RESEARCH - STUDIES IN CONSTITUTIONAL LAW

Studies in constitutional law:
―Privacy, Security, Human rights and the
Rule of law‖
U N I V E R S I T Y O F O T T A W A
1 2 / 9 / 2 0 1 5
Chirine Haddad

Chirine Haddad
Studies in constitutional law: ―Privacy, Security, Human rights and the Rule of law‖
1
The present paper discusses the right to privacy in Canada, has it been erased by Bill C-13, Bill
C-44 and Bill C-51? Does the Canadian Charter of Rights and Freedom1
(the Charter) still
provide any protection for Canadians regarding the right to privacy?
Section 8 of the Charter stipulates that everyone in Canada is protected against unreasonable
search and seizure. This section provides Canadians with constitutionally enforced privacy rights
against unreasonable intrusion from the government. Mainly s.8 protects personal information
that can be acquired through searching an individual in ―pat-down‖, entering his property or
through surveillance.
The closest definition of the right of privacy appears in Justice Wilson’s decision in R v
Morgentaler2
where it is perceived as the ―right of the individual, married or single, to be free
from unwarranted governmental intrusion into matters so fundamentally affecting a person‖.
Therefore, it is to be considered as ―a certain private sphere of individual liberty [that] will be
kept largely beyond the reach of government‖. Hence, ―[s]ection 8 was designed to protect
against actions by the state and its agents‖3
.
In R v Wong4
, the Supreme court of Canada held that ―the broad and general right to be secure
from unreasonable search and seizure guaranteed by s.8 [of the Charter] is meant to keep pace
with technological development, and, accordingly, to ensure that we are ever protected against
unauthorized intrusions upon our privacy by the agents of the state, whatever technical form the
1
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B to the Canada
Act 1982 (UK) 1982, c 11.
2
[1988] 1 S.C.R. 30; [1988] S.C.J. No. 1.
3
[1988] 2 S.C.R. 417; [1988] S.C.J. No. 82.
4
[1990] 3 SCR 36.

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means of invasion may take‖ (p. 44). In R v TELUS Communications Co.5
, the Supreme court of
Canada held that reasonable expectation of privacy enshrined in section 8 of the Charter
encompasses modern communication technologies including text messages, even if the data
is detected on a third party server.
The right to privacy enshrined in the Charter and as defined by case laws is being subjected to
numerous violations, especially by the provisions set out in Bill C13 Protecting Canadian from
Online Crime Act6
, Bill C-44 the Protection of Canada from Terrorist Act7
, and Bill C-51 the
Anti-terrorism Act8
.
The focuses of this research will the three bills, the context of each, and the privacy concerns it
raises.
We will begin our discussion by analysing Bill C-13 the so-called cyberbullying legislation that
was created after the tragic cases of Amanda Todd and Rehtaeh Parsons who committed suicide
because of cyberbullying. However, as we shall examine, that Bill C-13 went beyond its original
focus, and raised the following issues in respect to right of privacy: (1) it is a disguised bill that
allows cyberespionage; (2) it is a reincarnation of Bill C-30 Protecting Children from Internet
Predators Act; (3) it provides law enforcement the right to scoop up metadata leading to
5
2013 SCC 16, [2013] 2 S.C.R. 3.
6
Canada Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the
Mutual Legal Assistance in Criminal Matters Act, 2nd
Sess, 41 Parl, 2014, (assented to 9 December 2014) [Bill C13].
7
Canada Bill C-44, An Act to amend the Canadian Security Intelligence Service Act and other Acts , 2nd
Sess, 41st
Parl, 2015, (assented to 23 April 2015) [Bill C-44].
8
Canada Bill C-51, An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act,
to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee
Protection Act and to make related and consequential amendments to other Acts, 2nd
Sess, 41 Parl, 2015 (assented to
18 June 2015) [Bill C51].

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gathering every single person’s data; (4) it provides a low threshold to obtain a warrant for law
enforcement in order to access personal and sensitive information; and finally (5) it allows
voluntary disclosure and legal immunity to Internet service providers and telecom companies.
Subsequently we will examine Bill C-44 which was in theory an attempt to override a Federal
court’s decision written by Justice Moseley that prohibited Canadian Security Intelligence
Service (CSIS) from operating internationally. The focus of this bill was to empower CSIS to
conduct investigative operations internationally, and as we will see, it raises serious concerns in
relation to the right of privacy as many provisions of the Bill focused on applying broad security-
oriented powers to an array of other less serious situations instead of focusing on terrorist threats,
raising the following issues: (1) empowering CSIS to collect information in foreign jurisdictions
and to seek the assistance of foreign agencies while operating abroad, which constitutes a major
breach of Justice Mosley’s decision; (2) authorizing CSIS to conduct investigative activities
without regards to any foreign jurisdiction which is clearly against the SCC’s finding in the
decision R v Hape9
that Canada should respect foreign domestic laws; (3) the creation of the
CSIS informer privilege or the so-called ―human source‖.
Serious concerns are raised concerning the right to privacy by the adoption of Bill C-51, which
is a disguised bill and it extends huge number of different laws to deal with national security. We
will focus on the Security of Canada Information Sharing Act (SCISA), and the way it stroke the
balance between security and privacy by adopting the following measures: (1) a broad definition
is assigned to the term ―activities that undermine the security of Canada‖, which triggers
information sharing across security agencies and government departments for an incredibly wide
9
2 SCR 292, para 39 [Hape].

