The debate over law enforcement surveillance powers continues in Canada as the federal government continues to introduce new legislation to grant additional powers or remove barriers to information gathering by law enforcement agencies and Canada’s spy agency in the battle against crime and, more importantly, terrorism. The debate is amorphous and involves a diverse set of issues and considerations regarding the preservation and collection of electronically stored information; the use of new electronic surveillance tools; breaking down privacy-protective barriers to the sharing of information across governmental agencies, and the murky world of foreign spy-agency cooperation.
The Conservative Party of Canada, which holds a majority in the House of Commons, might sense that the voting public may be ready once again to cede privacy for security. The government is expected to introduce new legislation upon, or soon after, the resumption of Parliament on January 26, notwithstanding a looming federal election.
Since a spring election is not beyond the realm of possibility, we might ask: Are Canadians are willing to accept quick piece-meal changes granting incremental but significant increases to state and law enforcement powers? Or, do Canadians want to see comprehensive and well-considered changes? Do Canadians perceive the need for increased state power as urgent enough to warrant immediate action? Do they even care enough to pay attention to the changes that are afoot? Will this be an election issue?
How Has the Environment for Increased Surveillance Powers Changed?
There have been a number of important developments in the last few months in Canada that have captured public attention. On October 20, 2014, a Canadian Forces soldier was killed and another severely injured in a hit-and-run in Saint-Jean-Sur-Richelieu, Quebec. The Royal Canadian Mounted Police (RCMP) and the Prime Minister’s Office quickly acknowledged that Martin Couture-Rouleau, the driver of the vehicle, was known to federal authorities and had been "radicalized". However, according to media reports, the RCMP had arrested Couture-Rouleau as he was attempting to travel to Turkey in July but could not detain him. Also according to news reports, an unsuccessful attempt was made to obtain a peace bond to restrict his movements in the weeks before the attack on the Canadian Forces soldiers.
On October 22, 2014, a soldier at Canada’s National War Memorial in Ottawa was shot and killed. The gunman then managed to evade security on Parliament Hill and began shooting inside of Canada’s Parliament buildings before being shot and killed by the Sergeant-at-Arms. Although the motives of Michael Zehaf-Bibeau, the Ottawa shooter, may be sketchy, the RCMP and the Prime Minister’s Office quickly labelled the attack as terrorism. The RCMP later told a House of Commons committee that a video shows “ideological motives”. That video has not been made public.
This year has also started off with terrorism on the minds of Canadians. The world, including Canada, was rightfully focused on the offices of Charlie Hebdo. However, January has also seen a report that an “Al Qaeda official who claimed responsibility for Charlie Hebdo attack calls for ‘lone wolf’ terror in Canada.” Meanwhile three young men have been arrested and face terrorism-related charges. One of the accused faces charges of planning to travel abroad to participate in terrorism.
Whether these events will translate into public support for greater law enforcement powers is yet to be seen. Polls suggest that recent economic uncertainty in Canada from the decline in oil prices and the weakening Canadian currency figure more prominently in Canadian’s minds than terrorism. However, the absence of focus on terrorism may also create conditions where Canadians will tolerate the ongoing piecemeal approach to increasing state surveillance, rather than a true modernization of the social contract.
What seems clear is that the government is not interested in provisions that have onerous tests for law enforcement bodies or that involve significant oversight. Particularly on the latter point, privacy commissioners throughout Canada have continuously expressed concern.
What’s Definitely Coming?
We definitely know that on March 9, Bill C-13 will come into force. Bill C-13 was enacted as a Cyberbullying Bill. The bill introduces or amends a number of criminal offences, as well as a adding or amending a number of law enforcement information-gathering powers. The new provision that has been the subject of most commentary is the offense of non-consensual distribution of intimate images (revenge porn). However, there are other amendments to existing offenses that have free-speech implications worthy of notice.
The Canadian Criminal Code already prohibits advocating genocide against groups distinguished by color, race, religion, ethnic origin or sexual orientation. However, as of March 9, it will also be a criminal offense to advocate genocide against groups distinguished by national origin, age, sex and mental or physical disability. Similarly, the Criminal Code prohibition on hate speech will be extended to also cover national origin, age, sex and mental or physical disability. The existing provisions regarding sending a message in a false name and sending false information, indecent remarks or “harassing” messages will become technologically neutral and refer to any means of communication.
Importantly, the core of Bill C-13 is the new law enforcement powers that will also come into effect on March 9. These include the power of police officers to make preservation demands and/or seek a preservation order compelling the preservation of electronic evidence and the ability to obtain production orders for metadata concerning telecommunications. A preservation demand or order directs a person, such as an Internet service provider (ISP), to preserve “computer data.” The basis for a preservation demand or order is the lower threshold of “reasonable grounds to suspect” that an offense has been or will be committed. A preservation demand or order is time-limited depending on the nature of the offense. The longest preservation demand can be 21 days for a domestic federal offense and 90 days for a foreign offense. The longest preservation order is 90 days, with an option for renewal.
