Public Safety Committee on March 18th, 2024

[The Chair, Liberal, Heath MacDonald]

Welcome to meeting number 99 of the House of Commons Standing Committee on Public Safety and National Security.

Today's meeting is taking place in a hybrid format, pursuant to the Standing Orders. Members are attending in person in the room and remotely using the Zoom application.

I would like to make a few comments for the benefit of witnesses and members. Please wait until I recognize you by name before speaking. To prevent disruptive audio feedback incidents during our meeting, we kindly ask that all participants keep their earpieces away from any microphone. Audio feedback incidents can seriously injure interpreters and disrupt our proceedings. I'll remind you that all comments should be addressed through the chair.

Before I move on, I want to mention one thing quickly. We have had an invitation from the foreign delegation of Norway. The Norwegian Parliament's Standing Committee on Justice will be visiting Ottawa from April 7 to 9. The Norwegian delegation consists of members from six political parties. They would like to meet with members of our committee to discuss common interests such as civil preparedness and protection against future threats, including threats against critical infrastructure.

I just want to ensure that we have some interest in that regard from all parties, if that's possible.

[Doug Shipley, Conservative, Barrie—Springwater—Oro-Medonte, ON]

Could we do an exchange and go and visit them?

[The Chair, Liberal, Heath MacDonald]

That's a good idea.

I'll say that we accept the invitation for April 8. Hopefully, we'll have some people there to have a discussion with this group.

Go ahead, Mr. Kurek.

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

Thanks, Chair.

I think that's a good idea, but could you just explain for me, the new one on the committee, just how the notice and whatnot will work for that? Will there be translation? What are the circumstances in which we'll have that meeting?

[The Clerk of the Committee, Mr. Simon Larouche]

It will be an informal meeting, with interpretation. The meeting will be an extension of the regular hours that we have on that day. It will be from 5:30 p.m. to 6:30 p.m., just after our regular meeting.

[The Chair, Liberal, Heath MacDonald]

I actually thought you were talking about interpretation for a different language. It's okay. They speak English very well.

All right. Now we have our study on Bill C-26.

Pursuant to the order of reference of Monday, March 27, 2023, the committee resumes its study of Bill C-26, an act respecting cyber security, amending the Telecommunications Act and making consequential amendments to other acts. Today, the committee commences clause-by-clause consideration.

I will now welcome the officials who are with us. They are available for questions regarding the bill but will not deliver any opening statements. From the Department of Industry, we have Andre Arbour, director general, strategy and innovation policy sector, and Wen Kwan, senior director, spectrum and telecommunications sector. From the Department of Public Safety and Emergency Preparedness, we have Colin MacSween, director general, national cyber security directorate, and Kelly-Anne Gibson, acting director, national cyber security directorate.

Thank you for joining us today.

We're going to move right into clause-by-clause.

The chair calls clause 1. Shall clause 1 carry?

Mr. Lloyd.

[Dane Lloyd, Conservative, Sturgeon River—Parkland, AB]

Before we get started, I just want to give a notice of motion. We won't get into a debate on it today.

In light of recent news about a Montreal food bank having to call in police officers to deal with hundreds of additional Montrealers seeking food, and given that we know the carbon tax does have an effect contributing to food insecurity and that food insecurity is indeed a public safety issue in this country, I'm just going to put on notice my motion that we report to the House to spike the hike and axe the tax so we can bring food prices down, so that police can deal with the very real issues that we've talked about in this committee instead of having to go to food banks to provide crowd control for the hundreds and thousands of hungry Canadians who are using food banks in this country.

Thank you, Mr. Chair.

[The Chair, Liberal, Heath MacDonald]

Thank you, Mr. Lloyd.

I shall repeat: Shall clause 1 carry?

(Clause 1 agreed to)

(On clause 2)

We have amendment G-1.

Shall G-1 carry?

Oh, I'm sorry. It needs to be moved first.

We will get through this. This is my first time, so bear with me.

Mr. Kurek.

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

I'm happy to speak to the amendment, but somebody needs to move it, and I don't plan to move the government's amendment.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

I have a point of order, Mr. Chair.

[The Chair, Liberal, Heath MacDonald]

Mr. Julian.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Mr. Chair, I think this will go smoothly, and I hope we'll make a lot of progress today as we move through each of the articles as moved. I think it's fair to say that as you go through this process you'll enjoy it as well, as we all will, over the course of the next few hours, but I would ask that you proceed very methodically so that we can keep up with the paperwork, because we're managing, of course, the bill, the amendments list and the recommendations around each of the amendments as well.

[The Chair, Liberal, Heath MacDonald]

Thank you, Mr. Julian. I will slow down. I'm off to a quick start. It might be a slow finish.

Mr. Gaheer.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

Thank you, Chair.

I'd like to move government amendment G-1, which touches on proposed section 15.1.

We would remove “in the opinion of” in proposed subsection 15.1(1) and add a reasonableness standard. We've had organizations reach out, including civil liberties groups, and they want a reasonableness standard in the GIC order-making power.

I'll leave it at that for now.

[The Chair, Liberal, Heath MacDonald]

Mr. Kurek, go ahead, please.

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

Thanks very much, Chair.

Thanks to the government for moving this amendment.