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range of purposes most of which are not related to actual threats to the security of Canada; (2)
expanding the scope of disclosure and lowering the threshold for information sharing from the
―strictly necessary‖ standard to the ―relevance standard‖ which allow for mass transfer of
confidential information between different government agencies constituting a major breach of
the right to privacy in Canada.
Finally we will discuss whether the Charter still provides any protection for Canadians
regarding the right to privacy through stating the SCC’s findings in the case Hunter v Southam
Inc.10
, that the Charter is supposed to preserve and insure in a reasonable manner the enjoyment
of the rights and freedoms, and is perceived to be an instrument limiting the government’s
actions that infringe those rights and freedoms. Afterward we will discuss the decision R. v.
Plant11
in which the SCC found that the protection of privacy enshrined in s.8 of the Charter is
not confined to the nature of information required, but it extends to the nature of information that
it tends to reveal. We conclude this analysis with a thorough examination of the decision R v
Spencer12
, in which the SCC considered that Internet users have reasonable expectation of
privacy on the internet and it found that the identity of a person linked to their use of the Internet
must be recognized as giving rise to a privacy interest beyond that inherent in the person's name,
address and telephone number. Subscriber information, by tending to link particular kinds of
information to identifiable individuals may implicate privacy interests relating to an individual's
identity as the source, possessor or user of that information. Some degree of anonymity is a
feature of much Internet activity and depending on the totality of the circumstances anonymity
may be the foundation of a privacy interest that engages constitutional protection against
10
[1984] 2 SCR 145 [Hunter].
11
[1993] 3 SCR. [Plant].
12
2014 SCC 43, [2014] 2 SCR.212 [Spencer].

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unreasonable search and seizure. In this case, the police request to link a given IP address to
subscriber information was in effect a request to link a specific person to specific online
activities which engaged the anonymity aspect of the informational privacy interest by
attempting to link the suspect with anonymously undertaken online activities, activities which
have been recognized in other circumstances as engaging significant privacy interests.
In the following pages, we shall focus on the context of Bill C-13, Bill C-44 and Bill C-51 as
well as the concerns raised by each, in respect to right to privacy.
Bill C-13 - Context:
In October 2012 Amanda Todd committed suicide after facing online blackmail and threats that
topless photos of her would be circulated on the internet. In April 2013, Rehtaeh Parsons
attempted to commit suicide (later was taken off life support) after photos of an alleged sexual
assault were circulating online, leading her to suffer from different types of bullying. On
November 20th
, 2013, Bill C13 Protecting Canadian from Online Crime Act was introduced in
the House of Commons by Minister of Justice Peter MacKay, as a response to these two high
profile cases13
. Bill C-13 received royal assent in December 10th
, 2014 and came into force in
March 2015.
Bill C-13 basically deals with (1) the crime of distributing intimate pictures without consent (2)
crimes committed using online technologies and telecommunication and (3) the so-called ―lawful
13
Legislative Summary of Bill C-13: An Act to amend the Criminal Code, the Canada Evidence Act, the Competition
Act and the Mutual Legal Assistance in Criminal Matters Act;
http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?Language=E&ls=c13&Parl=41&Ses=2
&source=library_prb [Legislative Summer of Bill C-13].

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access‖, which is an investigative method engaged by law enforcement agencies in order to
intercept private communications and gather information, when it is permissible by law.
Issues raised by Bill C-13:
The main privacy issues that arise in the context of Bill C-13 are as follow:
-Bill C-13 is a disguised bill that permits cyberespionage: This bill does not seem to be really
about cyberbullying, several pages in what is a 70 pages bill which contains a one core provision
designed to target cyberbullying at a time Canada has myriad of rules that already deal with
cyberbullying14
. The reality is that most of this bill is about what is referred to as ―lawful
access‖15
and it is thinly disguised in a sense that, it constitutes the majority of this legislation.
-Bill C-13 is a reincarnation of Bill C-30 Protecting Children from Internet Predators Act;
Bill C-13 essentially restores the provisions of the previous Bill C-30 Protecting Children from
Internet Predators Act which was introduced in the 1st
Session of the 41st
Parliament and died on
the Order Paper before 2nd
reading in the House of Commons16
. Interestingly, former Justice
Minister Rob Nicholson assured Canadians that17
:
[w]e will not be proceeding with Bill C-30 and any attempts we will have to modernize
the Criminal Code will not contain the measures in C-30 — including the warrantless
mandatory disclosure of basic subscriber information, or the requirement for
telecommunications service providers to build intercept capabilities within their systems‖
…Any modernization of the Criminal Code … will not contain those.
14
For ex, Criminal Code Section 163.1 Child Pornography.
15
Canadian Bar Association, Bill C-13, Protecting Canadians from Online Crime Act, p.2.
16
Legislative Summary of Bill C-13, Supra note 13.
17
Conservatives kill controversial 'child pornographers' Internet surveillance bill; February 11, 2013;
http://news.nationalpost.com/news/canada/conservatives-kill-controversial-internet-surveillance-bill.

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Bill C-30 was exclusively about expanding law enforcement powers, and several provisions in
it included issues about mandatory disclosure of subscriber information, compelling internet
service providers (ISP) and other companies who have subscriber data, to disclose that data
without court oversight. Furthermore Bill C-30 had provisions that created surveillance
capabilities within ISP, so they would have the ability to conduct surveillance in real time and
ensure that all providers had such technological capabilities18
. Bill C-30 created a whole series of
new warrants that would allow law enforcements to access a wide range of different kinds of
data including transmission data, data that a subscriber gives off when he engages in
communication online, as well as preservation warrants to ensure that providers retain or
preserved that data, and disclosure warrants to ensure that they could disclose that data. Two of
those provisions are replicated in Bill C-13; (1) ―interception capability of telecommunication
service providers‖ as well as (2) ―warrantless request for subscriber information19
‖.
- Bill C-13 provides law enforcement the right to scoop up metadata leading to gathering every
single person’s data; As professor Errol Mendes had explained20
, Metadata is similar to an
envelope, on the outside of it there is an address, IP address that reveals the user’s location,
potentially all IP addresses to which he communicated with. It is an envelope that encompasses
massive amount of information, giving national security and law enforcement agencies the
ability to scoop up every single individual’s data. Metadata appears to be that massive haystack
of envelopes and the National Security Agency in the US claimed that they had the right to go
into that ―haystack‖ to search for a particular terrorist suspect, by detecting his IP address, and
18
Ibid.
19
Legislative Summary of Bill C-13, Supra note 13.
20
Professor Errol Mendes, CML4401 Studies in constitutional law ―Privacy, Security, Human rights and the Rule of
law‖, October 27th
, 2015.

