Proposed changes to laws on timely access to information (Bill C-22 - Part 1)
Department of Justice Canada

Backgrounder

Oversight and Privacy

The Act proposes new tools to address the Supreme Court of Canada decisions in R. v. Spencer and R. v. Bykovets that obtaining basic information requires lawful authority.

The proposed tools would require that police explain how the information they seek relates to a crime and whether the information will help the investigation.

1. New investigative tools

Law enforcement has been clear; they need better tools to disrupt and combat crime in the digital age. At the same time, we need to make sure that Canadians’ privacy is protected. The Act would help law enforcement investigate threats earlier, act quickly in urgent situations, and confirm whether someone is using a service relevant to an investigation, so they can take the lawful steps needed to protect victims and respond to imminent threats. Two new tools, the confirmation of service demand and the subscriber information production order, address long-standing gaps in the investigative toolkit. These two new tools would not enable law enforcement to conduct warrantless searches of personal information.

Confirmation of service demand

The confirmation of service demand would allow police to quickly determine if a telecommunications provider, which includes Internet service providers, has information that will assist in the investigation of an offence. This is a key starting point to allow police to seek other authorities, such as a general production order, a court ordered tool that allows police to lawfully obtain higher levels of private information (including emails, text messages, photos, etc.). The confirmation of service demand only allows police to confirm a service - it is a “yes or no” question.

Why is this needed?

Since the Supreme Court of Canada decision in R. v. Spencer (2014), telecommunications providers generally only provide information if served with a court order. If law enforcement cannot identify who holds the relevant information, they may not be able to obtain a production order, because knowing the holder of the information is a necessary precondition. This gap can hinder police investigations.

Safeguards

• Telecommunications and internet service providers only: The confirmation of service demand could only be used for telecommunications or internet service providers. It could not be used for other service providers (for example, hotels, car rentals, medical facilities, etc.).
• Yes or no questions only: Police could not obtain details about individuals, transmission data, or evidence. They could only obtain yes or no confirmation of whether a service provider provides the service to the person in question.
• Reasonable suspicion: Police would need reasonable suspicion that a crime has been or will be committed, and that the information will assist in the investigation of that offence.
• No legal or medical information: The provision would clarify that a confirmation of service demand cannot be made if the confirmation discloses medical information or information that is subject to solicitor-client privilege.
• Time to respond: Police would need to give at least 24 hours to the telecommunications service provider to provide the confirmation from the time the service provider receives the demand.
• Review process: The service provider can apply to the court to challenge the demand. Service providers would have 5 business days to file an application for review and would not be required to hand over information until a court has made a final decision.
• Judicial oversight: A court may amend or revoke the demand if it finds that it would be unreasonable in the circumstances to require the applicant to provide the confirmation, or if doing so would disclose privileged information or other legally protected information.

Subscriber information production order

The subscriber information production order would be a narrower version of the general production order that already exists in the Criminal Code. A general production order is a court order that requires a third party who holds certain types of data or documents (for example, emails, text messages, photos, banking records, invoices, or logbooks) to deliver copies of this material to the police within a specified period. The subscriber information production order would only permit police to obtain basic identifying information provided by subscribers to a service provider, such as their name, address and email, linked to a particular account. As this tool only gives police access to information that is less privacy intrusive, its threshold is lower than the general production order. Police would need to have a reasonable suspicion and the subscriber production order would need to be authorized by a judge. This is similar to other narrowly focused production orders in the Criminal Code, such as the production order for tracking data, which allows police to access a person’s location history.

Why is this needed?

Since the Supreme Court of Canada decision in R. v. Spencer (2014), the general production court order has been the only tool available to police to obtain subscriber information. A general production order is designed for information with the highest privacy impacts, which can take time to get. The proposed new tool reflects the reduced privacy interests in obtaining subscriber information for a person of interest in a criminal investigation.

Safeguards

• Limited scope: The subscriber information production court order would be limited to information that may be used to identify the subscriber or client, including their name, alias, address, telephone number and email address.
• No private communications: Police could not obtain any other information other than subscriber information as defined and could not obtain any private communications or content using this tool (e.g., text messages or emails), which have higher privacy interests and would require another tool such as a general production order.
• Reasonable suspicion: Police would need to apply to a court and establish that they have reasonable grounds to suspect that a crime has been or will be committed. The police also need to satisfy the court that subscriber information will assist in the investigation and the person ordered to provide the information is in possession or control of it.
• Review process: The service provider could apply to the court to challenge the demand. Service providers would have up to 10 business days to file their application for review and would not be required to hand over information until a court has made a final decision.
• Judicial oversight: A court may amend or revoke the order if it finds that it would be unreasonable in the circumstances to require the applicant to provide the information, or if doing so would disclose privileged information or other legally protected information.

2. Clarifications

The Act proposes several clarifications to current laws, to make sure that they are aligned with today’s realities of criminal investigations.

Accepting receipt of voluntary disclosure that is providedto law enforcement

Law enforcement agencies sometimes receive information from people – for example, tips to police or victim reports.

