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.
Liberal
The Chair Liberal Jean-Yves Duclos
Thank you, Mr. Arbour and Mr. Lloyd.
Mr. Ramsay, you have the floor.
Liberal
Jacques Ramsay Liberal La Prairie—Atateken, QC
It's important to take a step back and look at the initial reason for this amendment. It was written with a particular focus on privacy and charter rights issues, issues that usually warrant judicial review and authorization. Now that it's been clearly established that this is not the case here, we are talking about orders relating to the security and technical operation of communications networks.
Given that cyber-attacks can happen at any time, even in the middle of the night, as in Mr. Lloyd's example, 48 hours is a very long time. Moreover, rarely is a judicial authorization mechanism used to regulate private sector businesses. I'd like to hear the experts on this: Why would we need such a process when there is normally no such process to regulate private enterprise?
Director General, Telecommunications and Internet Policy Branch, Department of Industry
Part 1 of this massive bill is about regulating the private sector. This means it affects Bell's network operations and the way Bell, Rogers and Telus manage their network.
I cannot think of a comparable example of having courts substitute for a regulatory authority as a matter of daily course. It is just extremely unusual and outside the norm of how regulations are made in Canada or in any OECD country that I am aware of.
The existing regulation of the telecommunications sector via the Telecommunications Act or the Radiocommunication Act is done via regulatory means and not via the court. All other federally regulated sectors in Canada, including energy, banking and transportation, are regulated through a regulatory process and not through a court process. You involve the courts in an ex ante fashion when you're dealing with charter rights, which is fundamentally not the scope and substance of what part 1 is dealing with.
Liberal
Jacques Ramsay Liberal La Prairie—Atateken, QC
Mr. Caputo says a quick process is possible. You just named Telus and Bell, among others, and as far as I know, they're dealing with major contentious issues and have some of the best lawyers.
Hypothetically, is it possible they won't agree in this case and choose to wage a long legal battle?
Director General, Telecommunications and Internet Policy Branch, Department of Industry
Telecommunications service providers such as Bell, Telus and Rogers have considerable resources and teams of lawyers. The telecommunications sector is already very contentious and players use the judicial process, because that's an available tool in a regulated sector. They're well positioned to challenge any government regulatory proposal. In the vast majority of cases, difficulties and issues are identified during the consultation process. If the government and Bell, for example, disagree, Bell can certainly challenge the proposed regulation.
Liberal
Jacques Ramsay Liberal La Prairie—Atateken, QC
Does the legislation of any other Five Eyes nation give this power to get consent from the court? Is Bill C‑8 aligned with what we see in other countries?
Director General, Telecommunications and Internet Policy Branch, Department of Industry
In every case I can think of, a regulatory process was adopted rather than a judicial process. Honestly, I've never had to consider such a huge measure. I apologize if I wasn't clear, but it's really through a regulatory process that OECD countries deal with private sector regulatory issues.
At the beginning of the Telecomunications Act and in the specific powers described in part 1, there are measures to require consultations, as well as guidelines for the government, to frame the powers provided by the act. Also, there are oversight measures for parliamentary agencies and committees, as well as the possibility of launching a legal process later on.
However, the use of a judicial process to regulate the private sector on a daily basis would be exceptional compared to OECD standards.
Liberal
Jacques Ramsay Liberal La Prairie—Atateken, QC
So, if I understand you correctly, we would be going it alone and would be completely different from other countries.
I don't want to get ahead of myself. However, other amendments will be moved later to regulate the powers of the Governor in Council and the minister. These amendments would limit the powers and would allow for proper regulatory control. Do you agree with this and with the inclusion of the concept of proportionality and necessity in the legislation?
Director General, Telecommunications and Internet Policy Branch, Department of Industry
Yes. There are already measures to regulate the powers stemming from the bill. However, amendments are also being moved to add criteria for issuing confidential orders, for example, as well as measures to further regulate the power to disconnect a company in the event of a cyber‑attack. So, the committee could consider other measures to better regulate the powers.
Liberal
The Chair Liberal Jean-Yves Duclos
Thank you, Mr. Ramsay.
I'll suspend the meeting for a few minutes. I believe that discussions are taking place around the table and in other areas. After the suspension, if the members don't mind, we'll get back to the speaking order before me. The order is as follows: Mr. Au, Mr. Strauss, Ms. Acan and Mr. Powlowski.
