Reasonable Doubt: What does Bill C-30 mean for privacy?

Laurel Dietz is one of the writers of Reasonable Doubt.

With the spectre of Bill C-30 on everyone’s mind these days, it might be helpful to have a general understanding of the current laws on privacy in Canada and B.C.

For those of you who have been living under a rock for the past week or two, Bill C-30 is the proposed legislation that will require telecommunication service providers to provide personal contact information of users to the police upon request. It also requires telecommunication service providers to set up their service in a way that makes it possible for communications to be organized, intercepted, and delivered to an authorized person working with the RCMP or CSIS.

Privacy law is complex and has many faces. There are the statutes (complex in and of themselves), but then there is also the Criminal Code that stipulates the way the police can collect information on you and also makes it an offence for another civilian to intercept and record private communications.

Starting with the statutes...

As a B.C. resident, you have four statutes that govern your personal information. Personal information is commonly described as any identifying details, but does not usually include a business phone number or professional title.

Two statutes (the federal Privacy Act, the provincial Freedom of Information and Protection of Privacy Act) dictate the way the federal government and provincial government can use, collect, and disclose personal information about people. The other two statutes (the federal Personal Information Protection and Electronic Document Act, the provincial Personal Information and Protection Act) dictate the way private organizations and businesses can collect, use, and disclose your personal information. For the most part, the government and businesses need your consent to do all three.

In addition to these acts, there is the Criminal Code of Canada. Criminal law is obsessed with the flow of information because how information is collected, used, and/or disclosed can mean the difference between a conviction or an acquittal. Criminal defence lawyers always want to make sure that the police play by the rules when they collect information.

Why is it so important? Isn’t it more important to put the bad guy in jail? The glib response I have for that common query is that, if the good guys don’t play by the rules, then it makes them no better than the bad guys.

What are the rules police have to play by as they are now?

The police have several tools at their disposal to investigate crimes. Some of these tools are the following:

• Search warrants (authorize the search of places);

• General warrants (authorize the use of any device, investigative technique, or procedure that would otherwise be considered a search such as video surveillance);

• Tracking warrants (authorize putting a tracking device on a suspect’s car);

• Wiretaps (authorize the interception and recording of verbal communications);

• Production orders (require public or private bodies to release documents to the police, i.e. information otherwise protected by all those statutes).

To use each of these tools, the police have to satisfy a judge or a justice of the peace they have reasonable grounds to believe that their tool of choice will yield evidence of an offence being committed. The way police officers do this is by conducting an initial investigation and recounting (in fairly lengthy documents) the investigation and the evidence that makes them believe that they will find the “smoking gun” by using their tool of choice.

An independent judge or justice of the peace then makes the final call and either grants or denies their request. The application process can be completed fairly quickly if the right investigative legwork has been done.

The system is in place to ensure that our rights to privacy and freedom are protected and that these rights are only infringed where the police have reasonable grounds to believe we’re breaking the law.

So what?

As the law stands now, it is possible for the police to get some information about your Internet usage from your Internet service provider by using a production order, but it would require more information that simply an online user name. Also, the information they would like to have might not be readily available.

Bill C-30, if passed, will require that all sorts of information about you be readily available, organized, and accessible (a security nightmare in its own right) and it removes the independent oversight from police investigations where police tools begin to infringe on our civil liberties.

Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at straight.reasonable.doubt@gmail.com.

A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.