Public Safety Committee on April 24th, 2018

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Notwithstanding the comments that were just made by Mr. Motz, I do find it very odd that this proposed paragraph is here, given the fact that proposed section 2 doesn't seem to have any reference in its definitions to “information technology”. Proposed subsection 24(5) does. I'm just trying to work my way down to proposed subsection 45(3).

My question to my colleagues across the way is, do you actually want to give the regulatory authority to cabinet to change the definition of the act through regulations? I think it seems, actually, incoherent in the nature of how law is supposed to work. Regulations should only have the authorities granted in them that are granted within the act.

If we're asking for this particular proposed paragraph to be in here, somebody somewhere thought that this was a good idea. Otherwise, it wouldn't be here. If we're drafting legislation to deal with, basically, cybersecurity, which is largely in the realm of information technology.... When I was the chair of the Standing Committee on Access to Information, Privacy and Ethics and all of that type of stuff, we would try to draft technologically neutral legislation. I'm guessing there's somebody somewhere thinking that maybe the legislation is not technologically neutral enough in its definitions that this would need to happen.

This is my question to the officials. Is this something that would not be covered or be exempted in an emergency, one of those emergency situations we referred to earlier? Why is this necessary? It just seems counterproductive to the democratic process and I'm a little worried about the precedent it sets.

[Scott Millar]

Sure. I'll speak to the intent of it.

First of all, in terms of the proposed CSE act, it was drafted to take into account the fact that we're in a 2018 world as opposed to 2001, and technology has rapidly evolved. To the point around nimbleness, the definitions did make sure that they can accommodate for changes in technology. The idea here is to allow flexibility for definitions to be adapted to reflect technological change. It's—again, I hate to use the word—a hedge, if you will, for where perhaps technology and the definitions are not lining up to allow some mechanism for that to happen. It's not meant to evade privacy responsibilities, accountabilities, or requirements under the Privacy Act or the CSE act. It is solely for the definitional nimbleness.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

My problem with this, if I may continue, Mr. Chair, is that what is being proposed to be removed—and for good reason, I think—is the part about amending the definition of any term defined in proposed section 2 or proposed subsections 24(5) or 45(3). Proposed subsection 45(3) in the legislation says that private communication has the same meaning as section 183 of the Criminal Code. Now, we're not talking about changing the definition of another piece of this particular act. We're now using this act to change the definition and meaning in the Criminal Code. Now we're three times removed from where the definition and legislation actually appear.

I'm just wondering about the structure. If we're going to have the definitions subject to change through regulation, why wouldn't we just define them in the regulations, rather than have the definitions appear in law? Wouldn't it make more sense to have a clause in the law that says that the regulations can make the definitions? It seems to be structurally inappropriate to do this. That's my concern.

It may be something that is better suited to some legal advice. I'm not trying to put an opinion question in front of—

[Scott Millar]

Sure.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

—the witnesses who are here. It just seems that from a legal perspective, this might be a very difficult thing to propose.

Is there anybody here with the expertise to answer, or is it just us enthusiasts?

[Scott Millar]

Again...a legal enthusiast.

In terms of understanding the structure, all the jurilinguists and the rest look through these things in terms of how to structure them, so I can't speak to how that follows in terms of legislative drafting rules.

Charlie, do you have something?

[Charles Arnott]

I'm not an expert in those types of structural issues, but this is drafted by experts in legislative drafting.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Mr. Breithaupt, have you been following along?

[Douglas Breithaupt, Director and General Counsel, Criminal Law Policy Section, Department of Justice]

Yes, I have, but I don't have any comments and wasn't involved in the drafting of this particular provision.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Would you have liked to be?

[The Chair, Liberal, John McKay]

Wisely, he would not liked to have been.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

I think we've talked out a good part of it on either side as to why this would be important. It's about keeping definitions nimble in a quickly changing world.

