Public Safety Committee on May 7th, 2026

[David Fraser]

Absolutely, and I think that's one of the big issues with this bill.

With regard to the intentions of the bill, the bill is in two parts, and they do two very different things. One is about authorities, and the other is about capabilities.

If you look at clause 5 and the list of things that the Governor in Council can make regulations about, or clause 7 and ministerial orders, you see that they are written extremely broadly.

First, I would call your attention to the regulations that the Governor in Council may make. They include all the things in paragraphs 5(2)(a) through 5(2)(d), which means more than implicit granting of authority. Paragraph 5(2)(a) could include back doors, and paragraph 5(2)(b) could include back doors, because they can require the installation of devices on ESPs' infrastructure. There is nothing else in the bill that prevents that from happening, other than the goodwill of the minister and the goodwill of the intelligence commissioner, and that's that.

I am particularly very concerned about these secret orders, because the minister has the power to do any of the things that could be in a public regulation to any telco or any electronic service provider. At least the regulations are going to be published and will go through a process, and people can see them. However, secret orders can include back doors, because that certainly isn't precluded in the definition of “systemic vulnerability”, and it doesn't protect encryption in any meaningful sort of way.

If you take those two things together, the guardrails simply are not there. The only guardrail is the Charter of Rights and Freedoms, for which we'll have to have litigation in order to.... I'm afraid the government are setting themselves up for failure if they pass a bill that goes too far, a bill that violates the charter and that is going to be found to be unconstitutional. It's better to get it right.

[Rhonda Kirkland, Conservative, Oshawa, ON]

Thank you. We've talked about getting this bill right a few times, versus racing to just get it passed.

In terms of intention versus what's allowable, if the government truly has no intention of compelling back doors or weakening encryption, can you think of any reason not to clearly and explicitly prohibit those activities in the legislation itself?

[David Fraser]

I can't see any reason that we shouldn't include those guardrails. Guardrails are absolutely essential.

Part of the reality is that intention really doesn't matter today, because what is going to become law is what is written in that statute. The minister is going to change at some point and the government is going to change at some point, and we can see significant changing tides south of our border. If those powers exist in a completely different political environment, they can absolutely be used against the citizenry.

There is an expression, “turnkey totalitarianism”, which is something that causes me some concern.

[Rhonda Kirkland, Conservative, Oshawa, ON]

Thank you very much. I appreciate that.

Dr. Geist, in your May 2026 article, “Wilful Blindness?”—and there is a question mark on that—you argued that the charter statement that the Department of Justice requires the Minister of Justice to prepare largely ignored some of Bill C-22's most constitutionally vulnerable provisions.

In your view, why do you think the government avoided meaningfully addressing the sections of the bill that are most likely to raise serious charter and privacy concerns?

[Michael Geist]

I don't have a good answer for why they did it or why they didn't address those issues, but I will say that I think it raises real concerns.

If the reason is that they don't believe that issues around, let's say, mandatory metadata retention raise charter issues, so they felt there was no need to include it, I think that is both inaccurate as a matter of law and that it also suggests, as we've been saying, that this legislation is going to be challenged quickly. I think there is a real risk that provisions like that will be struck down.

[Rhonda Kirkland, Conservative, Oshawa, ON]

Thank you.

[The Vice-Chair, Conservative, Frank Caputo]

Thank you, Professor Geist.

Next, we have Mr. Zuberi for five minutes, please.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

Thank you, Mr. Chair.

Thank you to the witnesses for being here today on this important legislation.

I want to start with Professor Geist.

You were answering a question from a fellow parliamentarian, Madame DeBellefeuille, around privacy and how other Five Eyes and European countries handle that issue.

I'm also curious about judicial oversight and how Five Eyes and European countries approach judicial oversight with respect to a comparative analysis on Bill C-22.

[Michael Geist]

It's a good question. Candidly, I don't have a complete answer for you in terms of the production orders or the subscriber information that we've been focused on. Perhaps one of my colleagues on the panel does.

My area of focus has been primarily what happens in the network environment, in that intersection between providers and privacy, and that's where it feels like we're out of step.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

Okay. Does anyone else have a comment on this? If not, I'll ask my next question.