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due to the fact that the IP address was on the ―envelope‖ of the terrorist suspect, it could send out
messages to different IP addresses that that suspect was interacting with. That’s how the NSA
claimed that they had to find ―the needle in the haystack‖, but to do so they have to find
―envelopes‖ in the entire ―haystack‖. Law enforcement can fulfill some minimum standards that
Bill C-13 allows them to do, no limits were imposed in this bill in order to stop them from using
the collected metadata for non-security purposes to target specific individuals or communities for
their political, religious or ideological background. In that sense Bill C-13 constitutes a major
attack on the right of privacy and contravenes article 8 of the Charter, because it allows law
enforcement agencies to look at massive amount of data. In fact, the Supreme Court of Canada
ruled in R v Vu21
on the privacy importance of computer generated metadata, noting:
―In the context of a criminal investigation, however, it can also enable investigators to access
intimate details about a user’s interests, habits, and identity, drawing on a record that the user
created unwittingly‖.
Following a terrorism incident as shocking as the Paris attacks, it is no surprise that politicians
and the intelligence establishment would want to widen American spying capabilities. However
―[u]nder the Freedom Act, the NSA and law enforcement agencies can no longer collect
telephone calling records in bulk in an effort to sniff out suspicious activity‖22
. Instead, they are
obliged to get a warrant to ask telecommunications companies for call records of specific
individuals or groups for up to 6 months and it is unlikely to have laws enshrining any new
21
2013 SCC 60 para 42.
22
NSA to shut down bulk phone surveillance program by Sunday, 27 November 2015,
<http://www.reuters.com/article/2015/11/27/us-usa-nsa-termination idUSKBN0TG27120151127#qS2cUzttAsypxv3F.99>.

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surveillance measures before the presidential election in November 201623
. It is important to note
that a ―presidential review committee [in the US] concluded the surveillance regime did not lead
to a single clear counter terrorism breakthrough that could be directly attributed to the
program‖24
.
-Bill C-13 provides a low threshold to obtain a warrant for law enforcement in order to access
personal and sensitive information; Clause 20 of the Bill allows law enforcement and national
security agencies to receive a warrant by a having a ―reasonable ground to suspect‖ a crime has
or will occur as opposed to a higher threshold of ―reasonable ground to believe‖. The difference
between these two thresholds denotes a striking transformation in privacy protection.
The threshold based on reasonable grounds to believe is based on a credible weighing of
probabilities, and an officer’s own hunch is not sufficient to satisfy the standard. Lowering this
threshold will inevitably leads to a violation of privacy of Canadians; the private information that
used to be kept in homes under lock and key, required an officer to knock on doors armed with a
warrant based on reasonable ground to believe to go through cabinets in order to gather
information. Nowadays, the same personal and sensitive information are being stored online
through technological breakthroughs. Thus, lowering the threshold to a ―reasonable ground to
suspect‖ allows the state through the simple process of compelling ISP and telecom companies to
release the personal and sensitive information to national security and law enforcement agencies.
As the Supreme Court mentioned in Spencer, ―the Internet has exponentially increased both the
quality and quantity of information that is stored about Internet users,‖25
and that such
23
Ibid.
24
Ibid.
25
Spencer, supra note 12 at para 46.

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information can ―provide detailed information about users‖26
interests. Therefore preserving the
privacy interests of all Canadians generally with regards to computers which they use in their
home for private purposes is being breached by the ―reasonable suspicion‖ standard; there are no
legal limitations at this point to preclude the law enforcement and national security agencies
from using the evidence collected for wide-ranging surveillance or phishing expeditions.
-Bill C-13 allows voluntary disclosure and legal immunity to Internet service providers and
telecom companies: The most concerning issue with Bill C-13 is that it allows ISP and telecom
companies to hand over massive amount of information without a warrant and judicial oversight
to law enforcement and national security agencies. Clause 20 of the Bill grants them legal
immunity for voluntary disclosure of personal information, notwithstanding the Supreme Court’s
decision in Spencer that noted that Canadian citizens have the right to reasonable expectation of
privacy on the internet, consequently law enforcements require a warrant to compel Internet
service providers to disclose names and addresses associated with an IP address27
. This being
said, Bill C-13 is a major change in law allowing telecom companies such as Rogers and Bell to
voluntary hand over all their clients data and information without notifying them about such
disclosure to law enforcement and national security agencies, keeping millions of Canadians in
the dark. The revelation of 1.2 million requests to telecom companies for customers’ information
26
Ibid.
27
Spencer, Supra note 12: The SCC was interpreting s.487.014 of the Criminal Code, which is very similar to
s.487.014(1) set out in Bill C-13, and the Personal Information Protection and Electronic Document Act (PIPEDA),
the Court held at para 71: ― that neither s. 487.014(1) of the Criminal Code , nor PIPEDA creates any police search
and seizure powers‖
and at para 73 ―Section 487.014(1) is a declaratory provision that confirms the existing common law powers of
police officers to make enquiries, as indicated by the fact that the section begins with the phrase ―[f]or greater
certainty‖: see Ward, at para. 49. PIPEDA is a statute whose purpose, as set out in s. 3, is to increase the protection
of personal information. Since in the circumstances of this case the police do not have the power to conduct a search
for subscriber information in the absence of exigent circumstances or a reasonable law, I do not see how they could
gain a new search power through the combination of a declaratory provision and a provision enacted to promote the
protection of personal information.

