Respecting the Charter rights of Canadians

In a nutshell: International cooperation to investigate all offences is important, but any agreement must respect the Charter rights of Canadian citizens and people living and operating in Canada, as well as human rights. That’s the gist of comments made by the Criminal Justice and the Privacy and Access Law Sections of the CBA on the Second Additional Protocol to the Council of Europe Convention on Cybercrime on enhanced cooperation and disclosure of electronic evidence.

Privacy concerns from abroad:

The Supreme Court of Canada held in the recent Bykovets ruling that section 8 of the Charter protects Canadians’ IP addresses in today’s overwhelmingly digital world. As such, police need a warrant to obtain subscriber activity on a specific IP address, for domestic investigations. It is in this context that the CBA Sections argue international bodies should not have greater power to obtain private information about Canadian internet users than domestic authorities.

• The CBA Sections are also urging the federal government to reserve the right not to apply Article 8 to traffic data) pursuant to Article 8(13) of the protocol on traffic data “due to its highly personal and invasive nature.”
• When drafting legislation for judicial authorization to obtain subscriber information, Canada should require the same standards and thresholds as those applicable to Criminal Code production orders.
• The CBA Sections recommend judicial authorization be the oversight standard over prosecutorial or independent authority permitted under Article 7 of the Protocol. “This will simplify granting authorizations and drafting legislation, and members of the judiciary are already trained to scrutinize such authorizations under domestic law,” the submission reads.

Read the full submission.