Wednesday, February 29, 2012

Canadians Reject Components of Bill C-30, Deem it Too Intrusive Half of respondents believe the House of Commons should not pass the proposed legislation.

Canadians Reject Components of Bill C-30, Deem it Too Intrusive

Half of respondents believe the House of Commons should not pass the proposed legislation.

Canadians have not reacted well to the proposed Bill C-30, and many are voicing disagreement with several components of the legislation, a new Angus Reid Public Opinion poll has found.

In the online survey of a representative sample of 1,011 Canadian adults, 45 per cent of respondents have followed stories related to Bill C-30 “very closely” or “moderately closely.” Respondents aged 17-to-34 (47%) and those over the age of 55 (also 47%) are more likely to have been paying attention to the debate on this proposed legislation.

Respondents to this survey were provided with seven elements of Bill C-30 and asked whether they agreed or disagreed with each one. Only three components get the thumbs-up from a majority of Canadians: allowing police to get warrants to obtain information transmitted over the Internet and data related to its transmission, including locations of individuals and transactions (68%), changing the definition of hate propaganda to include communication targeting sex, age and gender (63%) and allowing courts to compel other parties to preserve electronic evidence (57%).

Canadians are almost evenly divided on providing for an internal audit of warrantless requests that will go to a government minister and oversight review body (Agree 40%, Disagree 43%).

Respondents were not satisfied with the remaining elements, with 57 per cent disagreeing with forcing Internet providers and other makers of technology to provide a “back door” to make communications accessible to police, and 62 per cent rejecting a requirement for telecommunications and Internet providers to give subscriber data to police, national security agencies and the Competition Bureau without a warrant, including names, phone numbers and IP addresses.

The most unpopular measure included in Bill C-30 is requiring telecommunications providers to disclose, without a warrant, six types of identifiers from subscriber data (Name, Address, Telephone number, Email address, IP address and Local service provider identifier). Almost two thirds of Canadians (64%) disagree with this idea.

Most Canadians (53%) believe Bill C-30 is too intrusive, and that the government should not be able to track the movements of Canadians or reading their e-mails without a warrant. Only one third (27%) believe Bill C-30 is necessary because many criminal activities, including child pornography, have evolved with technology and police need broader tools to deal with these crimes.

The regions that show the highest level of rejection for Bill C-30 are Alberta (66%), Atlantic Canada (63%) and Ontario (58%).

When asked how the House of Commons should deal with Bill C-30, half of Canadians (51%) want their federal lawmakers to defeat the legislation, while 35 per cent would prefer to pass it. Once again, Alberta, Atlantic Canada and Ontario are the areas where Bill C-30 is regarded in a negative light.


While Canadians are content with the measures related to obtaining warrants, changing the definition of hate propaganda and preserving electronic evidence that are included in Bill C-30, the public provides a negative review of the more contentious aspects of the proposed legislation. The idea of surrendering subscriber data and identifiers without a warrant is rejected by almost two thirds of Canadians.

Strong majorities of people who voted for the New Democratic Party (NDP) and the Liberal Party in the last federal election brand Bill C-30 as too intrusive (62% and 58% respectively), but it is important to note that Conservative voters are not as supportive of this government initiative as they have been with others in the past. Almost half of Tory voters (47%) think the proposed legislation is too intrusive. Conservatives are evenly split on what the House of Commons should do with Bill C-30. New Democrats and Grits clearly want to see it defeated.

Alberta, traditionally a Conservative stronghold, is not on the government’s side on this issue. Albertans are more likely to wish for the defeat of Bill C-30 than Ontarians, British Columbians and Quebecers.

Full Report, Detailed Tables and Methodology (PDF

Tuesday, February 28, 2012

Strip searches & Waterloo Regional Police’s

Perhaps the “monster” in the room is that police routinely strip search people despite the Supreme Court saying they are not supposed to.

Because of a drawing of a picture of a gun to chase off “bad guys and monsters” by his four-year-old daughter, Jessie Sansone was arrested outside her school, handcuffed, hauled to a police station.

He was told to disrobe and subjected to a strip search in which his testicles were lifted and he was required to bend over.

It was egregious, invasive, unwarranted and unnecessary.

No matter how hard they try, Waterloo Regional Police’s strip-searching of the 26-year-old is indefensible and just plain wrong.

In fact a Supreme Court of Canada ruling in 2001 clearly states “strip searches (are) inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they can’t be carried out simply as a matter of routine policy.”

But they happen all the time.

In one instance this month, it meant a drunk driving charge from 2010 was thrown out thanks to a smart defence lawyer using case law from the Supreme Court.

“What the community would find alarming is what I perceive as a systemic problem in the conduct of police strip searches of short-term detainees,” Justice J.M. Grossman said while staying proceedings against Regan McGee. “Despite the efforts of the judicial system to denounce such instances and the efforts of the police service boards to enact appropriate policy to guide the police, the right to be free from such significant intrusions into personal privacy and integrity is not being taken seriously enough.”


“I am left with the inevitable conclusion that the failure to abide by the constitutional limits for the strip search of short-term detainees is not an exceptional error on (a sergeant’s) part but rather is part of a larger more systemic problem,” said the judge. “It is clear to me that his practice is one which he not only generally follows but is an accepted one in his profession.”

The Toronto Police Accountability Bulletin reports in 2009 “Toronto police conducted 29,789 Level 3 searches (strip searches) and 31,072 in 2010.” Former Toronto mayor John Sewell says 60% of people arrested in Toronto face what “is certainly not a rare occurrence.”

Toronto Police Service’s Board Chair Dr. Alok Mukherjee is awaiting a report from Chief Bill Blair which upon completion will “ascertain whether the information ... merits any further consideration or action by the board.”

Canadian Association of Chiefs of Police spokesman Tim Smith confirmed that there “is no national standard” for strip searches and “it’s totally up to each individual service.”

But it isn’t.

That police don’t seem to oblige the high court might mean it’s time for a judicial inquiry to present clarity of the exact strip searching threshold?

With an Ottawa police officer before the courts, it’s also important for police, who also face scrutiny from the SIU — which has sexual assault as part of its mandate — to understand when an unlawful strip search crosses over to a sexual assault?

In Toronto, despite complaints from dozens of men and women during the G20 being strip searched but not charged, it has never been made public how many and if they were appropriate or constitutional?

In McGee’s case, defence counsel Calvin Barry successfully argued in his client’s case it was highly inappropriate. The judge agreed, calling it a “serious and flagrant” violation of the charter.

“Despite the considerable body of reported cases in which the courts have time and again frowned upon the way police have conducted such strip searches, it is apparent to me something is missing in their conduct whereby the rights of short-term detainees are not being taken seriously,” said Grossman. “Whether it is a lack of training or an attitude, I cannot say. However, to be frank, what I can say, is that the message does not appear to be getting through.”

It clearly did not get through to Waterloo Police since, in 2007, Joel Elliot, 32, was awarded $32,000 in damages after being strip searched. His naked body was made fun of and he was threatened with a stun gun.

It will be interesting to see if another monster cheque is one day written to the latest recipient of an inappropriate police strip search?

Perhaps it should be enough for his daughter to one day go to art school?

Sunday, February 26, 2012

Open Letter - The Privacy Implications of Federal Government's Expansive Surveillance Proposal

October 31, 2011


The Honourable Vic Toews

Minister of Public Safety

269 Laurier Avenue West

Ottawa, Canada

K1A 0P8

The Honourable Robert Nicholson

Minister of Justice and Attorney General of Canada

284 Wellington Street

Ottawa, Ontario

K1A 0H8

Dear Ministers:


As the Information and Privacy Commissioner of Ontario, I felt compelled to write to you today regarding the federal government’s insistence on enacting a highly intrusive surveillanceregime. I do so in full support of Canada’s Privacy Commissioner Stoddart and the open letter she sent to Minister Toews on October 26th.

At the outset, please note that my mandate includes commenting on developments that affect the personal privacy of Ontarians, and overseeing law enforcement compliance with privacy legislation in Ontario. The proposed surveillanceregime will have a substantial impact on the privacy rights of Ontarians, law enforcement functions, and the role of my office.

Media reports referring to Minister Toews’ rejection of Commissioner Stoddart’s concerns and quoting his defence of the regime suggest that the government will re-introduce Bills C-50, C-51, and C-52 (“the Bills”) in essentially the same form in which they appeared in the last Parliament. In my view, that would be highly regrettable for the people of Ontario and Canada. I am writing this open letter to outline my specific concerns and concrete recommendations.

I have first summarized the privacy concerns identified by my office into five categories, followed by an in-depth discussion of each.

Summary of Privacy Concerns:

Reconsidering the Privacy Implications of Expanded Surveillance and Access

Before providing a detailed analysis of the privacy issues, my concerns may be summarized as follows:

1.The proposed powers must not come at the expense of the necessary privacy safeguards guaranteed under the Canadian Charter of Rights and Freedoms; in order to maintain the integrity of this constitutional framework, the government must acknowledge the sensitivity of traffic data, stored data, and tracking data.

2.Intrusive proposals require essential matching legislative safeguards; the courts, affected individuals, future Parliaments, and the public must be well informed about the scope, effectiveness, and deleterious effects of intrusive powers. If Parliament enacts expansive new surveillance powers, we urge the federal government to publicly commit to enacting the necessary oversight legislation in tandem.

