Bill C-51, the Anti-Terrorism Act of 2015 was introduced in Parliament on January 30th and has since received a lot of criticism from media commentators such as McLean’s Magazine and from Canada’s Privacy Commissioner. But what does this legislation do? Does it provide police and other security services with the additional powers that they need? Or does it overreach as claimed by Konrad Yakabuski in the Globe and Mail on February 2nd?

In this post, we will concentrate on the main provisions that will impact the privacy of Canadians.

The legislation does several things, but most importantly from a privacy perspective, it enacts new legislation called, the Security of Canada Information Sharing Act. These provisions will authorize Federal Government Institutions to disclose information to other Federal Government Institutions that have jurisdiction or responsibilities in respect of activities that undermine the security of Canada. An “activity that undermines the security of Canada” is defined as:

“activity that undermines the security of Canada” means any activity, including any of the following activities, if it undermines the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada:

(a) interference with the capability of the Government of Canada in relation to intelligence, defence, border operations, public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada;

(b) changing or unduly influencing a government in Canada by force or unlawful means;

(c) espionage, sabotage or covert foreign-influenced activities;

(d) terrorism;

(e) proliferation of nuclear, chemical, radiological or biological weapons;

(f) interference with critical infrastructure;

(g) interference with the global information infrastructure, as defined in section 273.61 of the National Defence Act;

(h) an activity that causes serious harm to a person or their property because of that person’s association with Canada; and

(i) an activity that takes place in Canada and undermines the security of another state.

For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression

The purpose of the legislation is to encourage and facilitate the sharing of information among Government Institutions, which broadly speaking will include institutions listed in the Privacy Act or in a Schedule to be added to the act. Section 4 sets out the principles that are to guide the sharing of information:

  • Effective and responsible information sharing protects Canada and Canadians;
  • Respect for caveats on and originator control over shared information is consistent with effective and responsible information sharing;
  • Entry into information-sharing arrangements is appropriate when Government of Canada institutions share information regularly;
  • The provision of feedback as to how shared information is used and as to whether it is useful in protecting against activities that undermine the security of Canada facilitates effective and responsible information sharing;
  • Only those within an institution who exercise its jurisdiction or carry out its responsibilities in respect of activities that undermine the security of Canada ought to receive information that is disclosed under the act.

What this will actually mean in terms of enhanced sharing of information, particularly personal information, is unclear. Section 5 specifically says that a Government of Canada Institution’s sharing of information is “Subject to any provision of any other Act of Parliament, or any regulation made under such an Act, that prohibits or restricts the disclosure of information.”

The Privacy Act does contain such a restriction in section 8, which provides that “Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section”. Does this mean that the restrictions in the Privacy Act take precedence over the ability to share as set out in section 5 of the new legislation? Do the provisions in the new legislation serve to expand the circumstances in which personal information can be shared beyond those already available in subsection 8 (2) of thePrivacy Act?