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11
in 2011 affecting 750,000 users provides an indication of the privacy breach due to voluntary
disclosure, and most importantly the immunity provision in Bill C-13 protects from legal liability
those persons who voluntarily hand over personal information in response to government
requests without a warrant.
As Michael Geist pointed out, the lack of transparency and the disclosure of massive amount of
personal information without warrant and court oversight in the majority of the cases, leads to
―an enormously troubling weakness in Canada privacy laws.28
‖
Following Bill C-13, the federal government introduced Bill C-44, the Protection of Canada
from Terrorist Act, on October 27th
, 2014. This bill contains some issues that are linked to Bill
C-51 that we will be discussing later on.
The major focus of this Bill is to expand the ability of CSIS to operate internationally. It was
issued as a response to the decision made by justice Mosely on November 22, 2013, in the case
X(Re)29
, where CSIS was seeking the authorization of a warrant to intercept the communications
of a Canadian citizen who was temporarily residing abroad. Justice Mosely refused to issue this
warrant as CSIS were not authorised by law to collect information about Canadians citizens or
permanent residents residing outside Canada. According to him, the Court’s jurisdiction to
deliver a warrant for the domestic interception of foreign telecommunications did not extend the
authority to allow CSIS to request that foreign agencies intercept the communications of
28
Michael Geist; ―Choosing Between Privacy and Cyberbullying: My Appearance on Bill C-13 Before the Senate
Legal and Constitutional Affairs Committee‖, November 20, 2014 http://www.michaelgeist.ca/2014/11/choosing-
privacy-cyberbullying-appearance-bill-c-13-senate-legal-constitutional-affairs-committee/.
29
2013 FC 1275 (CanLII) [X(Re)].

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Canadian persons travelling abroad. Thus, the Court had no jurisdiction to authorise foreign
interception. Justice Mosely added that CSIS does not have legal authority to violate foreign
laws and the sovereignty of foreign countries either directly or indirectly by conducting
investigations abroad30
. Furthermore, referring to paragraphs 51, 52 in R v Hape, the principle of
courtesy between countries that entails the respect of foreign laws and procedures when
Canadian officials are operating outside Canada halts wherever clear breaches of international
law and human rights start31
.
It was never discussed in Parliament whether or not CSIS has the competence to spy on
Canadians abroad, according to their ability to operate internationally. It hasn’t been a subject of
discussion under constitutional analysis once Canadian citizens travel abroad, should CSIS be in
this case under the same obligations not to spy on Canadians in Canada after the Spencer
decision?
Moreover it had never been discussed in Parliament if CSIS has the authority to violate foreign
law in other countries by conducting investigations outside Canada.
Issues raised by Bill C-44
-The right to collect information in foreign jurisdictions and seeking the assistance of foreign
agencies while operating abroad: although the Federal Court held that CSIS was not allowed to
30
Ibid at para 103: (―There is nothing in the CSIS Act or in its legislative history, to my knowledge, that suggests that in
enacting s 12 Parliament granted express legislative authority to CSIS to violate international law and the sovereignty of
foreign nations either directly or indirectly through the agency of CSEC and the second parties‖).
31
Ibid at para 105: (―As discussed by the Supreme Court in Hape at paragraphs 51, 52 and 101 and in Canada
(Justice) v Khadr, 2008 SCC 28 (CanLII) at paragraph 18, the principle of comity between nations that implies the
acceptance of foreign laws and procedures when Canadian officials are operating abroad ends where clear violations
of international law and human rights begin.‖)

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13
use the warrants delivered under the CSISA to "request that foreign agencies intercept the
communications of Canadian persons travelling abroad either directly or through the agency of
CSEC under its assistance mandate "32
, Bill C-44 is a methodical endeavour by the government
to evade the restrictions Canadian courts have placed on its investigative and surveillance
abilities, through legislative amendments. It expands the powers of CSIS to allow investigations
beyond Canadian borders, consequentially empowering CSEC to intercept, or permit other
foreign agencies to intercept, communications of Canadian citizens when travelling
abroad. Conducting investigations in this manner could lead to tragic outcomes for Canadians.
Once CSIS shares information with a foreign intelligence agency it breaches the right of privacy
set out in the Charter33
, and foreign countries may use it improperly. The case of Maher Arar
emphasizes on the dangers inherent to information sharing to Canadians in particularly flagrant
terms. This could even lead to CSIS’s involvement in human rights violations, as in the
maltreatment of Omar Khadr during his imprisonment at Guantanamo Bay.
- Conducting investigative activities without regards to laws of any foreign jurisdiction: Bill C-
44 explicitly permits CSIS to breach International laws and the laws of a foreign countries by
assigning the Federal Court the authority to issue a warrant allowing activities that permit CSIS
to investigate a security threat, whether or not those investigations conform to the foreign
32
X(Re), supra note 29 at para 119.
33
Ling, Justin, ―The new anti-terrorism bill‖, National Magazine, 27 October 2014, online:
<http://www.nationalmagazine.ca/Articles/October-2014-web/The-new-anti-terrorism-bill.aspx> (as stated by
Professor Craig Forcese ―[a] Canadian judge can now authorize a covert operation in a foreign state that may violate
that state’s privacy laws‖ ).

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jurisdiction where they are being conducted34
. This section has never been discussed in
Parliament.
Asking Canadian judges to allow breaches of foreign laws, leads to reciprocal conduct and
corrodes Canada’s reputation for respecting the rule of law. A section like that should create long
debates in Parliament especially that Canada professes to be one of the world champions of the
rule of law and international law. Moreover the Supreme Court in the decision R v Hape35
asserted that Canadian laws are presumed to comply with international law in the absence of an
express statutory language to the contrary. Furthermore, according to the SCC customary
international law forbade interfering with the domestic affairs of other countries. The Court stated
that expanding the scope of the Charter to the actions of Canadian officials outside Canadian
borders would be conflicting with those values. The majority in Hape acknowledged, at paragraph
101, that the contribution of Canadian officials abroad that would breach Canada’s international
human rights duties might constitute a legal foundation for a remedy under s 24(1) of the Charter
because of the effect of those actions on the rights of the individual in Canada. Furthermore, the
SCC recognised that the Charter might allow certain activities abroad which may seem to be in
violation of Canadian laws if they are perfectly in compliance with the foreign jurisdiction where
they have been carried out, because Canadian officials are bound to obey foreign laws. Therefore
Bill C44 is in direct contradiction with the SCC stance.
34
Bill C-44, supra note 7 at cl 21: (―(3.1) Without regard to any other law, including that of any foreign state, a
judge may, in a warrant issued under subsection (3), authorize activities outside of Canada to enable the Service to
investigate a threat to the security of Canada‖).
35
Hape, supra note 9.