3.Even with matching oversight, the proposed surveillance and access powers will require more stringent conditions precedent to determine the situations when surveillance or access may be appropriate and necessary.

4.The government must not impose a mandatory surveillance capacity regime on the public and its telecommunication service providers (TSPs) without adequate safeguards to protect the future of freedom and privacy; a comprehensive and public cost-benefit analysis should precede rather than follow the making of so many significant public policy decisions. Public Parliamentary hearings should be scheduled to ensure that civil society, as well as industry, have a full opportunity to provide substantial input on all of the Bills including Bill C-52 (the Electronic Communications Act). In addition, the Electronic Communications Act should be amended to require that all interception-related capacity requirements be approved by Parliament before they can be imposed.

5.The proposal for warrantless access to subscriber information is untenable and should be withdrawn; it remains our view that the Electronic Communications Act should be amended to require that the provisions setting out TSP obligations concerning “subscriber information” be deleted and replaced with a court supervised regime

1) New Powers Must Not Come at the Expense of the Constitutional Framework

In a steady stream of communiqués dating back almost a decade and spanning 2002, 2005, 2007, 2009, and 2011, our office has cautioned against taking a legislative approach to new surveillance powers that undermines the judicially supervised rules and procedures which secure our shared rights to privacy, freedom and security of the person. Two of these were in joint communiqués led by the Privacy Commissioner of Canada, and signed by all the provincial and territorial privacy commissioners and ombudsmen (“privacy commissioners”). 1

Together, they accurately reflect the general nature of many of our current concerns and recommendations. (We also urge you to carefully consider the federal Privacy Commissioner’s November 2010 publication A Matter of Trust: Integrating Privacy and Public Safety in the 21st Century.)

The concerns voiced by Canada’s privacy commissioners have been echoed by legal and academic experts specializing in technology, privacy and the law and, most importantly, by thousands of concerned Canadians who wish to have both effective law enforcement and strong privacy protections.

In this context, there can be little doubt that the most recent iteration of the government’s approach to expansive surveillance legislation has significant implications for personal privacy, state powers, and the longstanding constitutional compromise between the two, as well as for the oversight functions of courts and privacy commissioners, and the future of innovation, costs and competiveness in the communications and technology fields.

The fact that the government appears to be committed to limiting real-time surveillance of private communications including in-transit e-mail under the “wiretapping” rules set out in Part VI of the Criminal Code is welcome news. We also welcome the absence of any public call for the creation of data retention rules with respect to subscribers and their day-to-day use of the new technologies. No such retention rules should be countenanced.

At the same time, we believe that critical elements of the proposed legislative regime suggest that the government misconceives how Canadians interact with new communications technologies and significantly underestimates the sensitivity of the personal information involved. The concomitant risks to privacy and other fundamental rights are significant.

Why? Because new surveillance powers leverage new and still evolving technologies. As a result, they significantly increase rather than merely maintain the state’s surveillance capacity. Accordingly, attempts to frame the public debate in terms of maintaining capacity are misleading:

The ways in which we communicate with each other have undergone such enormous changes that it is entirely fanciful to say that there are simple equivalents in the Internet and broader digital domain to the communications surveillance techniques used for conventional voice-based telephones. There are many new types of communication available between individuals, but nearly all of these are in forms that are very easily computer-readable and therefore capable of complex analysis by computers. The range of tools available to law enforcement to track and link activity and database content is now vast and growing all the time. The debate is thus not about maintenance of capability but trying to determine a proper balance in new circumstances.2

In this context, the legal distinction traditionally drawn between the content of a private communication such as is exchanged during a telephone call or via e-mail and the associated traffic data is being overtaken by social, economic and technological developments. What we refer to as trafficdata has evolved and it will continue to do so. Certainly, it is no longer confined to a list of phone numbers obtained by a dial recorder or rows of text on a telephone bill.

It extends digitally to link and trace the ongoing interactions of networks of users through unique identifying device numbers vis-à-vis their location in time, their location on and along the ground, their activity and interactivity within the Internet, and their relatedness within and across communities. The resulting digital trails are routinely retained by service providers and various third parties for weeks, months or even years. These trails paint a detailed and evolving picture that reflects on who we are.

Furthermore, there are strong indications that law enforcement’s appetite for the surveillance of live telephone communications is being dwarfed by their interest in accessing the private content in the mass of digital trails created every time an individual sends a message, surfs the Internet, e-banks or simply carries a 3G enabled device.3 Computer facilitated analysis of this data canreadily reveal the interwoven layers of core biographical information that animate communications data, particularly where the scrutiny extends for a significant period of time. As recognized by the United States Court of Appeals for the District of Columbia in a Fourth Amendment GPS vehicle tracking case being heard by the U.S. Supreme Court on November 8, 2011:

Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movements can reveal still more; a single trip to a gynaecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.4

Properly supervised, surveillance powers can be invaluable to law enforcement. However, it is equally true that where individuals are subject to unwarranted suspicions, evidence is poorly handled, or erroneous conclusions are hastily drawn, the consequences for innocent individuals can be devastating. Recent national security-related investigations make this all too clear (e.g., Maher Arar).

While we continue to support the vital law enforcement interest in pursuing electronic evidence and intelligence about serious wrongdoing, we also urge the government to ensure that any search, seizure, or surveillance of personal communications be subject to the most rigorous oversight. The constitutional values at stake demand such safeguards.

On the basis of all the above, we reject the Bills’ implicit claim that the so-called non-content data elements associated with new communication devices and services are of significantly lesser constitutional significance. Safeguards comparable to those necessary to properly regulate the wiretapping of a rotary phone are required with respect to 21st century communications, including, but not limited to, rigorous prior judicial scrutiny.

2) Intrusive Proposals Require Essential Matching Legislative Safeguards

Read together, the legislative proposals substantially diminish the privacy rights of Canadians. They do so by enhancing the capacity of the state to conduct surveillance, as well as access private information, while reducing the frequency and vigour of judicial scrutiny, thus making it easier for the state to subject more individuals to surveillance and scrutiny.

Are the current processes that provide for oversight of surveillance-related powers sufficient to keep pace with the proposed expansion of state power? With the anticipated re-introduction of the Bills, Canadians are being asked to rely on oversight regimes designed decades ago to provide sufficient safeguards for the protection of our fundamental rights and freedoms today. The supervision provided by prior judicial authorization, the criminal trial process, and complaint-driven oversight under police and privacy-related statutes, while critical, are fundamentally insufficient. Let me explain.

The proposed surveillance and access regime will frequently involve complex, highly technical, and sensitive information. Moreover, where prior judicial authorization is required, the relevant surveillance and access applications are necessarily held in camera and ex parte. Where the resultant surveillance and access activities produce legal charges that lead to a criminal trial, the trials invariably have a narrow focus on the accused. National security-related investigations, which often have a much broader focus, invariably proceed in secrecy, and are rarely subject to public scrutiny. In both contexts, innocent individuals subject to surreptitious invasions of their privacy may never be in a position to learn about, let alone file for or find any redress. In addition, existing complaint regimes are limited as to their reach, powers and remedies. Any in depth public scrutiny of such matters will be the rare exception to a general rule of confidentiality and secrecy.

Furthermore, under the Bills, local, provincial, and federal law enforcement agencies will be equally empowered to use these intrusive powers in pursuit of both domestic and international investigations. Without a focused harmonizing and coordinating authority, inconsistent policies and practices are likely to develop among the various jurisdictions. Inevitably, privacy rights and civil liberties will suffer from fragmented and inconsistent protections.

Canadians have a constitutional right to be secure from unreasonable search and seizure. The expansive surveillance proposals bring this right into question. And, since the state’s authority to intrude on privacy does not come with concomitant responsibilities with respect to accountability, notification and transparency, the net negative effect on human rights is likely to be compounded over time.

To its credit, the government has responded to recent court rulings 5 by including a provision in Bill C-50 that will require that: (i) a person who has been the target of a warrantless exceptional circumstances interception must be notified of the interception within a specified period; and (ii) the relevant Minister must report publicly on police resort to such warrantless wiretaps.

At the same time, we note that these notice and reporting mechanisms are confined to providing a modest degree of notice, transparency and accountability (restricted as they are to only notifying the target of the surveillance, and confined as they are to limited numeric reporting) with respect to a single surveillance power – the power to intercept a private communication. In addition, the reporting practices of provincial and federal Attorneys General with respect to the use of these Part VI wiretap powers have varied considerably (as seen in jurisdictions where the required annual reports have sometimes not appeared until several years have passed).

In this context, we call for the government’s public commitment to the enactment of sufficient safeguards to match the array of new and existing powers.

