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Warrantless access

Documents obtained by VICE News show the government is looking to restart a warrantless access program that had been declared unconstitutional

Ottawa drafted plans to allow warrantless access of your data while still ‘consulting’ the public

The federal government began moving forward on new legislation that would allow police to obtain Canadians’ data without a warrant — even as they ran a national consultation that feigned indecision on the issue.

The warrantless access program had been previously declared unconstitutional by the Supreme Court of Canada.

New documents, obtained by VICE News under access to information laws, relate to meetings of a federal-provincial working group on cybercrime that had recommended proceeding with new legislation to restart that program. The details of what, exactly, that legislation would look like are contained in a report that Ottawa has refused to make public, against the advice of its own civil service.

The documents add to a wealth of information obtained by VICE News that show the Trudeau government has been working to build support for broad new investigative powers, all while keeping information about RCMP and CSIS surveillance tactics out of the public domain.

The program that Ottawa is looking to reboot allowed police, spy agencies, and possibly others to obtain Canadians’ data and personal information without a warrant from telecommunications companies and others. While the government argued in court that this practise, which often came with no paper trail at all, was simply a way through which police could obtain “basic subscriber information” which linked a phone number or IP address to a name and address.

But media reports, including from VICE, and evidence entered into the Supreme Court case showed that the program was consistently used to obtain personal information that should require a warrant. The court found that the program, by design, was an attempt to “link a specific person … to specific online activities.” It concluded it was an infringement on Canadians’ privacy and ordered it to end, except in emergency situations.

According to memos and media lines obtained by VICE News, Public Safety Minister Ralph Goodale pushed to proceed with “legislative reforms” recommended by the cybercrime working group at a meeting of the federal and provincial justice and public safety ministers last September.

Update: After this story was published, Minister Goodale’s office reached out to VICE News to state that “no new legislation regarding basic subscriber information has been drafted and no authority to draft such legislation has been granted,” instead insisting that they have been “developing proposals for what legislation could look like.” Goodale’s office is still continuing to decline to release the working group report. VICE News has updated the story to reflect the statement.

The documents make no mention of oversight or scrutiny, but do contend that the government will balance privacy rights with the need to obtain this data.

Canadian police chiefs and the RCMP have fought for this power to be reinstated since 2014. A resolution passed by the Association of Canadian Police Chiefs in 2015 reads that they want a law to allow “law enforcement the ability to obtain, in real-time or near real-time, basic subscriber information (BSI) from telecommunications providers.”

Lawyers and academics have pushed back, saying that while it might be reasonable to allow police to connect a phone number or IP address to a person or address, there still needs to be some judicial oversight to prevent abuse.

As part of a public consultation run by the Trudeau government in 2016, Canadians were asked for their input on a wide variety of issues, including on the possibility of restarting some version of the warrantless access program. Goodale’s media lines promised the government wanted to “hear from Canadians on access to basic subscriber information.”

But the decision to go forward with legislative reforms on basic subscriber information was made fully three months before the consultations were scheduled to end.

The basis for the decision, a report from a special cybercrime federal-provincial working group, remains a secret. The memos obtained this week read that the public safety ministry supports the release of a summary of the report. The ministry wrote to Goodale that it “supports the public release of the summary of the [cybercrime working group] paper.”

VICE News has repeatedly attempted to get the working group report, through the federal and provincial governments and through the access to information act, but has been consistently denied.

A spokesperson for Minister Goodale refused to release the report in March, writing via email that “it would be released at the discretion of Federal-Provincial-Territorial Ministers Responsible for Justice and Public Safety.”

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