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- CSIS informer privilege is created by Bill C-44: another critical provision was snuck into Bill
C-4436
which grants protection for "human sources" who share information with CSIS with the
same strong identity protections granted to police sources. A ―human source‖ is defined as a
person "who, after having received a promise of confidentiality, has provided, provides or is
likely to provide information to [CSIS]37
".
Therefore, if CSIS received information while conducting investigative activities abroad under
C-44, regardless of its reliability and accuracy, it may be used to put an individual under
National Security Certificate38
. According to this Bill the identity of the source can never be
disclosed, and this was essentially the reason why Maher Arar was confined in a cell in Syria due
to non-disclosed wrongful information.
This Bill jeopardies the transparency and procedural fairness of the proceedings in front of the
justice system, where CSIS can claim informant privilege under the ―human source‖ definition,
to prevent the disclosure of its sources to the courts. The SCC in Canada (citizenship and
immigration) v Harkat39
recognised that a Judge must be cautious and cynical regarding claims
of national security confidentiality and he must make sure that only information that would harm
national security or jeopardize the safety of an individual is held back from the named person.
36
Ibid at cl 18(2): (―[…]no person shall knowingly disclose any information that they obtained or to which they had
access in the course of the performance of their duties and functions under this Act or their participation in the
administration or enforcement of this Act and from which could be inferred the identity of an employee who was, is
or is likely to become engaged in covert operational activities of the Service or the identity of a person who was an
employee engaged in such activities‖.).
37
Ibid at cl 2.
38
Public Safety Canada, ―Security certificates‖, online: < http://www.publicsafety.gc.ca/cnt/ntnl-scrt/cntr-
trrrsm/scrt-crtfcts-eng.aspx >
(―The security certificate process within the Immigration and Refugee Protection Act (IRPA) is an immigration
proceeding for the purpose of removing from Canada non-Canadians who are inadmissible for reasons of national
security, violating human or international rights, or involvement in organized or serious crimes. Only permanent
residents or foreign nationals can be subject to a security certificate‖).
39
2014 SCC 37, [2014] 2 SCR 33, para 63-64.

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16
Frequent over-claiming would violate the named person’s right to a fair process or undermine the
integrity of the justice system, calling for a remedy under s.24(1) of the Charter.
This leads us to the conclusion that it seems to be fruitless to have a hearing without the
testimony of the human source constituting a major threat to the right to privacy.
None of these provisions have been contested in Parliament in terms of constitutional law,
while everyone is focusing on the issues raised by Bill C-51, which will be the subject of our
discussion in the following paragraphs.
Bill C-51 was introduced January 30th
, 2015, to expand Canada’s anti-terror laws at a time when
tensions in relation to threats of terrorism on home soil are elevated. Assaults on two Canadian
soldiers in October, as well as the assaults on the Charlie Hebdo office in Paris, are frequently
referred to by members of the government as justifying rougher legislations. According to former
Public Safety Minister Steve Blaney, Bill C-51corresponds with the government’s firm
commitment to protect Canadians from jihadist terrorists who pursue to abolish the values
Canadians cherish40
. ―The international jihadist movement has declared war on Canada and our
allies‖41
Blaney stated to the House of Commons on February the 18th
―[a]s we have seen,
terrorists are targeting Canadians simply because they despise our society and the values it
represents‖42
.
40
―Steven Blaney on Anti-terrorism Act, 2015‖, < https://openparliament.ca/debates/2015/2/18/steven-blaney-
6/only/>.
41
Ibid.
42
Ibid.

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17
However, Bill C-51 is not just about anti-terrorism. It encompasses five bills, and it gives the
ability to create huge dossiers of information on Canadians that can be shared among at least 17
government departments. It empowers CSIS as well as law enforcements to target activities that
could ―undermine the security of Canada‖ as well as activities that are detrimental to Canada’s
interests. Therefore Bill C-51 raises serious issues in relation to the protection of privacy
enshrined in section 8 of the Charter and set out to be ―a prerequisite to individual security, self-
fulfilment and autonomy as well as to the maintenance of a thriving democratic society‖43
.
Issues raised by Bill C-51
Bill C-51 strikes the balance between security and privacy in the following manner:
The definitions contained in the Bill are too broad, it captures activities that could not
legitimately be characterized as a security threat: the preamble of the Security of Canada
Information Sharing Act (SCISA), Part 1 of the Bill, describes the key areas of activities that
undermine the security of Canada, and even before reading the list of those activities, the
definition states that ―activity that undermines the security of Canada‖ means any activity,
including any of the following activities, if it undermines the sovereignty, security or
territorial integrity of Canada or the lives or the security of the people of Canada‖. This
definition is excessively broad and lacks sufficient demonstrative guidance, which leads to a
broad range of information sharing in cases unrelated to the Bill’s purpose to fight terrorism44
.
Thus this Bill encompasses the activities of the separatists in Quebec just by expanding the
definition to ―the sovereignty or territorial integrity of Canada‖, because theoretically every
43
44
Canadian Bar Association, ―Submission on Bill C-51, Anti-terrorism Act, 2015‖, p. 10 [CBA].