Support for this call can be found in recent U.S. and Canadian court decisions. In a unanimous decision of September 6, 2011 requiring the U.S. Department of Justice to publicly disclose information showing the government’s use of cell phone location data in criminal prosecutions resulting in a guilty plea or a conviction, the United States Court of Appeals for the District of Columbia determined that:

The disclosure sought by the plaintiffs would inform … ongoing public policy discussion by shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool. It would, for example, provide information about the kinds of crimes the government uses cell phone tracking data to investigate. As the plaintiffs note, with respect to wiretapping Congress has balanced privacy interests with law enforcement needs by permitting the government to use that technique for only the more serious offenses … and the plaintiffs (and others) may decide to argue for similar legislation to govern cell phone tracking. Disclosure would also provide information regarding how often prosecutions against people who have been tracked are successful, thus shedding some light on the efficacy of the technique and whether pursuing it is worthwhile in light of the privacy implications. 6

And, as indicated above, recent rulings of the Superior Courts of Ontario and British Columbia have determined that notice and reporting safeguards are constitutionally required with respect to intrusive surveillance powers, such as the power Parliament granted peace officers in section 184.4 of the Criminal Code (a power to conduct warrantless wiretapping in certain exceptional circumstances). For example, in R. v. Six Accused Persons, the B.C. Supreme Court determined that:

Although the Crown submits that in most cases where … persons whose communications have been intercepted will receive de facto notification by way of the prosecution of the underlying offence, that submission fails to recognize that the communications of persons other than the alleged perpetrator may have been intercepted. It also fails to address situations where, for whatever reason, the police may have erred in their assessment of the need to intercept private communications, intercepted more communications than those to which they were lawfully entitled or over a longer period of time, or those that were intercepted under circumstances which did not result in a prosecution.

In any or all of those circumstances, the police would be answerable to no one. Further, the fact that there is no obligation to disclose surreptitious invasions of privacy to those persons whose communications have been intercepted removes an important safeguard to the potential abuse of power that can arise without accountability.

This case is illustrative of some of those concerns … To this day, many of the persons whose communications were intercepted by the police are unlikely to know of that invasion of their privacy. That circumstance is exacerbated by the police having engaged in the automatic monitoring of all calls to the telephones they had identified as being appropriate for interception. Any discovery by third parties of the police having intercepted their private communications would be fortuitous.

Requirements to notify persons whose private communications have been intercepted of the fact of that interception afford an important constitutional and accountability safeguard to the potential abuse of state power in invading the privacy of its citizens.

The interception of private communications in exigent circumstances is not like situations of hot pursuit, entry into a dwelling place to respond to a 9-1-1 call, or searches incidental to arrest when public safety is engaged. In those circumstances, the person who has been the subject of a search will immediately be aware of both the circumstances and consequences of police action. The invasion of privacy by interception of private communications will, however, be undetectable, unknown and undiscoverable by those targeted unless the state seeks to rely on the results of its intentionally secretive activities in a subsequent prosecution.

I am accordingly satisfied that the failure of … the [Criminal Code] to provide notification of surreptitious interception of private communications to those persons whose communications are intercepted is a serious impediment to the constitutional validity of s. 184.4.


If the intention of Parliament in requiring the provision of [public] reports [enumerating resort to surveillance powers] is to oversee the frequency and circumstances of the interception of private communications by the police, the failure to provide a similar reporting requirement under s. 184.4 of the Code removes the potential for that oversight. As with the failure to require notification of those intercepted of the fact of an interception, the lack of any reporting requirement undermines both constitutionality and police accountability. 7

Bearing all of the above in mind, and in addition to the adjustments we call for to Bills C-51 and C-52, we renew our call for the creation of an independent, arm’s-length Surveillance and Access Review Agency (SARA), with a legislative mandate to supervise state access to the highly sensitive personal information associated with digital communications and to report annually to Parliament and the public on the use of the surveillance and access powers. 8

In establishing SARA, Parliament would require law enforcement and security agencies who obtain any communication-related data from TSPs to notify all of the individuals whose personal

information is involved within one year of the information being obtained unless the individual cannot readily be identified or reasonably located, or notification would prejudice an ongoing investigation. Notification of all readily identifiable individuals would be required within five years of the information being obtained unless, on application to SARA, it is determined that the public interest in non-disclosure outweighs the right to notification.

In this context, TSPs should be required to publish annual reports on how many interception and access orders (and requests) they receive a year from which law enforcement and security agencies, in respect of how many individuals; and how many orders (and requests) result in the disclosure of personal information, and in respect of how many individuals.

In renewing the call for the creation of SARA, we acknowledge that the preparation and enactment of the necessary legislative framework will take time and that, in the meantime, the government may well decide to proceed with its plan to substantially reshape the state’s capacity to conduct surveillance. To the extent that you are not prepared to redraft the Bills to ensure that the new surveillance powers are justified and that the necessary safeguards are in place before the regime comes into force, we strongly urge you to publicly commit to enact a SARA Act in tandem with the proposed surveillance and access regime, even as you move to amend the current legislative proposals to provide additional if limited safeguards on it coming into force, as further discussed below.

3) Even with Matching Oversight, the Proposed Powers Require Adjustment

Bill C-51, the Investigative Powers for the 21st Century Act, will amend the Criminal Code, giving “peace officers” and “public officers” new avenues to obtain access to information generated electronically. As such, a wide range of officers, extending well beyond police, will be empowered to:

•Issue preservation demands on their own say so with respect to a wide array of primarily corporate-held data in the course of investigating any offence, including on behalf of a foreign state, and impose any conditions in the demand that they consider appropriate, including conditions prohibiting the disclosure of its existence or some or all of its contents,

•Apply for new suspicion-based preservation and production orders to preserve and gain access to information about transmission, traffic, communication, tracking, transaction and financial data,

•Apply for new suspicion-based warrants to enable the remote live tracking of vehicles and other things,

•Apply for belief-based warrants to enable the remote live tracking of individuals by tracking the location of cell phones or other things they usually carry or wear, and

•Apply for non-disclosure/secrecy orders with respect to all of the above.

It is our view that, as a general rule, law enforcement access to data, particularly communications-related data, as well as the new tracking powers, should be subject to prior judicial scrutiny, limited to the investigation of serious crime, generally subject to higher belief rather than suspicion-based thresholds, and come with additional oversight and accountability-related safeguards.

In this context, I note that an August 22, 2011 U.S. District Court decision invites us to raise the question as to the constitutionality of the proposed suspicion-based, as well as belief-based, production order making powers. 9 In this case, the U.S. government had asked the Court for “orders directing Verizon Wireless, a cell-phone service provider, to disclose recorded information of cell-site-location records for one of its customers pursuant … to the Stored Communications Act or ‘SCA’).” The proposed order sought stored, historical cell-site-location records tied to a period in excess of 113 days. On its face, the SCA provides that such an order “may be issued by … a court of competent jurisdiction … only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” (Emphasis added.) The Court determined that “the Fourth Amendment to the United States Constitution requires a warrant and a showing of probable cause before the Government may obtain the cell-site-location records requested here.”

As the Court clearly understood, the problem with these kinds of production orders is their implication for the privacy of society at large and, in my view, the concerns expressed by the Court with respect to Americans apply equally with respect to Canadians:

The vast majority of Americans own cell phones. Many Americans have abandoned land line phones entirely, and use cell phones for all telephonic communications. Typically people carry these phones at all times: at work, in the car, during travel, and at home. For many Americans, there is no time in the day when they are more than a few feet away from their cell phones.

Cell phones work by communicating with cell-sites operated by cell-phone service providers. Each cell-site operates at a certain location and covers a certain range of distance. The number of cell-sites that must be placed within a particular area, and thus the distance between cell-sites, is determined by several factors, including population density.

If a user’s cell phone has communicated with a particular cell-site, this strongly suggests that the user has physically been within the particular cell-site’s geographical range. By technical and practical necessity, cell-phone service providers keep historical records of which cell-sites each of their users’ cell phones have communicated.

The implication of these facts is that cellular service providers have records of the geographic location of almost every American at almost every time of day and night. And under current statutes and law enforcement practices, these records can be obtained without a search warrant and its requisite showing of probable cause.

What does this mean for ordinary Americans? That at all times, our physical movements are being monitored and recorded, and once the Government can make a showing of less-than-probable-cause, it may obtain these records of our movements, study the map our lives, and learn the many things we reveal about ourselves through our physical presence.

In the same vein, in the Maynard case now pending before the U.S. Supreme Court, the reasoning of the United States Court of Appeals for the District of Columbia provokes questions as to the constitutionality of the proposed suspicion-based, as well as belief-based, tracking warrants. As the Appeal Court found in Maynard, “prolonged GPS monitoring [of a person’s vehicle travelling on public roads] defeats an expectation of privacy that our society recognizes as reasonable” and must comply with Fourth Amendment standards.

The Court’s holding was echoed as recently as September 21, 2011 in a report issued by the Liberty and Security Committee of the U.S. Constitution Project. This bi-partisan committee, whose members include two former members of Congress, former FBI director William Sessions, a former U.S. Court of Appeals judge and a former chair of the American Conservative Union, concludes that “when powerful tracking technologies to conduct pervasive surveillance are paired with [a computer’s] analytic capability and a digital database, such monitoring can violate an individual’s reasonable expectation of privacy even in a public place.”

The Committee recommends that, if the U.S. Supreme Court does not adopt the proper approach in the Maynard case, Congress should do so by enacting legislation requiring court warrants for any location tracking lasting more than 24 hours.10

Consistent with these developments, in my view, it is essential that more stringent conditions precedent be enacted in relation to the proposed surveillance and access powers. The use of production orders and tracking warrants should be confined to investigations in respect of the list of serious offences in section 183 of the Criminal Code. Before issuing such orders or warrants, a superior court judge ought to be satisfied that:

•There are reasonable and probable grounds to believe that an offence under section 183 of the Criminal Code has been or is being committed,

•Other less intrusive investigative methods are likely to prove impracticable,

•Measures will be taken to safeguard the privacy of the personal information obtained, particularly of non-suspects, and

•The intrusion is otherwise in the best interests of the administration of justice.

