U.S. Secretary of State John Kerry (C) and his Canadian counterpart John Baird (R) walk through the Hall of Honor on Parliament Hill in Ottawa, Canada, October 28, 2014. Kerry said on Tuesday that the attack on the Canadian parliament and the country's National War Memorial last week in which a soldier was killed was clearly a terrorist act.POOL/Reuters
Police in Canada will soon have new tools to track terror suspects through online records, bank accounts and other means – powers the RCMP Commissioner called for this week but which are already moving through Parliament.
RCMP Commissioner Bob Paulson made the request for new powers Monday after a pair of attacks last week that killed Warrant Officer Patrice Vincent and Corporal Nathan Cirillo. The Commissioner said police should, in some cases, need less hard evidence to get court approval to track suspects or to monitor them online or by phone.
However, police are already getting some of those powers. Bill C-13, the government's anti-cyberbullying law with several controversial surveillance powers, would allow police to seek court orders for information, such as online records and bank account details, with what critics and privacy advocates say is too little evidence to back up the request.
The killing of the two soldiers has spurred Canada to review what powers it gives police to investigate terror cases, setting up a showdown over privacy rights.
The attacks last week in part led the United States on Tuesday to boost security at some government sites, while U.S. Secretary of State John Kerry pledged to work with Canada more closely than ever to fight terrorism – a pledge that comes a day after the federal government tabled another bill, C-44, that gives its spy agency broad new powers to share intelligence and conduct surveillance abroad.
In some cases under C-13, the anti-cyberbullying bill, police could get a court order with only reasonable grounds to "suspect," not "believe," a crime may take place or has taken place. Further, the information being sought need only help the investigation, not necessarily point directly to a crime, to get the order.
Under C-13's lower "suspect" threshold, police could seek court orders to receive a suspect's online "transmission data" and "tracking data," track a vehicle's location and to access certain bank records. Transmission data, or metadata, often reveal personal information and therefore raise privacy concerns, critics have said. The Supreme Court ruled earlier this year that police typically should require a warrant to get access to private online information. C-13 also has specific references to terrorism investigations, extending certain court orders for up to one year in those cases. Other court orders in the bill require the higher "believe" threshold.
Some of C-13's lower thresholds were widely criticized, including by the Canadian Bar Association and Canada's Privacy Commissioner. The bill nonetheless passed the House of Commons and is before the Senate, on pace to become law soon. The court orders created for the bill aren't strictly for terrorism, but some expire later in terrorism cases.
"Bill C-13 does indeed have a number of new production orders and warrant provisions that lower the standard [of evidence required] to reasonable suspicion," said Lisa Austin, a University of Toronto professor who studies privacy law. "… The RCMP could use these new provisions in investigating terrorism offences."
On Monday, the Conservatives tabled Bill C-44, beefing up powers of the Canadian Security Intelligence Service spy agency. The government is also said to be considering adding other powers, such as for "preventative arrest" and monitoring of terror suspects. Public Safety Minister Steven Blaney, who tabled C-44, has declined regular requests for an interview since Friday.
In his comments Monday, the RCMP Commissioner called for police to have easier access to peace bonds – which allow them to monitor suspects they haven't actually charged – as well as the lower evidence thresholds for court orders.
"They already do get much of this [in C-13]," agreed Michael Geist, a University of Ottawa law professor who studies privacy issues. David Fraser, a Canadian privacy lawyer, added: "I'd be interested to hear Commissioner Paulson, or others, point to what they think should be in C-13 that isn't. I think C-13 kind of hits those questions right on the head."
Liberal MP Wayne Easter, a former solicitor-general of Canada, said parts of C-13 go too far and invade Canadians' privacy.
"[Police] are always going to push the envelope to give them more authority to do their job," he said. "The difficulty I think for politicians, in the kind of environment we're in this week as a result of last week, is to not overreact. … We have a responsibility to find a balance."
With reports from Kim Mackrael and Paul Koring