As currently written, C-30's non-disclosure provisions empower (but do not mandate) courts to compel ISPs, banks, journalists and anyone else subject to production or preservation orders or demands in relation to the gamut of offences, not to reveal to anyone the contents — or even the existence — of those demands or orders for the duration of the order.
Non-disclosure can be ordered if a judge or justice of the peace is satisfied that there are reasonable grounds to believe that such disclosure would "jeopardize the conduct of the investigation of the offence."
A lower standard appears to apply to police demands that computer data be preserved for up to 21 days (or up to 90 days for foreign offences). In such cases, police officers are authorized to "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."
Micheal Vonn, policy director of the B.C. Civil Liberties Association, said the secrecy provisions are so sweeping on their face that they would ostensibly authorize police or courts to impose conditions gagging people from communicating with their lawyers — yet, Bill C-30 exposes them to fines or prison, or both, if they breach the non-disclosure orders without lawful excuse.
"We see no way that could be interpreted in any guise as good law under the Constitution," Vonn told The Lawyers Weekly. "Insofar as there is no explicit carve-out in the language of the bill as it currently stands for a person to contact their counsel, or to contact a lawyer to get advice on this, obviously that is hugely problematic."
Vonn said courts faced with the gag provisions might interpret them as always permitting consultation with counsel. But "the law is always best clear on its face, so that we don't get this horrendous chilling effect of people not contacting counsel when they had a right to do so because they didn't believe, in the language of the Act, that they had such a right," she said.
A former Ontario Bar Association president, James Morton of Toronto's Steinberg Morton, agreed. "It seems extraordinary that anyone could be subject to a mandatory process without having the right to consult with counsel to determine what their legal rights are," he said.
Morton suggested it might be "a drafting oversight" that Bill C-30 doesn't expressly recognize that gag orders may not prohibit consultation with counsel. (In response to court rulings, the U.S. Patriot Act, which also failed to make that exception to its gag provisions, was amended to do so in 2006).
"Certainly, as written, the bill would appear to give a remarkable power to police," Morton observed. "Anytime someone is ordered to do something by the state, and not permitted to consult a lawyer, I think 'draconian' is a very fair description."
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