As indicated, Bill C-51 also proposes to create a new set of powers that police could invoke to require data managers to locate and hold personal information in documents or databanks. Government has argued that these preservation powers are necessary to support the production order powers discussed above. In our view, any power to issue a preservation demand or order should be confined to the same list of serious offences in section 183 of the Criminal Code.

In addition, in order to address the risk to accountability that non-disclosure or secrecy orders entail, we recommend that all those whose personal information is obtained under a surveillance and access regime should be entitled to notification at the appropriate time. And, in accord with our SARA-related recommendations, state use of these powers and access to this personal information should be superintended and reviewed by an independent agency.

It is also noteworthy that in introducing sections 487.0195(1) and (2) to the Criminal Code, Bill C-51 provides broad immunity from “any criminal or civil liability” to any person who voluntarily preserves data or provides a document to an officer. The person is no longer required to show that he or she acted on reasonable grounds per the operation of what is now section 487.014 with section 25 of the Criminal Code. The person need only show that his or her cooperation was not “prohibited by law.” In our view, individuals and entities responsible for safeguarding personal information of members of the public must act reasonably before they should be entitled to such immunity. A reasonableness standard provides volunteers with significant protection while helping to rule out the possibility that, for example, malicious or incompetent decision makers will enjoy undeserved immunity.

Accordingly, section 487.0195(2) should be amended to provide that:

A person who preserves data or provides a document in the circumstances described in subsection (1) does not incur any criminal or civil liability for doing so if he or she acted reasonably in the circumstances.

Bill C-50, the Improving Access to Investigative Tools for Serious Crimes Act, will amend the Criminal Code, first by providing that if a wiretap authorization is granted under Part VI, the judge may at the same time issue one or more Bill C-51-related warrants or orders that relate to the investigation in respect of which the wiretap authorization is given. That is, in obtaining a wiretap warrant, police may also contemporaneously obtain companion production orders and tracking warrants, all from a single judge. Rules respecting secrecy and confidentiality that apply in respect of a wiretap authorization will also apply in respect of a request for a related warrant or order. In addition, the Bill will permit a peace officer or a public officer to install and make use of a number recorder without a warrant in exigent circumstances. The Bill will also extend to one year the maximum period of validity of a warrant for a tracking device and a number recorder if the warrant is issued in respect of a terrorism offence or an offence relating to a criminal organization (the maximum is now 60 days).

The critical development brought forward in Bill C-50 is that the efficiencies it may purchase in streamlining the conduct of judicially authorized state surveillance and access may come at some cost to the rigour of prior judicial scrutiny. In some cases, a single judge hearing a multitude of inter-related applications may be better informed about the extent of the overarching surveillance employed. At the same time, the demands on judges are likely to grow. In the context of what are necessarily ex parte and in camera proceedings, there will be an increased risk that a greater degree of intrusive surveillance and access will be granted in cases where it is not warranted. While we do not oppose Bill C-50 per se, its enactment will likely intensify the effect of the new surveillance regime. Such intensification increases the need for the adoption of matching safeguards under a SARA Act.

4) Surveillance Must Not Undercut the Future of Freedom, Innovation and Privacy

In addition to the controversial plan to provide law enforcement with warrantless access to subscriber information (discussed in section 5 below), the Electronic Communications Act sets in motion a fundamental change to the way communication services are regulated. It does so by entrenching the power of security officials to require TSPs to:

•Build in and continuously maintain a wide array of yet to be specified interception capabilities into all their networks, systems and software for the purpose of allowing authorized agencies to intercept, isolate and accurately correlate multiple communications per court orders,

•Notify law enforcement and CSIS officials regarding changes to state provided equipment or systems where those changes are likely to reduce interception capability;

•Assist designated persons who will have warrantless access to TSP facilities, systems, documents and information to test, inspect, and access TSP facilities, services and systems for regulatory purposes,

•Provide prescribed specialized telecommunications support to CSIS and law enforcement agencies,

•Submit lists of TSP personnel to CSIS and/or the RCMP for the purposes of conducting security assessments of employees who may assist in the interception of communications, and

•Comply with prescribed confidentiality and security measures. 11

The Electronic Communications Act will also establish numerous offences and violations and subject TSPs, their officers, directors, and employees to prosecution and fines for failing to comply with obligations, including those relating to systems requirements.

Each additional day in breach of the statute will add to the count of violations and increase the exposure of TSPs, their officers, directors, and employees to fines of up to $50,000 per offence for an individual and $250,000 for a corporation. The Electronic Communications Act will allow the state to seek a court injunction ordering a TSP to cease operating a transmission apparatus, or to refrain from acquiring, installing or operating new software, if the TSP is contravening or likely to contravene interception requirements.

It is also noteworthy that the Electronic Communications Act does not address the financial and commercial implications of these proposals, either to businesses, consumers, or taxpayers. It only authorizes the payment of some monies to compensate TSPs in relation to: (i) compliance with a Ministerial order to provide interception capabilities additional to those prescribed; (ii) the provision of subscriber information; and (iii) the provision of certain specialized telecommunications support. Reports about the cost of related proposals in the U.S. and the U.K. warrant careful consideration in Canada.

In October of 2010, it was reported that, in response to the Obama administration’s intention to submit comparable surveillance legislation, American TSPs are “likely to object to increased government intervention in the design or launch of services. Such a change … could have major repercussions for industry innovation, costs and competitiveness.”12

In the U.K., a related though more intrusive data retention and “Interception Modernization Program” was being considered until it was abandoned by the British government in late 2009 because of concerns about cost, controversy and feasibility. Prior to this, it was reported that development costs will be high (2 to 13 billion pounds). “The bulk of the costs will be incurred by [TSPs]. The most ignored cost comes in the form of opportunity costs as engineers will be tasked to develop this [surveillance] solution instead of developing their core business, i.e. new ways to enhance the networks for advancing consumer and business interests.”13

None of these immediate financial costs would necessarily translate into privacy issues per se if it were not for the fact that the Electronic Communications Act risks causing additional marketplace distortions by effectively prohibiting the use and development of any systems or software that might impair a TSP’s capacity to facilitate simultaneous multiple intercepts. While the goal of facilitating compliance with court ordered surveillance is valid, there is a significant risk that in implementing this legislation, the authorities will impede the development and use of new communications technologies and services, particularly, for example, privacy enhancing technologies and services such as those that provide for encryption.

In this regard, the Electronic Communications Act requires that a TSP must “use the means in its control” to provide an intercepted communication “in the same form as it was before the communication was treated by the service provider” by way of encoding, compression, or encryption. A TSP is not required to make the form of an intercepted communication the same as it was before the communication was treated if it would be required to develop or acquire new decryption techniques or tools. The legislation appears to allow companies like Research in Motion to continue to provide existing encryption protected communication services. It remains to be seen what the future holds for new companies and new strong encryption techniques and services in the field of communications. For example, there is a risk that the Electronic Communications Act will set the stage for rules requiring back-door state access to encryption services.

It is evident that many of the critical details flowing from the Electronic Communications Act will be left to policies, procedures, regulations and evolving relationships between TSPs and the state. In passing so many significant public policy decisions on to security-oriented officials, Parliamentarians and the public risk being left out of the decision-making process and Canadians risk seeing TSPs transformed into agents of the state. This represents a significant and needless risk to a free and open society.

We only have to look to recent U.S. history to consider the implications. Many will now be familiar with reports of the secretive and controversial assistance that major telecommunications carriers provided the National Security Agency in the conduct of warrantless eavesdropping on international calls by suspected terrorists after 9/11. As recognized by U.S. courts, such surveillance has the potential to expose “journalistic sources, witnesses, experts, foreign government officials, and victims of human rights abuses located outside the United States” to “violence and retaliation by their own governments, non-state actors, and the U.S. government.” 14

While the Electronic Communications Act will be subject to a form of Parliamentary review five years out, in the meantime, if passed, it will substantially alter the design and operation of communication systems, the role and function of TSPs, their ability to be transparent, and the relationship between citizens, TSPs and the state.

A comprehensive and public cost benefit analysis should precede rather than follow the making of so many significant public policy decisions. Before imposing the kind of interception capacity regime the Electronic Communications Act would impose on TSPs, Parliament should ensure that such a capacity regime will be proportionate and designed to ensure not only appropriate surveillance capacity but also necessary competiveness and privacy.

It follows that the Parliamentary committee eventually mandated to consider the kinds of proposals in the Electronic Communications Act should be adequately resourced to ensure that civil society, as well as industry, has a full opportunity to provide substantial input.

In addition, the Electronic Communications Act should be amended to require that all interception-related capacity requirements be publicly vetted for their impact on privacy and competiveness before they are imposed (in the future, SARA should have a role to play in reporting on the impact of capacity-related requirements). Such requirements should be provided for in the form of draft regulations which would only come into force after a vote by Parliament to approve them as a whole.

5) Warrantless Access to Subscriber Information Must Be Withdrawn

In addition to providing the state with substantial control over the design and operation of TSP systems, the Electronic Communications Act will also provide law enforcement and CSIS officials with warrantless access to subscriber information for the purposes of performing any of their duties or functions. Subscriber information includes a named individual’s IP address or mobile ID number, or the name and contact information of a subscriber associated with an IP address or mobile ID number.

