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Liberals likely to table new, narrower lawful access bill after blowback to C-2: sources
OTTAWA — After its highly criticized rollout of the Strong Borders Act last spring, the Carney government has gone back to the drawing board and is considering tabling a narrower bill proposing additional search powers for police and spy agencies, National Post has learned.
While Public Safety Minister Gary Anandasangaree has repeatedly said that a new lawful access regime is a priority, his efforts to get the contentious bill C-2 through Parliament have been far from successful.
The ability to seize Canadians’ private information and intercept communications, known as “lawful access,” is one of the most intrusive powers afforded to police and intelligence agencies. Canada is the only G7 country without a lawful access regime designed in the digital age.
Since the government’s first attempt at lawful access reform in omnibus security bill C-2 was lambasted by all sides, the proposal remains stalled in Parliament. Now, government sources say the most likely path forward is to table a significantly revised bill focused solely on the issue this spring.
National Post discussed the contentious reform with a half-dozen political and public service sources, all of whom requested anonymity in order to discuss internal deliberations publicly.
It also discussed it with two researchers who were invited to participate in recent government invitation-only consultations on lawful access reform.
“My understanding that the government is seeking to introduce new legislation on lawful access that will include elements” of the proposals in C-2, said Leah West, a national security lawyer who participated in the consultations, in an interview.
“We need lawful access reform, but it needs to be constitutional,” she added. “The reach of some of these (proposals) needs to be more narrowly tailored.”
The government sources stressed that the Liberals haven’t made a final decision on how to move forward with lawful access reforms and the option of proposing significant amendments to C-2 and pushing it forward remains on the table.
The same sources note that C-2 is “tainted” after it was fiercely criticized by both proponents and critics of lawful access reform for offering police and intelligence agents overly broad and sometimes powers that did not require a warrant.
Whether its through amendments to C-2 or a new lawful access bill, this time the Liberals will ensure they have significant buy-in from opposition parties, said one senior government source.
In a statement, a spokesperson for Anandasangaree declined to comment on “rumours” about what the minister might do regarding lawful access.
“Minister Anandasangaree strongly supports modernizing lawful access laws to ensure law enforcement agencies have the legal tools required to disrupt organized crime networks and protect Canadians, while respecting Canadians’ privacy and Charter rights,” the minister’s director of communications David Taylor said in a statement.
When asked by National Post earlier this month if he was open to tabling a new lawful access bill, Anandasangaree said “we’re exploring those options.”
“We have done a fair bit of work on lawful access, and we look forward to giving a path in terms of how that moves forward” in the spring, he responded. The minister admitted back in October the government’s first stab at it was “imperfect.”
There is broad consensus within the government that the Liberals bungled their first attempt at lawful access reform by including it in bill C-2, an omnibus legislation that included measures regarding immigration, border security, the coast guard and even proposed to grant police the ability to search mail.
What’s staggering to most observers is how the Liberals went about proposing such contentious reform.
The lawful access regime was buried in an omnibus bill tabled barely weeks after the Liberals formed government last spring, there were no consultations on the issue beforehand and, by most accounts, appeared to have been hastily drafted with few legal guardrails.
That went against all the advice provided to the prime minister months earlier in a classified report by the National Security and Intelligence Committee of Parliamentarians.
In a comprehensive study of lawful access in Canada, the committee was clear: law enforcement needs the tools provided by a new lawful access regime, but it must be done carefully and with significant public input.
“In light of the complexity of the lawful access challenge, the Committee suggests that the government implement an incremental approach to allow for meaningful engagement with stakeholders and a diversity of input,” reads an unclassified version of the report published in September.
Yet even the technical briefing for reporters shortly after bill C-2 was tabled in the spring was gaffe-prone, with reporters receiving a copy of the 130-page omnibus legislation halfway into the briefing and officials short on answers as to why many of the powers sought were necessary.
After fierce criticism from opposition parties, privacy and civil liberty advocates and many national security experts, Anandasangaree announced in October he was tabling bill C-12, essentially a replica of C-2 without the portions granting law enforcement sweeping new powers, including lawful access changes.
“Look, this bill was introduced within days of forming government… and we felt that essentially putting forward a second bill that carves out the more contentious elements of bill C-2 will enable us to get swifter passage,” Anandasangaree said at the time.
Anandasangaree has insisted that lawful access reform is a priority, though C-2 has been left to languish in Parliament since the Liberals tabled C-12. Two portions of bill C-2, known as parts 14 and 15, garnered some of the most intense criticism.
Part 14 proposed to allow law enforcement and the Canadian Security Intelligence Service (CSIS) to compel any service provider — be they doctors, lawyers, therapists, clinics or banks, etc. — to say if they’ve served an individual, during what period and in which province or municipality. They must also share if they knew of other service providers who had served that individual.
The power did not require approval from a judge in a warrant. It also did not contain any carve-outs, meaning medical professionals and lawyers bound by solicitor-client privilege could be compelled. CSIS told National Post that section needs “additional precision.”
In an interview, West said the likely new bill will “at a minimum” require a carve-out for professional information that is privileged.
Part 15, the lawful access section, proposed a new law that required organizations that use any form of electronic services geared toward people in Canada or that operate in the country to implement tools to ensure data can be extracted and provided to authorities with a warrant.
Security and police agencies say the power is necessary to ensure they can collect the information they need during an investigation after getting a warrant from a judge. Privacy advocates argue it creates a “back door” for law enforcement and creates system vulnerabilities that can be exploited by criminals.
Organizations impacted by the new rules argued that the changes could be costly and that turnaround times proposed in the legislation were far too short and demanding. The sources said all those critiques are being considered as the government reworks its lawful access proposal.
No public consultations have been held on lawful access reform, though the government quietly organized private consultations headed by former NDP MP and BC MLA and minister Murray Rankin beginning in the late fall. Rankin did not respond to a request for comment.
The consultation heard from civil liberties groups, senior executives at federal police and intelligence agencies, privacy advocates, academics as well as the public safety and justice ministers.
One participant was Tamir Israel, the director of the Canadian Civil Liberties Association’s (CCLA) privacy, surveillance and technology program and a vocal critic of C-2.
In an interview, he said that it was good that the government was listening to concerns, but the consultations should be public. They also should have happened far before C-2 was tabled, not after, he argued.
“I do think that there has been at least some recognition that consulting is at least going to help the government better understand what the potential misuse is of the proposals that they’re tabling,” Israel said.
“I’m hoping that that does actually translate into some more targeted legislation.”
Intelligence and police agencies have long complained that they face “significant challenges” in securing lawful access because the rules are antiquated and poorly adapted to the digital world. They argue that criminals are “going dark” thanks to improving encryption technology and federal laws that haven’t kept up in the digital age.
“Right now, they don’t have the tools to easily go and get a warrant, and so stuff’s just going uninvestigated,” West noted.
But civil liberties groups such as the CCLA argue that law enforcement and intelligence agencies haven’t made the case to the public that they need new powers.
National Post
cnardi@postmedia.com
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