Bill C-2: An Act respecting certain measures relating to the security of the border between Canada and the United States and respecting other related security measures

Tabled in the House of Commons, June 19, 2025

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-2, An Act respecting certain measures relating to the security of the border between Canada and the United States and respecting other related security measures, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-2 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.

• 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 to liberty (section 7)

Section 7 of the Charter protects against the deprivation of an individual’s life, liberty and security of the person unless done in accordance with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose. Offences that carry the possibility of imprisonment have the potential to deprive liberty and so must accord with the principles of fundamental justice.

• 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.

Part 1 - Customs Act

Part 1 would amend the Customs Act by enacting provisions to clarify and expand obligations on certain persons in order to support Canada Border Services Agency (CBSA) officers carrying out their mandate. Under the proposed measures, it would be explicitly clarified that owners or operators of specified bridges, tunnels, railways, airports, wharves or docks must provide, equip and maintain buildings, facilities and accommodations to permit the administration and enforcement of border-related legislation, which includes examination and detention of imported goods and goods destined for export. The proposed measures would also provide CBSA officers free access to sufferance and bonded warehouses, which may be used for the short-term storage and examination of imported goods not yet released by CBSA, and any place under a transporter’s control where goods destined for export are located. The proposed measures concerning CBSA examination of goods destined for export at these locations potentially engage the protection against unreasonable search or seizure under section 8 of the Charter.

The following considerations support the consistency of the measures with section 8. The examination powers would not be available for the purpose of furthering a criminal investigation.  Rather, they would be available for regulatory purposes, such as to verify compliance with export control requirements. Further, these are border control measures which are to be executed at specified locations when CBSA has established that the goods are destined for export. In these circumstances, privacy expectations are substantially reduced. Similar authorities within the border control context have been upheld by the courts as meeting the requirements under section 8 for a search or seizure to be reasonable.

Part 2 – Controlled Drugs and Substances Act

The Controlled Drugs and Substances Act (CDSA) provides a legislative framework for the control of substances that can alter mental processes and that pose risks to public health and public safety when used inappropriately or diverted to the illegal market. In general, and depending on the particular schedule in the CDSA on which a substance is listed, the CDSA prohibits any person from conducting activities such as production, sale, or provision, importation and exportation of controlled substances unless authorized by regulation or an exemption from the provisions of the CDSA. The CDSA also includes a process for bringing substances temporarily under the control of the Act. The Minister of Health can make an order to add a substance to Schedule V for a period of up to one year if the Minister has reasonable grounds to believe that the item poses a significant risk to public health or safety or that it may pose a risk to public health or safety and is either being imported into Canada or distributed within Canada for no legitimate purpose. This listing can be extended by up to one additional year.

Part 2 would amend certain provisions of the CDSA related to the temporary accelerated scheduling of controlled substances and precursors. Precursor chemicals are chemicals that are essential to the production of a controlled substance. While some precursor chemicals have legitimate uses, they can also be used in the illegal production of controlled substances, like fentanyl and fentanyl analogues. The proposed amendments to the CDSA would include re-enacting Schedule V to divide it into two parts, with controlled substances being listed in Part 1 and precursors being listed in Part 2. The proposed amendments would also make precursors listed in Part 2 of Schedule V subject to the Precursor Control Regulations to allow for strict federal oversight of legitimate activities involving these chemicals.

Except as permitted under the regulations or under an exemption, activities involving substances listed on Schedule V are subject to offences punishable by imprisonment. The proposed re-enactment of Schedule V, which at the time of the bill’s introduction includes four substances, affects the scope of existing offences under the CDSA. As such, it engages liberty rights protected under section 7 of the Charter and must accord with the principles of fundamental justice.

The following considerations support the consistency of the amendments with the Charter. In reviewing the proposed amendments, the Minister has not identified any potential inconsistencies with the principles of fundamental justice. A substance can only be included in Schedule V where there are reasonable grounds to believe that it poses a significant risk to public health or safety or that it may pose such a risk and is being imported into or distributed within Canada with no legitimate purpose. Legitimate uses of these chemicals are permitted, but subject to regulatory controls and licensing requirements in order to guard against the risks to public health and safety. The applicable offences are tailored to the legislative objectives under the CDSA and preserve the discretion of trial judges to impose a fit and appropriate sentence.

Part 4 – Canada Post Corporation Act

Part 4 proposes to amend the Canada Post Corporation Act (CPCA) to permit the demand, seizure, detention or retention of anything sent in the mail when it is done in accordance with an Act of Parliament. Currently, the CPCA only allows for the demand, seizure, detention or retention of posted mail when it is authorized by the CPCA and its regulations, the Canadian Security Intelligence Service Act, the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.Because the amendment would expand circumstances in which posted mail can be subject to search and seizure, it has the potential to engage section 8 of the Charter.

The following considerations support the consistency of the amendments with section 8. The purpose of the amendment is to promote the safety of the public and integrity of Canada’s postal system by enabling government officials to lawfully search and seize mail in order to effectively combat the distribution of contraband, such as fentanyl. The amendment would not create any new or independent authority to search, seize, detain, or retain mail. It would also not lessen the current requirements of lawful authorities to search, seize or detain that are provided under federal statutes but rather allow government officials to rely on these existing authorities, such as the search warrant powers under the Criminal Code and their requirement of judicial authorization on a “reasonable grounds to believe” standard. The police would still be required to obtain a warrant from a judge under the Criminal Code to lawfully search and seize mail in accordance with section 8 of the Charter. The police would also be required to report mail seizures to the court and seek detention orders under the Criminal Code to retain mail as evidence.

The bill also proposes to expand the Canada Post Corporation’s current authority to open mail under section 41(1) of the CPCA by removing the restriction placed on opening letters within the authority to open other kinds of mail. Currently, this provision only authorizes the opening of mail items other than letters. Because this inspection power would authorize the opening of letters, it has the potential to engage section 8 of the Charter.

The following considerations support the consistency of the amendments with section 8. As with all current inspections of mail, opening letters would be permitted only if there are reasonable grounds to suspect that certain legal requirements have not been complied with or the letter contains non-mailable matter, such as dangerous goods or contraband. The purpose of the amendment is to allow for the inspection of letters that may be improperly used to transport non-mailable matter, such as certain dangerous goods. The inspection power promotes important objectives, such as protecting the safety of the public and postal workers, preventing the postal system from being used for unlawful purposes, and assuring an efficient postal system. Furthermore, the inspection power would be available for the regulatory purpose of determining whether letters comply with the applicable rules of the postal system.

Part 5 - Oceans Act

Part 5 would amend the Oceans Act to add security-related activities as part of coast guard services, including conducting security patrols and collecting, analyzing and disclosing information or intelligence. It would also authorize the responsible Minister to collect, analyze and disclose information or intelligence in the conduct of these activities. The collection, use and disclosure of information has the potential to engage section 8 of the Charter.

