Justice Department: Bill C-22 is Constitutional Because ¯\_(ツ)_/¯

The Canadian Justice department has released a charter statement on Bill C-22. They just ignore the problems.

The latest iteration of Canada’s warrantless wiretapping is currently making its way through the parliamentary process. Bill C-22 is unconstitutional for a whole variety of reasons including the retention of data and that whole ‘skipping the seeking of a warrant’ thing. While the Liberal party was quite sheepish in the past about their attempts to push it through via burying it in the back of a so-called “border security” bill, since the party obtained a warrant, they have been more bold in their efforts to publicly push this bill through Bill C-22. Not only that, but the Liberals even went so far as to admit that the surveillance bill is only the first step in a long road to turn Canada into a police state.

Now, the legislation is unconstitutional for a whole variety of reasons. For one, the data retention being required is unconstitutional. For another, the fact that police can obtain that information without a warrant would also be unconstitutional. If you think that is just a speculative thing, just as the Supreme Court of Canada on their opinion on whether or not an IP address is personal information. After all, in 2024, they ruled that it was and police obtaining even that bit of information requires a warrant.

The Liberals, of course, tried to dance around this whole thing by pretending that the contents of the communication would remain unaffected. They just want all the metadata surrounding all of those communications. This with the extremely weak notion that it’s just police looking up people in the phone book. The problem with that is that the comparison isn’t even close. After all, a phone book doesn’t contain logs of every single person that a phone number communicated with. What’s more, this isn’t exactly the most publicly available information in the world (and for VERY good reason!).

So, what does happen with legislation is that the Justice Department reviews the legislation. The idea is that what impacts this legislation has on the Canadian Charter of Rights and Freedoms. This in an effort to clarify what impacts this has on basic human rights such as the right to privacy. At least, that is the theory anyway. In practice, sometimes the Justice Department just does the bidding of the government of the day and just makes up some rambling statement that doesn’t actually clarify anything. This with the intention of giving the government a free pass on passing unconstitutional legislation.

This is definitely what happened here. The Justice Department issued a Charter statement on Bill C-22 and it is a very lengthy statement that doesn’t really say a whole lot. Here’s part of the opening paragraphs of it:

What follows is a non-exhaustive discussion of the ways in which Bill C-22 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the bill. It does not include an exhaustive description of the entire bill, but rather focuses on those elements relevant for the purposes of a Charter Statement.

A number of measures in the bill could have potential effects under the following provisions of the Charter.

• Freedom of Expression (section 2(b))Section 2(b) of the Charter provides that everyone has freedom of thought, belief, opinion and expression, and includes freedom of the press and other media of communication. Section 2(b) has been broadly interpreted as encompassing any activity or communication, aside from violence or threats of violence, that conveys or attempts to convey meaning.
• Right against unreasonable search and seizure (section 8)Section 8 of the Charter protects against “unreasonable” searches and seizures. The purpose of section 8 is to protect individuals against unreasonable intrusion into a reasonable expectation of privacy. A search or seizure that intrudes upon a reasonable expectation of privacy will be reasonable if it is authorized by a law, the law itself is reasonable (in the sense of striking an appropriate balance between privacy interests and the state interest being pursued), and it is carried out in a reasonable manner. The assessment of the reasonableness of the law is a flexible one that takes into account the nature and purpose of the legislative scheme, and the nature of the affected privacy interests.
• Rights that apply to any person charged with an offence (section 11)Section 11 of the Charter guarantees certain rights to persons who have been charged with an offence. Persons are “charged with an offence” within the meaning of section 11 if they are subject to proceedings that are criminal by nature, or that can result in “true penal consequences”. True penal consequences include imprisonment and fines with a punitive purpose or effect, as may be the case where the fine or penalty is out of proportion to the amount required to achieve regulatory purposes.

OK, so we mentioned the potential impacts this bill has on the Charter. Good job. Now, let’s look at what it says about the retention of metadata…

Oh… I see. A huge source of concern being about the retention of meta-data and the statement literally makes no mention of it.

OK, so, obviously, this will have an impact on what an Internet Service Provider would need to do, so obviously that got mentioned, right?

Well, that’s awfully strange. A law that would impact the ISPs so much, yet they didn’t get mentioned once. How strange!

Well, obviously, data retention is a big thing in all of this, so let’s see what the statement says about that.

So, let me get this straight. A big concern about the Charter compatibility of this bill is the retention of data. For the Justice Department in assessing the Charter compatibility, they decided to not even mention data retention at all. I get that the Justice Department isn’t going to put together an analysis that exhaustively going through every part of the bill, but this is an awfully big part of the bill that is missing here. It’s kind of like putting together a major scientific report on climate change, saying that it’s not meant to be exhaustive, then conveniently leaving out anything related to CO2 emissions or greenhouse gas emissions. That just makes zero sense.

