What would a constitutional challenge to Bill C-2 look like under Supreme Court of Canada privacy jurisprudence?

1. What the complaint would say: section 8, reasonable expectation of privacy, and the warrant requirement

Litigants would argue that Part 14’s low “reasonable suspicion” threshold and the absence of prior judicial authorization permit warrantless intrusions into highly sensitive digital records, which the Supreme Court has held attract a reasonable expectation of privacy — notably in subscriber information and IP addresses — making warrants required in many circumstances ^{[5] [1] [2]}. Legal commentators and firms have flagged the Bill’s redefinition and expansion of “subscriber information” and warned that production orders on reasonable suspicion are likely to be struck down under existing SCC jurisprudence emphasizing robust privacy protections for online activity ^{[6] [5]}.

2. Lines of precedent challengers would rely on

A challenge would be built on Spencer and subsequent cases that found a reasonable expectation of privacy in internet subscriber information and on the Court’s explicit rejection of the US third‑party doctrine, forming the backbone of any argument that Bill C-2’s warrantless demand powers are unconstitutional ^{[1] [7]}. For claims involving legal privilege, litigants would invoke Lavallee, Rackel & Heintz and the Federation of Law Societies’ positions that solicitor‑client privilege is a fundamental principle that cannot be trumped by routine law‑enforcement balancing ^[3].

3. Government defenses and contested facts

The government’s Charter statement defends aspects of C-2 by pointing to contexts — for example, border control operations — where privacy expectations may be reduced and by characterizing some powers as tailored with thresholds like “reasonable grounds to believe” in other parts of the Bill ^[8]. Proponents will frame the changes as necessary for urgent border and public‑safety objectives; critics counter that lawful‑access clauses are “buried” in a border bill and unrelated to the stated purpose, suggesting an ulterior policy agenda to expand surveillance ^{[7] [1]}.

4. Procedural posture and likely remedies

Litigation would likely advance through public‑interest interveners and privacy organizations seeking declarations that specific provisions violate section 8 and orders to suspend or read down those provisions; observers predict such provisions are “certain to be challenged” and vulnerable given the Court’s prior rulings on online privacy ^{[4] [5]}. Challenges could bifurcate: one track for general subscriber‑data powers under section 8 and a separate, potentially stronger track for solicitor‑client privilege and mandatory non‑disclosure clauses under established privilege doctrine ^{[3] [4]}.

5. Broader constitutional and international context

Beyond Charter doctrine, challengers will stress conflicts with Canada’s distinct privacy approach compared with US law and warn that Canada’s obligations and potential data‑sharing arrangements could create “minefields” with foreign regimes whose standards diverge from SCC protections ^[9]. Privacy experts and civil liberties groups are already framing the Bill as an overreach that undermines decades of Canadian jurisprudence protecting anonymity and online privacy ^{[10] [7]}.

6. What to watch in court: thresholds, tailoring, and evidentiary record

Success will hinge on whether courts accept that the Bill’s thresholds are insufficiently tailored to pressing governmental objectives and whether the government can produce a compelling evidentiary record justifying departures from prior warrant requirements; commentators predict courts will be unsympathetic absent such evidence because precedent has repeatedly stymied warrantless access absent robust justification ^{[7] [1]}. If the government cannot show narrow tailoring and adequate safeguards, the Supreme Court’s privacy jurisprudence gives challengers a strong roadmap for invalidation or substantial narrowing of the impugned powers ^{[5] [6]}.