The following considerations support the consistency of the amendments with section 8 of the Charter. The powers to collect, analyze and disclose information and intelligence are necessary to support coast guard services. They could only be used in support of the Minister’s responsibility for coast guard services under the Oceans Act, which includes matters related to the safe movement of ships in Canadian waters and marine pollution response, and not for other, broader or inconsistent purposes. These powers would not displace existing legal frameworks, such as the requirement for law enforcement and national security agencies to use specific lawful authorities where necessary.

Part 6 – Information Sharing – Immigration, Refugees and Citizenship

Information disclosure power

Part 6 proposes to amend the Department of Citizenship and Immigration Act to authorize the Minister of Citizenship and Immigration to disclose, for certain purposes, personal information under the control of the Department of Citizenship and Immigration. Specifically, the bill would allow the Minister of Citizenship and Immigration to disclose any personal information under the control of the Department of Citizenship and Immigration within the Department for the purposes of exercising the Minister’s powers or performing their duties or functions. It would also allow the Minister of Citizenship and Immigration to disclose certain personal information to other parts of the federal government, to a provincial government or to a federal or provincial Crown corporation for the purposes of administering or enforcing any federal or provincial laws.  These powers to disclose personal information potentially engage section 8 of the Charter.

The following considerations support the consistency of the provisions with section 8. The bill would limit disclosure of information within the Department for the purposes of the exercise of the Minister’s powers or performance of their duties or functions. The personal information that could be disclosed outside of the Department under these authorities is limited to only that which relates to the identity of an individual, their immigration or citizenship status in Canada, and the contents or status of documents issued to the individual, including information relating to the issuance, refusal, validity or termination of such a document. For example, information about an individual’s identity and immigration status could be disclosed to federal, provincial and territorial partners in order to confirm eligibility for benefit programs or other services. Disclosure outside of the Department would be subject to a written agreement or arrangement that would govern personal information, the purpose for disclosure, any limits on secondary use, onward transfer of personal information, and any other relevant details. It would also be prohibited for a provincial government or a provincial Crown corporation to disclose personal information that it receives under this authority to a foreign entity unless the disclosure is done with the written consent of the Minister of Citizenship and Immigration and in a manner that respects Canada’s international obligations in respect of mistreatment.

Part 7 – Immigration and Refugee Protection Act (In-Canada Asylum System)

Part 7 would amend the Immigration and Refugee Protection Act to provide that individuals whose claim for refugee protection was determined by the Minister to be withdrawn would not be eligible for a pre-removal risk assessment, unless 12 months have passed since the Minister made that determination, where no application was made to the Federal Court for leave to commence an application for judicial review of the Minister’s decision. Where such an application to the Federal Court is made, an individual would be entitled to a pre-removal risk assessment if 12 months have passed since the later of the day on which the Minister made the determination that the claim for refugee protection was withdrawn, or the day on which the Federal Court refused the application for leave to commence an application for judicial review or denied their application for judicial review, with respect to the Minister’s determination.

The bill would also extend the authority of the Minister of Citizenship and Immigration to exempt all or some foreign nationals from a given country from the twelve-month bar on access to a pre-removal risk assessment, described above, to address the possibility that conditions in a foreign national’s home country have changed such that the foreign national could face the possibility of removal to a situation of risk within that twelve-month period.

Because foreign nationals whose claim for refugee protection was determined by the Minister to be withdrawn would not be entitled to a pre-removal risk assessment for a period of 12 months, their right to liberty or security of the person protected by section 7 of the Charter could potentially be engaged by the prospect of removal.

The following considerations support the consistency of the proposed amendment with section 7 of the Charter. The Immigration and Refugee Protection Act regime protects against removal to situations of risk during the period when a foreign national is not eligible for a pre-removal risk assessment by providing for safeguards against removal. These include the ability of a foreign national to request a deferral of removal and for the Minister to grant an exemption from the pre-removal risk assessment bar if justified by humanitarian and compassionate considerations in accordance with section 25.1 of the Immigration and Refugee Protection Act.  Foreign nationals subject to the pre-removal risk assessment bar can also seek leave and judicial review of decisions made under Immigration and Refugee Protection Act and can seek a stay of removal.

Part 8 - Immigration and Refugee Protection Act (Certain Measures in Respect of Applications and Documents)

Part 8 proposes to amend the Immigration and Refugee Protection Act (IRPA) to expand legal authorities to strengthen control over immigration documents and by extension, migration to Canada. Among the proposed legislative amendments are measures to authorize the Governor in Council to make orders in the public interest (a) concerning the management of intake, suspension and termination of applications made by foreign nationals to obtain various immigration documents; and (b) relating to the cancellation, suspension and variance of active immigration documents held by non-Canadian citizens. These authorities are needed to effectively respond to a wide range of scenarios when it is in the public interest to do so in order to protect the public and integrity of Canada’s immigration system. Examples include cases of wide-scale fraud or system errors, pandemics, security flaws in issued documents, major irregular migration movements or cyber-attacks. Immigration documents subject to the amendments include but are not limited to permanent resident visas, permanent resident cards, temporary resident visas, temporary resident permits, electronic travel authorizations, work permits, and study permits.

Cancellation, Suspension and Variance of Immigration Documents

The proposed IRPA amendments would introduce authorities to allow the Governor in Council to make orders to cancel, suspend, or vary immigration documents and impose or vary conditions on temporary residents, where the Governor in Council is of the opinion that it is in the public interest to do so. The period of suspension and conditions, if any, is to be set out in the order. If a period is not specified, it is during the period in which the Governor in Council’s order is in force. These orders may apply to specific documents or individuals. An order that impacts persons who are in Canada must be made on the recommendation of the Minister of Citizenship and Immigration with the agreement of the Minister of Public Safety and Emergency Preparedness.

These orders made under the proposed IRPA amendments may be repealed or amended by order if the Governor in Council is of the opinion it is in the public interest. This authority lies with the Governor in Council or the Minister of Citizenship and Immigration if approved by the Governor in Council. If the repeal or amendment of orders affects persons who are in Canada, the Minister of Public Safety and Emergency Preparedness must also be in agreement with the repeal or amendment of the order.

The proposed measures to authorize the cancellation, suspension and variance of active immigration documents include the ability to impose specific conditions on document holders, such as undergoing a medical examination. These measures may interfere with inherently personal choices, such as whether to undergo certain medical procedures. Accordingly, these measures have the potential to engage liberty and security interests under section 7 of the Charter. The following considerations support the consistency of these measures with section 7.