The Electronic Communications Act provides for attenuated post facto review of warrantless access to subscriber information. In doing so, it relies on provincial and territorial privacy commissioners to: (i) conduct audits to assess local and provincial police compliance with provisions of the statute empowering the collection and use of subscriber information; and (ii) review police reports generated to the extent that police decide that something has occurred with respect to their own exercise of these access powers that, in their opinion, ought to be brought to the attention of the responsible provincial minister (in Ontario, the attorney general).

Under section 20(6) of the legislation, the Privacy Commissioner of Canada must provide Parliament with an annual report identifying the provincial and territorial privacy commissioners who may receive any such opinion-based reports and the powers that they have to conduct section 20 compliance audits.

Like a number of other provincial and territorial privacy commissioners, I lack the necessary powers. In particular, under Ontario’s privacy statutes, I do not have any audit powers. Even those privacy commissioners with sufficient powers are likely to need additional resources in order to adequately perform the legislative duties imposed under section 20 of the Electronic Communications Act.

In a letter of March 9, 2011 signed by all the federal, provincial and territorial privacy commissioners, we joined our colleagues in calling on the federal government to commit to working with provincial and territorial governments to ensure that all of our offices have sufficient powers and resources should the Electronic Communications Act be enacted. It does not appear that any such commitment has been forthcoming.

Quite apart from the constitutional issues raised by the enactment of a regime of warrantless access, it is noteworthy that in some circumstances, aspects of post facto oversight of communications-related surveillance powers have been found by Superior Courts to be constitutionally required (see, for example R. v. Six Accused Persons, [2008] B.C.J. No. 293 and R. v. Riley, [2008] O.J. No. 2887). In the absence of the necessary provincial and territorial powers and resources, the Electronic Communications Act’s reliance on provincial and territorial privacy commissioners is untenable. In addition, the audit duties to be imposed on provincial and territorial privacy commissioners under section 20 may raise division of powers problems.

It remains our view that the Electronic Communications Act should be amended to require that provisions setting out TSP obligations concerning “subscriber information” should be deleted and replaced with a court supervised regime.

“Subscriber information” is personal information. To date, all individual customers enjoy the legal right to insist that, subject to narrowly defined exceptions, their subscriber information remains private and confidential. The law currently provides for warrant procedures, expedited tele-warrants, and an organization’s special exercise of discretion to disclose personal information to law enforcement without an individual’s consent, for example, in aid of an Internet-related child pornography investigation, or in comparable exigent-like circumstances. Granting law enforcement and intelligence officials an almost unfettered power to issue their own administrative “warrants” for the purposes of performing any of their duties or functions is a substantial departure from the legal and constitutional framework in Canada. Such a departure requires extraordinary justification and a substantial framework for accountability.

Consistent with our earlier comments, law enforcement and security agency access to informationlinkingsubscribers to devices (and vice versa) should generally be subject to prior judicial scrutiny accompanied by the appropriate checks and balances. Before issuing an order requiring the disclosure of subscriber information, a judge ought to be satisfied that:

•There are reasonable and probable grounds to believe that an offence under section 183 of the Criminal Code has been or is being committed,

•Measures will be taken to safeguard the privacy of the personal information obtained, particularly of any non-suspects, and

•The intrusion is otherwise in the best interests of the administration of justice.

In the alternative, if Parliament is determined to allow warrantless access to subscriber information, the legislative safeguards in section 20 of the Electronic Communications Act should be strengthened so that they provide a much greater degree of post facto oversight. In particular:

•The power to demand warrantless access to subscriber information should be narrowed to only apply in circumstances where access is necessary to the investigation of a specific and defined category of serious crime, for example, sexual offences involving children and minors, or to prevent or eliminate a significant and imminent risk of serious bodily harm.

•The “consistent use” limitation regarding subscriber information collected by law enforcement and security agencies should be strengthened. A use should only be considered as consistent if a reasonable person might reasonably have expected such a use.

•Law enforcement and security agencies should be required to securely destroy information that is provided in response to a subscriber information request one year after the individual has been notified of its collection, or once retention of the information is no longer necessary for the purpose for which the information was obtained, or for a use consistent with that purpose, whichever is later.

•The requirement that law enforcement and security agencies must report to attorneys general and privacy commissioners should be strengthened. Agencies should be expressly required to report any collection, use or retention practices that do not appear to be necessary and proportionate in relation to the duty or function for which they were originally obtained.

•In reporting to Parliament on the adequacy of audit and investigation powers available to provincial and territorial privacy commissioners, the Privacy Commissioner should also report on whether those commissioners consider themselves to have adequate resources to conduct the necessary audits and reviews.

•If, after consulting with a provincial or territorial commissioner, the Privacy Commissioner reports that her colleague does not have substantially similar powers, the subscriber information powers available to police services within that jurisdiction should automatically lapse until the Privacy Commissioner reports back that the provincial or territorial commissioner has been provided with those powers.

To the extent that Parliament chooses to rely on provincial and territorial privacy commissioners to perform post facto review of warrantless access to subscriber information, it follows that the federal government must commit to working with provincial and territorial governments to ensure that all of the relevant privacy commissioners have sufficient powers and resources. In this regard, please note that I have written two letters to Ontario’s Attorney General, asking that the Ontario government play its part in these important law reform and oversight-related issues. Copies of those letters are attached.


The surveillance regime being put forward is aimed at capturing the full range of content, communication and traffic data associated with digital communications. As communication services continue to evolve, thelegislation will empower the state to develop, update and enforce regulations directly aimed at shaping the technological capacities of telecommunication services so as to ensure that Web 2.0, 3.0 etc. communications can be readily intercepted, isolated and accurately correlated. In this context, it is reasonable to foresee that it will be much easier for the state to subject more individuals, including innocent individuals, to unwanted surveillance and scrutiny.

This debate is not about maintaining the state’s surveillance capabilities, but trying to determine the proper balance in the evolving information age. In the face of so many significant changes, with so much at stake, and with so much left to regulation and implementation by policy, we are concerned that the public, Parliament and industry will be hard pressed to keep abreast of the technological challenges, the financial costs, and the invasiveness of an expanding surveillance regime. It is essential that Parliament and the public be well informed on technological, legal, regulatory and financial issues. The implications for privacy and other human rights must also be fully addressed, by providing for the necessary transparency, accountability and oversight. No less than the future of privacy – the future of freedom, is at stake.

Yours sincerely,

Ann Cavoukian, Ph.D.


Enclosures (2)

c: The Honourable John Gerretsen, Attorney General of Ontario

William Baker, Deputy Minister, Public Safety Canada

Myles Kirvan, Deputy Minister of Justice & Deputy Attorney General of Canada

Murray Segal, Deputy Attorney General of Ontario

1 Copies of these five communiqués are available at:

December 20, 2002 -; April 21, 2005 -; October 10, 2007 -; September 9-10, 2009 -; and March 9, 2011 -

2 London School of Economics, Briefing on the Interception Modernisation Programme, June 2009, p. 6.

3 See “The Law Enforcement Surveillance Reporting Gap” by Christopher Soghoian , Indiana University Bloomington - Center for Applied Cybersecurity Research, April 10, 2011.

4 United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), cert. granted, United States v. Jones, 2011 WL 1456728 (June 27, 2011), U.S.S.C. Docket No. 10-1259.

5 See R. v. Six Accused Persons, [2008] B.C.J. No. 293 (S.C.) and R. v. Riley, [2008] O.J. No. 2887 (S.C.J).

6 American Civil Liberties Union v. United States, United States Court of Appeals for the District of Columbia Circuit, September 6, 2011, No. 10-5159.

7 R. v. Six Accused Persons, [2008] B.C.J. No. 293 (S.C.)

8 For more information about the functions and duties we propose for SARA, please see our April 21, 2005 letter to the then Minister of Justice and Attorney General of Canada.

9 In the matter of an application of the United States of America for an Order authorizing the release of historical cell-site information No. 10-MC-897, United States District Court, E.D. New York (August 22, 2011).

10 See the Liberty and Security Committee September 21st, 2011 Statement on Location Tracking at

11 Note that, to date, security officials have been able to impose a similar framework largely outside Parliamentary scrutiny through, for example, the Solicitor General’s Enforcement Standards for Lawful Interception of Telecommunications, and Conditions of Licence for New Cellular and PCS Licences issued by the Minister of Industry under the Radiocommunication Act (see

12 “Officials Push to Bolster Law on Wiretapping”, Charlie Savage, New York Times, October 18, 2010.

13 London School of Economics, Briefing on the Interception Modernisation Programme, June 2009, p. 44-45.

14 Amnesty Int’l USA et al. v. Clapper et al., United States Court of Appeals for the Second Circuit, September 21st, 2011, 09-4112-cv, at pages 8-9 of Circuit Judge Lynch’s decision, quoting from Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011).

Thursday, February 23, 2012

A federal lawyer says an Ottawa man facing deportation under a federal security certificate had ample opportunity to defend himself from terrorism allegations under Canada's revamped security law, but chose not to use that opportunity.

 A federal lawyer says an Ottawa man facing deportation under a federal security certificate had ample opportunity to defend himself from terrorism allegations under Canada's revamped security law, but chose not to use that opportunity.

David Tyndale told the Federal Court of Appeal Wednesday that Mohamed Harkat could have given a detailed defence against federal allegations he associated with terrorists but instead chose to be evasive and contradictory. Harkat's defence, Tyndale argued, was not limited to mere denials as his lawyers have suggested.