Chirine Haddad
18
individual, every party that is still promoting for the separation of Quebec from Canada, is
considered as a person who is engaged in an ―activity that undermines the security of Canada‖.
This leads to qualify the actions undertaken by the party Quebecois and the anti-monarchy
movements as an ―activity that undermines the security of Canada‖ that may trigger information
sharing powers.
The expression ―people of Canada‖ cited in the definition, encompasses every Canadian,
including those are residing or traveling abroad45
. This is a reminder of one of the issues raised
by Bill C-44, where CSIS can target in its surveillance any Canadian residing inside Canada as
well as abroad.
The list of activities regarded as undermining the security of Canada causes many important
concerns. The sub-paragraph ―(a) interference with the capability of the Government of Canada
in relation to intelligence, defence, border operations, public safety, the administration of
justice, diplomatic or consular relations, or the economic or financial stability of Canada‖ is
overly broad. According to the CBA ―public safety‖ and ―economic or financial stability of
Canada‖ would allow information sharing in situations and for activities that do not relate to the
protection of Canada’s security46
. It could depict peaceful protests led by First Nations against
pipe-lines which are fundamental and frequent in a democratic society along with sub-paragraph
(f) ―interference with critical infrastructure‖ which remained undefined. The definition of
sub-paragraph (a) could include in its broad scope, individuals who are anti-capitalists and are
for example against the taxation benefits given to the oil industry. The expression
45
Ibid at p.11.
46
Ibid.

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19
―administration of justice‖ is also too broad in scope and could capture any connection with
how individuals interact with the justice system, with the police, and with administrative
tribunals. The expression ―consular relations‖ is too broad that it captures individuals, who
have taken actions or protested against a specific state, even if it was a dictatorial state. In theory
this could apply to activists who went abroad and protested against the human rights violations
practiced in some parts of Africa and Latin America.
This Act allows national security agencies to monitor a huge number of Canadians that have
different views than the government’s political agenda. As the CBA stated,
―[b]randing dissenting Canadians views as threats to the security of Canada is contrary to the
core democratic principles important to Canadians and risks a chilling impact on free expression
in this country47
‖.
Thus, Bill C-51 is designed to create sufficient reasons to have massive surveillance on
individuals and groups in Canada as well as abroad and enacts information sharing between at
least 17 government departments.
Bill C-51 enlarges the scope of disclosure and lowers the threshold for information sharing:
As aforementioned SCISA authorises systematic information sharing, for wide-ranging objectives
not all clearly linked to national security, due to the overly broad definition of the ―activities that
undermine the security of Canada‖.
As mentioned by the federal Privacy Commissioner Daniel Therrien, s.5 of the SCISA applies the
―relevance‖ standard to authorise information sharing among government departments instead of
47
Ibid at p.12.

Chirine Haddad
20
the ―strictly necessary‖ standard referred to in s.12 of the Canadian Security Intelligence Act48
(CSIS Act), where CSIS can only gather information if strictly necessary and if it relates to a
threat as outlined in its enabling legislation49
. The Privacy Act50
, as well, compelled government
institutions to strictly gather information if it is directly linked to and ―demonstrably necessary‖
for their programs or activities. Allowing a government institution to disclose information under
SCISA, to another institution if the information is relevant to its ―operating programs or activity‖,
lowers the threshold to the relevance standard. This would expose the personal information of
everyone, whether they are living in Canada or abroad, and would greatly give government
institutions limitless powers to monitor and profile ordinary Canadian citizens. It is important to
note that Bill C-51 lists 17 government institutions and this list is not exhaustive. Additionally,
over 140 institutions are listed in the Privacy Act. Moreover, section 6 of the SCISA seems to go
further in the scope of information sharing conflicting with the Privacy Act and fundamental
principles of privacy laws. It allows government institution who receives information to use it
and disclose it ―to any person, for any purpose‖. This seems to authorize the sharing of
information with the private sector and foreign countries, which constitutes a major blow to the
right of privacy protected in s.8 of the Charter.
48
Canadian Security Intelligence Act, RSC 1984, c C-23.
49
Office of the Privacy Commissioner of Canada, ―Bill C-51, the Anti-Terrorism Act, 2015- Submission to the
Standing Committee on Public Safety and National Security of the House of Commons‖, March 5th
, 2015, online:
<https://www.priv.gc.ca/parl/2015/parl_sub_150305_e.asp > [OPCC].
50
An Act to extend the present laws of Canada that protect the privacy of individuals and that provide individuals
with a right of access to personal information about themselves, RSC C 1985 c P 21.

Chirine Haddad
21
Looking back at Mr. Robert Morrison’s testimony in front of the House of Commons reveals
the real reasons behind the adoption of such law; Mr. Morrison is the architect of this Bill, and he
stated the following example:
[Sharing information] will enable effective and responsible intelligence sharing by
driving collaborative intelligence initiatives, so it will be accurate, timely, reliable, and
proactive. What I'm talking about here is suspicious activity reporting. For example, we
have an oil refinery where the company reports a hole in a fence. The municipality next
door has a laundry and dry cleaning facility that had a break-in the night before and 40
uniforms are stolen that all belong to that oil refinery. The next municipality over had a
large theft of fertilizer. We start putting these pieces together, and then add onto that an
intelligence agency has a report from an informant that Mr. A was talking about causing
some damages to an oil refinery. If we look at each one of those independently it really
doesn't mean much. But when you start putting the pieces together, it means a lot51
.
This example is very significant, Mr. Morrison gave away part of the strategy of the
Information sharing Act; to monitor everyone all the time in order to prevent any activity that
undermine the security of Canada from actually occurring. This in itself constitutes a major
breach of the right of privacy, thus a violation of s.8 of the Charter.
An open letter from 60 Canadian Business leaders against Bill C-51, revealed that the data
disclosures targeting innocent Canadians and individuals visiting Canada for vacation or
business purposes could make their customers abandon them for European countries, where
privacy is respected. Among the major companies who signed the letter are: HootSuite Media
Inc., Slack Technologies Inc., Shopify Inc., BuildDirect.com Technologies Inc. and
Resume.com. According to the 60 Canadian business leaders, data shared between several
unsecured federal government and foreign government databases allows Canadians and
Canadian businesses to be more susceptible to data breaches, cybercrimes and identify theft52
.
51 ―
Bill C-51 Hearings Canada, Part 5, 2015‖, online: <https://www.youtube.com/watch?v=lBS0gcePdkc>.
52
―Open Letter from Canadian Businesses against Bill C-51‖, Online: < https://killc51.ca/business>.