So, what the heck does this Charter statement say, anyway? Here’s one example:

Confirmation of service demand

The bill would authorize an officer to make a demand to a telecommunications service provider, to confirm whether the person provides or has provided telecommunications services to a particular subscriber, client, account or identifier. These demands could only be made if the officer has reasonable grounds to suspect that an offence has been or will be committed, and the information will assist in the investigation of the offence. As this power would enable police to obtain information linked to a person, it may engage section 8 of the Charter.

The following considerations support the consistency of these amendments with section 8. The information sought would be limited to basic information about the nature of telecommunications services provided, and would not reveal the contents of any communications, or any other details in relation to the services provided. For greater certainty, the demand could not be made if it would reveal medical information or information subject to solicitor-client privilege or the professional secrecy of advocates or notaries. The confirmation of service demand would require “reasonable suspicion,” which is a recognized threshold for certain searches in the criminal context, and which would prevent the power from being used for “fishing expeditions.” A demand to provide information may not be issued to the person under investigation. The person who receives the demand would be able to challenge the demand in front of a judge, who would be able to revoke or vary the demand. The information provided would be used primarily in obtaining further search warrants or production orders, which would be subject to the applicable thresholds set out in legislation, as well as judicial oversight. Applying successfully for a search warrant or production order would usually require officers to combine any information obtained through these amendments with relevant information obtained through other lawful means.

this is a very confused statement that actually does the opposite of informing. For instance, let’s look at the comments regarding “reasonable suspicion”. The term “reasonable suspicion” is a legal term, but it doesn’t actually tell the whole story. What Bill C-22 does is use a lower threshold to obtain data without a warrant. Experts argue that the level of “reasonable grounds to believe” is a much more appropriate threshold to collect information in the first place. This as opposed to the much lower standard that is being imposed in this bill which is “reasonable grounds to suspect”. Legally speaking, there are definitely differences between these two standards. Here’s how one source puts it:

Firstly, the current framework, which serves to distinguish between the two standards, relies on a false dichotomy between possibility and probability, and tends to treat each concept as if they were mutually exclusive. Notably, it has been explained that the possibility that a state of af­fairs might occur characterizes the legal threshold of reasonable suspicion, whereas the probability that a state of affairs will occur characterizes the standard of reasonable grounds to believe.

So, an example that distinguishes between the two might be this: An officer smells the odour of marijuana. That would be reasonable grounds to suspect that marijuana is being smoked. An officer smells marijuana odour in your vehicle, you are the only one in the vehicle, and you are holding onto a lit joint. That would be reasonable grounds to suspect for the officer to accuse you of driving while high. Now, let’s say the officer smelled a faint odour of marijuana with you pulled over. You are not high, you are not smoking anything, and there is no other evidence that you had anything to do with marijuana. It could be that your friend lit up a joint in your car earlier, you asked that friend to stop, and that friend does. If the threshold was reasonable grounds to suspect, then you would get arrested right then and there. If it was reasonable grounds to believe, however, the officer would need more evidence that you are high. That’s why the administration of tests can occur. Was it you that smoked that joint or was it someone else? At the very least, this is how I personally interpreted the difference between “reasonable grounds to suspect” and “reasonable grounds to believe”.

Now, assuming I am correct on this interpretation, let’s apply this to the warrantless wiretapping. Let’s say you use a VPN (Virtual Private Network). Yes, criminal activity has happened while using a VPN. At the same time, perfectly legal things happen every day when people use a VPN as well. So, if a law enforcement officer finds out that someone is using a VPN, then they could utilize the grounds of “reasonable grounds to suspect” and say, “I want everything you have on this individual”, then the ISP will have to hand all that information over to them. It could be that you are using a VPN in ways most people do use it: to protect your personal information. For the officer, that wouldn’t matter. You are using a VPN and, therefore, you could be doing something nefarious. Is this extremely stupid? Yes. Is it presumptuous? Absolutely. Would it matter if this becomes law? Absolutely not because a warrant doesn’t even need to be issued.

Now, the Justice Department is trying to do a lot of heavy lifting for the government on this one. In the excerpt I cited, they argue that the contents of the messaging would not be sought. The problem is that the contents is only one part of the personal information puzzle here. If we are talking about the supposed “basic information about the nature of telecommunications”. This glosses over the fact that everything about those communications would be collected.

So, let’s go over a possible scenario here about how much this information can truly reveal assuming my reading of things are correct (and it very likely is).