The Governor in Council must be of the opinion that it is in the public interest to make an order that would result in the cancellation, suspension or variance of immigration documents. The duration of the suspension or conditions, if applicable, is temporary in nature. Furthermore, the initial order to cancel, suspend or vary documents may be repealed or amended if the circumstances have changed such that the Governor in Council is of the opinion that doing so is in the public interest. In addition, the cancellation, suspension and variance of immigration documents would have no immediate impact on the legal status of individuals who are already in Canada. For instance, the cancellation of an individual’s temporary resident visa under the order would mean that once they leave Canada, they cannot return without a new visa. However, the cancellation would not result in an immediate loss of their temporary resident status. Amendments would also ensure that the cancellation of a Temporary Resident Permit under this power would not result in loss of status. It is also a well-established principle of immigration law that non-citizens do not have an unqualified right to enter and remain in Canada; they must comply with the applicable rules of Canada’s immigration scheme.

Statutory Obligations of Persons Subject to a Public Interest Order and of Foreign Nationals Outside Canada

The proposed IRPA amendments would require persons who are subject to an order made in the public interest in relation to the cancellation, suspension or variance of immigration documents (“public interest order”) to: (a) answer truthfully all questions put to them that relate to the application of a public interest order; (b) produce a visa and all relevant evidence and documents that an officer reasonably requires for the purpose of the application of the public interest order; and (c) on request of an officer, appear for an examination including a medical examination that relates to the application of a public interest order. “Application” of the order, in this context, refers to the determination of whether an individual is the same individual or falls within the class of individuals that are subject to the order, and whether the individual has complied with the order’s requirements. For example, an examination may be conducted to confirm that a particular individual is actually captured by the scope of the order and has met the specific conditions imposed on their immigration document.

The proposed IRPA amendments would also require foreign nationals outside of Canada who hold immigration documents in the circumstances prescribed by the regulations to: (a) answer truthfully all questions put to them; (b) produce a visa and all relevant evidence and documents that an officer reasonably requires; and (c) on request of an officer, appear for an examination including a medical examination.

The proposed amendments that would require individuals to truthfully answer questions, provide all relevant evidence and documents, and appear for an examination, including a medical examination, potentially engage the liberty and security interests under section 7 of the Charter, which includes residual protections against self-incrimination. These obligations also have the potential to engage privacy interests protected by section 8 of the Charter because they could require individuals to provide personal information.

The following considerations support the consistency of these provisions with section 7 and section 8. Privacy interests are diminished in regulatory or administrative contexts. Statutory powers to require relevant information to be provided for regulatory or administrative purposes, rather than for the purpose of investigating criminal offences, have been upheld as reasonable under section 8. In the case of individuals who are the subject of a public interest order, an officer’s questions, request for evidence and documents, and the requirement to attend an examination must be specifically tied to the purpose of determining whether an individual is actually captured by the scope of the order and has complied with all of its requirements. This purpose is in furtherance of the primary objective of the order and related IRPA amendments to protect the public interest.

In the case of foreign nationals outside of Canada, the specific purpose of the new statutory obligations is to ensure that the foreign national continues to meet the requirements of the IRPA. An individual’s non-compliance with these obligations would not result in any penal consequences, such as imprisonment, but rather could result in their inability to lawfully enter Canada. In addition, any incriminating evidence obtained from the exercise of the new statutory powers may not be used in another proceeding against individuals if such use would violate the principle against self-incrimination.

Part 9 – Immigration and Refugee Protection Act (Ineligibility)

Part 9 would amend the Immigration and Refugee Protection Act to make certain claims ineligible for referral to the Refugee Protection Division of the Immigration and Refugee Board of Canada. As proposed, a claim would be ineligible for referral if refugee protection is claimed more than one year after an individual’s first entry into Canada after June 24, 2020. In addition, a claim is ineligible for referral if a claimant arrives in Canada between land ports of entry from the United States and makes a claim for refugee protection 14 days or more after the day on which they entered Canada. This is set out in subsection 159.4(1.1) of the Immigration and Refugee Protection Regulations.

In reviewing the Bill, the Minister has not identified any potential effects on Charter rights and freedoms. While an immigration removal has the potential to engage the rights to life, liberty, and security of the person under s. 7 of the Charter in certain circumstances, the proposed ineligibility provisions would not result in the immediate removal of foreign nationals and would not impact the ability of foreign nationals to access an evaluation of the risk they could face upon removal. Foreign nationals whose claims are found ineligible for referral to the Refugee Protection Division pursuant to the proposed ineligibility provisions would, prior to their removal from Canada, have access to a pre-removal risk assessment conducted by an IRCC officer trained to make such assessments. Subject to certain exceptions, for example, those found inadmissible on grounds of security or for violating human or international rights, a pre-removal risk assessment would provide an assessment of whether a claimant could face a risk of persecution, a danger of torture, a risk to their life or a risk of cruel and unusual treatment or punishment if removed from Canada, which are the same risks assessed by the Refugee Protection Division. A pre-removal risk assessment must be conducted in a procedurally fair manner, and could result in the person obtaining protected person status that would enable them to remain in Canada.

Part 10 - Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Various Measures)

Part 10 would make a number of amendments to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.

Prohibition on anonymous accounts

The bill would amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) to prohibit reporting entities (for example, banks and money services businesses) from opening anonymous accounts, or accounts for anonymous clients (that is, clients whose identity cannot be properly verified or is obviously fictitious). Since this prohibition would be an offence punishable by imprisonment under section 74 of the PCMLTFA, it has the potential to engage the right to liberty. Accordingly, in order to conform with section 7 of the Charter, the offence would have to be consistent with the principles of fundamental justice, including those against arbitrariness and overbreadth.

The following considerations support the consistency of the bill with the Charter. The new prohibition reflects the obligations that reporting entities already have to identify clients. Client identification is essential to the functioning of the reporting mechanism of the PCMLTFA scheme, as well as the various customer due diligence obligations in the scheme. In this manner, the prohibition would advance the PCMLTFA’s overall objectives of combating money laundering and terrorist financing.

Information Sharing – Commissioner of Canada Elections

The bill would amend the PCMLTFA to obligate the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) to disclose information to the Commissioner of Canada Elections, where it has reasonable grounds to suspect that designated information would be relevant to investigating or prosecuting a money laundering offence, a terrorist financing offence or a sanctions evasion offence, or where the information is relevant to threats to the security of Canada, and the information is also relevant to investigating or prosecuting an offence or violation under the Canada Elections Act, or an attempt to commit such an offence or violation. The information provided could consist of, for example, details of a suspicious financial transaction, including information identifying the parties to it.  As these amendments require the disclosure of information to a government agency, they have the potential to engage section 8 of the Charter, which guarantees the right to be secure against unreasonable search or seizure.

