Evidence of meeting #99 for Public Safety and National Security in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was information.
A recording is available from Parliament.
5:10 p.m.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
I have a quick question for officials based on that.
Is there a possibility that if “proportionate” is in there, it would not lead to removing the equipment if there was a threat, or would that not meet the standard of “least restrictive”? I mean, they have to do something. Is that a realistic possibility, from what my Liberal colleague just said?
5:10 p.m.
Director General, Strategy and Innovation Policy Sector, Department of Industry
In any context like this, it will depend on the specific facts of the case. The court would look at what you are trying to accomplish, at the status quo and at the minimum requirement to establish that.
It's difficult to comment on a hypothetical. I could imagine arguments being made that there's a natural equipment life cycle, and setting the requirements for the next generation of equipment and letting them life-cycle out could be another argument. That is an argument, in theory, that could be made, but it would have to be grounded in the facts and specifics of the case.
5:10 p.m.
Liberal
5:10 p.m.
Liberal
The Chair Liberal Heath MacDonald
Okay.
(Subamendment agreed to: yeas 9; nays 1 [See Minutes of Proceedings])
Mr. Kurek, go ahead.
5:10 p.m.
Conservative
Damien Kurek Conservative Battle River—Crowfoot, AB
Thanks, Chair.
Most of my questions have been answered. This is just to ensure that on the record we have proportionality versus reasonableness, similar to the conversation we had surrounding G-1.
Just because “proportionate” isn't in the language, there is the expectation of proportionality if a charter circumstance were to arise, even if it's not understood in the context of a circumstance that we may face today. Reasonableness language, if I am properly interpreting your explanation from G-1, doesn't exclude that from the possible charter implications of proportionality in the future.
Do you agree with that? I'm wondering if you have any further comment. I think it's been pretty clearly articulated, but I just want to confirm that this is in fact the case.
5:10 p.m.
Director General, Strategy and Innovation Policy Sector, Department of Industry
Yes. That would be my short answer. The slightly longer answer would be that within reasonableness—the reasonableness standard is established by the Supreme Court—there are principles of proportionality established. To the extent that the language used is specific to an administrative law context, which is what we're dealing with here, were the government to issue an order that was not logically coherent with what was trying to be accomplished, it would be vulnerable to a challenge for being unreasonable.
To the extent that there is a concern about charter rights separate from administrative law decisions, yes, the Oakes test with reasonable limits criteria, including proportionality in the legal sense as opposed to just the common vernacular sense, would absolutely apply as well.
5:15 p.m.
Liberal
The Chair Liberal Heath MacDonald
Shall NDP-2 carry as amended?
(Amendment as amended agreed to [See Minutes of Proceedings])
We are now on BQ-2.
If BQ-2 is moved—
5:15 p.m.
NDP
Peter Julian NDP New Westminster—Burnaby, BC
Thank you, Mr. Chair. We're going at the right pace there.
5:15 p.m.
Liberal
5:15 p.m.
Bloc
Kristina Michaud Bloc Avignon—La Mitis—Matane—Matapédia, QC
I move the amendment, Mr. Chair.
As we know, Bill C‑26 enables the government to issue confidential orders applicable to telecommunications service providers. While confidentiality can certainly be justified in certain situations, it shouldn't be the default rule. A number of civil liberties organizations have told us as much.
These organizations recommend a mandatory Federal Court order as a check and balance against government overreach. This could be an effective way to ensure that the government isn't hiding disproportionately intrusive actions. It adds some checks and balances to the legislation.
I'll read amendment BQ‑2, which proposes an amendment by replacement:
(2) On application by the Minister, the Federal Court may, by order, prohibit any person from disclosing some or all of the order's contents if it is satisfied that there are reasonable grounds to believe that such disclosure could be injurious to international relations, national defence or national security or endanger the safety of any person.
I'm wondering about part of line 3 of the amendment. The wording is “disclosing some or all of the order's contents.” That sounds funny to me. Again, I think that the legislative clerks are the experts on how to write this. If it sounds good in the legislative language, so much the better. I just wanted to make sure.
I have a question for the officials before we move on with the discussion.
I want to make sure that adopting this amendment wouldn't add lengthy delays to the process. Would it?
5:15 p.m.
Director General, Strategy and Innovation Policy Sector, Department of Industry
I want to thank the member for her question, Mr. Chair.
In some situations, this amendment could lead to efficiency risks. For example, a Federal Court process would take at least a few weeks. In addition, certain issues could arise, such as the 2020 cyber‑attack on SolarWinds, which supplied software and equipment to many key infrastructure sectors. This basically led to a crisis and the need to take urgent action to resolve the situation.
Requiring an appeal to the Federal Court would carry certain risks in this type of situation.
March 18th, 2024 / 5:20 p.m.
Liberal
Jennifer O'Connell Liberal Pickering—Uxbridge, ON
Thank you.
We share the concerns over the time delay in a situation where there could be potential risks to the systems or vulnerabilities. The court process could add that delay, which we all know with a cyber-threat could be significant. However, keep in mind that we agree with some of the concerns Madame Michaud and others have raised in terms of accountability and transparency when an order is made.
We have proposed in G-5.1 what we think might help address those legitimate concerns without slowing things down. It would require a notification to NSICOP and NSIRA of any order being made. Under the protections around confidentiality of national security information, this would alert both groups so they know that an order was made.
I think we heard that the question would be, “How would anyone even know there was an order to look into to see that parliamentarians have accountability?” We can't support this particular amendment, because of the delay and potential risk that we worry it could add. However, we acknowledge the overall concerns about accountability and transparency. We think that notifying NSICOP and NSIRA every time an order is made will allow for that reflection to be done.
Again, that is in G-5.1, so we can't support this as is. Hopefully we can find a balance later on in that amendment.
5:20 p.m.
Conservative
Doug Shipley Conservative Barrie—Springwater—Oro-Medonte, ON
This is a very pleasant day, Chair. We're agreeing with our friends across the table a lot today. We will also not be supporting this amendment.
Just so everybody doesn't think we're trying to do something a little slippery, we will be withdrawing our similar amendment, CPC-3, once and if we get there.
5:20 p.m.
Bloc
Kristina Michaud Bloc Avignon—La Mitis—Matane—Matapédia, QC
Mr. Chair, can we proceed with a recorded vote?
5:20 p.m.
Liberal
The Chair Liberal Heath MacDonald
Yes.
(Amendment negatived: nays 9; yeas 2)
Mr. Shipley, we're passing by CPC-3, just to make sure of that.