Evidence of meeting #21 for Public Safety and National Security in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was telecommunications.
A video is available from Parliament.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Thank you, Mr. Chair.
To the officials, I think I had asked a question, and then we did a vote. Are you in a position to answer that question? I think it's very important, given what Ms. Acan said.
I understand that things move quickly. We are not talking about criminal law, but in criminal law we have the principle of exigency, which is a term that means it's impracticable to get an authorization. Is it possible to have this amendment with something that would go along with exigency? Does that make sense, the principle of it?
I invite officials to comment on that, please.
Director General, Telecommunications and Internet Policy Branch, Department of Industry
Under criminal law, there's a very substantial body of law and practice and procedure for specifically how to involve the courts, and involve them for a very good reason, because fundamental human rights are involved in searches, invasion of privacy, search and seizure or arresting someone. We're talking about very serious issues. There's a huge body of law that makes it very easy for a judge.... Well, “very easy” is too simple, but specific, defined criteria make it much more straightforward for a judge to rule yea or nay.
In the current context, we are talking much more about either policy issues or technical issues, as opposed to legal issues. The courts do not have that kind of expertise. They do not have a staff of engineers, like my colleague here, who can advise them on these issues. We are talking about new issues. We are talking about activities that the court is not used to dealing with.
For instance, the Minister of Industry is currently the spectrum regulator. They administer the Radiocommunication Act. This includes authorizing all wireless services within Canada for use, managing 150,000 spectrum licences and 35,000 different entities across Canada. That's just the spectrum management piece, and that's under the minister's authority, but ISED is fundamentally supporting that work.
We're talking about something much more similar when we're talking about the provisions of Bill C-8. We're talking about technical management of network infrastructure. Here, there are going to be a whole bunch of novel issues for a court. They're going to be non-legal issues in most cases, and the court will not have the expertise to deal with them. Maybe as a basis of comparison, the Goldtv case before the Federal Court in 2019 might give an indication. That had some novel issues. It was a copyright infringement case that involved a network management site-blocking issue. It was uncontested by the site that was being blocked, but it still took five months for the court to come to a decision.
That was over copyright infringement, which is much more well defined. Injunctions around copyright infringement are a more common activity before the court, but this is going to be much more novel, much more far-ranging and much more outside the court's normal remit.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
I'm going to push back a little bit, and here's why.
Judges often aren't experts. I know a lot of judges. I taught with a judge. They frequently rely on submissions of counsel or information in an affidavit. What this would do is require somebody, on oath or affirmation—which is serious, since you could commit perjury if you stated something falsely—to say that the test is met, and why the test is met in section 15.
I'm not trying to be combative here with you. I'm just trying to express myself to say that a lot of times judges have to deal with complicated material. When somebody under oath or affirmation says, “These are the requirements under the act. This is the threat. This is the action we propose to take, and this is why”, I don't think a judge has to be an expert. They have to say, “Is the definition of threat or material threat met? Is this information reliable?”, and things like that.
Just because we haven't done it before and this is new, I don't find it persuasive, to be very candid, to say that we shouldn't be entertaining this, and here's why. This is new legislation. These are sweeping powers, and I'm mindful of the fact that in the G7, this is a requirement. Nobody, I think, wants to say that we invite threats to our telecommunications. Of course not. We just want to get the best legislation, legislation that balances the privacy rights of people and the safety of our critical infrastructure, and anything in between.
Given that, I guess I just don't see why a judge would have to be an expert on this, when they're simply evaluating whether the law is met, and somebody under oath or affirmation would be stating why.
Am I making any sense here?
Director General, Telecommunications and Internet Policy Branch, Department of Industry
When a court is reviewing the reasonableness of a decision, in my experience and in various aspects of judicial review of decisions, they do not take the government's word as a given. They will want to evaluate the facts of the matter. It's a very lengthy process for them to come to a decision when they want to make sure they understand the contested facts of the issue. It's in the order of 12 to 18 months for those types of things.
I would also flag that given that this is at heart a regulatory process, there is already a set of guardrails to allow for the scrutiny through the development of the order-making process. For stakeholders to provide their views, there is guidance within the act in terms of how to scope and what's an appropriate use of those powers. There's a requirement that orders must be reasonable in relation to the gravity of the threat. You can't do something excessive in response to a minor issue.
