Canadian Parliament Considers Bill Allowing Warrantless Requests To Doctors, Abortion Providers

New powers in the government’s border bill would allow the police and Canadian Security and Intelligence Services (CSIS) to request information on whether people have accessed services from abortion clinics, doctors, hotels and other entities without a warrant from a judge, experts warn.

Civil liberties groups, researchers and opposition MPs have raised fears about the powers, which they say would erode personal privacy and breach Canada’s Charter of Rights and Freedoms.
The government has yet to publish an analysis of whether Bill C-2 – the Strong Borders Act – is consistent with the Charter, as it has done with other bills since the election.

The Canadian Civil Liberties Association expressed concern about the scope of a clause in the bill that would allow the Canadian Security Intelligence Service, the police, or a public officer to ask a person or entity whether they are providing services to a “subscriber or client” and whether they control “any information” about them. They could also ask for basic information such as the date on which they began providing the services, or stopped.

For more details, a warrant from a judge would be required.

The bill would give CSIS and the police, or a “public officer,” the power to demand the basic information without a warrant if there are reasonable grounds to suspect that a crime could be committed, or that any breach of a law passed by Parliament may take place. A draft form for making the information demand says to help with the investigation of an offence, the information must be provided “as soon as possible.”
The bill would gag the provider from saying they had received such a demand.

“With these powers, any official tasked with enforcing a federal law could go to the company you rented a car from or the hotel you stayed at and paint a detailed picture of your activities simply by confirming the various companies you interacted with,” said Tamir Israel, director of the Canadian Civil Liberties Association’s privacy, surveillance and technologies program.

“Even health providers could face secret demands and would need to hire a lawyer and challenge these in court within five days of receiving them if they wished to avoid revealing that you are their client.”
He said lawyers who received such a request would likely refuse to comply, citing solicitor-client privilege. But the provisions would compel any person providing services, for example an accountant, plastic surgeon, drug rehabilitation clinic or telecom provider, to comply.

Public Safety Minister Gary Anandasangaree said after the bill was tabled earlier this month that its warrantless provisions are limited in scope and expressed confidence that they are compliant with the Charter.

Public Safety Gary Anandasangaree says the border bill's warrantless provisions are limited in scope.

Kate Robertson, senior researcher at the Citizen Lab at the University of Toronto’s Munk School of Global Affairs, said the government had not been open about the extent of the powers the proposed law confers on law enforcement, without judicial oversight.

“This particular power has been cast as something with a narrow scope that doesn’t unnecessarily or unreasonably interfere with privacy implications, but the actual text of the provision is extraordinarily broad,” she said.

“It appears to be a power of unlimited scope to ask what services people use in any aspect of their life, whether that’s in person, treatments at clinics, or various services in the community, or online digital services that are equally broad in scope and deeply personal and reveal our intimate thoughts, our beliefs, our opinions, and health concerns.”

An analysis by the Citizen Lab published on Monday warned the bill could “open the door” to information sharing with law enforcement authorities in the United States. It warned that it might allow states such as Mississippi, where abortion is banned except in limited cases such as rape, to find out whether a person has obtained services from an abortion clinic in Canada.

The bill would also grant CSIS, the police and other law enforcement agencies the right to demand information about internet subscribers – including the municipality where they subscribe – without a warrant from a judge.

But the analysis of Bill C-2 by the Citizen Lab said the new provisions would “substantially dilute the legal threshold police must meet for accessing sensitive categories of Canada including subscriber data, despite Supreme Court of Canada jurisprudence stating that these types of data requests engage significant privacy interests.”

Matt Hatfield, executive director of advocacy group OpenMedia, said the bill introduced an “astonishing scope of who can receive data demands without a warrant that is unprecedented in Canada.”

NDP public safety and immigration critic Jenny Kwan said she was very concerned by the broad powers the bill confers, which she said could be used to obtain a good deal of personal information about people.
The bill would allow the police to ask someone providing a service whether they knew of any other services provided to a client or subscriber. Ms. Kwan said this could allow them to ask a doctor if they know of any specialist services – for example, a psychiatrist, oncologist, or abortion service – a client is using. She said this would allow the police to then approach them to glean information without a warrant.

She predicted the measures would face legal challenges, saying they are “laying the foundation for a surveillance state.” If Bill C-2 passes, she said, it could even compel landlords to disclose information about Canadians without a warrant. “Canadians who voted for Carney never asked for this,” she added.

The Citizen Lab report raises concerns that the bill could enable the U.S. to get more access to data from Canada. It says the bill “does not explicitly state that it is paving the way for new and expanded data-sharing with the United States or other countries,” but it refers to the potential for “agreement[s] or arrangement[s]” with a foreign state.

The report says “data and surveillance powers in Bill C-2 read like they could have been drafted by U.S. officials.”

Ms. Robertson said Justice Canada officials told her at a technical briefing that the intent of certain provisions within Bill C-2 was to enable Canada to implement and ratify a new data-sharing treaty, known as the “Second Additional Protocol” to the Budapest Convention (“2AP”), and that other cross-border “co-operation” tools were foreseeable.

“The 2AP would specifically authorize searches and seizures of private data, in circumstances that fall short of international human rights obligations requiring independent authorization and review for just cause,” the Citizen Lab report said.

It says Ottawa has been negotiating with the U.S. about a potential data-sharing agreement under the U.S. Clarifying Lawful Overseas Use of Data Act (CLOUD Act).
The Office of the Privacy Commissioner of Canada said it is now analyzing Bill C-2. The government did not immediately respond to requests for comment.

Marie Woolf writes for The Globe and Mail.