``That's not what Mr. Harkat was limited to: It's what he chose to do on a number of occasions,'' Tyndale told the appellate court.

Harkat's defence team has asked the Appeal Court to strike down the federal government's revamped security certificate law, introduced in 2008, as unconstitutional.

The previous version, used to detain and deport foreign-born terror suspects, was effectively struck down by the Supreme Court in February 2007. The high court said the process was so secretive it denied defendants the fundamental right to meet the case against them.

The Harkat case is the first to test whether the government's revised security certificate law can withstand a challenge under the Canadian Charter of Rights and Freedoms.

Harkat's lawyers say the process still does not allow defendants to meet the case against them since they're only given an outline of allegations due to national security concerns. The allegations, they say, lack critical details, such as the information's origin.

Harkat, an Algerian refugee, is appealing a December 2010 Federal Court decision by Judge Simon Noel, who upheld the government's case against Harkat, declaring him an active and dangerous member of the al-Qaida network.

Tyndale said that although Harkat was not allowed access to classified information, his legal proxies - lawyers known as special advocates - were.

Because the new security certificate process allows for legal proxies, Tyndale argued, it meets the Supreme Court's standard for a fair hearing as it offers a meaningful substitute for full disclosure.

Harkat was given written summaries of the classified information used against him and his special advocates were allowed to challenge that evidence in closed hearings, Tyndale said.

``The issue here isn't that Mr. Harkat didn't know the case he had to meet,'' Tyndale argued, ``but that his evidence was found to be evasive, contradictory and implausible.''

By way of example, Tyndale pointed to Harkat's defence against the government allegation that he ran a guest house in Peshawar, Pakistan, for jihadists, and also worked as a chauffeur for Chechen rebel leader Ibn Al-Khattab in 1994 and 1995.

Harkat admitted that he lost his job working for a Muslim charity in June 1994. But in his testimony, he offered little explanation of what he did between that time and September 1995, when he arrived in Canada, Tyndale said.

``Mr. Harkat gave a response, but his response was effectively, `I didn't do a lot at that time.' Judge Noel didn't believe it.''

Tyndale said that while Harkat had enough information to meet the case, ``his choices of responses didn't turn out well for him.''

The case against Harkat relied heavily on written summaries of telephone conversations recorded by CSIS between 1996 and 1998. In keeping with what was then internal policy, however, CSIS, Canada's spy agency, destroyed the original recordings.

Defence lawyers have asked the Appeal Court to overturn the finding that Harkat is a terrorist and throw out the summaries entered into evidence.

Harkat's lawyer Matthew Webber said the summaries were filtered for security information, not evidence, and cannot be trusted as an accurate reflection of what was said.

Webber said Harkat's ability to defend himself was unfairly restricted since he could not challenge the translation of the recordings, voice identification or other potential flaws.

After the previous security law was struck down in 2007, Parliament drafted a new law which gave terror suspects the right to be represented by special advocates and to receive written summaries of evidence heard in-camera.

Wednesday, February 22, 2012

The Liberals are replacing the confusing ‘secret law’ police used to place hundreds of people under arrest during the G20 summit in 2010.

‘Secret’ G20 law to be scrapped

The Liberals are replacing the confusing ‘secret law’ police used to place hundreds of people under arrest during the G20 summit in 2010.

The new Public Works Act will be introduced Wednesday in the Legislature, said Community Safety Minister Madeleine Meilleur.

The bill, created out of recommendations of former chief justice Roy McMurtry, will be far narrower in scope, addressing only power plant and court security issues.

“It will be limited because we are following Judge McMurtry’s advice and according to him the … criminal code covers the rest,” Meilleur said Wednesday.

The bill will allow people to be asked for identification and to show their bags when they enter court buildings.

During the June 2010 Toronto G20 summit, the obscure 1939 Public Works Protection Act, enacted to secure against Nazi saboteurs early in World War II, was used to quietly pass a regulation giving police broad powers of arrest.

That directive was merely supposed to clarify police powers within the secure summit site at the Metro Toronto Convention Centre, but people were misled into believing it applied to an area five metres outside the cordoned-off zone.

While only two of the 1,105 arrests made during the G20 related to the act, there was widespread outcry over the so-called secret law.

“This was an occasion for us to review legislation passed in the middle of the Second World War,” said Meilleur, who did not offer an apology for what many civil liberties groups felt was an abuse of power.

Progressive Conservative Leader Tim Hudak said the Liberals “lost touch” with the public by using a World War II-era law to round up people during the summit.

“Nobody forced them to bring in the secret law at the G20. Nobody forced their arm,” said Hudak. “It was a major scandal for the province.”

NDP Leader Andrea Horwath said the new law is an “admission” of failure on the part of the Liberal government.

“They made a big mistake when they were preparing for the G20 and they’re ignoring the fact that mistake trampled people’s civil rights, civil liberties,” said Horwath.

“This is why we were concerned with the G20 situation in the first place because we didn’t think the law was necessary. If there’s going to be a protest, there’s going to be a protest.”

McMurtry’s 54-page report on the old law noted the “potential for abuse” was “beyond troubling” and said it was a “loaded weapon” that threatened civil liberties.

Under the act, police or private security guards do not have to justify their actions against citizens, he pointed out.

Monday, February 20, 2012

Drummond Report Ontario justice system

The report’s recommendations include:

1. Improving evidence-based data collection to achieve better outcomes in justice programs.

2. Increasing the use of the Justice On Target program to assist with the reduction of custody remand, and implement evidence-based approaches to increase efficiency in the field of family law and family courts.

3. Expanding diversion programs for low-risk, non-violent offenders with mental illness as an alternative to incarceration.

4. Reviewing the core responsibilities of police to eliminate their use in non-core duties. This review would include an examination of alternative models of police service delivery. Criteria for the review would include determining the relative costs of the various security providers and an evaluation of their respective comparative advantages.

5. Using alternative service delivery for non-core services within correctional facilities, where feasible.

6. Continuing the process of clustering adjudicative tribunals across the Ontario Public Service.

7. Examining integration opportunities and consolidate where possible public safety training in policing, fire services and correctional services, which are currently delivered individually through their respective colleges.

8. Having the justice sector continue to work with Infrastructure Ontario to use alternative financing and procurement to assist in replenishing its capital infrastructure.

9. Improving co-ordination between federal and provincial governments in areas such as justice policy and legislation, law enforcement and correctional services.

10. Negotiating the transfer of responsibility for incarceration for sentences longer than six months to the federal government.

If the recommendations are not implemented, Ontarians could expect to see further deterioration of its courthouses and facilities. Courthouses will also be plagued by an increasing workload. Drummond estimates the federal omnibus crime bill will require an additional $22 million per year in additional costs.

“Moving forward, the justice sector faces fiscal challenges that will need to be addressed to bend down the cost curve for justice services,” the report says. “Key challenges facing the sector include compensation, increasing remand costs, infrastructure costs, the impact of federal legislation and greater expectations from the public for justice-related services.”

According to the report, Ontario is grappling not only with an increasingly strained court system but also overcrowded provincial jails, as well as an increase in family court matters.

“The public expects more from its justice system than it previously did...The justice sector will need to transform its service delivery and find efficiencies while ensuring public confidence.” Drummond said in the report. “Ontario’s finances do not yet constitute a crisis, and with early strong action a crisis can be averted.”

To view the complete report, visit the Ontario Ministry of Finance's web site.

Sunday, February 19, 2012

The most deadly type of ovarian cancer often starts outside the ovary.

The most deadly type of ovarian cancer often starts outside the ovary, causes symptoms, and has the potential to be diagnosed early enough to be treated effectively. These are the findings of the DOvE (Diagnosing Ovarian Cancer Early) study, led by a research team from the McGill University Health Centre (MUHC) and published in The Lancet Oncology. The study has major implications for women around the world and could revolutionize the way this disease is diagnosed.

“Our results show that women over 50 years with vague symptoms (such as bloating, urinary frequency, and abdominal or pelvic discomfort) are about 10 times more likely to have ovarian cancer than women without symptoms. But the most startling finding is that the deadliest type of ovarian cancer, high grade serous cancer (HGSC), which accounts for 90% of deaths, often starts in the Fallopian tubes rather than in the ovaries,” says Dr. Lucy Gilbert, Director of Gynecologic Oncology at the MUHC, and principal investigator of the DOvE study, which has been running at the Research Institute of the MUHC for the past 4 years.

“As the killer variety of ovarian cancer is not really cancer of the ovary, we have to rethink the current diagnostic test, or these cancers will be missed,” says Dr. Gilbert who is also an Associate Professor of Medicine at McGill University. “Put bluntly, we had the name wrong, the staging wrong, and the diagnostic testing wrong. It is no wonder we have lost so many lives to this disease.”

The DOvE project was initiated in May 2008 with the aim of assessing symptomatic women for ovarian cancer at the earliest possible stage, when the chances of recovery are highest. During the pilot phase of the study, 1,455 women aged 50 years or more who presented with symptoms, were carefully assessed. As a result, cancers were diagnosed earlier, when 73% of women could benefit from complete surgery, leaving no visible disease. This is not usually feasible in HGSC.