The following considerations support the consistency of these amendments with section 8 of the Charter. Disclosure is only authorized where FINTRAC has already developed reasonable grounds to suspect that the information would be relevant to the investigation of a money laundering, terrorist financing or sanctions evasions offence, or threats to national security, and so would already be obligated to disclose it to the appropriate police force and other agencies. Disclosure to the Commissioner of Canada Elections would be incidental to the existing disclosure obligations, and reflect the reality that information related to money laundering, terrorist financing, sanctions evasion and threats to national security can reveal information relevant to election-related offences and violations. The disclosure obligation would not extend FINTRAC’s mandate, but would allow additional disclosure of relevant information that is already being disclosed to police and other agencies.

Enrollment

The bill would require every reporting entity under the PCMLTFA to be enrolled with FINTRAC, and would include provisions governing applications for enrollment and renewal of enrollment, as well as circumstances in which enrollment may be denied or revoked. Enrollment involves the entity making an application to FINTRAC, after which, if various requirements are met, FINTRAC adds information about the entity to a roll that it maintains. As failure to enroll with FINTRAC would be an offence under section 74 of the PCMLTFA punishable by imprisonment, these measures have the potential to engage the right to liberty under section 7 of the Charter, and so would have to comply with the principles of fundamental justice, including the principles against arbitrariness and overbreadth.

The following considerations support the consistency of these amendments with the Charter. Enrollment would enhance the ability of FINTRAC to exercise its compliance role, by ensuring that FINTRAC has up to date information on entities that are subject to obligations under the PCMLTFA. This would enable FINTRAC, for example, to share guidance and relevant information with reporting entities, as well as to target compliance activities. It would also give FINTRAC an accurate picture of the number and types of entities that are subject to these obligations, which would assist in planning of compliance activities.

Compliance inspections

The bill would amend, by re-enacting, section 62(1) of the PCMLTFA, which relates to FINTRAC’s use of its compliance powers, including the power to enter premises and inspect records. The amendment would extend the application of these powers to situations where FINTRAC believes, on reasonable grounds, that an entity is a reporting entity for the purposes of the PCMLTFA. Since the powers referred to in this section can engage a reasonable expectation of privacy, they have the potential to engage section 8 of the Charter.

The following considerations support the consistency of these amendments with the Charter. The powers created by section 62 apply in a regulatory context where privacy expectations are diminished. Powers to gather, compel the production of or disclose relevant information for regulatory or administrative purposes, rather than for the purpose of investigating offences, have been upheld as reasonable under section 8 of the Charter. The standard of “reasonable grounds to believe” that the subject of the inquiry is an entity subject to the PCMLTFA’s compliance regime is a common standard applied in administrative and regulatory inspection contexts. If the location being inspected is a dwelling house, a warrant would be required.

Administrative Monetary Penalties and Compliance Orders

The bill would amend the PCMLTFA to increase the maximum administrative monetary penalty for prescribed violations to $4,000,000 (from $100,000) if the violation is committed by a person, and $20,000,000 (from $500,000) if the violation is committed by an entity. It would also introduce administrative monetary penalties for contravention of a compliance order, which are new types of orders created by the bill. Penalties for contravention of a compliance order would be up to a maximum of, in the case of a person, the greater of $5,000,000 or 3% of the person’s income from domestic and foreign sources and, in the case of an entity, the greater of $30,000,000 or 3% of the entity’s gross revenue from domestic and foreign sources. Given the possibility of substantial monetary penalties, these amendments could potentially be perceived as impacting section 11 Charter rights.

The following considerations support the consistency of the bill with the Charter. The process leading to the imposition of a monetary penalty would be administrative in nature. The purpose would be to encourage compliance with the Act rather than to punish. Penalties would either be fixed, or would be determined by taking into account the purpose of the penalty, the harm done by the violation, the ability of the person or entity to pay the amount, and any other criteria prescribed by regulation.

Offence – Disclosure of reports

Section 7 of the PCMLTFA currently requires certain persons and entities to report to FINTRAC where they have reasonable grounds to suspect that a transaction or attempted transaction is related to the commission or attempted commission of a money laundering, terrorist financing, or sanctions evasions offence. The bill would re-enact section 76 of the PCMLTFA, which makes it an offence for a person or entity to disclose the fact that they have made, are making, or will make a report under section 7 of the PCMLTFA, or disclose the contents of such a report, with the intent to prejudice a criminal investigation. Since this offence is punishable by imprisonment, it has the potential to engage the right to liberty. Accordingly, in order to conform with section 7 of the Charter, the offence must be consistent with the principles of fundamental justice, including those against arbitrariness and overbreadth.

The following considerations support the consistency of the bill with the Charter. The offence in question is meant to prevent reporting entities from “tipping off” those they suspect of money laundering, terrorist financing or sanctions evasion. A “tip off” from reporting entities would make it easier for persons suspected of these offences to thwart eventual investigation of these crimes, for example by moving assets or destroying evidence. The behaviour caught by the offence is therefore directly related to the objectives of combating money laundering, terrorist financing and sanctions evasion. The offence is further narrowed by requiring an intent to prejudice a criminal investigation.

Offence – Reporting

The bill would re-enact section 77 of the PCMLTFA, which makes it an offence not to make a report required by the PCMLTFA. Since this offence is punishable by imprisonment, it has the potential to engage the right to liberty. Accordingly, in order to conform with section 7 of the Charter, the offence must be consistent with the principles of fundamental justice, including those against arbitrariness and overbreadth.

The following consideration support the consistency of the bill with the Charter. The mandatory reporting of suspicious transactions is one of the key elements of the PCMLTFA scheme, and is the basis for FINTRAC to perform its analysis function. The offence for failure to provide a report directly advances the objectives of combating money laundering and terrorist financing.

Offence – False or misleading statements

The bill would re-enact the offences under section 77.1 of the PCMLTFA of making false or misleading statements or providing false or misleading information to FINTRAC, would clarify that these offences can be committed by omission, and would expand these offences by adding the withholding of material information. These offences apply only to persons or entities that are required to provide information to FINTRAC and persons carrying out functions under the PCMLTFA. Since these offences are punishable by imprisonment, they have the potential to engage the right to liberty. Accordingly, in order to conform with section 7 of the Charter, the offences must be consistent with the principles of fundamental justice, including those against arbitrariness and overbreadth.

The following considerations support the consistency of these offences with section 7 of the Charter. Requiring that persons and entities provide complete, accurate and non-misleading information to FINTRAC helps ensure the effectiveness of the various requirements to provide information. Requiring that persons performing functions under the PCMLTFA provide accurate, complete and non-misleading information to FINTRAC helps protect against the possibility of fraud and collusion by officials. In both cases, the behaviour caught by the offences is directly related to the purpose of ensuring the effectiveness of the PCMLTFA scheme.

