NSIRA. Outlined in the Bill’s Charter Statement, the job of the NSIRA would be to “review and report in an integrated manner on the lawfulness of all national security and intelligence activities across government, thereby enhancing accountability, transparency and the safeguarding of human rights in Canada.” Part 2 of the Bill would also establish a quasi-judicial Intelligence Commissioner, who would review certain decisions regarding intelligence gathering. These new review systems seem promising in their ability to rectify the lack of broad oversight, to increase accountability, and to correct the current silo effect.

Data Retention

The Asper Centre’s submission also encouraged the establishment of a scheme of data retention that maintains a balance between Canada’s national security interests and privacy protections. The Asper Centre discouraged mandatory minimum retention schemes and unlimited information sharing between agencies, and argued that these data retention schemes should have a system of independent review for the use of information once obtained. Bill C-59 does not address this issue at length, but does allow the limited retention of datasets, which require judicial authorization that is valid for no more than two years. Dataset use must also be “strictly necessary”, and will be subject to review by the Intelligence Commissioner. While this change does not fully address all the concerns of the Asper Centre, it is a step forward in the establishment of a more robust scheme of information storage that hopefully will be refined to ensure further Charter compliance.

 

While this Bill has made strides with respect to the Asper Centre’s concerns, there are still some gaping holes with respect to the privacy protections afforded to Canadians. It seems unlikely that lawful access to basic subscriber information will be addressed in the passing of Bill C-59, as this was an issue at the attention of legislators as part of the Green Paper consultation process, but was actively excluded in the drafting of the Bill. Hopefully the review process of the Bill will lead to further clarification of the powers of the CSE in collecting information, how basic subscriber information relates to “publicly available information,” and may engage s. 8 of the Charter. These issues will have the potential to be raised to the Standing Committee on Public Safety and National Security this fall.

Natasha Anzik is the Asper Centre’s summer research assistant and an upcoming 2L JD Candidate at the Faculty of Law.

Bill C-23 leaves cross-border travelers vulnerable to Charter rights infringements

By Natasha Anzik

Bill C-23, the Preclearance Act, was recently amended by the Standing Committee on Public Safety and National Security and passed to the Senate on June 21, 2017. The bill establishes many new preclearance areas in Canada to be staffed by U.S. officers in order to clear travelers through customs prior to crossing the border. Canadian officials will conversely work in preclearance zones in the U.S. This bill is designed to expand border preclearance, expediting travel and the movement of goods between our two countries. Concerns have arisen with respect to the amount of power granted to U.S. officials on Canadian soil and how their actions will be held accountable under Canadian law. Although many recommendations to rectify the potentially unconstitutional aspects of the Act were made to the Standing Committee, they were insufficiently adopted in the Committee’s amendments. Consequently, if enacted in its current form, the bill will expose border crossers to many potential violations of their Charter rights.

Bill C-23 was conceived in 2016 in response to the Agreement on Land, Rail, Marine, and Air Transport Preclearance signed by the Canadian and U.S. governments. It was first tabled in the House of Commons on June 17, 2016, and was referred to the Standing Committee in March of 2017. The Asper Centre made several arguments concerning the bill’s constitutionality in its submissions to the Committee including recommendations to scale back the expanded powers granted to U.S. authorities to question, search, and possibly detain travelers entering the United States. The Asper Centre’s submission focused on three major issues: preclearance officers’ power to search and detain, the protection of digital privacy rights, and the lack of meaningful remedies.

The Asper Centre was the only organization to make an argument for increased digital rights protections in preclearance zones. Courts have consistently held that one’s expectation of privacy is significantly diminished at the border, as it is reasonably expected for travelers to be screened. Items such as luggage and purses are classified as “imported goods” and are subject to searches absent reasonable suspicion. The Asper Centre urged the Committee to classify digital devices as distinct from imported goods in order to afford these devices more protection due to the intimate and singular nature they play in our lives.

