What the ‘Strong Borders Act’ Gets Wrong

A major Canadian law firm and a former NDP MP have both raised concerns about Bill C-2, a pending new piece of legislation currently working its way through Parliament. It would be wise to pause and examine the civil liberties and human rights problems they see. What they note is alarming and should be taken seriously by our elected leaders.

Introduced on June 3, Bill C-2, the Strong Borders Act, is a 130-page grab bag of amendments to existing laws about drugs, immigration, refugees, money laundering, sexual offenders and government access to people’s online information.

A wide range of credible analysts have studied Bill C-2 and found much to question.

McCarthy Tétrault, a major Canadian law firm, has published an analysis of C-2 focused on how the bill proposes to expand the scope of law enforcement to access individuals’ online “subscriber information,” including their pseudonyms, personal information, unique online identifiers, user account numbers and services delivered to the client of an internet service provider.

Under Bill C-2, such information could be sought without a warrant or other judicial authorization, and law enforcement could compel even foreign telecoms to supply subscriber information and transmission data.

McCarthy Tétrault predicts “challenges to the law’s jurisdictional reach.”

Writing on his Substack, former NDP MP Charlie Angus criticized C-2 as “another massive piece of legislation that solves some problems and creates a whole whack of others.”

Angus questioned “sweeping powers for police to obtain citizens’ data without a warrant.”

He attacked C-2’s “numerous provisions that will annul refugee claims or force people back to the United States and other jurisdictions.”

And he wrote: “In what seems a parallel to the United States’ actions, the legislation will make it possible for the minister to cancel immigration documents and deny access to refugee hearings.”

A threat to migrant rights

A national advocacy group called the Migrant Rights Network criticized Bill C-2 the day it was released.

It pointed out the bill forbids migrants entering Canada from the United States from applying for refugee status, and enables the minister of immigration “to cancel, suspend or modify immigration documents for entire groups without due process.... This means migrants in Canada could have their status revoked en masse, even if they have already applied for permanent residency or refugee status.”

In a recent report, Kate Robertson of the Citizen Lab at the University of Toronto’s Munk School of Global Affairs and Public Policy also questioned Bill C-2 for the human rights concerns she sees in how it proposes to grant law enforcement new powers to share personal data with foreign authorities.

Robertson wrote:

Canadian authorities know first-hand the tragic consequences that inappropriate data sharing with foreign authorities can inflict on even innocent persons. The detention, rendition, and torture of Maher Arar after Canadian authorities shared inappropriate and inaccurate information with U.S. authorities provides a “chilling example of the dangers of unconditional information sharing.”

Robertson cited a technical briefing on June 9 in which “Justice Canada officials acknowledged to the persons present at the briefing that the intent of certain provisions within Bill C-2 is to enable Canada to implement and ratify a new data-sharing treaty, publicly known as the ‘Second Additional Protocol’ to the Budapest Convention (‘2AP’).”

Canada is already a signatory to the Budapest Convention, a set of guidelines for dealing with cybercrime.

But the Second Additional Protocol would give Canadian law enforcement additional powers:

“The 2AP permits state signatories to seize, share, retain, and use potentially large volumes of private data from public or private entities in respect of both digital and non-digital information,” Robertson wrote.

“As a whole, the 2AP’s proposed method of expediting higher volumes of cross-border sharing of evidence is by eliminating or diminishing human rights safeguards, including the obligation to obtain prior, independent judicial authorization when seizing private information and sharing it with foreign law enforcement authorities.”

Robertson also saw a hazard if Canada should make a bilateral agreement with the United States under the Americans’ 2018 law Clarifying Lawful Overseas Use of Data Act, better known as the CLOUD Act.

Bill C-2, she argued, would enable U.S. law to override Canadian law.

Another of the proposed powers in Bill C-2 would give law enforcement authorities a warrantless authorization to demand that any person “who provides services to the public” must disclose if they have provided services to an individual. Among other risks, the provision would open the door to information sharing with law enforcement authorities in states like Mississippi, Idaho, or Tennessee, by compelling warrantless access to information about whether a person has obtained services from an abortion clinic in Canada.

Bill C-2, Robertson argues, could enable U.S. national security and intelligence agencies to demand information from Canadian public and private entities without first getting permission from the Canadian courts.

“It is difficult,” Robertson writes, “to overstate the reverberations that such an agreement would have on the Canadian landscape. The powers in Bill C-2 applicable to the Canadian Security and Intelligence Service (CSIS), bear additional scrutiny in this regard, given the potential that these powers — alongside existing powers in Canadian law — would simultaneously pave the way for reciprocal powers by U.S. national security agencies. At this time, there is no public information available regarding what such an agreement would include.”

Robertson’s conclusion is that Ottawa should be far more transparent about the intent and implications of data sharing with U.S. and other foreign law enforcement agencies.

‘An assault on human rights and liberties’

On June 18, the International Civil Liberties Monitoring Group published a press release saying over 300 civil society organizations demanded complete withdrawal of Bill C-2 as “an assault on human rights and civil liberties” and “a further, dangerous shift toward Trump-style anti-immigrant policies and attacks on the rights and freedoms of all residents.”

It may well be that Bill C-2’s critics are jumping at shadows, seeing threats where none exist. But the Carney government, by keeping its promise to move fast, is failing to explain why these amendments to existing laws are really necessary.

Many aspects of Bill C-2 look all too Trumpian. Coming as Carney is negotiating a trade agreement to counter President Donald Trump’s tariffs, C-2 also looks like appeasement: drop the tariffs, and Trump’s government can rummage as it likes in the private lives of Canadian citizens and residents.

But it may be that Bill C-2 is just an administrative lubricant, making life easier for law enforcement agencies in their routine interactions with one another — the kind of cutting of “red tape” that politicians always promise.

They never mention that the purpose of the red tape is to deter or punish what Elon Musk calls “waste, fraud and abuse.” Someone will always want to cut corners, shortchange customers or game the system at the expense of others.

Do police really need more freedom?

In this case, giving police more freedom to dig into people’s digital secrets could create a whole new police bureaucracy. Consider, for example, the U.S. government’s recent decision to screen visa applications from foreign students by examining not just applicants’ social media but their entire online activity.

The U.S. State Department advised its consular officials to give a “comprehensive and thorough vetting” to all applicants with the purpose of spotting those who “bear hostile attitudes toward our citizens, culture, government, institutions, or founding principles.”

Apart from discouraging countless students overseas from enrolling in U.S. universities, such screening would require an enormous new bureaucracy to scan everyone’s smartphone, laptop, Facebook page and abandoned Twitter account. The bureaucrats would have to be multilingual and doubtless aided by artificial intelligence to read and assess billions of words in hundreds of languages.

And of course, the United States would expect to share its information with Canada and other allies, while receiving comparable information from our own screening bureaucracy.

It may be that Bill C-2 will be delayed by Parliament’s summer break, with Senate approval sometime in the fall.

If ever a bill required sober second thought, it is Bill C-2.