Ugh, Canada! Our Northern Neighbor Is Aiming to Make Internet Privacy a Lot Less Priv

The NSA probably has this capability already, Greg. It's not something they would advertise, but I'll bet that it is already in widespread use.

I also found the storey in the toronto sun but it seems kind of speculative to me given there is now bill yet and the conservatives didn't say much about what they are going to propose.

I don't think we should continue the auto link from that guy's blog, but it's not my forum. With an auto link, we have no idea what the guy is blogging and can't check it for credibility.

It also looks like Greg is posting the blog, but he's not, it's an auto feed.

To save people the search. Here are two sources for the story:

http://www.ottawasun.com/2011/08/25/...t-spy-law-poll
http://cnews.canoe.ca/CNEWS/Canada/2.../18601626.html

The author is: Jessica Murphy, Parliamentary Bureau

I haven't found anything on google about her or anything about what the title "Parliamentary Bureau" means.

From todays issue of the calgary metro (page-6)
Calgary Metro

The bill will:
1)Make telecom providers install surveillance software, allowing police to track internet and mobile-phone activity.
2)Allow police to detain terrorism suspects for up to three days without charges.
3)Let judges jail witnesses who won't testify about terrorism.

Point 2 goes against your right to be informed of the charges against you upon arrest. This is a protection in the charter or rights and freedoms so I don't think it will stand up in court.

With regards to point 1. Private communication is protected in the United States. I don't know if it is protected in Canada but we do have protection against unreasonable search and hence have some privacy in this regards. Given that there is no mention of a warrant required to install this software, this could constitute to me search without probably cause if the internet service providers are compelled by law to spy on citizens without warrent. This would clearlly then be a violation of the charter of rights and freedoms.

It is easier to overturn aspects of the Canadian charter of rights and freedoms then the United States constitution because of the notwithstanding clause (not sure of the exact impact).

I think the "notwithstanding clause" was intended for purposes which had public support. Such as Quebec's language laws and Saskatchewan's back to work legislation for government employees, both back in the eighties. Plus the clause has a five year limitation. I would think that any legislation that invokes the notwithstanding clause would require wide public support. As an aside, I'm pretty sure the Federal government itself has never invoked the clause because it was also intended to satisfy more regional (provincial) interests rather than national ones. Also, the courts struck down the province of Alberta's invocation of the clause for its attempt to define marriage. It's a tough clause to invoke.

To determine if a reasonable expectation of privacy existed in email
the Court relied in part on the assumption of risk analysis set out by the U.S. Supreme Court. Pursuant to this doctrine, a person's reasonable expectation of privacy is affected directly the degree of risk that the alleged privacy interest would be disclosed to parties outside the confidential
communication. The Court, after reviewing the evidence of the e-mail medium, limited the
reasonable expectation of privacy in personal e-mail to situations in which the sender and receiver of the e-mail had exclusive access to the messages by way of a password and there was minimal o risk that the transmissions could be received by anyone other than the intended recipient(s). p

The Supreme Court of Canada faced similar question in Duarte. Here, the Court rejected the
argument that a risk of interception played a role in determining whether a search had occurred under
section 8 of the Charter. In this case, the Crown argued that, as the defendant’s words were
communicated to an informant, the defendant’s expectation of privacy in the communication was
eliminated because he had subjected himself to the risk of the communications being relayed to the
police. Any police recording of the communication with the consent of the informant, therefore,
would not amount to a search within the meaning of section 8 of the Charter. The Court quickly
rejected this assumption of risk analysis, stating that an adherence to this American approach would,
if taken to its logical conclusion, destroy all expectations of privacy. The determination of whether a
search had occurred, did not relate to the probable risk of disclosure of the communication. The
proper question to ask is whether the person had reasonable grounds to believe that his privacy
interest would be intercepted by the state without his consent or prior judicial authorisation.
In light of the transfer of information between the ISP and the Edmonton police in Weir, it is
important to note that the Supreme Court of Canada has indicated a distinct test for analysing
questions of informational searches

After enunciating five factors to determine the nature of the
information obtained by the police, the Court determined that section 8 of the Charter would protect
confidential information that would tend to reveal intimate details of the lifestyle and personal
choices of the individual. The majority of the Court held that such information did not go to the
biographical core of personal information which individuals in a free and democratic society would
wish to maintain and control from dissemination to the state.

c) Searches and Seizures Authorised by Law
Though the Court has recognized limited common law authorizations for a warrantless search, in
most circumstances the Court will require prior judicial authorization where such a mechanism has
been created by Parliament. In 1997, Parliament passed s. 487(2.1) of the Criminal Code, giving
police engaged in a criminal investigation the power to search and seize data found on a computer
system. With the inclusion of s. 487(2.1), both the intercept warrant and the traditional search
warrant are now applicable to the Internet e-mail environment. As a form of telecommunications, the
e-mail transmissions are subject to modern day wiretap interceptions authorized in Part VI of the
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Criminal Code. As a form of data, these communications may also be seized by the state. At present
there has been no case dealing with the use of a Part VI intercept warrant in relation to Internet
communications. As the police grow more certain of how crimes through this medium are being
committed however, it is likely that the intercept warrant will become a valuable tool in police
investigations.