Part 11 - Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Cash Transactions)

Part 11 would prohibit certain deposit-taking institutions from accepting cash deposits into an account from a depositor who is not the holder of the account or authorized to give instructions on the account, except in prescribed circumstances. As this prohibition would be punishable as an offence with the possibility of imprisonment, it engages the right to liberty. Accordingly, in order to conform with section 7 of the Charter, the prohibition must be consistent with the principles of fundamental justice, including those against arbitrariness and overbreadth.

The following considerations support the consistency of this prohibition with section 7. The prohibition is aimed at countering the known problem of criminals circumventing the know-your-client requirements of the PCMLTFA by receiving cash from anonymous sources into a bank account. The behaviour caught by the offence is therefore directly related to the objectives of combating money laundering and terrorist financing. The ability to prescribe circumstances under which the prohibition would not apply allows for the tailoring of the prohibition in relation to its purpose.

Part 12 - Legislation Related to Financial Institutions (Supervisory Committee)

Part 12 would amend the Office of the Superintendent of Financial Institutions Act (OSFI Act) to add the Director of FINTRAC to the Financial Institutions Supervisory Committee. This committee’s purpose is to share information related to the regulation of federally regulated financial institutions, and currently includes the Superintendent of Financial Institutions, the Commissioner of the Financial Consumer Agency of Canada, the Governor of the Bank of Canada, the Deputy Minister of Finance, and the CEO of the Canada Deposit Insurance Corporation. The relevant provisions in the OSFI Act obligate members of the committee to share with other members any information requested on matters relating directly to the supervision of these institutions. The amendments would clarify that the Director of FINTRAC would only be permitted to share information relating to the compliance of institutions with Parts 1 and 1.1 of the PCMLTFA. Since these amendments allow for the sharing of information collected pursuant to compliance powers for a new purpose, they have the potential to engage section 8 of the Charter.

The following considerations support the consistency of these amendments with the Charter. FINTRAC, like the other organizations currently represented on the committee, plays an important role in the supervision of federally regulated financial institutions. Information related to the compliance of financial institutions with PCMLTFA obligations is relevant to the supervision of these institutions more generally, as a lack of compliance can be an indicator of some of the business risks faced by an institution. The information that could be shared with the committee would be limited to compliance information that relates directly to the supervision of these institutions. It would not include, for example, information relating solely to FINTRAC’s intelligence mandate. The sharing of compliance information serves the broader goals of FINTRAC’s compliance activities in terms of mitigating the risk to the financial system posed by money laundering and terrorist financing, by helping ensure that other regulatory bodies are made aware of information that relates to their mandate and can take action where appropriate

Part 13 - Sex Offender Information Registration Act

The National Sex Offender Registry is an important law enforcement tool that provides police with timely access to current and reliable information on registered sex offenders. The legal framework for the registry is set out in the Criminal Code and the Sex Offender Information Registration Act (SOIRA). The Criminal Code creates the power to require individuals to comply with SOIRA. A similar power is set out in the National Defence Act for military personnel. SOIRA sets out the specific obligations with which registered sex offenders must comply, such as providing up-to-date information about their place of residence or travel. SOIRA also sets out the parameters on the ability to access, use and disclose any information collected under the statute.

The proposed amendments to SOIRA in Part 13 would expand the current purpose of the law, which is to help police prevent and investigate sex crimes by requiring the registration of certain information relating to sex offenders. The amendments would include “other law enforcement agencies” within the existing purpose provisions of SOIRA. The proposed amendments would also enhance the ability of the Royal Canadian Mounted Police (RCMP) to share information collected under SOIRA with domestic and international law enforcement partners. In addition, the proposed amendments would allow the Canada Border Services Agency (CBSA) to disclose certain information about registered sex offenders with law enforcement agencies for the purposes of administering and enforcing SOIRA.

The Collection of Identifying Information

The proposed amendments would permit authorized persons to photograph registered sex offenders and record any physical characteristics that may assist in identifying the offenders, including their eye colour, hair colour and any tattoos and distinguishing marks. As these amendments allow for the collection of personal information, they have the potential to interfere with a reasonable expectation of privacy and therefore engage section 8 of the Charter.

The following considerations support the consistency of the amendments with section 8. The purpose of the proposed amendments is to clarify that the current provision of SOIRA – which permits the recording of “any observable characteristics that may assist in identifying the sex offender” – would permit the collection of physical characteristics that may not be easily observable, such as tattoos and distinguishing marks. Registered sex offenders generally have diminished privacy interests in their identifying information because their identity, as a convicted offender, is already known to the state. Furthermore, recording and photographing are a relatively non-intrusive means of collecting information. Finally, the amendments promote the objectives of SOIRA by authorizing the collection of information that can help to accurately identify registered sex offenders.

Obligation to Report Changes in Vehicle Information

The proposed amendments to SOIRA would obligate registered sex offenders to report a change to the plate number, make, model, body type, year of manufacture or colour of a motor vehicle that is registered in their name or that they use regularly. This information must be reported within seven days after the change or fifteen days after the change for military personnel convicted by a court martial and who are required to report under the National Defence Act. Because the amendments authorizing the collection of vehicle information have the potential to interfere with privacy interests, they may engage section 8 of the Charter.

The following considerations support the consistency of these amendments with section 8. Sex offenders are already required to provide the same type of vehicle information under SOIRA. The specified vehicle information they must provide does not reveal highly sensitive information about individuals. Furthermore, sex offenders are currently obligated to report changes to other types of information about themselves, such as their name and place of residence, within the same time periods. Requiring registered sex offenders to provide this information strikes a reasonable balance between privacy and the objectives of SOIRA by ensuring that police and law enforcement agencies have accurate and up-to-date information.

CBSA’s Consultation of SOIRA Information

The proposed SOIRA amendments would allow CBSA officials to consult information collected under the statute to exercise the functions and duties assigned to them under an Act of Parliament. Because the amendments would permit access to personal information, they have the potential to engage section 8 of the Charter.

The following considerations support the consistency of the amendments with section 8. CBSA officials may consult information collected under SOIRA for the limited purpose of carrying out their lawful duties as set out under Canada’s border laws. For example, CBSA officials may access SOIRA information to inform how they may exercise their statutory authorities to examine individuals and their imported goods at the border under the Customs Act and the Immigration and Refugee Protection Act. In doing so, the amendments contribute to important objectives of preventing the importation of contraband, such as child sexual exploitation material. Furthermore, SOIRA currently permits CBSA officials to collect and receive information about sex offenders in certain circumstances.

CBSA’s Disclosure of Certain Information

The proposed SOIRA amendments would allow the CBSA to disclose the following information about registered sex offenders to law enforcement agencies for the purpose of the administration or enforcement of the statute:

• the surname, first name and middle names, any alias, the date of birth, the citizenship or nationality and the sex of the sex offender;
• the type and number of each travel document that identifies the sex offender and the name of the country or organization that issued it;
• the date, time and place of the sex offender’s departure from Canada, their country of destination, the date, time and place of their arrival in Canada and the last country from which they arrived; and
• in the case of an arrival in or departure from Canada by aircraft, the flight code that identifies the air carrier, as defined in section 3(1) of the Aeronautics Act, and the flight number.