Liberal
The Chair Liberal Jean-Yves Duclos
I call the meeting back to order.
I'll make an exception to the rule. Normally, Mr. Au should speak. However, Mr. Caputo asked me for a few moments to summarize some of the discussions.
Mr. Caputo, the floor is yours.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Thank you, Mr. Chair.
This is what we have discussed. I want to be abundantly transparent. I invite any of my colleagues, from other parties or my own party, to chime in if I misstate anything. This is what I would propose. I propose that we vote on CPC-2. If CPC-2 passes, the officials have advised us that there will be situations of exigency, which is the term I've used, when judicial authorization is impracticable to obtain. In other words, there's no time to obtain that. That is my understanding of their recommendation. What we would then do is that I would ask that the drafters draft an amendment to that effect. We would then consider that amendment as part of new proposed section 15.201—perhaps new proposed subsections 15.201(3) and 15.201(4), if necessary—and vote on that amendment in the future.
Right now, though, we are voting on CPC-2. If it passes, we would give instruction for a draft on what I call exigency. Then everybody can deal with what they need.
Am I clear? In other words, I think we should vote on CPC-2 now and then give the instructions.
Liberal
Liberal
The Chair Liberal Jean-Yves Duclos
This is what I was suspecting: It wouldn't be possible to go back to an amendment that was adopted unless there was unanimous consent to revert to that amendment. It's the decision of the committee later on, when it comes to a vote on CPC-2, to consider that option.
Having said that, MP Caputo, is there something more you want to add on that?
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
What I'm saying is that we vote on CPC-2 as is. It is closed. Then the drafters draft an amendment about exigency. That might be CPC-38. It would be a new amendment. We wouldn't be reopening CPC-2. We would be considering a different amendment, but that amendment would be about new proposed section 15.201.
Am I being clear here?
Liberal
The Chair Liberal Jean-Yves Duclos
Yes, except it depends on where we will be at that time. We will probably be later on in the process. Being later on in the process, it's impossible to revert back to an amendment that would have been voted on.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
I see. Okay. You're talking about the clause, not the amendment. We will already have gone past clause 2.
In that case, yes, I can say that we would give consent to come back to that in good faith.
Liberal
The Chair Liberal Jean-Yves Duclos
Okay. That's for MPs to decide in terms of the usefulness and validity.
Having heard that, let me follow the suggestion of MP Caputo to continue the debate on CPC-2.
I have MP Au, MP Strauss, MP Acan and MP Powlowski.
MP Au.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
I just want to ask, in practical terms, how difficult or how easy it is to get the authorization. As a layperson, I can see that there's a difference between authorization and the application for a warrant. For a warrant, perhaps it could take more steps or a higher threshold. Authorization can be much easier and simpler, perhaps just a certification saying that the minister has considered the need for this kind of action. Then it could be approved. I can also draw reference to when a police officer is trying to get into a home to search. I think they can get a warrant quite fast. It doesn't take days and hours for them to get it.
Practically, then, how difficult is it to get this authorization?
Director General, Telecommunications and Internet Policy Branch, Department of Industry
In the context of the Criminal Code, there are considerable, very detailed criteria for the different types of circumstances in which law enforcement might be engaged with that. There are many decades of precedent about how the charter is applied in those circumstances. Today, yes, it's relatively straightforward, but it's based on decades of hashing out the details and lots of detailed practice. It's an activity that the court is designed for.
What we are talking about here involves, generally, determinations of fact and not law. What that means is this: What is the nature of the threat? How much equipment is it implicating? How easy is it to remedy that issue?
This is fundamentally a policy or a regulatory process. There are no criteria to instruct the court on how to consider this matter. It is completely unique. There is no precedent for it that I can think of—not just in Canada, but in any country—to guide the court in terms of how to apply it. It involves fundamental questions of fact, which means the court would need to be briefed, get up to speed and understand the technical details, which they certainly can do, but it's why, typically, these judicial processes take six to 18 months.
The other thing I will say is that I know there's been a focus on exigency, but to some degree, I'm almost as concerned about all of the routine activities we need to do when we think about how we regulate the telecom sector as it is. When the service providers end up in court, which happens from time to time—again, it's very rare in the grand scheme of the total number of regulatory actions we take; we have around 150,000 licences out in the field on just the spectrum part alone—we are talking about a year or a year and a half.
