A person uses a cellphone in Ottawa on July 18, 2022. The Canadian Press/Sean Kilpatrick
A group of Canadian lawyers and academics has sent an open letter to the federal government saying that parts of proposed lawful access legislation raise “serious constitutional concerns” and could violate privacy and Charter rights.
The May 4 letter, signed by 13 scholars and practitioners from across the country, says the current version of Bill C-22 improves on its predecessor, Bill C-2, but still raises cause for concern.
“Bill C-22 marks an improvement over its predecessor in several respects,” the signatories wrote. “But certain provisions of the bill as currently drafted raise serious constitutional concerns and fail to strike a reasonable balance between the legitimate needs of law enforcement and the privacy rights of Canadians.”
Bill C-22, also known as the Lawful Access Act, was introduced on March 12 by Public Safety Minister Gary Anandasangaree. It would expand law enforcement’s authority to access digital information, introduce new requirements for retaining metadata, and compel telecommunications and online service providers to grant authorities access to user data.
The government says the measures are needed to address investigative gaps created by rapidly evolving digital technologies.
Legal Threshold Concerns
The letter, addressed to Anandasangaree, Prime Minister Mark Carney, Justice Minister Sean Fraser, and opposition leaders, was first published online by signatory Robert Diab, a law professor from Thompson Rivers University.
Other signatories include Michael Geist, the Canada research chair in Internet and E-Commerce Law at the University of Ottawa; Lisa Austin, a law professor at the University of Toronto; Matt Malone of the Balsillie School of International Affairs, and Professor Katie Szilagyi, an associate professor of law at the University of Manitoba.
A central concern is the bill’s proposed production order for digital subscriber information. The signatories argue that it lowers the legal threshold for access from “reasonable grounds to believe” to “reasonable grounds to suspect,” while allowing for a broad range of personal data to be disclosed.
“The new production order for subscriber information… retains a legal threshold that is too low and a scope of disclosure that is too broad,” the letter states.
The letter notes that police already have legal tools to find identifying details for an IP address or phone number, but they can only be obtained if authorities have “reasonable grounds to believe” there has been an offence. Bill C-22, by contrast, allows access to this information based solely on “reasonable grounds to suspect.”