These amendments permit the disclosure of personal information which has the potential to interfere with a reasonable expectation of privacy so as to engage section 8 of the Charter.

The following considerations support the consistency of these amendments with section 8. The information that may be disclosed by the CBSA is limited to biographical and travel-related information which is not highly sensitive in nature. Furthermore, the CBSA is currently authorized under SOIRA to collect similar types of information, such as a sex offender’s entry/exit dates to and from Canada, which it may disclose to the Commissioner of the RCMP for SOIRA-related objectives. Finally, the CBSA may only disclose the specific types of information to law enforcement agencies for the purpose of administering and enforcing SOIRA, such as by allowing the RCMP to verify when a registered sex offender has specifically departed and returned to Canada and compare this information with what the offender has self-reported.

Enhanced Information-Sharing under SOIRA

The proposed amendments to SOIRA would aim to enhance the sharing of information about registered sex offenders in several ways:

• Replacing the current “necessary” threshold in a number of existing disclosure provisions (that permit the disclosure of SOIRA information to domestic and international police services and the CBSA) with the “reasonable grounds to believe” threshold that the disclosure will assist law enforcement agencies – which in specific instances could include law enforcement agencies outside of Canada – in preventing or investigating sex crimes;
• Allowing for the disclosure of information to a victim of or witness to a sex crime if there are reasonable grounds to believe that the disclosure will assist law enforcement agencies in the investigation of the crime; and
• Permitting the disclosure of information to all levels of Canadian government departments and agencies or an Indigenous governing body if there are reasonable grounds to believe that the disclosure will assist in the prevention or investigation of a sex crime.

Because these amendments would authorize the disclosure of personal information, they have the potential to engage section 8 of the Charter.

The following considerations support the consistency of these amendments with section 8. The relevant disclosure threshold is “reasonable grounds to believe” that the information will assist in the prevention and/or investigation of a sex crime. This threshold has been upheld by the Supreme Court of Canada as a robust standard under section 8 of the Charter in contexts where prior judicial authorization is not required. In addition, the purpose of the disclosure is tailored to the stated objective of SOIRA – as amended by the proposed amendments – to help police and law enforcement prevent and investigate sex crimes using the information collected under SOIRA.

Part 14 – Timely Access to Data and Information

Part 14 would make a number of amendments to the Criminal Code, Mutual Legal Assistance in Criminal Matters Act and the Canadian Security Intelligence Service Act, in respect of timely access to data and information by law enforcement and the Canadian Security Intelligence Service (CSIS).

Information demand

The bill would authorize an officer to make a demand to a person who provides services to the public, to confirm whether the person provides or has provided services to a particular subscriber, client, account or identifier. The demand would also require the person to provide general information about the nature of the services, including the dates during which services were provided, the province, country or municipality where the services were provided, and whether the person is in possession of other information in relation to those services. These demands could only be made if the officer has reasonable grounds to suspect that an offence has or will be committed and that the information will assist in the investigation of an offence. As this power would enable police to obtain information linked to a person, it could be perceived as having effects under 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 services provided, and would not reveal the contents of any communications, or any other details in relation to the services provided. The information 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. 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.

Request for information

The bill clarifies, for greater certainty, that no information demand is necessary for a police officer to ask a person to voluntarily provide the information that could be the subject of an information demand. As this provision governs the circumstances under which police may obtain information, it could be perceived as engaging section 8 of the Charter.

The following considerations support the consistency of this provision with section 8. The information sought would be basic information about the nature of services provided, and would not reveal the contents of any communications, or any other details in relation to the services provided. 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. 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 amendment merely clarifies that the new demand power does not displace the existing ability of police to ask questions about basic information such as the existence of a service relationship.

Production order – Subscriber Information

The bill would allow a judge to issue an order, to a person who provides services to the public, to prepare and produce a document containing all the subscriber information that is specified in the order and that is in the possession or control of the person when they receive the order. The judge would have to be satisfied that an offence has or will be committed and that there are reasonable grounds to suspect that the information will assist in the investigation of an offence. Since this provision would authorize the compulsion of information that could in certain circumstances engage a reasonable expectation of privacy, it could have effects under section 8 of the Charter.

The following considerations support the consistency of the amendments with section 8. The information sought - subscriber information and transmission data - does not by itself constitute sensitive information, since it is limited to information that identifies clients and services, and does not include the contents of communications. The “reasonable grounds to suspect” standard is a recognized threshold for searches in the criminal context. These orders would generally be sought at early stages of an investigation to generate leads, prior to the point at which officers are able to establish the “reasonable grounds to believe” threshold used for general production orders. The order would not be directed at the person who is under investigation for the offence for which evidence is being sought, and so would not require someone to incriminate themselves. The judge would have discretion as to whether to issue an order, and if they choose to issue an order, the judge would have discretion as to what information is specified in it.

Voluntary or compelled provision of information, and publicly available information

The bill would clarify, for greater certainty, that no production order, warrant, or information demand is necessary for a police officer to receive or act on information if a person provides it voluntarily, or is required by law, including the law of a foreign state, to provide it. As this provision governs the circumstances under which police may obtain information, it could be perceived as engaging section 8 of the Charter.

The following considerations support the consistency of this provision with section 8. This provision merely clarifies that the production order, warrant and information demand powers are not meant to displace the existing ability of police to receive information that is voluntarily provided to them by people lawfully in possession of it – for example, victims or witnesses of crime. Instances where persons voluntarily offer information lawfully in their possession to police do not involve state action that engages the Charter.

Publicly available information

The bill would clarify, for greater certainty, that no production order, warrant, or information demand is necessary for a police officer to receive or act on information that is available to the public. As this provision governs the circumstances under which police may obtain information, it could be perceived as engaging section 8 of the Charter.

The following considerations support the consistency of this provision with section 8. This provision merely clarifies that the production order, warrant and information demand powers are not meant to displace the existing ability of police to receive, obtain and act upon information that is available to the public. Where information is available to the public, a person will usually have no reasonable expectation of privacy in it.

Offence – information demand

The bill would make it an offence to contravene an information demand made under the proposed new information demand power. Since this offence would be punishable by imprisonment, it engages the right to liberty under section 7 of the Charter.

The following considerations support the consistency of this offence with section 7. In reviewing the relevant provisions, the Minister has not identified any potential inconsistencies with the principles of fundamental justice. The offence gives practical effect to the proposed information demand power, by helping ensure compliance with demands.