The intercept warrant authorizations of Part VI and the traditional search warrants of Part VX of the
Criminal Code authorize different degrees of privacy invasion. Though both warrants require that the
State has reasonable grounds that the interception or search will provide evidence of a serious crime,
in most cases an intercept warrant will intrude to a greater degree, as it is, by nature, over inclusive
in its application. The stricter requirements of the intercept warrants within Part IV the Criminal
Code indicate that Parliament understands the over-intrusive nature of the wiretap warrant. They
created an onerous test for the police to overcome before judicial authorization will be granted. In
theory, therefore, a person’s e-mail transmissions will be protected by the strict judicial authorization
requirement.

A caveat should be stated in relation to the onerous provisions created to protect against the more
intrusive nature of the wiretap warrant. At present it remains open to discussion whether the courts
have shown proper care in monitoring the use of the wiretap warrant by police. For example,
between 1991 and 1995 the Attorney General of Canada applied for over 1000 normal audio
intercept warrants pursuant to section 185(1) of the Criminal Code (see Table 1.). Not a single one of
these applications was refused by the courts. It is conceded that a Parsons application may be
brought at trial to challenge the sufficiency of the warrant’s supporting Information. This does not,
however, reduce the fact that at present the police are able to obtain the intercept warrant with little
of the judicial governance that was contemplated in Hunter.

In Canada, a search will be reasonable if it is authorized either at common law or by statute. In the
context the Court’s decision in Weir there are two relevant computer-related common law
warrantless search powers. These are the common law authorizations of third party
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Third party consent will only be valid if it can be reasonably viewed as a substitute for prior judicial
authorization. The fact that the third party can remove the traditional barrier of property trespass,
therefore, will not likely suffice to make the search reasonable without a more substantial factor. In
the context of the current trend of ISPs willingly providing to the police with evidence of illicit
activity stored on their systems, the consent of the ISP may not be enough without some other
support. Such support could include a user agreement by which it can be consented that the user
himself was consenting to the material being disclosed to the police. The Court in Weir did not
address this issue.

The Open Fields doctrine was established as part of Canadian law by the Supreme Court of Canada
in R v. Boersma. This doctrine indicates that, if the privacy interest is in the plain sight of the police
and within the public purview, the accused cannot claim that he had a reasonable expectation of
privacy in the thing being searched or seized. In R v. Morin, the Court concluded that the police
action of logging onto a BBS located at the accused’s home was within the public purview, therefore
nullifying any concept of a reasonable expectation of privacy in its contents. Though no case in
Canada has yet addressed this issue with regard to personal e-mail transmitted over the Internet, it is
possible that the interception of e-mail transmissions via an Internet node may not require an
intercept warrant.

In balancing the privacy interests of the individual with the state's need to investigate criminal
activity, Canadian Courts have often used the traditional tools of analogy in circumstances where the
reasonableness of a non-warrant lawful authorization is in question. As such most newly-argued
privacy interests, such as personal e-mail communications, have been looked at in comparison with
existing privacy interests. It seems clear from the academic and foreign case law analyses that e-mail
has many characteristics that make it analogous to first class mail. In light of this and the comparison
of personal e-mail with first class mail in Weir the law dealing with first class mail must be
determined.

It seems clear from the academic and foreign case law analyses that e-mail
has many characteristics that make it analogous to first class mail. In light of this and the comparison
of personal e-mail with first class mail in Weir the law dealing with first class mail must be
determined.

In looking contextually at the reasonable expectation of privacy in 1st class mail, the law of Canada
has afforded high levels of privacy to this form of communication The Newfoundland District
Court's decision in R. v. Crane best enunciates this point. Evidence was adduced that the police had
searched the defendant's mail with the help of Canada Post and without a warrant. In holding that
both co-defendants' section 8 Charter rights have been violated, the Court discussed the longstanding
principle that privacy in one's first class mail was an important and highly-protected
element of Canadian society. In reaching this conclusion, the Court found that the privacy interest in
first class mail is established by the Canada Post Corporations Act. The Court held that within the
CPCA Parliament implicitly states an intention to promote the security of one’s mail beyond that
which would exist at common law.
..........
Though no Canadian case has
enunciated the principle, it appears that because of the obvious temptation to read the mail of
suspected citizens, sealed, private letters are afforded special protection from search and seizure.
Looking at personal e-mail communications in the context of the privacy rights afforded first class
mail without advocating a similar legislative pronouncement on privacy in e-mail, therefore, is not a
proper strategy. At present, no such pronouncement by Parliament exists in Canada.
Part III
The decision in Weir indicates that Canadian courts are willing to afford privacy to e-mail
communications made in cyberspace. Further, the Court's conclusions, in dicta, indicates that the
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The Court's failure to understand the way in which society perceives the security risks in e-mail will,
if followed, erode the privacy rights of persons suspected of unlawful conduct. By ruling that the
Criminal Code intercept warrant authorizations apply to private e-mail communications,the Court
has sanctioned an incredibly wide and intrusive means by which the police can compile information
against a suspect. Think of the varied number of communications that the typical e-mail user gets in
one day. In comparison with first class mail communications, the totality of the personal e-mail
communications would be caught within the intercept warrant. At present, however, the conclusion
in Weir is likely to be followed by future court as the contextual comparison with first class mail is
non-determinative.