I will ask this of our officials, in relation to G-1. It seems to me that this would be something that makes good sense. However, in terms of similar.... I'm curious about where the Governor in Council has the power to make appointments and whether the change being suggested by the government lines up with what the case would be in other areas of this act and across the areas of responsibility.

The reason I ask that question is to make sure that it's consistent, that it's understood and that there is a definition as to what reasonableness would be in determining what a Governor in Council appointment looks like—which, for those listening, is the minister making that appointment—and the difference between what was initially proposed and what my Liberal colleague talked about, that some of the civil society groups have asked for this reasonableness clause.

I'm wondering if you could unpack a few of those things. I'm also very curious about whether this is in conflict or continuity with other aspects, or makes any changes to other aspects of where Governor in Council appointments would be applied.

[Andre Arbour, Director General, Strategy and Innovation Policy Sector, Department of Industry]

Thank you, Mr. Chair, for the question.

I'd like to organize my answer into two buckets. One is where this comes from and the lengthy case law that defines what reasonableness is. My second bucket is how this compares with some of the other proposals, including a notion of proportionality.

In terms of reasonableness, there are decades of case law established by the Supreme Court on what it means in an administrative law context. That's exactly what we're talking about here with orders in council. They do not deal with the appointments of personnel but rather with orders to telecommunications service providers, in particular, on whether to limit the use of or restrict certain forms of equipment, including high-risk vendor equipment. There's extensive case law on this. The Supreme Court's 2019 Vavilov decision goes into great detail on, specifically, what the criteria are for a reasonable decision.

Those criteria—to get to my second bucket—include principles of proportionality. That's in the Supreme Court's decision. This amendment does not bring up proportionality as separate text. It does not say “reasonable and proportionate”. It doesn't do that because proportionality is already bundled into the reasonableness standard, as established by the Supreme Court. First, it's there. Second, using it on a stand-alone basis is only done in a Charter of Rights context. The Oakes test established by the Supreme Court for reasonable limits on charter rights includes proportionality, but it's specific to charter rights and not, say, the regulation of Bell, Telus or Rogers. It includes a standard called minimal impairment, which asks the government to look at the least intrusive means of accomplishing an objective.

For instance, in this context, rather than have a regulation to restrict certain equipment, maybe you could have a subsidy program to pay the companies to remove that equipment. If that were applied in an administrative law context such as this, there would be the risk of orders being overturned by accident or unintentionally. However, to the extent there are concerns about charter rights, the decisions of the Supreme Court already apply.

Thank you.

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

I appreciate that. I will ask a follow-up question.

Welcome and thanks to all of you. I am new-ish to the committee, although I served for a segment of the 43rd Parliament. Thank you all for offering your expertise to the committee today.

You talked about the standard that goes into reasonableness, but what difference does that make in practice, in the context of the amendment versus what the original text would have empowered the Governor in Council to do?

[Andre Arbour]

I would say the difference is more in the zone of providing greater certainty. The requirements of the Supreme Court that decisions be “reasonable” exist irrespective of the text that is in the law itself. Those are fundamental principles that apply to any administrative law context.

What this does is make it clearer in the text of the bill that those principles apply.

[The Chair, Liberal, Heath MacDonald]

Shall G-1 carry?

(Amendment agreed to [See Minutes of Proceedings])

We are on BQ-1.

If BQ-1 is adopted, CPC-1 on page 3 of the package, G-1.1 on page 3.1 of the package, G-3.1 on page 13.1 of the package, G-4 on page 16 of the package, G-4.1 on page 16.1 of the package, G-4.2 on page 16.2 of the package, G-4.3 on page 16.3 of the package, CPC-6 on page 17 and CPC-12.1 on page 36 of the package cannot be moved due to a line conflict.

Madame Michaud, go ahead.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chair.

I move amendment BQ‑1.

You referred to all the amendments that couldn't be moved if BQ‑1 were adopted. Basically, with BQ‑1, we simply want to remove a word that appears a number of times in the bill. I don't want to speculate on my colleagues' intentions. However, I think that they were trying to achieve the same result as BQ‑1.

The companies, organizations and individuals that spoke to us repeatedly expressed concerns regarding the scope of the ministerial powers proposed in the bill in the interest of telecommunications security, particularly in terms of access to personal information. They thought that the addition of a proportionality test and the obligation to consult experts would prevent the minister from using trivial issues to justify disproportionately intrusive actions. The removal of the word “including”, which appears a few times, may strengthen the bill in a way and could limit the ministerial powers granted.

I urge my colleagues to support this amendment.

[The Chair, Liberal, Heath MacDonald]

Mr. Shipley.

[Doug Shipley, Conservative, Barrie—Springwater—Oro-Medonte, ON]

Thank you, Chair.

We will be voting against this amendment. When the time comes, we'll be withdrawing our own amendment, CPC-1, in preference of voting with G-1.1.

[The Chair, Liberal, Heath MacDonald]

We'll go to Mr. McKinnon, please.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair.

I'd like to move a subamendment to this amendment.

I'd like to modify paragraph (a) of this amendment, which replaces line 15 on page 1. I would like to replace that text with the substance of G-1.1, which replaces lines 15 and 16 on page 1 with similar text, but adds the word “degradation”. Basically, it adds the word “degradation” to the list.

I'd like to move that.