“A Misfire at Birth”: The Trouble with Canada’s So-Called Border Security Law

This spring, the Mark Carney government introduced Bill C-2. Formally dubbed the Strong Borders Act, the legislation gives the federal government and border officials broad new powers to search devices, collect data, and make immigration decisions without full parliamentary oversight. The bill also allows the government to suspend certain refugee protections during a declared emergency. Supporters argue it’s a necessary response to rising threats like smuggling and organized crime. Critics warn it opens the door to government overreach. What does Bill C-2 actually propose? And what does it signal about the government’s approach to national security? To help unpack the bill’s implications, I reached out to Wesley Wark, one of the country’s most thoughtful analysts of intelligence and security policy.

Do you think this law is a good idea?

Before answering that question, let me set the scene.

One unique feature of Bill C-2 is that it is the first piece of national security legislation proposed by the Carney government. What do they do? They land a massive, 130-page bill on Parliament with a resounding thud in early June, just as the House of Commons was heading towards its summer recess. The bill had no benefit of any stakeholder consultations; it just appeared on the parliamentary order papers.

Naturally, opposition members of Parliament complained about the lack of time to familiarize themselves with the bill, about its omnibus nature, and tried to identify some first-blush problems. A Charter statement from the minister of justice—which is a kind of early warning label, flagging how a government bill might clash with Canadians’ constitutional rights—did not make its appearance until after the House had held its initial debates on the bill.

Faced with such a large and indigestible piece of legislation, with so many moving parts, opposition Conservatives were quick to take up partisan positions. The main motif was that the government was not being tough enough on crime. Probably not what the government and its neophyte public safety minister, Gary Anandasangaree, desired.

So the rollout was ill-conceived?

Yes. But, look, no law is ever perfect. Our parliamentary process is based on the idea that legislation the government introduces can be improved through detailed study, including expert testimony, by parliamentary committees. That’s the theory.

The practice can be rougher as time pressures can intrude; committees depend on the contributions of parliamentarians, who will not be experts themselves; research support is limited; and the list of experts called to assist the committee is subject, sometimes brutally so, to partisan influence. Given the outcome of the recent election, committee deliberations will not include New Democrats, whose party failed to gain official status. NDP members could always be counted on in the past to probe civil liberties issues raised by government bills. Not this time.

The committee that will be tasked with a deep—or shallow—dive into the legislation is the Standing Committee on Public Safety and National Security, or SECU. Astonishingly, five of the seven members of the committee are newly elected MPs. Only one member has previously served on SECU, Conservative Dane Lloyd. This has to be counted as a gaffe: complex national security legislation meets rookie MPs.

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That’s quite a scene you’re setting. What will the committee find?

Not just 130 pages but a bill in sixteen parts that amends all kinds of existing legislation and contains what the Liberals, when critiquing Conservative bills while in opposition, used to love to call “problematic elements.” The major problematic elements include changes to the Immigration and Refugee Protection Act impacting asylum seekers and new provisions for lawful access to basic individual subscriber data, or IP. These, and other parts of the bill, cry out for greater clarity and better explanation.

Calling it the “Safe Borders Act” is just a screen. That in itself brought dark thoughts to the mind of at least one Conservative MP, Kelly Block, who argued that the government was trying to hide stuff away in the bill, hoping that Canadians wouldn’t notice.

But Canadians have noticed.

Yes, advocacy groups are concerned about the legislation’s possible impact on immigration rights and processes, about the undermining of privacy protections, and about the dangers of broader information sharing. The redoubtable Citizen Lab at the University of Toronto has already issued a preliminary analysis that calls attention to what it sees as worrying provisions for data sharing with the United States. A coalition of rights groups and concerned citizens has issued a scathing open letter to the prime minister, asking for a “complete withdrawal” of Bill C-2, which it characterized as a “multi-pronged assault on the basic human rights and freedoms Canada holds dear.” Their answer to the question “Is the law a good idea?” would be a resounding no.