Under the current law, travelers who wish to withdraw from preclearance may do so at any time, no questions asked. Bill C-23 introduces a new process of withdrawal, outlined in s.30, which states that to withdraw from preclearance travelers must answer truthfully to any questions pertaining to their identification or reasons for withdrawing, and must comply with direction given by preclearance officers. The Asper Centre, British Columbia Civil Liberties Association (BCCLA), and the Canadian Bar Association (CBA) all raised issues with this provision’s potential to create a situation of arbitrary detention contrary to s. 9 of the Charter. Under this new legislation, travelers would not feel free to walk away from preclearance, creating a reasonable perception of detention. Each group also discussed several other rights engaged by this provision including: the right to be informed of the reasons for detention, the right to counsel, and the right to silence.

Granting U.S. officers the power to conduct strip searches was also a point of contention. S. 22 of the bill affords this power to U.S. officers if Canadian officials are either unwilling or unavailable to conduct the search. Both the BCCLA and the CBA noted that strip searches are prima facie violations of the Charter, and submitted that this power should not be granted to U.S. officers. The CBA recommended that only Canadian officers be allowed to execute strip searches.

The Asper Centre considered the power to conduct strip searches in light of the fact that there are insufficient remedies for rights violations within the bill. An unlawful strip search engages s. 8 of the Charter, but American authorities are immunized from any civil claims under the State Immunity Act unless they cause death or serious bodily injury. In order for a psychological harm to be covered it must rise to the level of nervous shock. Further, since U.S. officers are not considered servants of the Crown, Canada could not be held accountable for any rights violations. This potentially precludes remedies in the form of damages, declaratory relief, and any other means deemed appropriate under s. 24(1) of the Charter. While the BCCLA recommended clarification of how the U.S. will be held to compliance, the Asper Centre took this one step further, recommending that the full range of Charter and Canadian Human Rights Act remedies be made available against the US for actions of preclearance officers in the fulfillment of their duties.

The Standing Committee’s amendments made several clarifications to various terms used in the Act in addition to establishing a system of independent review of the Act five years after its enactment. Several additions were more pertinent to the constitutional concerns raised, such as the addition of s. 11(1) which declares that, “A preclearance officer must exercise their powers and perform their duties and functions under this Act in accordance with Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act.” While this amendment is a nod to the constitutional issues raised to the Committee, it insufficiently protects the rights of travelers. American authorities remain immunized under the State Immunity Act, therefore it would seem unlikely that any action can be taken against them unless their actions cause serious injury or death. The lack of remedial action means there is no check on the requirement outlined in s.11. As Chief Justice McLachlin has previously asserted: “a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach.”

The other significant addition made to Bill C-23 was the addition of s. 11(2), which states, “The Minister must…provide every preclearance officer with training on the Canadian law that applies to the exercise of the preclearance officer’s powers and the performance of their duties and functions under this Act.” This was an issue that was raised by the BCCLA, which urged that the government ensure that preclearance officers be properly trained so as to prevent violations of Canadian law. The amendments do not address the issues of preclearance detention, digital privacy rights, or strip searches, however.

The rights protection concerns in preclearance areas are especially salient due to the current state of Canada-U.S border immigration. There has been consistent coverage in the media of incidents of Canadians being turned away at the border as a result of seemingly discriminatory practices. The Ontario Human Rights Commission recently released a report documenting the impact of racial profiling in a number of contexts, and stories of Canadians having digital devices searched extensively at the border are commonplace in the news. The amendments made to Bill C-23 leave many holes in the protections afforded to travelers in preclearance areas. The current trends are alarming, and this Act will only exacerbate these current issues. Most notably, the lack of remedies available for harms caused by the unlawful actions of U.S. officers leaves their increased powers unchecked, and travelers vulnerable to violations of their Charter rights. Bill C-23 was passed to the Senate on June 21, and will hopefully be met with some rational objections.

 

Natasha Anzik is the Asper Centre’s summer research assistant and an upcoming 2L JD Candidate at the Faculty of Law.