An officer decides to go after you in their warrantless wiretapping expedition. They request all the records from the provider. The provider hands that information over. What could that information reveal?

Well, it could reveal that you own a Samsung Galaxy A17. It could also reveal that during the evening, you send and receive text messages at around 3:30PM in a certain area. Based on the cell phone towers in the area, one could easily discern that you go to pick someone up at Sudbury Secondary School. This also suggests that you live in Sudbury, Ontario. What’s more, you also have a pattern of phone calls at around 8AM to 2PM in another area of town. One possibility is that you happen to work part time at Sling-Choker Manufacturing. This would make sense because, on occasion, your location appears to be at the nearby Quizno’s Restaurant at around noon as well based on the GPS location your cell phone provides. This pattern is further confirmed when the GPS also sees you occasionally going to the nearby Tim Horton’s that also happens to be in the area.

The GPS information also notes that you visited a Honda dealership a couple of times. You don’t appear to be visiting any other dealer. It’s possible that you drive a Honda, but this occurred in late April. As it turns out, Honda recently recalled the Honda Odyssey, so it’s quite possible that the reason for these visits is that you might be affected by the Honda Odyssey recall recently.

So, utilizing this information, GPS locations suggest that you live in a certain neighbourhood. So, utilizing Google Street view, the law enforcement officer goes through a handful of houses and sees a Honda Odyssey sitting in the carport within the small area where the cell phone activity occurs at around 5PM to 8PM. So, they have your address.

On occasion, your data trail leads to an area of town as well. One of the businesses in that area just so happens to be a “Pay2Day” loan area. So, it’s possible that you are struggling with the bills. Further call records confirm that you have had phone calls with this particular place of business as well. So, it’s likely that you are struggling to pay the bills as well. Huh, a manufacturing company employee struggling to pay the bills? I wonder how that could possibly be given that the home address isn’t exactly a wealthy neighbourhood?

Well, on the weekends, your location sometimes happens to Gateway Casinos Sudbury. So, you enjoy some time at the casino, perhaps drinking while spending some time at the slots or something like that. OK, that better explains the struggling to make ends meet.

I could keep going, but do I really need to? I think I’ve made my point.

The good news is, don’t worry, the contents of your messaging is safe. GPS data, on the other hand? Well, that’s fair game. It’s just metadata, so it’s no big deal, right? I’m sure you feel that your personal information is just that much safer already. Now, did you do anything wrong? Probably not. Are you suspected of any crime? Not in this scenario. Does it even matter under this bill? Not at all. Somehow, the police found out that you used a VPN at one point and now they have a pretty detailed profile of your whole life. Isn’t the threshold of “reasonable grounds to suspect” fun?

What I wrote above was for a completely fictional person, but it is a realistic profile of a theoretical person. There might be detailed flaws in this scenario, but the points I’m making still stands.

At any rate, it’s not just me that is annoyed at how little the Charter Statement actually says. University law professor, Michael Geist, was also miffed about this:

Apparently government hopes if you don’t mention mandated metadata retention, systemic vulnerability risks, or imposition of technical requirements on service providers, the Charter issues just disappear. No discussion of these issues in Charter statement.
www.justice.gc.ca/eng/csj-sjc/…

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— Michael Geist (@mgeist.bsky.social) April 24, 2026 at 1:00 PM

Apparently government hopes if you don’t mention mandated metadata retention, systemic vulnerability risks, or imposition of technical requirements on service providers, the Charter issues just disappear. No discussion of these issues in Charter statement.

Geist is absolutely right. The Charter Statement is grossly lacking. It take the head in sand approach where if you just pretend these issues don’t exist, then all the problems go away. This is the exact same approach the government took with the Online Streaming Act, Online News Act, and Digital Services Tax. If Canada just ignores the problems, then it all goes away, right? Yeah, and you can see where that led. Between the litigation, the trade challenges, and the declines in web traffic to news organizations, these problems were warned about repeatedly, yet went completely ignored. The problems happened anyway because reality doesn’t care what your personal beliefs are.

I mean, the law is a complete nightmare in and of itself. I would be shocked if this doesn’t get challenged in the courts if it stays the way it is in its current form. By ignoring the problems, those problems are just going to pop up and fester over time just like the other three aforementioned bad internet laws. As a result, Mark Carney is repeating the exact same mistakes as Justin Trudeau. It’s extremely frustrating to see, but one thing is clear, the Liberal party didn’t learn from the previous mistakes in digital policy. As a result, things are going to get worse on the digital rights file.

Drew Wilson on Mastodon, Bluesky and Facebook.