And your answer?

My answer is that the legislation fails some important tests. Its omnibus nature is counterproductive. Its hurried introduction didn’t allow for the kind of consultations that can improve draft legislation, or at least serve as a kind of warning about its weaknesses. It was submitted without a timely, corresponding Charter statement—which simply should not happen. It flies under the banner of being a border security bill when it isn’t one. Not only is the title misleading but it seems to reflect the government’s desire to push out actions designed to appease the United States. A misfire at birth.

Why do you feel it isn’t a border security bill?

That’s easy. C-2 contains sixteen parts. If we ask how many of these parts directly respond to border security protections, my answer would be one. That sole direct link is provided in pretty minor amendments to the Customs Act to force private sector operators to create facilities for export inspections by Canada Border Services Agency officers. Seems like housekeeping to me. The government, of course, offers a different view in defence of the bill, arguing that provisions for securing the border are one of three key themes in the legislation (the other two being combating transnational organized crime and fentanyl and tackling money laundering). Even at their own word, the border security provisions amount to only one-third of the bill’s thematic provisions. But I wouldn’t take them at their word.

Why not?

Just look at what they count as border security measures. Amending the Oceans Act to give the Canadian Coast Guard surveillance and interdiction powers. They also bundle in amendments to the Sex Offender Information Registry Act. Puzzle that one out. The government also includes as border security measures sweeping changes to the Immigration and Refugee Protection Act. Many of these measures have only a tangential connection to migration issues across the Canada–US border. In reality, the “Strong Borders Act” should be called the “strengthening a bunch of stuff act.” But that doesn’t sound quite right, does it?

Do you believe all that stuff needs strengthening? I guess what I’m asking is if you believe, from a policy perspective, the bill needs to exist at all.

The first thing to say is that legislation that touches on national security needs constant updating. Successive governments have learned this lesson since at least 2015, when the Stephen Harper government introduced major changes to anti-terrorism laws, hard on the heels of the first terrorist attacks in Canada since 9/11, specifically the Parliament Hill shooting in Ottawa and a car-ramming attack in Saint-Jean-sur-Richelieu.

Why constant updating? Because the national security environment changes, sometimes rapidly; because technology enablers for crime and threats change; because there are always new bad actors arriving on the scene.

Maybe state and non-state adversaries are finding it too easy to hide in the maze of digital communications, and you need new tools to mark their trail. As money laundering and illicit financing get ever more clever and devious, maybe you want your financial intelligence agency to have stronger powers. Maybe you want updated legislation around postal openings because criminal gangs are finding it easy to circulate illegal drugs and chemicals undetected through the mail (just don’t use UPS, which can be opened!). Maybe we will find the Northwest Passage increasingly being used by suspicious “research ships,” where it would be helpful to allow the Coast Guard to keep an eye and reserve your naval assets for other duties. As Kurt Vonnegut would say, “and so it goes.”

So you’re saying the bill’s goal is to get ahead of threats, not just respond after the fact.

Being purely reactive and after-the-fact is a bad idea. But the other thing about national security legislation is that it always arouses strong responses in segments of society—which can make governments wary of political fallout, prompting them to bury contentious proposals within sprawling omnibus bills like Bill C-2, where they might attract less scrutiny.

So yes. The legislation can be viewed as necessary. Housekeeping must happen; changes in policy do need to be bedded down in law. That doesn’t mean that the shape of the legislation is right or that the measures proposed all pass scrutiny.

And will they hold up under scrutiny? Do you agree with the criticism that the bill is overreach disguised as reform?

My view is that many of the updates in C-2, even the changes to the Canada Post Corporation Act that grabbed MPs’ attention, will pass muster. The closing of some known loopholes around asylum claim applications also strikes me as acceptable, as long as reasonable adjudication procedures are maintained. What I can’t support is the idea that the government can unilaterally change the rules for major immigration streams just by declaring an emergency. That seems like a deliberate rollback.