Then again, to evaluate the reasonableness, you need to get into some analysis of facts, typically, and that means understanding the subject matter. Certainly, judges will absolutely get up to speed when they have a matter before them in their court, but it typically takes quite some time to do so.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Thank you.
I guess where you and I part company on this issue is on the necessity of a judge reading something that ideally would be provided in plain language to them and that would say: “This is what we're doing, this is why we're doing it, and I swear or affirm these are the facts.” In the analysis you just provided, Mr. Arbour, where you talk about the checks and balances, those are all after the fact. What I'm looking at is something that occurs before the fact. I know that you take no position. I'm not trying to put words in your mouth as to the position you're taking. I'm simply commenting on what you've just advised.
We may be at a standstill at this point. I'll let others intervene.
Thank you.
Liberal
Ali Ehsassi Liberal Willowdale, ON
Thank you, Mr. Chair.
I genuinely find this very fascinating. I have to say I agree with Mr. Caputo that it could very well be that someone sitting on the bench is not familiar and does not have the expertise, but there's always a way around it, as Mr. Caputo has rightly pointed out. That's not the source of my concern.
The source of my concern is the issue that MP Acan has actually identified, which is that, on occasion, given the speed of these challenges, you need to act with alacrity. You need to do it as expeditiously as possible. On that specific issue, I would say that I wholeheartedly agree with Mr. Arbour, because, practically speaking, it would take quite some time for this process to play out. There's no doubt in my mind that this would be the case.
The other issue is that in the event that any minister does overstep their authority or does not act on a legitimate basis, the remedy, as Mr. Caputo does know, is that you can bring a claim later, but let's not get into this process of handcuffing the hands of our authorities when there is something imminent that is about to occur.
It's a very interesting debate that's going on, but I would say that practical considerations lead me to believe that perhaps we would be ill-advised to go with Mr. Caputo's amendment. I'm not quite sure how Mr. Caputo sees that.
Liberal
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
Thank you, Mr. Chair.
I can already tell you that I support amendment CPC‑2. I've been thinking a lot about the implications, given all the witnesses we've heard from. One of them, the Honourable Simon Noël, the intelligence commissioner, made a presentation that really resonated with me. He also made two recommendations to the committee, one of which was to use warrants to limit ministers' powers. That stuck with me, because I have a great deal of respect for Mr. Noël's career, and I thought his judgment was very sound.
I continued to ponder this knowing that numerous bills adopted by the new Liberal government give a lot of powers to ministers, and I have a problem with that.
Yes, we are studying Bill C‑8, but when I look at the powers Bill C‑15 will give ministers and the laws it'll suspend, I wonder about the whole basis of granting power to ministers without specific restrictions.
What bothers me in this case is that I know the Royal Canadian Mounted Police, the Canadian Security Intelligence Service and police forces think the requirement of a warrant would hinder intelligence sharing. We also wonder how to strike a balance between intelligence sharing and privacy protection. Perhaps requiring a warrant would provide some safeguard.
The reason I agree with this amendment is that we proposed amendment BQ‑15, which would allow for a reassessment of the legislation in five years to see if we were right to insist that a warrant be obtained and whether we should revise the legislation. If it turns out to be a disaster, I think the government could quickly react with legislative amendments.
The fact that the National Security and Intelligence Review Agency's budget, the only body that monitors agencies, the government and ministers to ensure their compliance with the law, was dramatically cut isn't really reassuring. On the one hand, the government decides to give more power to ministers, but on the other hand, it takes powers away from those who have the authority to investigate. Those decisions are incompatible and inconsistent.
It might have been more convincing if the government had said it was increasing the agency's budget and giving it the means to investigate. Instead, it's imposing significant budget cuts on the agency, limiting its ability to investigate.
I would also say that I followed the entire trial on the government's decision to invoke the Emergencies Act. As you saw, two courts later ruled that it was a bad decision.
Taking all that into consideration, since this is a new bill, I think it would be wise to rein in the ministers' powers by requiring warrants be obtained. If it's a disaster, I trust the government to call us back to make legislative amendments or corrections, since it can do that at any time. For now, I'd be more careful. If it doesn't work, we'll consider amendments or corrections, or the government can table another bill.