Each year 216,000 women worldwide are diagnosed with ovarian cancer, and 70% of them will die unless we act on the information we have without delay. We encourage healthcare professionals around the world to be aware that high grade serous cancer often starts in the Fallopian tubes. So the traditional tests – ultrasound scan of the ovaries and the one-off Ca125 blood test – are not enough to diagnose HGSC in time.

”In Montreal, we are setting up a network of 12 satellite clinics. This way we facilitate access to testing for women who have symptoms, but the tests are interpreted centrally at the MUHC to ensure that no cancer is missed and at the same time unnecessary operations are avoided,” says Dr. Gilbert. A map identifying the 12 satellite centres (including the main DOvE centre) is attached.

About the study

Investigators include Olga Basso, Claudia Martins, Jing Feng, Ilia Pacili, Sabrina Piedimonte, Louise Quintal, Agnihotram V Ramanakumar, Janet Takefman, Maria S Grigorie, Giovanni Artho, Natacha Albarracin, Srinivasan Krishnamurthy (all from the McGill University Health Centre); Igor Karp (University of Montreal and University of Montreal Hospital Research Centre); John Sampalis (MUHC & JSS Medical Research Inc.) and members of the DOvE Study Group.

Co-investigators/ collaborators from the satellite clinics : Dr Paul Vezina (Clinique médicale du Haut-Anjou), Dr Luis-Marie Simard (Lachine Hôpital, 650 16eme avenue, Lachine), Dr Michel Welt (Hôpital du Sacré-Coeur De Montréal), Dr. Louise Quintal (St Lambert & Queen Elizabeth Health Complex), Dr Robert Hemmings (St Mary’s Hospital), Dr Hanaa Zacharia (Clinique-Plein Ciel, De la Cote-Vertu, Ville St-Laurent), Drs Richard Germain & Daniel Saxon (Lakeshore General Hospital), Dr Louise Desserault (Clinique Familiale Pas-à-Pas), Ms. Phaneuf Manon (Maurice Duplessis), Dr Guido Colantoni (Polyclinique Cabrini), Dr Christian Lauriston (Clinique Perrier), Dr Adele Adjami (Centre Médical Saint-Henri)

This research was supported by grants from Canadian Institutes of Health Research, Montreal General Hospital Foundation, Royal Victoria Hospital Foundation, Cedar’s Cancer Institute, and La Fondation du Cancer Monique Malenfant-Pinizzotto

About ovarian cancer

Symptoms include: feeling full after eating only a few bites or loss of appetite, change of bowel habits, bloating, distension of abdomen, clothes around the waist feel too tight, feel an abdominal mass, weight loss, but not because of dieting, nausea, vomiting heartburn, gas, burping, indigestion, increased urinary frequency, need to urinate more urgently, pressure on the bladder, burning sensation when urinating, need to urinate but unable to do so, unable to empty bladder completely, feeling full after urinating, vaginal discharge, bleeding, spotting, deep pain on intercourse, Discomfort or pain in the abdomen, pelvic region, or lower back.

Related links:

McGill University Health Centre (MUHC):

Research Institute of the MUHC (RI MUHC):

McGill University:

Canadian Institutes of Health Research (CIHR):

Saturday, February 18, 2012

Incidents and accidentsThe A380 has been involved in one aviation occurrence and no hull-loss accidents as of January 2012[update]

Incidents and accidentsThe A380 has been involved in one aviation occurrence and no hull-loss accidents as of January 2012[update].[225][226]

On 4 November 2010, Qantas Flight 32, en route from Singapore Changi Airport to Sydney Airport, suffered an uncontained engine failure, resulting in a series of related problems, and forcing the flight to return to Singapore. There were no injuries to the passengers, crew or people on the ground despite debris falling onto the Indonesian island of Batam.[227] The A380 was damaged sufficiently for the event to be classified as an accident.[228] Qantas subsequently grounded all of its A380s that day subject to an internal investigation taken in conjunction with the engine manufacturer Rolls-Royce plc. Other operators of Rolls-Royce-powered A380s were also affected. Investigators later determined the cause of the explosion to be an oil leak in the Trent 900 engine.[229]

Friday, February 17, 2012

B.C. courts see more cases tossed ... Accused internet sex predator and drunk driver walk free due to delays

Four more suspected criminals — including an accused Internet child predator and an alleged drunk driver — have escaped convictions because of the bloated caseload of British Columbia's courts, prompting one judge to issue a direct attack on Premier Christy Clark and her government's handling of the matter.

In one ruling out of New Westminster, B.C., Judge Daniel Steinberg called the current state of the provincial court in B.C. "abysmal."

"There are no amount of press releases or talk show appearances that are going to fix the over-stretched limits of our institutional resources," Steinberg said in a ruling posted Wednesday on the provincial court website.

"There is only one course of action that will fix the current situation and that is action, not words."

Clark, a former radio talk show host, appeared on her old station's airwaves Monday to discuss her government's priorities, including the conundrum in the justice system. Steinberg's decision is dated Jan. 25 and was posted Wednesday on the provincial court website.

Last week, Clark promised a complete review of the court system to discover why delays and costs are increasing while crime goes down.

Five-month review

Suggested solutions for the problem are at least five months away as lawyer Geoffrey Cowper investigates the problem. But in the meantime, hundreds of cases may be timing out of the system.

Steinberg stayed charges against David Blattler — who was accused of attempting to lure an underage teenager over the Internet — because he'd waited 27 months for his case to get to trial.

"I find that the consequences of the government's decision-making and priority-setting have meant the creation in this case, as in many others, of an intolerable delay that offends the ... [Charter of Rights]," he concluded.

"It offends the very real need ... to suppress predatory behaviour on the Internet."

In Chillwack, Judge Wendy Young stayed the case of Wilfred Friesen who was accused of drunk driving because his trial took almost three years to get to court.

And earlier this week in Kelowna, Judge Robin Smith threw out marijuana cultivation charges against Lin To and her brother Quo To because they had waited years to get their day in court.

Smith said the government has a constitutional obligation to provide sufficient resources to prevent unreasonable delays.

"This is a pretty simple, straight-forward case that ought not require 23 months of systemic delays to be heard just because resources aren't available to have it heard earlier."

Smith brushed off the government announcement last week that nine new judges had been appointed, saying it only replaces retiring judges.

Even with the nine new appointments, there are still 14 fewer judges working in the B.C. courts than there were in 2005.

Backlog growing

The backlog of cases is still growing.

Statistics show there are more than 7,000 provincial court criminal cases that have been pending for a year or more and over 2,000 cases have been waiting in the system for 18 months.

B.C. New Democrat Leader Adrian Dix said the delays are the direct result of years of inaction by the government.

"It didn't happen overnight," Dix told the legislature. "It's one thing to complain about judges, which is apparently what the government is doing. It's another thing to take the issue seriously and the government hasn't."

Clark said her government is taking real action and that includes the appointment of 23 new judges recently, hiring new sheriffs, more money for legal aid and more money for jail capacity in the Interior.

"That is a substantial investment in a system that needs it," she said. "Because stays and delays are unacceptable for victims, they're unacceptable for society, no one wants the system to work that way."

Cowper's review is expected to look for efficiencies and how to accelerate the court process and is expected to be completed by July.

The provincial government spends about $1.4 billion dollars a year on the justice system.

Thursday, February 16, 2012

University says it is reviewing the findings of a major research project into the asbestos industry and cancer caused by exposure to the fibrous material.

MONTREAL - McGill University says it is reviewing the findings of a major research project into the asbestos industry and cancer caused by exposure to the fibrous material.

David Eidelman, the university's dean of medicine, says allegations in a CBC report that several decades of research led by J. Corbett McDonald could have been influenced by the asbestos industry must be taken seriously.

But he also says holding scientific views different from those of the majority does not constitute research misconduct.

McDonald, who is now retired, began studying mortality rates associated with asbestos in 1966, looking at about 11,000 Quebec miners and millers of chrysotile, an asbestos fibre.

He and his research team published a series of studies between 1971 to 1998 which were funded in part by the Institute of Occupational and Environmental Health of the Quebec Mining Association, something which McDonald acknowledged.

While Eidelman says McDonald drew different conclusions about the safe use of asbestos from some current-day authorities, he did demonstrate that asbestos is a carcinogen associated with lung cancer and mesothelioma.

Eidelman says McGill researchers perform their work to the highest ethical standards and the university is not currently getting any funding from the asbestos industry.

Sunday, February 12, 2012

SUPREME COURT OF CANADA Citation: Reference re Broadcasting Act, 2012 SCC 4 Docket: 33884 Date: 20120209



Citation: Reference re Broadcasting Act, 2012 SCC 4

Date: 20120209

Docket: 33884

IN THE MATTER OF the Broadcasting Act, S.C. 1991, c. 11;

AND IN THE MATTER OF the Canadian Radio-Television and

Telecommunications Commission’s Broadcasting Regulatory Policy

CRTC 2009-329 and Broadcasting Order CRTC 2009-452;

AND IN THE MATTER OF an application by way of a reference to the

Federal Court of Appeal pursuant to ss. 18.3(1) and 28(2) of the

Federal Courts Act, R.S.C. 1985, c. F-7.

Alliance of Canadian Cinema, Television and Radio Artists,

Canadian Media Production Association,

Directors Guild of Canada and Writers Guild of Canada



Bell Aliant Regional Communications, LP, Bell Canada, Cogeco Cable Inc.,

MTS Allstream Inc., Rogers Communications Inc.,

TELUS Communications Company, Videotron Ltd.

and Shaw Communications Inc.