Request to foreign entity

The bill would allow a judge to authorize an officer to make a request to a foreign telecommunications service provider for transmission data or subscriber information. As with the production order just described, the judge would have to be satisfied that there are reasonable grounds to suspect that the information would assist in the investigation of an offence. Since this provision could provide law enforcement with access to information that could be subject to a reasonable expectation of privacy, it could potentially engage section 8 of the Charter.

The following considerations support the consistency of the amendments with section 8. The information sought - subscriber information and transmission data - does not by itself constitute sensitive information. The “reasonable grounds to suspect” standard is a recognized threshold for searches in the criminal context. These orders would generally be sought at early stages of an investigation to generate leads, prior to the point at which officers are able to establish the “reasonable grounds to believe” threshold used for general production orders. The judge would have discretion as to whether to issue an order, and if they choose to issue an order, the judge would have discretion as to what information is specified in it.

Exigent circumstances

The bill would extend the current ability of police officers to exercise certain powers without a warrant in situations where exigent circumstances make the obtaining of a warrant impractical – for example, where the delay could lead to evidence being lost or to a threat to safety. This ability would be extended to include the power to install a transmission data recorder, and the power to seize subscriber information. Since these powers allow for the collection of information that could attract a reasonable expectation of privacy, they could potentially engage section 8 of the Charter.

The following considerations support the consistency of these amendments with section 8. The power of police, in exigent circumstances, to conduct searches that would otherwise require a warrant has long been recognized at common law, and found reasonable under the Charter. The amendments would clarify that this power applies to the specific situations of transmission data recorders and subscriber information seizures, which engage similar privacy interests to those already authorized under exigent circumstances.

Tracking device – similar things

The bill would amend the existing power regarding warrants for tracking devices. In cases where a tracking warrant relates to a thing that a person uses, carries or wears, the bill would allow a judge to authorize officers to obtain tracking data relating to a thing not known at the time that the warrant is issued, if the judge has reasonable grounds to suspect that the person will use, carry or wear that thing. The availability of this additional power is made necessary by the reality that a person may use, carry or wear different devices at different times, making it impractical to seek a new warrant each time a new device is discovered. The new power would allow the judge, at the time the initial warrant is issued, to reasonably craft its scope to include the tracking of things that are similar to the specific thing contemplated by the warrant. Since the power would allow the obtaining of information that could attract a reasonable expectation of privacy, it could potentially engage section 8 of the Charter.

The following considerations support the consistency of the amendments with section 8. The additional authorization would, as with the existing tracking warrant power, have to be authorized by a judge on the basis of reasonable suspicion, which is a threshold recognized in caselaw for obtaining tracking data. The nature of the data being obtained, and the privacy interests at stake, are the same as those for the initial tracking warrant.

Transmission data – means of telecommunication

The bill would amend the existing power regarding warrants for transmission data. Where a transmission data warrant relates to a means of telecommunication used by a person, the judge may, in the warrant, authorize officers to obtain transmission data that relates to other means of telecommunication that are unknown at the time the warrant is issued, where the judge has reasonable grounds to suspect that the person will use the other means of telecommunication. Since the power would allow the obtaining of information that could attract a reasonable expectation of privacy, it could potentially engage section 8 of the Charter.

The following considerations support the consistency of the amendments with section 8. The additional authorization would, as with the initial warrant, have to be authorized by a judge on the basis of reasonable suspicion. The availability of this additional power is made necessary by the fact that a person may use multiple means of telecommunication at different times, making it impractical to seek a new warrant each time a new means of telecommunication is discovered. The nature of the data being obtained, and the privacy interests at stake, are the same as those for the initial transmission data warrant.

Examination of computer data

The bill would allow a judge, in granting a search warrant, to authorize the examination of computer data seized under the warrant, or contained in or available to a computer system seized under the warrant. It would also allow a judge to issue a standalone warrant for examination of data contained in or available to a computer system that is already in the possession of police. In both cases, the judge would have to be satisfied that there are reasonable grounds to believe that the computer data will afford evidence with respect to the commission of an offence. Currently, police generally perform such examinations through applications for a search warrant under section 487 of the Criminal Code, which is primarily designed to authorize entry on to private premises and seizure of tangible property. As the examination of computer data could engage a reasonable expectation of privacy, it could have effects under section 8 of the Charter, which protects against unreasonable search and seizure.

The following considerations support the consistency of these amendments with section 8. Examination of computer data would be judicially authorized, in advance, on a “reasonable grounds to believe” standard, which is the default standard for authorizing searches in a criminal context. The judge would be able to impose conditions, including for example that the examination be limited to a specified class of computer data, and that the extraction of such data be performed by someone who is not otherwise involved in the investigation. This can limit the extent to which the investigators may be inadvertently exposed to data that is outside the scope of the warrant. Police would also have to provide a copy of the warrant to the owner or person in possession of the computer system, or the person under investigation whose data is being sought. This helps ensure an effective opportunity for these persons to challenge the warrant. A judge could extend the deadline for notice, up to three years, where such an extension would be in the interests of justice.

Mutual Legal Assistance in Criminal Matters Act

The bill would amend the Mutual Legal Assistance in Criminal Matters Act to allow the Minister of Justice, on receipt of a request from a foreign state or entity for enforcement of a decision to compel the production of transmission data or subscriber information, to authorize a competent authority to make arrangements for the enforcement of that decision. The competent authority would have to apply ex parte to a judge for enforcement of the decision, and the judge would have to be satisfied that the relevant criteria were met under the Criminal Code provisions governing production orders for transmission data or subscriber information. Since these amendments would authorize the compulsion of information that could attract a reasonable expectation of privacy, they could have effects under section 8 of the Charter.

The following considerations support the consistency of the amendments with section 8. The amendments would preserve, for these foreign demands, the requirement in domestic law of prior judicial authorization, and the applicable threshold of reasonable suspicion for police to obtain this information.

Canadian Security Intelligence Service Act – Information Demands and Information Orders

The bill would amend the Canadian Security Intelligence Service Act to authorize CSIS, for the purpose of performing its functions under its security intelligence and foreign intelligence mandates, to make a demand to a person who provides services to the public, to confirm whether the person provides or has provided services to a particular subscriber, client, account or identifier. The information demand would also require the person to provide general information about the provision of the services, such as the dates during which services were provided, the province, country or municipality where the services were provided, and whether the person has records in relation to those services. The amendments would also authorize CSIS, where a person fails to comply with an information demand, to apply to a judge for an order to provide the information. As these powers would enable CSIS to obtain information linked to a person, it could be seen as having effects under 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 services provided, and would not reveal the contents of any communications, or any other details in relation to the services provided. The information provided would be used primarily as part of applications to obtain further warrants or production orders, pursuant to existing powers set out in the CSIS Act. The recipient of a demand would be able to challenge it in front of a judge, and would not be obliged to comply until a final decision is made. The information demand power would only be available for the purpose of CSIS’s security intelligence and foreign intelligence mandates, and a judge would only be able to issue an information order where satisfied that the information would assist CSIS in performing its duties under those mandates.

