Transport Committee on Dec. 13th, 2023

[Rachel Heft]

Thank you.

Clause 18 of Bill C-26 is a provision that ensures that the Transportation Appeal Tribunal of Canada has jurisdiction to review administrative monetary penalty issues or notices of violation that are issued under the critical cyber systems protection act.

When you can issue an administrative monetary penalty under that act, we have to ensure that when that is issued to a transportation undertaking, the proper tribunal has jurisdiction. That's what clause 18 does.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Mr. Chair, on my point of order, I would be happy to discuss and debate that aspect of clause 124, but it feels like the debate we're currently having does not relate to clause 18. Clause 18 is the only section of Bill C-26 that is referenced in clause 124.

I want to bring it back to the core. This is a very important clause and obviously worthy of detailed debate. I'm hoping you can encourage Mr. Strahl to come back to this very important clause, clause 18, which deals with administrative monetary penalties.

[The Chair, Liberal, Peter Schiefke]

Thank you, Mr. Bachrach.

I will do just that. I will kindly ask Mr. Strahl to try to keep his remarks, which have been quite informative, to the topic at hand and make reference to clause 124, which we are indeed discussing. I will remind Mr. Strahl of that and turn the floor back over to him.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Thank you, Mr. Chair.

I think this is important. Again, the title in Bill C-33 says “Coordinating Amendment”, and then the subtitle is “Bill C-26”. If Bill C-26, which was introduced in the first session of the 44th Parliament and is entitled “An Act respecting cyber security, amending the Telecommunications Act and making consequential amendments other Acts”, receives royal assent, that is what I am talking about. The title does not say, “if clause 18 of that act receives royal assent”, but it talks about the bill, and clause 18 cannot be considered in isolation from the rest of the bill.

I'm sorry. Perhaps, Mr. Bachrach, when he gets the floor in a more extended way, can indicate why he thinks we should focus solely on a certain section. It's very clear in my reading of Bill C-33 that we are discussing whether or not we believe there should be coordinating amendments with a piece of legislation, Bill C-26, which, as the witness just said, is about cybersecurity. Clause 18 is about cybersecurity and it's about how we deal with threats to cybersecurity in the transportation space.

I've highlighted numerous briefings that referenced the transportation sector as being one of the key sectors that are impacted by Bill C-26. Certainly, I don't think we can consider one section of a bill. It's not a private member's bill that amends one section of a bill that we're considering here; this is the entire bill, as is said in the title, “Bill C-26”. If Bill C-26 receives royal assent, then these following issues happen.

I'm expressing, and putting on the record, some very serious concerns about Bill C-26. I remain hopeful as I continue to read these things from people who are very concerned about things like the implications on the rights of Canadians under the charter.

I know Mr. Bachrach is a fan of the charter. Certainly he would want to ensure, in any clause he voted on, that the concerns of individuals who spend their lifetimes defending charter rights are considered. He would want to have knowledge of the impact that this bill, which is referenced directly—the entire bill, not just one section, but the entire bill—could have on the charter rights of Canadians.

I will continue to talk about Bill C-26 in its entirety, because that is a piece of legislation that includes the relevant section that he's talking about. It's not a stand-alone clause that has been introduced by the government. This does not specifically indicate that if clause 18 remains unamended or if it's taken on its own, it could receive royal assent. It talks about Bill C-26 receiving royal assent.

I appreciate the latitude given to members of Parliament to raise their concerns and to share the concerns of Canadians when we're considering a piece of legislation as important as Bill C-33, which cross-references specifically, purposely, Bill C-26, which is also currently before the House.

I appreciate the spirit in which Mr. Bachrach's comments were made. However, I simply don't believe that you can consider clause 18 in isolation when considering Bill C-26. We would do Bill C-26 and what it means to Canadians a disservice if we simply talked about clause 18. I will get to that part when we break down the detailed analysis of the clause, but this is the information that I believe is relevant when considering whether or not we can support clause 124.

I will continue, because I know that it would be extremely out of order to rule that we weren't allowed to talk about a bill in our deliberations here that is specifically referenced by title in the first part of this clause,.

I will hopefully not omit any of the information that I had here. If so, I apologize to Citizen Lab for not getting all of their words in there.

I'll start back again at the text under Freedom of Expression and Section 2(b) of the Charter”, which states that:

14. The current draft of Bill C-26's excessive secrecy and confidentiality provisions jeopardizes the right to freedom of expression under section 2(b) of the Charter. The government's Charter statement focuses on the speech of the commercial entities who will be directly regulated under Bill C-26. The Charter statement posits that because restrictions on commercial speech do not tend to implicate the core values of section 2(b), restrictions can be more easily justified. However, this analysis fails to account for how individuals' Charter rights may be impeded under the current drafting of the legislation. The excessive secrecy and confidentiality provisions in the bill also restrict the public's and media's expressive freedom in Canada.

