An example of the system working

At a time when many are losing faith in the viability of their democratic institutions, here is an example of the process working as it should.

The government, opposition and public have each performed their respective roles, with the result being legislation that addresses an important issue without unreasonably impairing the rights and privacy of Canadians.

In June of last year, the Carney government introduced Bill C-2, known to many as the “Strong Borders Act.” The legislation sought to modify several existing laws, including the Criminal Code, the Immigration and Refugee Protection Act, the Canada Post Corporation Act and even the Oceans Act.

In particular, C-2 sought to strengthen national security and border control, and included new anti-money laundering measures. It also contained features that targeted fentanyl smuggling, enhanced search powers for the Canada Border Services Agency and amended refugee referral rules.

The legislation would have also given police and national security agencies the power to compel internet service providers and other online companies (potentially including hospitals, hotels, medical professionals, banks and car rental companies) to provide private information regarding Canadians to investigators based on a “reasonable suspicion” that there has been “a violation of any act of Parliament” — and to make that demand without first obtaining any form of judicial authorization.

The information obtained via those inquiries could then be shared with foreign governments, including Canada’s “Five Eyes” intelligence allies, without those Canadians even knowing it had occurred.

Predictably, C-2 received immediate backlash from opposition MPs and hundreds of “civil society” organizations, including migrants’ rights groups and privacy rights advocates. With respect to the expanded, warrantless investigative powers contained in C-2, civil liberties organizations claimed that C-2 threatened the rights of ordinary Canadians, was vulnerable to abuse by investigators and, even worse, could potentially open the door to widespread domestic surveillance in the future.

Similarly, opposition MP Michelle Rempel Garner complained that “Whether or not I use an online service, where I use an online service, if I depart from an online service, if I start an online service, how long I use an online service, everything that C-2 says it would do — that is my personal information.”

“That is none of the government’s business, certainly not without a warrant,” she argued. “There has to be a line drawn here.”

She was right, and the government was paying attention. As a result, C-2 has now been split into smaller, more focused pieces of legislation. Bill C-12 was introduced last October and includes several measures that were originally in C-2, including provisions to tighten the immigration and refugee system.

Bill C-22 was tabled last Thursday. Like C-2, it seeks to give police and security services expanded access to information, but its provisions appear to represent a better balance between the needs of investigators and the privacy and civil rights of Canadians.

Unlike C-2, Bill C-22 would not enable warrantless access to people’s browsing or private social media history, their messages or emails. It would simply give investigators the power to compel ISPs to provide a “yes or no” response answer when asked if a suspect is using their services.

Access to any additional information would require the investigators to first satisfy a judicial officer that the issuance of a warrant or production order is necessary.

C-22 would also require designated “electronic service providers” to develop and maintain capabilities necessary to enable investigators to obtain communications and information they are legally authorized to possess. That includes the ability to geographically track the whereabouts of users of those ESPs’ products and services. Once that capability is established, however, investigators would still be required to obtain legal authorization to gain access to that data.

Some civil rights experts insist that C-22 still poses an overly broad threat to the privacy and rights of Canadians and will likely be the subject of Charter challenges, but the early consensus among many appears to be that the legislation is a marked improvement over the more intrusive provisions contained in C-2.

That improvement has only occurred because opponents of Bill C-2 spoke up, offered reasonable alternatives, and the government listened. Let’s hope that constructive approach doesn’t change if our (current) minority federal government is transformed into a majority government weeks from now.