- and -

Canadian Radio-Television and Telecommunications Commission


Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

Reasons for Judgment:

(paras. 1 to 11):

The Court

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

reference re broadcasting act

IN THE MATTER OF the Broadcasting Act, S.C. 1991, c. 11;

AND IN THE MATTER OF the Canadian Radio‑Television and Telecommunications Commission’s Broadcasting Regulatory Policy CRTC 2009‑329 and Broadcasting Order CRTC 2009‑452;

AND IN THE MATTER OF an application by way of a reference to the Federal Court of Appeal pursuant to ss. 18.3(1) and 28(2) of the Federal Courts Act, R.S.C. 1985, c. F‑7.

Alliance of Canadian Cinema, Television and Radio Artists,

Canadian Media Production Association,

Directors Guild of Canada and Writers Guild of Canada Appellants


Bell Aliant Regional Communications, LP,

Bell Canada, Cogeco Cable Inc., MTS Allstream Inc.,

Rogers Communications Inc., TELUS Communications Company,

Videotron Ltd. and Shaw Communications Inc. Respondents


Canadian Radio‑Television and Telecommunications Commission Intervener

Indexed as: Reference re Broadcasting Act

2012 SCC 4

File No.: 33884.

2012: January 16; 2012: February 9.

Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

on appeal from the federal court of appeal

Communications law — Broadcasting — Internet — Internet service providers providing end‑users with access to broadcasting over the Internet — Whether Internet service providers are broadcasters when they provide end‑users with access to broadcasting through the Internet — Broadcasting Act, S.C. 1991, c. 11, ss. 2, 3.

The Canadian Radio‑television and Telecommunications Commission referred to the Federal Court of Appeal the question of whether retail Internet Service Providers (“ISPs”) carry on, in whole or in part, “broadcasting undertakings” subject to the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end‑users. The court held that they do not.

Held: The appeal should be dismissed.

The terms “broadcasting” and “broadcasting undertaking”, interpreted in the context of the language and purposes of the Broadcasting Act, are not meant to capture entities which merely provide the mode of transmission. The Broadcasting Act makes it clear that “broadcasting undertakings” are assumed to have some measure of control over programming. The policy objectives listed under s. 3(1) of the Act focus on content. When providing access to the Internet, which is the only function of ISPs placed in issue by the reference question, they take no part in the selection, origination, or packaging of content. The term “broadcasting undertaking” does not contemplate an entity with no role to play in contributing to the Act’s policy objectives. Accordingly, ISPs do not carry on “broadcasting undertakings” under the Broadcasting Act when they provide access through the Internet to “broadcasting” requested by end‑users.

Cases Cited

Referred to: Electric Despatch Co. of Toronto v. Bell Telephone Co. of Canada (1891), 20 S.C.R. 83; Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427; Capital Cities Communications Inc. v. Canadian Radio‑Television Commission, [1978] 2 S.C.R. 141.

Statutes and Regulations Cited

Broadcasting Act, S.C. 1991, c. 11, ss. 2(1) “broadcasting”, (3), 3(1).

Telecommunications Act, S.C. 1993, c. 38, s. 2(1) “telecommunications common carrier”.

APPEAL from a judgment of the Federal Court of Appeal (Noël, Nadon and Dawson JJ.A.), 2010 FCA 178, 322 D.L.R. (4th) 337, 404 N.R. 305, [2010] F.C.J. No. 849 (QL), 2010 CarswellNat 2092, in the matter of a reference brought by the Canadian Radio‑Television and Telecommunications Commission regarding the Broadcasting Act. Appeal dismissed.

Thomas G. Heintzman, Q.C., and Bram Abramson, for the appellants.

John B. Laskin, Yousuf Aftab and Nicole Mantini, for the respondents Bell Aliant Regional Communications et al.

Nicholas McHaffie and Dean Shaikh, for the respondent Shaw Communications Inc.

The following is the judgment delivered by

The Court —

[1] In a 1999 report, the Canadian Radio-television and Telecommunications Commission (“CRTC”) concluded that the term “broadcasting” in s. 2(1) of the Broadcasting Act, S.C. 1991, c. 11, included programs transmitted to end-users over the Internet. At that time, the CRTC concluded that it was not necessary to regulate broadcasting undertakings that provided broadcasting services through the Internet. It exempted these “new media broadcasting undertakings” from the requirements of the Broadcasting Act. In 2008, after public hearings, the CRTC revisited this exemption. One of the issues raised was whether Internet service providers – ISPs – were subject to the Broadcasting Act when they provided end-users with access to broadcasting through the Internet. The CRTC opted to send this issue to the Federal Court of Appeal for determination on a reference (2010 FCA 178, 322 D.L.R. (4th) 339). The specific reference question was:

Do retail Internet service providers (“ISPs”) carry on, in whole or in part, “broadcasting undertakings” subject to the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users?

[2] ISPs provide routers and other infrastructure that enable their subscribers to access content and services made available on the Internet. This includes access to audio and audiovisual programs developed by content providers. Content providers depend on the ISPs’ services for Internet delivery of their content to end-users. The ISPs, acting solely in that capacity, do not select or originate programming or package programming services. Noël J.A. held that ISPs, acting solely in that capacity, do not carry on “broadcasting undertakings”.

[3] We agree with Noël J.A., for the reasons he gave, that the terms “broadcasting” and “broadcasting undertaking”, interpreted in the context of the language and purposes of the Broadcasting Act, are not meant to capture entities which merely provide the mode of transmission.

[4] Section 2 of the Broadcasting Act defines “broadcasting” as “any transmission of programs … by radio waves or other means of telecommunication for reception by the public”. The Act makes it clear that “broadcasting undertakings” are assumed to have some measure of control over programming. Section 2(3) states that the Act “shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings”. Further, the policy objectives listed under s. 3(1) of the Act focus on content, such as the cultural enrichment of Canada, the promotion of Canadian content, establishing a high standard for original programming, and ensuring that programming is diverse.

[5] An ISP does not engage with these policy objectives when it is merely providing the mode of transmission. ISPs provide Internet access to end-users. When providing access to the Internet, which is the only function of ISPs placed in issue by the reference question, they take no part in the selection, origination, or packaging of content. We agree with Noël J.A. that the term “broadcasting undertaking” does not contemplate an entity with no role to play in contributing to the Broadcasting Act’s policy objectives.

[6] This interpretation of “broadcasting undertaking” is consistent with Electric Despatch Co. of Toronto v. Bell Telephone Co. of Canada (1891), 20 S.C.R. 83. In Electric Despatch, the Court had to interpret the term “transmit” in an exclusivity contract relating to messenger orders. Like the ISPs in this case, Bell Telephone had no knowledge or control over the nature of the communication being passed over its wires. This Court had to determine whether the term “transmit” implicated an entity who merely provided the mode of transmission. The Court concluded that only the actual sender of the message could be said to “transmit” it, at p. 91:

It is the person who breathes into the instrument the message which is transmitted along the wires who alone can be said to be the person who "transmits" the message. The owners of the telephone wires, who are utterly ignorant of the nature of the message intended to be sent, cannot be said ... to transmit a message of the purport of which they are ignorant. [Emphasis added]

[7] This Court relied on Electric Despatch in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427, a proceeding under the Copyright Act, R.S.C. 1985, c. C-42, to conclude that since ISPs merely act as a conduit for information provided by others, they could not themselves be held to communicate the information.

[8] The appellants in this case argued that we should instead follow Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141. In Capital Cities, decided under a 1968 version of the Broadcasting Act, the CRTC had amended Rogers Cable’s licence, allowing Rogers to delete and substitute the television advertisements in the American broadcasts it received before it distributed the broadcast to viewers. The American broadcasting stations argued that the Broadcasting Act was ultra vires Parliament since it purported to regulate systems situated wholly within provincial boundaries. As part of this argument, the American stations attempted to sever the function of receiving television signals from the distribution or retransmission of those signals within a particular province. The Court rejected this severance of reception and distribution, stating that it was a “single system” coming under federal jurisdiction. The appellants argue before this Court that ISPs similarly form part of a single broadcasting system that is subject to regulation under the Broadcasting Act.

[9] Like Noël J.A., we are not convinced that Capital Cities assists the appellants. The case concerned Rogers Cable’s ability to delete and substitute advertising from American television signals. There was no questioning in Capital Cities of the fact that the cable television companies had control over content. ISPs have no such ability to control the content of programming over the Internet.

[10] Contrary to the submissions of the appellants, we need not decide whether the fact that ISPs use “routers” prevents them from being characterized as telecommunications common carriers. Noël J.A. was not asked to decide whether ISPs are a “telecommunications common carrier” under the Telecommunications Act, S.C. 1993, c. 38. Nor, based on the record before us, do we feel it appropriate for us to do so.

[11] We therefore agree with Noël J.A.’s answer to the reference question, namely, that ISPs do not carry on “broadcasting undertakings” under the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users. We would therefore dismiss the appeal with costs.

Appeal dismissed.

Solicitors for the appellants: McCarthy Tétrault, Toronto.

Solicitors for the respondents Bell Aliant Regional Communications et al.: Torys, Toronto.

Solicitors for the respondent Shaw Communications Inc.: Stikeman Elliott, Ottawa.