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.
4:55 p.m.
Liberal
The Chair Liberal Heath MacDonald
Mr. Gaheer, you made reference to the officials. Do you want to ask them a question?
4:55 p.m.
Liberal
Iqwinder Gaheer Liberal Mississauga—Malton, ON
Yes. Maybe they can talk about how that would change the effective language.
4:55 p.m.
Director General, Strategy and Innovation Policy Sector, Department of Industry
Starting with the existing text of NDP-2, it sets out language around reasonableness and proportionality and brings up “proportionate” as a distinct concept from reasonableness. This has some substantial risks to implementation down the road.
I do appreciate the intent and the concern over adequate guardrails. I would note that the criteria for reasonableness, as established by the Supreme Court, has principles of proportionality embedded within it. That's outlined in case law and the 2019 Vavilov decision in particular.
Bringing out “proportionate” separately from reasonableness and inserting it into the bill has different connotations from the plain-language understanding of the word “proportionate”, and as a stand-alone concept outside of an administrative law context, it is only used in a charter rights context.
My understanding, based on the testimony or submissions I've seen, is that it's not the intent to apply a charter rights standard to the regulation of mundane equipment issues in the telecom sector. However, in writing it this way and importing that Supreme Court language, there's a risk of that down the road.
4:55 p.m.
Liberal
The Chair Liberal Heath MacDonald
Thank you.
Now we have Ms. O'Connell, please, on the subamendment.
4:55 p.m.
Liberal
Jennifer O'Connell Liberal Pickering—Uxbridge, ON
Thank you, Chair.
I have no issues with the subamendment, but I can't move a subamendment of my own now because of it. I will say—and then I'll come back to it after we deal with the subamendment—that we can't support this, especially based on what officials just said, if the word “proportionate” is in there, mainly because of the legal context of that word and because G-1 was adopted to add in the reasonableness clause, which I think is what everybody wanted. We can't support the subamendment or the amendment if they have the word “proportionate” in the text, but we could support this overall if that is taken out.
I think we should delve into that proportionality language and what it actually means for the bill when it's appropriate, but, again, I know that we're on the subamendment, so I have to wait for that to be dealt with.
5 p.m.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
Thank you, Chair.
I was going to suggest that we deal with the “degradation” first, as the subamendment, and then allow Ms. O'Connell to present her additional subamendment.
5 p.m.
Liberal
The Chair Liberal Heath MacDonald
Is everybody good with a vote on the subamendment?
We'll call the vote. Is it unanimous?
(Subamendment agreed to [See Minutes of Proceedings])
Okay. We're back to the amendment.
Ms. O'Connell.
5 p.m.
Liberal
Jennifer O'Connell Liberal Pickering—Uxbridge, ON
I move a subamendment to remove the word “proportionate” in proposed subsection 15.1(1.1). The rationale, if everyone is clear with—
5 p.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
On a point of order, Mr. Chair, just to clarify, would that be to remove the words “and proportionate”?
5 p.m.
Liberal
Jennifer O'Connell Liberal Pickering—Uxbridge, ON
I think the important piece is that we keep “be reasonable to the gravity of the threat” and just remove “and proportionate”.
Officials spoke about this earlier. The term “proportionate” in the legal sense is different from just speaking it. It might seem very reasonable, but because we moved the G-1 amendment that added the reasonableness clause, we feel this moves to the heart of the intent of the concerns without getting into the legal and charter ramifications or usage of the word “proportionate”.
We can support these changes but not without the removal of “proportionate” as terminology in this bill.
5 p.m.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
Thank you, Chair.
I'm going back to the officials.
Mr. Arbour, you indicated the charter concern. The whole bill has to be charter-compliant, obviously.
Can you explain this to us again, with specifics on what you think the concern would be about having “proportionate” in there, other than it might open up more of a charter argument? Specifically, is there an example that comes to mind to help clarify the concern?
5 p.m.
Director General, Strategy and Innovation Policy Sector, Department of Industry
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.
5:05 p.m.
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Thank you.
On this “proportionate” question, there has been a lot of industry and business concern about the potential for companies to be given wildly large fines or very large penalties. Do you think the inclusion of the word “proportionate”...? Maybe not so much from a legal standpoint, but to create an assurance that when the government needs an order to bring an industry into line, it's not going to be.... If we remove the term “proportionate”, it seems as if we're creating some uncertainty.
I'm wondering if you could comment from the industry perspective. Is there not a concern that if we don't include terms like “proportionate”, we could be creating a lot of uncertainty in our economy?
5:05 p.m.
Director General, Strategy and Innovation Policy Sector, Department of Industry
Certainly we're live to the concerns about industry. Under the Radiocommunication Act, for instance, we currently license spectrum and wireless usage. We have spectrum auctions that are hugely consequential, that shape the industry and that have big implications for businesses. We are already subject to a range of administrative law requirements as established by the Supreme Court, so we're well habituated to that.
In this particular context, the addition of the reasonableness language makes that even further explicit in the bill, and the criteria as established by the Supreme Court for what makes for a reasonable decision include principles of proportionality and the impact on the entity in question.
I can pull up paragraphs 133 to 135 of the 2019 Vavilov decision, entitled “Impact of the Decision on the Affected Individual”. They say very clearly that the gravity of the obligation on the regulated entity, on the person, needs to be reasonably linked with what you're trying to accomplish. The more it is out of whack, the more it is likely to be determined an unreasonable decision and determined as invalid.
5:05 p.m.
Bloc
Kristina Michaud Bloc Avignon—La Mitis—Matane—Matapédia, QC
Thank you, Mr. Chair.
I completely understand the explanations concerning the notion of proportionality. However, if we remove it, the result is quite strange in French. It would look like this: “The provisions of the order must, in scope and substance, be reasonable to the gravity of the threat of interference...”
I don't know whether “reasonable to the gravity” is the right wording or whether we should add a word to make it flow better.
I think that the legislative clerk gets it.
I don't know whether this sounds right to you. If so, I'm fine with it too. I'm just asking.
5:05 p.m.
The Clerk of the Committee Mr. Jean-François Pagé
We'll make sure that everything fits together.
5:05 p.m.
Liberal
Jennifer O'Connell Liberal Pickering—Uxbridge, ON
I think the point has already been made, but I want to summarize it.
The fact that it needs to be reasonable is a position the government accepts. That's precisely why it was added already in G-1. However, with proportionality in this concept, Mr. Arbour, you used an example. You mentioned proportionality or the least restrictive.... Using your Huawei equipment example, one could argue that the least restrictive thing is just to leave it.
I would be concerned about leaving that door open rather than having the ability to take assurances against, for example, equipment that might pose a risk or leave a gap in the system. I feel comfortable that leaving in the language around reasonableness and what that triggers in the law accomplishes what stakeholders raised without getting us into a legal fight about proportionality using a charter standard. We're not talking about, potentially, people; we're talking about equipment within a system.
We want to ensure reasonableness in terms of the order, but let's make sure that it doesn't handcuff us from actually achieving the security features that might be needed in, for example, telecommunications equipment.