Canada’s new Strong Border Act tabled as Bill C-2, is being framed by the federal government as a step toward strengthening border security. But hidden within its lengthy legislative text is a familiar and troubling push for expanded surveillance powers, this time without the need for court authorization.

Nestled deep in the bill are provisions that grant law enforcement sweeping new authority to demand subscriber data from service providers, bypassing the oversight mechanisms long seen as essential to protecting Canadians’ privacy.

The bill revives the “lawful access” agenda, one that law enforcement agencies have been pursuing since the late 1990s. These digital access provisions are not new, but their inclusion in a border-focused bill appears to be a calculated effort to quietly reintroduce them under a different guise. Despite being repeatedly rebuffed by public opposition, parliamentary committees, and Canada’s highest court, the drive to erode digital privacy protections continues.

This legislative maneuver follows years of setbacks for warrantless access advocates. In 2014, the Supreme Court ruled decisively in R. v. Spencer that Canadians have a legitimate expectation of privacy when it comes to subscriber information. The Court stressed that identifying individuals based on their Internet activity could easily expose sensitive personal behavior and that police demands for such information constituted a search requiring proper legal authorization.

According to Michael Geist, a law professor at the University of Ottawa, law enforcement has continued to seek ways around those constraints. Past efforts to legislate access without judicial oversight have either failed to pass or been dropped due to public backlash.

A 2010 bill mandating the disclosure of customer details, including IP addresses and device identifiers, without a warrant was abandoned.

In 2014, a new bill was introduced, ostensibly to tackle “cyberbullying.” In practice, it reintroduced many of the same provisions that had been defeated under earlier proposals. While dressed in the language of protecting youth online, its underlying purpose was once again to broaden law enforcement access to digital subscriber data with limited oversight.

The Supreme Court’s Spencer ruling remained a major obstacle, reaffirming the privacy rights of Canadians. Then, in 2023, the Bykovets decision extended those protections further, affirming that IP addresses also warrant constitutional safeguards. The Court noted that if digital privacy is to mean anything in the modern age, then these basic digital identifiers must be protected under Section 8 of the Charter.

Despite this legal precedent, Bill C-2 is attempting to carve out a new space for surveillance. Among its more concerning features is a clause that would allow authorities to issue “information demands” to service providers without needing judicial approval. These demands would compel companies to confirm whether they provide services to specific users, whether they hold transmission data related to those accounts, and where the services are or were provided, both inside and outside Canada.

The threshold for triggering such a demand is alarmingly low. Law enforcement must merely suspect that a crime has occurred or may occur and that the requested information could aid an investigation. The demand doesn’t require disclosing the actual data, but it functions as a roadmap to it, alerting police to which providers hold what kind of information and where it might be found. Such indirect searches effectively sidestep the very privacy protections the courts have upheld.

Notably, none of these measures relate directly to border enforcement. Their presence in a border bill serves a strategic purpose: to avoid the scrutiny that such provisions would attract if introduced through standalone legislation. This tactic, often seen in omnibus bills or unrelated amendments, allows controversial policies to advance quietly under the cover of more palatable reforms.

Professor Geist has a full in-depth look at the history of such laws here.