Part 15 – Supporting Authorized Access to Information Act

Overview

Part 15 would establish a regulatory framework to support lawful access activities. Lawful access, which refers to the process by which law enforcement agencies and the Canadian Security Intelligence Service (CSIS) use legally authorized powers to obtain information and assistance from electronic service providers (ESPs), is a tool used to support investigative and intelligence gathering activities at the federal, provincial and municipal levels. The bill would support activities conducted under existing legal authorities, which are found in the Criminal Code and the Canadian Security Intelligence Service Act. The provisions would not grant any new authorities to lawfully access information and data or expand or derogate from any existing authorities for such access.

The framework introduced by the bill would aim to ensure that ESPs have the capabilities to give effect to existing authorities for national security and law enforcement agencies to access information. To do this, the bill would establish mandatory operational requirements for certain classes of ESPs, the “core providers”, to develop and maintain lawful access capabilities, including with respect to accessing certain data. It would also allow the Minister of Public Safety to issue ministerial orders to require an ESP to develop capabilities that fall outside of the general requirements or to develop capabilities if they are not a core provider. Before making an order, the Minister would be required to allow an opportunity for the affected ESP to make representations and would also be required to consult the Minister of Industry.

Compliance with the new regulatory requirements, including ministerial orders, would be enforced by an administrative monetary penalty (AMP) regime, as well as offence provisions. The bill would also include several authorities to make regulations in order to support compliance with the new requirements under the Act, including with respect to record-keeping and reporting, as well as the confidentiality and security of information.

Non-disclosure of information regarding Ministerial Orders

The bill would prohibit ESPs from disclosing information about the existence or content of a ministerial order, as well as information regarding temporary exemptions and systemic vulnerabilities, except as permitted under the Act or under the Canada Evidence Act. This would include information on which the Minister relied in making an order, as well as the existence of, or information disclosed in the course of, representations made by ESPs prior to the Minister having made an order.Disclosure of information contrary to the confidentiality requirements of the Act would constitute a violation or an offence, for which a person could be liable to a fine (see below).Because the Act would place limits on what persons could communicate to others, it has the potential to engage the right to freedom of expression under section 2(b) of the Charter.

The following considerations support the consistency of the non-disclosure provisions with the Charter. These provisions pursue the important objective of protecting sensitive capacity-related information regarding certain technical operations of certain targeted ESPs, which by extension, would provide insight into the interests, capacity, and limitations of law enforcement and national security agencies. To achieve this objective, the provisions would place limits on communication about the technical capabilities of ESPs, which are commercial entities. While restrictions on commercial speech can engage the right to freedom of expression, they usually do not implicate the core values of the right. These include the search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process. Rather, the restrictions would be narrowly focused on the existence and contents of orders, exemptions and systemic vulnerabilities, all linked to the objective of protecting sensitive information. Limits on expression that do not engage the core values of the right are more easily justified.

Inspection and production powers

The bill would authorize designated persons to enter places and conduct inspections for the purpose of verifying compliance or preventing non-compliance with the Act or regulations. Prior to entering a place, the bill would require that designated persons have reasonable grounds to believe that anything relevant to verification or prevention is located in that place, or that an activity regulated by the Act is conducted in that place. The provisions would also authorize the Minister or a designated person to make an order requiring an ESP to conduct an internal audit for the purpose of verifying compliance or preventing non-compliance with the Act, and to provide a report with the results of the audit, including if the ESP determines there is non-compliance. The power to enter and inspect places, and the requirement for ESPs to provide information to designated persons, potentially engage section 8 of the Charter.

The following considerations support the consistency of the provisions with section 8. Privacy interests are diminished in the regulatory and administrative contexts. The powers would be available for the regulatory purpose of verifying compliance and preventing non-compliance with the Act. Further, information gathered in this context would generally relate to technical capabilities of ESPs, which would not attract a heightened privacy interest. In addition, the powers would not be available for the purpose of advancing a penal investigation. The proposed powers are similar to regulatory inspection powers that have been upheld in other contexts.

Offences and Administrative Monetary Penalties (AMPs)

The bill includes an administrative penalty regime for violations of certain provisions of the Act or regulations. If a designated person has reasonable grounds to believe that a person has committed a violation, they may issue a notice of violation. The amount of a penalty is to be established in accordance with the regulations, however the Act would limit the maximum amount of an AMP to $50,000 for an individual and $250,000 for a corporation or other non-natural person. Opting to issue an AMP for a contravention of the Act would preclude prosecuting that contravention as an offence, and vice-versa.

The following considerations support the consistency of the AMP regime with section 11 of the Charter. The penalty regime would be administrative in nature, and its penalties would not have “true penal consequences.” The bill would specify that the purpose of the penalties would be to promote compliance with the Act and regulations, and not to “punish”. Further, the AMPs would not be subject to a mandatory minimum fine, and as an alternative to paying the penalty, an individual could request to enter into a compliance agreement with the Minister, which could include reducing the penalty in part or in whole. The possibility that a substantial monetary penalty may be imposed does not engage section 11. Properly construed and enforced, this new regime would not allow penalties with “true penal consequences.”

In addition, the bill would make it an offence to contravene specified provisions of the Act or regulations. These include, for example, summary offences for contravening a ministerial or compliance order, failing to comply with inspection and audit requirements, and disclosing confidential information. For the purpose of these offences, individuals may be liable for acts or omissions committed by an employee or agent or mandatary. Further, directors, officers or agents may be liable for an offence committed by a corporation or other non-natural person if they “directed, authorized, assented to, acquiesced in, or participated in” the commission of an offence. Upon conviction, the offences would be punishable by a maximum amount of $100,000 in the case of an individual, and $500,000 for a corporation or other non-natural person. A person would not be found guilty of these offences if they establish that they exercised due diligence to prevent the commission of the offence.

Further, the bill would make it an offence to knowingly obstruct or hinder persons carrying out their functions or duties under the Act, or to knowingly make a false statement to any such person. A person who is found guilty of an obstruction or false statement offence would be liable on summary conviction to a fine of not more than $25,000 for an individual (or $50,000 for each subsequent offence), and $100,000 for a corporation or other non-natural person (or $250,000 for each subsequent offence).

A person who is liable to a fine under the offence provisions of the Act would be subject to charges and proceedings that could engage rights under section 11 of the Charter. In particular, liability for the actions of employees, agents and mandataries could be perceived as engaging section 11(d) of the Charter, which guarantees fair trial rights.

The following considerations support the consistency of the offences with section 11(d). The offences are regulatory in nature, as opposed to “true crimes,” and are not punishable by imprisonment. While a person could be liable for the actions of an employee, agent or mandatary, they are able to raise as a defence that they exercised due diligence to prevent the commission of the offence.