First, yes, the bill and anything stemming from it would have to be charter-compliant. Any order coming from it would have to be proportionate, as established by the Supreme Court, regardless of the text of the bill itself.
The issue with taking the word “proportionate” out of the charter rights context and applying it to administrative law decisions writ large is that it takes criteria for reasonable limits on charter rights and applies them to the more mundane commercial activities of telecom service providers.
I'll give you a specific example.
When the Supreme Court does a test of reasonable limits on charter rights, one of the core factors is something called a minimal impairment test. If you're going to be infringing on an individual's charter rights, it asks whether you looked at the least intrusive ways of accomplishing that government goal. When we're talking about charter rights, of course that's a key consideration, because you're putting infringements on some pretty important issues, whether it be freedom of speech or what have you.
If that were to be applied to a case of high-risk vendor equipment, for instance.... Everyone understands the government's policy about restricting high-risk vendor equipment. That would include Huawei and ZTE. That is one of the core considerations of an order in council stemming from this provision. In the context of a challenge, someone could ask whether you used the least intrusive means to accomplish this goal. Yes, you have an order saying the companies must remove this equipment or cannot use this equipment, but a less intrusive option would be to have a subsidy program and pay the businesses to remove the equipment.
It's hard to say definitively what would play out in a legal challenge environment. However, given the case law around “proportionate” in a charter rights context, those are the risks we've identified.