Just to clarify, regulations aren't done in private. It's public. It's through consultations that have been published in the gazettes. It's not one of those things that happens as a surprise to people. It is a public process as well. I just wanted to clarify that. Thanks.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

I appreciate the concern raised by colleagues on the other side. I recall having asked the question of witnesses a number of times in the process to get their views on whether this legislation is sufficiently flexible to address what are essentially unknown unknowns—the eyes beyond the horizon, the questions of artificial intelligence, the questions of quantum computing. As far as I could gauge, the witnesses had confidence that the apparatus as currently framed had that flexibility, and I would assume that's in part because of the presence of this provision. I don't imagine the core logic will be changed by technology, in the sense that this legislation is aimed at both providing good security for Canadians and protecting rights and freedoms under the charter. Those principles will remain standing no matter what the technological change is going to be.

I'm wondering if, to address the concerns that were raised by colleagues on the other side, it's at all valuable to ask witnesses if they're prepared to give a potential example of how a regulation may be changed in the face of changing technology. If that's not possible, I'll understand, but maybe there are some hypotheticals that have already been contemplated.

[Scott Millar]

I'm a political science major so in terms of the fourth industrial revolution and how 5G and quantum computing will change our understanding of what is a core and peripheral network and the like, I think it's just this kind of thing for that. Foresight is great, but it's way out there and reality happens. Again, I think it's just to preserve that flexibility for those changes when they occur.

[The Chair, Liberal, John McKay]

Before I ask Mr. Dubé and Mr. Motz to weigh in, out of curiosity would any changes in these regulations be published or subject to the scrutiny of the regulations committee?

[Charles Arnott]

They all would. It's a standard regulation process.

[The Chair, Liberal, John McKay]

In that respect, there's nothing different from anything else.

[Charles Arnott]

That's correct.

[The Chair, Liberal, John McKay]

My former colleagues Derek Lee and Tom Wappel would be greatly interested in that.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Not to fuel any cynicism, but I think it's fair to say there's a big difference between a publicly available change to regulation and a debate on legislation. I think Mr. Calkins explained it well with regard to being technologically neutral. However, I'm also looking at something like the Justice Noël decision from 2016 where you have CSIS gathering bulk metadata. Metadata is a concept that was fixed in this legislation. Would that be considered a technological change, directly or indirectly?

I ask that question rhetorically because I think everyone agrees on this. Every piece of legislation has something built in for regulatory changes. There's a reason for that, as Mr. Motz explained, but at the end of the day there's the reasonableness of it. I think this is so vast.

It's funny how hearing Mr. Spengemann's intervention makes me even happier to have this amendment. With things like AI coming forward, I certainly don't want the ability of national security agencies to operate with that rapidly changing technology to be subject to the whims of regulatory change. Let's not forget that the person ultimately making the regulatory change is the minister, who, while he gets good advice, is at the end of the day a political actor.

There are grave concerns about this. In this study and our framework review, the tone, the narrative, and certain ideas we were dealing with changed on the fly because of things we were learning on the go. If we can't even get through a study of a bill without being faced with these kinds of changes, then I don't see how we can give this all-encompassing term and then leave it for decades to come. I think that's irresponsible and dangerous.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I would like to find out from the officials where else in Canadian legislation a clause like this exists, and why it was enacted in that circumstance.

[John Davies]

I think we would have to talk to our justice colleagues and get back to you on that. I'm not aware of any.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I don't mean to suggest what your saying, but am I to infer from this that it may not be that common?

[John Davies]

I'm not sure how to answer that. I'm not sure. It may be common; it may not be common.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

I would add one additional consideration that wasn't raised yet. Absent this definition, it is very likely that it would be placed in the hands of the judiciary to define changing interpretations of definitions under the act. In light of changing technology and potential litigation that may come forward, is the judiciary really the best place for these kinds of decisions to be taken, or should they be taken at the ministerial level where we have experts in national security who are fully cognizant that those decisions can be challenged under the Charter of Rights and Freedoms if there are violations or infringements?