Do you think the bill represents an assault on privacy protections?

Frankly, I don’t. C-2 targets a recent 2024 Supreme Court decision concerning access to subscriber IP held by telecommunications service providers. In a split decision, the court found that such basic data was protected by a person’s reasonable expectation of privacy. The government position is that without access to basic data about a subscriber’s IP, it will be stymied in pursuing security and law enforcement investigations further and applying for warrants. You can’t appeal a Supreme Court decision, so the change has to come via new legislation.

But please understand that I am not simply supporting the idea that law enforcement and intelligence investigations might be hampered if changes to the law are not made. The agencies can make their own case. My position here is that our basic understanding of what constitutes privacy needs modernizing. I’m sorry not to be on the side of the angels—the Supreme Court—but there it is.

Is this the beginning of a Canadian surveillance state? If a foreign government passed a bill like this, wouldn’t Canada criticize it as authoritarian?

No. We really have to mature as a democratic society and recognize three things. One is that there are genuine national security threats that require appropriate response capabilities on the part of national security and intelligence agencies. The second is that efforts to strengthen those capabilities are not automatically drawdowns on civil liberties. The third is that Canada really is a strong rule-of-law country. There is an important bulwark for the protection of Canadians’ rights found in the Charter and enforced by the courts. National security practice has to abide by the rule of law.

Let me enlarge on one other thing. It is entirely appropriate in a democracy for citizens to be concerned about the protection of their rights and to be chary of new powers given to security agencies. But pushback has to be embedded in a responsibility to take national security seriously and to understand the issues.

Then, my follow up: In what way, as you said earlier, is the bill designed to appease the United States?

The presentation of C-2 continues an unfortunate practice of trying to toss bones to the Donald Trump administration, to prove that Canada takes border security seriously. There can be no other rationale for dressing up C-2 as a “Safe Borders Act” when in reality it isn’t. The effort dates back to December 2024 and steps taken to increase border surveillance by the Justin Trudeau government and to appoint a “fentanyl czar.” All to meet the ostensible concerns of the Trump administration about the northern border. By now, it should be apparent that such gestures will do nothing to blunt US protectionist and tariff approaches or to warm the president’s approach to Canada.

The better approach would have been to level with Canadians. To remind them that the threat environment is complex and fast changing and that ongoing changes are needed on multiple legislative fronts to better protect Canadian democracy. Drop the “safe borders” cant. Let C-2 pass muster, or not, in accordance with the ways that it safeguards Canadian democracy, not advances policy games with the Americans.

So no risks with increased data sharing with US intelligence under this bill?

I think the fair thing to say is that it remains to be seen. The bill, from my reading, is ambiguous and vague on that point. It’s one of the many issues that deserves to be taken very seriously in parliamentary and public debate. We should be long past the point of assuming that information sharing with the US is an innocent pastime. In fact, since 2019, we’ve had a law on the books to safeguard the principles of such sharing—called the “ACT” or “The Avoiding Complicity in Mistreatment by Foreign Entities Act.”

Does the bill make Canadians meaningfully safer?

“Safer” is not a fixed goalpost. That’s the point about the need to engage in regular updating of national security legislation.

Legislation creates laws. They need to be good ones. That requires a government willing to accept amendments to its proposals, in the public interest. But before we get there, legislation creates debate. So, finally, here is what I do like about C-2. It will force a debate about what we want in the way of crime prevention, including for cross-border crime, and what protections we think are vital for refugee claimants.

Above all, I hope it will force a debate on how we think about privacy. Our frontal lobes seem split between concern about privacy erosion at the hands of government agencies and indifference to how our privacy is affected by commerce and our uses of social media. Rethinking our concept of privacy is long overdue. We need privacy as a constitutional right. We also need security and an ability for law enforcement and intelligence agencies to be able to do their work. We want to be safe in our democracy, but that’s complicated.

Bad bill meets good and necessary debate. Things will get spicy.