It remains uncertain, however, whether information relayed by an ISP to the
police contains confidential information. In future cases, the Court will have to determine the issue
of whether it is willing to allow close relationships between the ISP carrier and the police. As is
argued by Scott Hutchinson in Computer Crime in Canada, a court's decision on this issue likely will
depend on whether it can be shown that the contract between the defendant and the ISP indicated any
confidential arrangement. On the construction of many new ISP agreements it seems that the
contracts do not contain any such agreement.

In concluding that the defendant in Weir held a reasonable expectation of privacy in e-mail, the
Court followed the existing principles as set out in Hunter. The application of these principles,
however, was not congruent with the Court's decision in Duarte. Rather, the approach taken by the
Court was one that, while correct in result with regard to the applicability of both the Part VI
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Since wiretaps constitute a search or seizure, the statutory provisions authorizing them must conform to the minimum constitutional requirements demanded by s. 8 of the Canadian Charter of Rights and Freedoms. The issuing judge must be satisfied that there are reasonable and probable grounds to believe that an offence has been or is being committed, and that the authorization sought will afford evidence of that offence.

The procedures available for challenging a wiretap authorization are: (1) a Parsons voir dire before the trial judge to determine whether the authorization is valid on its face, the remedy being exclusion under s. 178.16 of the Code; (2) a Wilson application before the issuing court to determine the substantive or subfacial validity of the affidavit, the remedy being the setting aside of the authorization; (3) a Garofoli hearing before the trial judge to determine whether the authorization complies with s. 8 of the Charter, the remedy being a determination of whether the evidence should be excluded under s. 24(2) of the Charter; and (4) a Vanweenan hearing before the trial judge to determine whether the authorization names all "known" persons as required by ss. 178.12(1)(e) and 178.13(2)(c) of the Code, the remedy being exclusion under s. 178.16.

When it is asserted by an accused that a wiretap infringes s. 8 of the Charter, the application for review should be made to the trial judge, even though applications to open the sealed packed must be made to a judge designated in s. 178.14(1)(a)(ii) of the Code, who in some cases will not be the trial judge. In determining whether a search is reasonable under s. 8 of the Charter, the reviewing judge must determine whether the Code requirements have been satisfied, since the statutory conditions are identical to the requirements of s. 8. Whereas Wilson precluded a review of the authorizing judge's decision that the statutory conditions had been complied with, unless some ground such as fraud or new evidence was established, the application of s. 8 requires review as a step in determining the reasonableness of the search and seizure. If, based on the record, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he should not interfere. A finding that the interception is unlawful attracts the peremptory language of s. 178.16 and the evidence is inadmissible. Section 24(2) of the Charter cannot have the effect of making the evidence admissible even if its admission would not bring the administration of justice into disrepute. Accordingly, an accused who has invoked s. 24 and established that an interception was unlawfully obtained is entitled to have the evidence excluded under s. 178.16.

Hearsay statements of an informant can provide reasonable and probable grounds to justify a search, but evidence of an informer's tip, by itself, is insufficient to establish reasonable and probable grounds. The reliability of a tip is to be assessed by having regard to the totality of the circumstances. The results of the search cannot, ex post facto, provide evidence of the reliability of the information.

The concerns regarding protection of the identity of informers and prolongation of proceedings can be accommodated without such a drastic curtailment of the right. There is no right to cross-examine informers, since they are not witnesses and cannot be identified unless the accused brings himself within the "innocence at stake" exception. Leave to cross-examine should be granted at the discretion of the trial judge, who may impose limitations on its scope, when he is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. The accused must establish a basis for the view that cross-examination will oppugn the existence of one of the preconditions for the authorization.

Appellant has shown a basis for cross-examination here. In view of the degree of reliance by the police on the informer in this case, if the informer is discredited then the factual basis for the authorization is undermined. Since appellant was not permitted to cross-examine the affiant, there should be a new trial.