Chirine Haddad
22
Ironically, Bill C-51 threatens the economic and financial stability of Canada, which is
considered among the activities that undermine the security of Canada as aforementioned. This
issue had been highlighted in the letter affirming that the federal government agencies have
ascertained more than 3,000 breaches of the extremely confidential private information of an
approximate 750,000 ordinary Canadians in recent years. Over 200 Canadians have stepped
forward in recent months to state that their personal or professional lives have been destroyed,
due to information disclosures, even though they have never violated the law. More than 300,000
Canadians took a stand against this threatening and ineffective bill53
. ―As it is we have a privacy
deficit in Canada that erodes trust in both commerce and trade -- Bill C-51 deepens that
deficit‖54
.
As the Privacy Commissioner Daniel Therrien stated:
―the scale of information sharing being proposed is unprecedented, the scope of the new powers
conferred by the Act is excessive, particularly as these powers affect ordinary Canadians, and the
safeguards protecting against unreasonable loss of privacy are seriously deficient‖55
.
He concluded that ―[a]ll Canadians will be caught in this web‖.
Hence does the Charter still provide any protections for Canadians regarding the right to
privacy?
The right of privacy as a ―private sphere of individual liberty [that] will be kept largely beyond
the reach of government‖ had been extensively breached by Bill C-13, Bill C-44 and Bill C-51.
53
Open Media, ―Tell Prime Minister Trudeau to consult with Canadians now, while there's still time to undo C-51‖,
< https://killc51.ca/>.
54
An open Business letter, supra note 52.
55
OPCC, supra note 49.

Chirine Haddad
23
Therefore the right to privacy in Canada has been erased by those three Bills violating s.8 of the
Charter. According to the Supreme Court of Canada in Hunter, the Charter is supposed to
perverse and to insure, in a reasonable manner, the enjoyment of the rights and freedoms it
embraces and is a legal instrument to limit government actions that are contradictory to those
rights and freedoms; it doesn’t endorse governmental action. Hence s.8 is expected to constrain
powers of search and seizure the federal as well as the provincial governments already have, and
it does not award any authority even of ―reasonable‖ search and seizure to these governments56
.
As the SCC stated, to assess the constitutionality of a statute allowing a search and seizure, in
our case the three bills, the focus must be on its ―reasonable or unreasonable impact on the
subject of the search or the seizure, and not simply on its rationality in furthering some valid
government objective‖57
. The SCC describes s.8 in the following manner:
―Section 8 is an entrenched constitutional provision. It is not therefore vulnerable to
encroachment by legislative enactments in the same way as common law protections. There
is, further, nothing in the language of the section to restrict it to the protection of property or to
associate it with the law of trespass. It guarantees a broad and general right to be secure from
unreasonable search and seizure‖.
The subject matter of the search in those three bills is core biographical data revealing intimate
and private information about Canadian citizens and permanent residents living in Canada and
abroad. The SCC in R. v. Plant clarified that the protection accorded by s.8 of the Charter is not
limited to the nature of the information required but it extends to the nature of information that it
56
Hunter, supra note 10 at p.156.
57
Ibid at p.157.

Chirine Haddad
24
tends to expose. The majority indicated that s. 8 of the Charter should protect the ―biographical
core of personal information which individuals in a free and democratic society would wish to
maintain and control from dissemination to the state‖. This would consist of information that
unveils personal aspects of the lifestyle as well as particular choices of the individual. The SCC
in the Spencer decision adopted the same approach and added that ―[t]he nature of privacy
interest does not depend on whether, in the particular case, privacy shelters legal or illegal
activity‖58
. The Court considered that the Internet users have reasonable expectation of privacy
on the internet; they do not expect that their ―online anonymity to end‖ when they use the
internet outside their premises and via portable devices. The SCC in this case was primarily
concerned with ―informational privacy‖. According to Justice Cromwell, informational privacy
is considered to be equal to confidentiality and it includes ―wider notion of control over, access
to and use of information‖ related to individuals, groups or institutions that have the right to
determine to what extent information about them is being shared with others. As stated by the
SCC the perception of informational privacy as control stems from the hypothesis that all
information about an individual is ―in a fundamental way his own, for him to communicate or
retain for himself as he sees fit‖59
. Although the information will be shared and cannot be
perceived as confidential the SCC stated that:
―situations abound where the reasonable expectation of the individual that the information shall
remain confidential to the persons to whom, and restricted to the purposes for which it is
divulged, must be protected‖60
.
Bill C-51 and its companion bills, infringe upon this protection by empowering national
58
Spencer, supra note 12 at para 36-37.
59
Ibid at para 40, R v Dyment, [1988] 2 SCR 417 at p.429.
60

Chirine Haddad
25
security agencies to share massive information about Canadians not just with domestic
governmental institutions, but to any person for any purpose.
The SCC adds another component to informational privacy, very significant in the context of
Internet usage; the concept of privacy as anonymity. According to J. Cromwell the protection of
privacy enshrined in s.8 of the Charter ―must include this understanding of privacy‖61
.
Anonymity allows persons to act in public but maintain freedom from being personally identified
and subject to extensive surveillance62
. Thus a communication online may be accessible to the
public but it is not be linked to its author. Furthermore, as stated by J. Cromwell, ―the Internet
has exponentially improved the quality and quantity of information that is being stored about
Internet users. Browsing logs for example, may provide detailed information about user’s
interests. Search engines may gather records of users’ search terms‖63
. The Internet subscriber
cannot fully chose or is not even aware of who may track his habits, his interests and his
concerns while browsing online, but by staying anonymous, he can be certain that his online
activities remain private64
. As said by J. Cromwell ―the identity of a person linked to their use of
the Internet must be recognized as giving rise to a privacy interest beyond that inherent in the
person’s name, address and telephone number found in the subscriber information‖65
. This
anonymity may constitute the basis of a privacy interest that engages the constitutional
protection provided by s.8 of the Charter, depending on the totality of the circumstances. In the
case of Spencer, the police, without obtaining a warrant, requested subscriber information from
61
62
Ibid at para 43.
63
Ibid at para 46.
64
Ibid.
65
Ibid at para 47.