15. The principles of open courts and open government are derivative components of section 2(b) of the Charter (the freedom of expression). The open court principle requires that court proceedings, including judicial reviews in federal court, presumptively be open and accessible to the public and to the media. Access to information about government actions can also arise as a derivative right to section 2(b), if a denial of access to government information effectively precludes meaningful public discussion on a matter of public interest. Where restrictions on access substantially impede meaningful discussion and criticism about matters of public interest, the government must reasonably justify its infringement of the freedom of expression.

16. Telecommunications and cybersecurity law and policy is undoubtedly a matter of public interest. There is a close nexus between human rights and public policy concerning the regulation of telecommunication services. Canada's telecommunications policy is intimately linked with the “social and economic fabric” of Canada and its regions. Equitable access to telecommunication services is sometimes described as a mechanism for “digital self-determination”, which speaks to the need to protect the potential for human flourishing in the digital era.

17. The recent Citizen Lab report, “Finding You”, highlights several ways in which excessive secrecy surrounding telecommunications oversight has itself endangered the public. The authors note historical deficiencies in oversight and accountability of network security, which have led to geolocation-related threats associated with contemporary networks. Excessive secrecy has contributed to the persistence of the “low-hanging geolocation threat” identified in “Finding You”:

Decades of poor accountability and transparency have contributed to the current environment where extensive geolocation surveillance attacks are not reported. This status quo has effectively created a thriving geolocation surveillance market while also ensuring that some telecommunications providers have benefitted from turning a blind eye to the availability of their network interconnections to the surveillance industry.

18. The geolocation surveillance threats discussed in “Finding You” disproportionately jeopardize human rights defenders and other individuals who face heightened risks of targeted security threats (e.g. corporate executives, military personnel, politicians and their staff, senior bureaucrats, etc). Industry has historically charged large amounts of money to receive information about well-known industry threats, with the effect of impeding non-industry groups such as security researchers and civil society from obtaining and disseminating information about the nature of the threats faced by at-risk individuals, or from advocating for the remedies that would benefit the security and privacy of civil society. The authors note that, in many instances, individuals cannot determine whether their own telecommunication provider has “deployed and configured security firewalls to ensure that signalling messages associated with geolocation attacks, identity attacks or other malicious activity are not directed towards their phones.”

19. Citizen Lab's research highlights the substantial public interest—

[The Chair, Liberal, Peter Schiefke]

I'm sorry, Mr. Strahl. I have a point of order from Mr. Bachrach.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

My apologies, Mr. Strahl. I am going to ask the chair to rule on the relevance of your intervention, mostly because I feel like we've lost the room and people are no longer hanging on your every word, important as the text is that you're reading from—

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

On a point of order—

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

—may be.

Further to my previous point that I don't feel this really speaks to clause 124, I'm going to ask the chair to rule on my point of order on relevance.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

On the point of order, Chair—

[The Chair, Liberal, Peter Schiefke]

Go ahead, Mr. Kurek.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Thank you, Chair.

Whether or not people are paying attention, I certainly have been riveted by the information that Mr. Strahl has been sharing, and I think he outlined very specifically after the previous intervention how this does in fact have relevance.

Of note, it was not Conservatives who wrote this bill: It was the government. It is a fact that the principles of relevance speak to some latitude that can be given, but I would suggest that is not even necessary in this case, because Mr. Strahl has been very articulately bringing forward a series of points that had been presented related to a bill that Bill C-33 refers to in its widespread application.

Chair, I would urge that this is not only relevant but very prescient of the larger conversation that we have here before us.

[The Chair, Liberal, Peter Schiefke]

Thank you, Mr. Kurek.

Thank you for that point of order, Mr. Bachrach.

I see no reason to stop Mr. Strahl mid-discussion. He is addressing an aspect that is included in this bill and is bringing up a concern that he feels is legitimate, so I will give him the floor.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

It pains me greatly to do this, because I have such deep respect for you as a chair, but I'm going to have to challenge that ruling, because I really feel that we've strayed from the topic at hand and I would love to talk about clause 124 and these administrative monetary penalties under the Canada Transportation Act—

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Mr. Chair—

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

—the Critical Cyber Systems Protection Act, the International Bridges and Tunnels Act, the Canada Marine Act, the Motor Vehicle Safety Act, the Canadian Navigable Waters Act, the Marine Liability Act and the Transportation of Dangerous Goods Act.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

On a point of order—

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

—on that point, I don't think, Mr. Chair—

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

It's not debatable.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

But had the chair ruled?

[The Chair, Liberal, Peter Schiefke]

I did. I ruled that he had the right to continue speaking, and I was overruled.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

I've been debating my own challenge—

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

You can rule on whether I get to continue to speak? You can overrule the chair on that?

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Yes.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

I don't think so.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

I think you have to have the floor to do that.