It’s easy to look at Bill C-2 through the lens of ISPs, but another perspective would be solicitor-client confidentiality.
Prime Minister Mark Carney has a vision to surrender Canada to the United States by giving in to Donald Trumps demands and turning the country into a police state. That was very much made clear when his government tabled Bill C-2 – legislation misleadingly referred to as a “border security” bill. Essentially, Bill C-2 is the notorious lawful access legislation that allows police to demand information on you through your ISP or cell phone carrier without a warrant.
It’s a long running battle that has spanned my entire writing career – a battle that should have been dead a decade ago. Yet, Carney is intent on resurrecting this horrible and unconstitutional legislation despite the clear messages both from Canadians and the courts that privacy rights is an important thing to have in this country. More recently, we even covered Open Media posting a petition to help Canadian’s tell the government, again, that lawful access is something that they are overwhelmingly opposed to. It also faces an uphill battle from a constitutional perspective given that the Supreme Court of Canada has already ruled that an IP address is personal information and police need a warrant first to access such information.
With that said, there is also a more broad bigger picture implication for Bill C-2 which also impacts privacy. This was something that was noted by Michael Geist. Essentially, the wording is set in a way that impacts organizations beyond cell phone carrier and ISPs (Internet Service Providers). Anyone who have clients in general could be subject to such personal information demands from police which includes lawyers. That could very easily have implications for solicitor-client confidentiality:
The government’s inclusion of warrantless information demand powers in Bill C-2 has attracted mounting concern, particularly the stunning decision to target everyone who provides services in Canada which creates near limitless targets for warrantless disclosure demands. Department of Justice officials have confirmed that Bill C-2 extends far beyond just telecom companies to services such as financial institutions, car rental companies, and hotels. The inclusion of professional services that frequently face strict confidentiality obligations deserves greater scrutiny as the approach virtually guarantees a constitutional challenge alongside the challenge on privacy grounds in light of the previous Supreme Court of Canada rulings in Spencer and Bykovets.
The implications for the legal community, who face strict solicitor-client confidentiality requirements, are particularly notable. Under Bill C-2, lawyers could be compelled to confirm whether they have provided services to client, whether they have information about the client, and when they provided the service, including when a person became a client. If they are aware of other service providers, they must provide that information as well. These disclosure demands come without a warrant or court oversight and lawyers could be barred from advising their clients about the demand for a year. Lawyers would undoubtedly seek to challenge the demand, but would only have five days to do so.
I can admit that when I was looking at this law, I was looking at it through the lens of digital rights and technology. Understandable since that is what I write about all of the time. So, it never entered my mind that this could easily go well beyond internet and cell phone providers. So, I decided to go back to my analysis and look at this section of Bill C-2:
158 The Act is amended by adding the following after section 487.012:
Information demand
487.0121 (1) A peace officer or public officer may make a demand in Form 5.0011 to a person who provides services to the public requiring the person to provide, in the form, manner and time specified in the demand, the following information:
(a) whether the person provides or has provided services to any subscriber or client, or to any account or identifier, specified in the form;
(b) if the person provides or has provided services to that subscriber, client, account or identifier,
(i) whether the person possesses or controls any information, including transmission data, in relation to that subscriber, client, account or identifier,
(ii) in the case of services provided in Canada, the province and municipality in which they are or were provided, and
(iii) in the case of services provided outside Canada, the country and municipality in which they are or were provided;
(c) if the person provides services to that subscriber, client, account or identifier, the date on which the person began providing the services;
(d) if the person provided services to that subscriber, client, account or identifier but no longer does so, the period during which the person provided the services;
(e) the name or identifier, if known, of any other person who provides services to the public and who provides or has provided services to that subscriber, client, account or identifier and any other information, if known, referred to in any of paragraphs (b) to (d) in relation to that other person and that subscriber, client, account or identifier; and
(f) if the person is unable to provide any information referred to in paragraphs (a) to (e), a statement to that effect.Conditions for making demand
(2) The peace officer or public officer may make the demand only if they have reasonable grounds to suspect that
(a) an offence has been or will be committed under this Act or any other Act of Parliament; and
(b) the information that is demanded will assist in the investigation of the offence.
Indeed, when reading this through the lens of ISPs and cell phone carriers, it’s a correct interpretation to say that subscriber information could be subject to such warrantless demands. Yet, when you look at this section through the lens of anyone providing any service, whether that is a hotel service, a business that offers services to clients, or as I said in the opening, lawyers offering legal services, that’s when you start seeing just how badly worded this legislation really is.
So, when someone speaks to a lawyer about a potential legal issue, lawyers do have to adhere to confidentiality requirements. If Joe Smith approaches a lawyer about legal advice on something related to his business, that lawyer can’t legally run to the local newspaper afterwards and divulge everything that was communicated to that lawyer afterwards. That would be really bad. There are things that lawyers have to adhere to to protect the privacy of their clients.
Where this law impacts this is if the police can go knocking on a law firms door and demand to know who have been seeking legal advice with that particular firm. I think it’s safe to say that the law firm would very easily have a problem with this. Yet, that’s what kind of power this legislation is proposing law enforcement actually have in the first place. It would be a situation that is bad for both the law firm/lawyers involved and the clients themselves.
As far as I’m concerned, Geist raised a very valid point about this. There are numerous ways in which this law could very easily invite legal challenges from a privacy perspective.
Much like the Online Streaming Act, as far as I can tell, the easiest part from this legislation’s journey would be the legislation process itself. It’s a political realm where legal facts and actual law matter less and gut feeling and cheer leading for one side or another frequently carries more weight. Once it makes its way through the courts, that’s where things get difficult. Hopefully, these provisions don’t get passed at all, but if it does, I would imagine that there will be fierce backlash from the legal community when they realized just how bad this law really is.