That would be my motivation. I don't trust the current government, because in many instances, it has given a lot of power to ministers and suspended legislation, and even citizens' rights. Bill C‑15 suspends the rights of Mirabel residents who will be expropriated. They won't have the right to challenge or negotiate their expropriation. It's as if we're dealing with an authoritarian government that suspends laws as well as citizens' rights. I don't trust this government. I can't give it carte blanche on Bill C‑8.
I've shared my thoughts with you on the matter and I hope amendment CPC‑2 will be adopted. If the process doesn't work, I trust the government will call us back so we can make amendments by providing very clear examples and reconsider our decision.
That said, for the time being, I'd prefer to keep that part.
Liberal
Conservative
Dane Lloyd Conservative Parkland, AB
Thank you.
Thank you to my colleague for her excellent intervention.
To the officials, are you aware that the “Communications Security Establishment Canada Annual Report 2024-2025” states that the CSE disrupted ransomware groups targeting Canadian critical infrastructure within 48 hours using the existing tools at their disposal?
Director General, Telecommunications and Internet Policy Branch, Department of Industry
I didn't have that specific example in mind, but that is a very different set of circumstances from anything that is contemplated under part 1.
Conservative
Dane Lloyd Conservative Parkland, AB
I just find it interesting. My colleague Ms. Acan raised a very good point. If we bring in this judicial authorization, there's a concern that it might delay the government's ability to take action to stop malware, yet in 2024, the Communications Security Establishment of the Canadian government was able to disrupt malware within 48 hours. It didn't require judicial authorization. They already had the capability of intercepting threats to our critical communication systems.
If this legislation was not in place in 2024, I wonder how the Communications Security Establishment could have been able to take that action to prevent that from happening, as has been claimed by the government.
Director General, Telecommunications and Internet Policy Branch, Department of Industry
I'm going to start, and my colleague may supplement.
First, part 1 involves regulatory obligations on the private sector. If CSE says that there's a problem and that they recommend we patch our system, then that can be done incredibly quickly, and it's voluntary.
If we are talking about a legal obligation on the private sector, it has to go through an existing set of procedural requirements to come to that. Judicial review of those types of decisions takes 12 to 18 months, so there is a very high risk that, if this amendment were to be adopted, the powers under this act would be inoperable—not practical to be implemented—to a degree that makes me very concerned.
Conservative
Dane Lloyd Conservative Parkland, AB
Just to follow up on that, it's been referenced in testimony that stakeholders involved with this would be consulted if these powers were going to be used on them. In the case of a serious imminent threat to our telecommunications system, as Ms. Acan brought up, how quickly would you be able to go through the entire process of consulting all of the stakeholders and making a regulatory order? That doesn't seem like a very quick process. It seems to me that the process could be carried out alongside seeking a judicial authorization, if it was an urgent case.
What are your thoughts on that?
Director General, Telecommunications and Internet Policy Branch, Department of Industry
It's true that any consultation will have to be over an appropriate period of time for us to solicit feedback, and—
Conservative
Director General, Telecommunications and Internet Policy Branch, Department of Industry
It will depend on the circumstance. If we go through, for instance, something that's quite broad in scope, such as the use of a particular high-risk vendor's equipment that's broadly used throughout the industry, we will publish either a draft order or a public consultation paper on our website.
Liberal
The Chair Liberal Jean-Yves Duclos
I apologize Mr. Arbour.
Mrs. DeBellefeuille, are there issues with interpretation?
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
Mr. Ehsassi is a bit loud, so I'm having a hard time hearing the interpretation.
Liberal
The Chair Liberal Jean-Yves Duclos
Okay. That's because of the noise in the room.
I'm sorry, colleagues. I hate to do this, but I have to call everyone to order, in a noise manner.
I'll go back to you, Mr. Arbour.
Director General, Telecommunications and Internet Policy Branch, Department of Industry
Just reverting back to the example, there's a broad range of stakeholders implicated. Our default consultation, in basically all circumstances when we're talking about this type of thing, is just to publish something publicly on our website, just in case we miss someone, and to consult that way. Generally, that's carried out over a period of months. It will depend on the precise set of circumstances and the exigency.
Conservative
Dane Lloyd Conservative Parkland, AB
It won't be the same amount of time in an extreme circumstance, as Ms. Acan brought up.
Director General, Telecommunications and Internet Policy Branch, Department of Industry
If we're talking about something simple—for instance, one operator has a vulnerability in one piece of their network, but it's a serious one—it could be a question of a day or a couple of days.