Bill C-13 also creates new production orders. The test for these production orders is the lower threshold of “reasonable grounds to suspect” that an offense has been or will be committed. Using these production orders, law enforcement can obtain “transmission data” and “tracking data” from telecommunications service providers. Transmission data is essentially meta data for an electronic transmission. Tracking data is essentially geolocation data. These production orders are only available for historical data – not real-time tracking.
Bill C-13 modifies the provisions for warrants regarding the installation of a secret geolocation tracking device. Again, the lower threshold of “reasonable grounds to suspect” has been used unless the device is something that would normally be carried with an individual, such as a mobile phone or wearable device.
In the case of these types of devices, the higher threshold of “reasonable grounds to believe” that an offense has been or will be committed is used. The maximum duration of a warrant for a tracking device in connection with a terrorism or organized crime offense has been extended to one year.
Finally Bill C-13 modifies the provisions relating to the installation of data recorders. Among other things, the amendments extend the provision to allow tracking of an Internet communication. This will allow real time collection of information on Internet communications. The test for a warrant will be the lower standard of “reasonable grounds to suspect” that an offense has been or will be committed.
What’s on the Table?
The government has already , which was in the works prior to the events of October 2014. Among other things, Bill C-44 clarifies the jurisdiction of the Canadian Security Intelligence Service (CSIS) to operate outside of Canada and amends the Canadian Security Intelligence Service Act (CSIS Act) to provide greater protections to human sources who provide information to CSIS.
The amendments overturn several decisions of the Federal Court of Canada. Those decisions culminated in a 2014 Federal Court of Appeal ruling, which held that CSIS Act does not authorize CSIS to obtain a make requests to foreign body for the interception of telecommunications of Canadians abroad. The Federal Court of Appeal also held that a warrant is required whenever CSIS directly or indirectly through a foreign body intercepts telecommunications. The court left open the question of whether that warrant could authorize interception activities that would be illegal in the country where the interception takes place.
If enacted, Bill C-44, would authorize a federal court judge to issue a warrant to permit CSIS to engage in surveillance on individuals outside of Canada and to collect information from foreign corporations. It has also been suggested that Bill C-44 could indirectly extend the activities of the Communications Security Establishment Canada (CSEC). Although CSEC is prohibited from monitoring the communications of Canadians, there are concerns that it might be able to do so at the request of CSIS.
Importantly, Bill C-44 also provides that in deciding to issue the warrant to enable CSIS to investigate a threat to the security of Canada, the federal court may ignore “any other law, including that of any foreign state”. The new privacy commissioner of Canada has expressed alarm over this proposition, stating:
While the courts have a role in protecting individuals against violations of human rights, I would suggest that Parliament also has an important role in ensuring that the new powers to be conferred on CSIS are exercised in a way that respects Canada’s obligations under international human rights law in general and, specifically, the Convention Against Torture. Clear statutory rules should be enacted to prevent information sharing by CSIS from resulting in a violation of Canada's international obligations.
A balanced legislative approach would also, in my view, include in Bill C-44 measures to make the activities of all federal departments and agencies involved in national security subject to independent oversight.
What may be Coming?
Bill C-44 is just the beginning of what might be on the horizon. The government has already been readying the public for a new bill to be introduced soon after Parliament resumes on January 26. By the time this article is posted we may have the answers. However, at this juncture any of the following may be possible:
- Lowering the threshold for peace bonds to restrict the movements of suspected would-be terrorists.
- Lowering the threshold to place someone on the “no-fly list” under the Passenger Protect Program.
- Additional powers to monitor individuals and groups suspected to be terrorist sympathizers.
- Grant additional powers or make existing powers more explicit to permit governmental agencies and departments to share private and confidential information in connection with a national security or law enforcement investigation.
Following the October attacks in Ottawa and in Saint-Jean-Sur-Richelieu, Canadian privacy commissioners issued a joint statement calling for restraint with respect to any new measures that might affect Canadians’ privacy. Specifically, the privacy commissioners called on the federal government:
To adopt an evidence-based approach as to the need for any new legislative proposal granting additional powers for intelligence and law enforcement agencies;
To engage Canadians in an open and transparent dialogue on whether new measures are required, and if so, on their nature, scope, and impact on rights and freedoms;
To ensure that effective oversight be included in any legislation establishing additional powers for intelligence and law enforcement agencies.
The commissioners further stated:
Canadians both expect and are entitled to equal protection for their privacy and access rights and for their security. We must uphold these fundamental rights that lie at the heart of Canada’s democracy.
It looks like 2015 is shaping up to see just how far Canadians and their government are prepared to go.