Why is this needed?

Since the Supreme Court of Canada decision in R. v. Bykovets (2024), there have been inconsistent approaches in relation to whether police can receive and act on unsolicited information provided to them. The proposed changes make clear that if someone wants to voluntarily share information with police (i.e., Crimestoppers), additional authority such as a court order permitting collection of evidence is not required to simply receive the information someone is freely offering to the police.

Accepting information that must by law be provided to law enforcement

There are some circumstances where information must be reported to police. For example, reports and referrals from other law enforcement or those mandated by law, such as mandatory reporting of child sexual abuse.

Why is this needed?

Enabling law enforcement to review and assess information that must be reported without having to obtain court approval would prevent delays and avoid creating new barriers where none were intended. This would clarify that police can accept this information without going through an unnecessary process or asking a judge for approval.

Obtaining information that is already publicly available

In the digital age, there is a lot of information on the web that anyone can access (such as contact information on a public website). Police need to be able to use publicly available information from online places in their investigations the same way they currently use what is already publicly available in the physical world (such as an address from a public phone book or a business card).

Why is this needed?

This proposal confirms that police don’t need special powers to use information that anyone can access. Without this clarification, in some cases, there may be uncertainty about police requiring a warrant to verify their authority to obtain and use information that the public is allowed to see.

3. Emergency (exigent) circumstances

Canadian criminal law has long recognized that in emergency situations, police officers may act without first obtaining a court order (where one would otherwise be required). For example, an online live stream of a terrorist attack or the sexual abuse of a child, where law enforcement must act immediately.

Why is this needed?

Emergency circumstances justify police action to prevent serious injury, death or action in response to an immediate danger of the loss, removal, disappearance or destruction of evidence. This would codify the common law power of police to act in emergency situations, where third party holders have information critical to an investigation or a real-time intervention (for example, kidnapping or terrorist attack).

Safeguards

• Review process: As is currently the case, the courts would continue to have the ability to review the lawfulness of police action in exigent circumstances. The courts can review the use of emergency circumstances after the fact and impose strong consequences if they find that the exception was abused. These consequences include not allowing the information collected under the emergency circumstances clause to be used in court, dismissing the case or charges, judicial findings of police misconduct or abuse of process, and internal discipline.
• In line with current law: Police authority to obtain certain evidence in exigent circumstances has been recognized by the Supreme Court of Canada.

4. Cooperation requests with international partners

Crime is increasingly transnational – it can involve multiple countries and evidence of crimes is often found all around the world. The Bill would improve cooperation with international partners in responding to serious transnational crime and threats.

International requests for transmission data or subscriber information held outside of Canada

Why is this needed?

Data or information relating to crimes in Canada, particularly when involving telecommunications or social media, is often located outside of Canada. The new tool in the Criminal Code would provide a mechanism to work with Canada’s foreign partners, including, when necessary, through the mutual legal assistance frameworks while ensuring that Charter rights and privacy interests are respected. This would help keep investigations efficient. Further, it would standardize the manner in which Canadian law enforcement authorities request data production.

Safeguards

• Judicial approval: Police would need to apply to a court to be authorized to request subscriber information or transmission data from foreign service providers.
• Limited scope: Police would only be able to request subscriber information as defined in the Bill or transmission data as defined in the Criminal Code.
• Reasonable suspicion: Police would need to satisfy the court that they have reasonable grounds to suspect that a crime has been or will be committed in Canada, that the subscriber information or transmission data being asked for will help in the investigation and the foreign service provider has the information in its possession or control.

International requests for transmission data or subscriber information held in Canada

Why is this needed?

Data or information relating to offences committed abroad, particularly when involving telecommunications or social media, can sometimes be located in Canada. As we work with our international partners to support criminal investigations, it is important for them to have access to efficient cooperation tools, while we make sure that requests are compliant with Canadian law and Charter rights are respected. This would facilitate timely investigations. The complementary amendment to the Mutual Legal Assistance in Criminal Matters Act would provide Canada’s treaty partners with a process through which they can more efficiently access specified data held by Canadian service providers.

Safeguards

• Following Canadian laws: If the Minister of Justice authorizes a foreign partner’s request to have a foreign decision enforced in Canada, a Canadian court will then determine if the foreign decision for the production of specified data should be enforced in Canada. The court will apply Canadian law to make its determination, meaning that foreign authorities seeking this data from Canada would not be given more information than Canadian law enforcement would have a right to in relation to Canadian investigations.
• No foreign requests directly to Canadian service providers: Foreign law enforcement agencies would not have the power to make a request directly to Canadian service providers. They would continue to have to go through the Minister of Justice and the Canadian courts.
• Appeal process: Every citizen has the right to appeal court decisions.

Next steps

If the above provisions are enacted, they would:

• Come into force one year following Royal Assent.
• Be subject to Parliamentary review three years following its enactment to assess its effectiveness, following which Parliament may make recommendations for amendments.