Chirine Haddad
26
an ISP company to link the accused to a specific online activity. According to the SCC this
request ―engages a high level of informational privacy‖66
. The SCC in its decision considered
that an Internet user has reasonable expectation of privacy regarding his personal information
held by an ISP company. In his analysis at paragraph 67, J. Cromwell compared the Spencer case
to the case of R. v. Duarte, [1990] 1 S.C.R. where a distinction was established between a person
reiterating a conversation he had with the suspect to law enforcement and law enforcement
obtaining an audio recording of that same discussion. In Duarte, the Court held that there is
―much more insidious danger inherent in allowing the state, in its unfettered discretion, to record
and transmit our words‖ which led the SCC in Spencer to conclude that the police claim to the
ISP to disclose information related to the accused engaged more important privacy interest than a
simple question asked by the police during an investigation. The SCC concluded that the
warrantless search conducted by the police is ―presumably unreasonable‖. According to J.
Cromwell in order to conduct a reasonable search, it must be authorised by a reasonable law and
it must be performed in a reasonable way.
Bill C-13, Bill C-44 and Bill C-51 lack the characteristic of a ―reasonable law‖ by conflicting
with s. 8 of the Charter. Allowing massive surveillance of bulk metadata, with a low threshold to
permit CSIS and other national security agencies to collect personal information of ordinary
Canadian Internet subscribers from ISP’s and sharing it with others for any purpose, is indeed in
conflict with the protection enshrined in section 8 to right to privacy.
Conclusion:
66
Ibid at para 51.

Chirine Haddad
27
Canada is built on the rule of law, which constitutes the keystone of peace, order and good
government. Information sharing should occur according to the Charter, the Privacy Act and
other Canadian legislations. The need to share personal information to protect Canada’s security
should not infringe the privacy right of Canadians, who benefit from a legitimate interest in
narrowing access to personal information about themselves gathered by security agencies as well
as other government departments. At s.4 of the SCISA we read the following provisions:
Information sharing under this Act is to be guided by the following principles:
(a) effective and responsible information sharing protects Canada and Canadians;
(b) respect for caveats on and originator control over shared information is consistent
with effective and responsible information sharing;
(c) entry into information-sharing arrangements is appropriate when Government of
Canada institutions share information regularly;
(d) the provision of feedback as to how shared information is used and as to whether it is
useful in protecting against activities that undermine the security of Canada facilitates
effective and responsible information sharing; and
(e) only those within an institution who exercise its jurisdiction or carry out its
responsibilities in respect of activities that undermine the security of Canada ought
to receive information that is disclosed under this Act.
However the following sections do not seem to be following an ―effective and responsible
information sharing‖ with the absence of any definition of ―effective‖ and ―responsible‖ and by
allowing the sharing of information with any person for any purpose according to s.6 of the Act,
which could lead to data breaches, cybercrimes and identity theft. Furthermore, the following
sections of the Act do not mention any caveats and do not establish any overview body to assure
Canadians that these provisions are in compliance with the guiding principles provided in s.4. To
the contrary s.6 of the Act seems to be in direct contravention with subparagraph (e) of s.4 by
stating that ―noting in the Act prevents‖ the sharing of information with any person for any
purpose. Even if review was provided, per say, it will occur after the fact, due to the informer

Chirine Haddad
28
privilege created by Bill C-44, and the information sharing under SCISA will often take place
secretly, so individuals will not be capable to challenge the disclosure or use of their information.
Consequently, detecting any given violation to the privacy rights will be impossible, as it will be
carried out in secret without the knowledge of Canadians. Therefore we believe that effective
protection to the right to privacy requires the following recommendations to be adopted:
1 – To substitute the lower threshold based on ―reasonable grounds to suspect‖, by a higher
threshold based on ―reasonable grounds to believe‖ to issue a warrant allowing law enforcement
to access sensitive and personal information for the purpose of protecting Canadians against
serious threats to their security, safety and well-being;
2 – to raise the threshold for information sharing from the relevance standard to the ―strictly
necessary‖ standard as provided in s.12 of the CSIS Act, in order to narrow the scope of
information sharing to reliable, effective and accurate information;
3 – to review the definition of ―activity that undermines the security of Canada‖ provided in s.2
of the Act, by ensuring that it includes real threats to the security of Canada and its borders, and
any activity that intends to unduly change or influence a Canadian government by the use of
unlawful means, as it should include the prohibition of any activity or operation that relates to
espionage, sabotage or covert foreign influenced activities as stated s. 2(c) of the Act. However,
the terms ―any activity‖ ―undermine the sovereignty‖ ―administration of justice‖, ―diplomatic or
consular relations‖, ―economic and financial stability‖ ―terrorism‖, should be withdrawn from
the Act, as they are broad in meaning which target ordinary peaceful Canadian individuals and

Chirine Haddad
29
organisations, as aforementioned, preventing them from expressing freely their dissenting
opinion according to the core democratic principles important to Canadians;
4 – To allow the federal Privacy Commissioner in collaboration with the provincial Privacy
Commissioners to exercise effective overview on the information sharing process to prevent
disastrous outcomes on the right to privacy. Such overview requires the empowerment of the
Privacy Commissioners to audit the type of information being collected and shared by CSIS and
various government institutions as well as aggregate number of records being monitored at any
giving point of time;
5- To abolish s.6 of the SCISA because it strikes the balance in the protection of privacy rights
by exposing massive personal and sensitive information to several unknown local and foreign
individuals and institutions, facilitating therefore, cybercrimes, security breaches and identity
thefts among other offences against Canadians and Canadian businesses.
7 – to adopt the recommendations offered by the Privacy Commissioner in his Submission to the
Standing Committee on Public Safety and National security of the House of Commons, in March
5, 2015.

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