We know there have been disproportionate impacts in policing with respect to racialized communities, indigenous people and different social movements. Do you have any concerns around impacts being different for specific communities within Canada in terms of this legislation?

[Michael Geist]

I could start, and perhaps others can proceed.

I have concerns, concerns that we've expressed. We do run the risk of undermining the trust—I referenced that towards the end of my remarks—between the public, their providers and, frankly, law enforcement itself.

When you talk about communities where some of that trust may have been, even now, strained, the notion that we are creating frameworks that lessen the safeguards that exist in terms of the standard to be able to obtain information, and even the base knowledge that, as people become more aware of the implications of some of these provisions, who they speak with on their devices, where they go and how they engage, all of that information being collected and retained for a year, I don't think knowing that their providers have this information increases the level of trust that people have with their providers. You're also then layering on top of that the fact that providers have been compelled to collect that information and then enveloping with secrecy what might take place with some of that kind of data. I think all of this undermines the trust that exists between the public and the various kinds of authorities whom we want to enhance the level of trust with.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

Right. At some point, you have spoken about targeted quick freezes, instead of the current approach. Do you have any commentary? Do you want to expand upon that concept a bit?

[Michael Geist]

Sure. The basic notion between a quick freeze, which is, by and large, what takes place today, is.... We should probably just back up to note that there is no commercially viable reason for providers to retain metadata for long periods of time. There are risks. We've talked about those risks. Create that big haystack, so to speak, and you create a ripe target for hackers or others who might seek to gain access to it. It's a treasure trove, potentially, of information, but beyond that, it's expensive, which may render some providers less competitive, thereby increasing prices that Canadians face for their communications services, so by and large they don't do it.

What they do, though, is create a scenario whereby they will respond to orders requiring them to retain this information while an investigation is ongoing.

What I had suggested was this: Can't we find a way of marrying that system, which does allow us on that ongoing basis to retain that data, with a system that, for a very short period of time, if needed, allows for that retention and then gets quickly flushed? You can have it that in that very small minority of situations where you need that metadata retained for a long period of time, it's retained, but it's retained only where you have an active investigation, not against all Canadians.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

In the 30 seconds that are left, do other European and Five Eyes have the approach as what you're describing?

[Michael Geist]

The quick freeze is the common approach that we find in jurisdictions that don't have mandatory metadata. It's not as if law enforcement can't get metadata in other places. They can, but with appropriate oversight, using that quick freeze model.

[The Vice-Chair, Conservative, Frank Caputo]

Thank you very much.

Mrs. DeBellefeuille, you have the floor for two and a half minutes.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry—Soulanges—Huntingdon, QC]

Thank you very much, Mr. Chair.

Dr. Geist, I'll go back to my earlier question.

The bill fails to clearly define what an electronic service provider is.

Do you think there should be more clarity on what should be included or excluded in the definition of electronic service provider or in the definition of core provider?

[Michael Geist]

Yes. Mr. Fraser, I know, spoke to that, and he could perhaps elaborate around why that very broad definition encapsulates far more than I think most people would realize, given just how broadly it's defined.

I did want to return to your question that I didn't have the chance to fully respond to, where you asked, why go so broad? I do think—and I say this with respect—that as I look back on the many years of lawful access debate, it is invariably the case that law enforcement seeks as many powers as possible, and one can understand why. They would like to ensure that they can do their job as effectively as possible. However, just because you can demand that very broad approach doesn't mean that the government of the day ought to acquiesce, and certainly Parliament should not, once it's had the opportunity to study the implications and the trade-offs that exist when that happens.

We saw it, frankly, in Bill C-2, where there was clear overreach with respect to warrantless access to information from anybody providing a service in Canada. People said, hold on a second, that goes too far. Thankfully, the government listened on that issue, but we still have other issues where I think we need to recognize that it does go too far and we need to scale back, recognizing that we'll still address many of law enforcement's concerns and needs.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry—Soulanges—Huntingdon, QC]

Perhaps you would agree to propose a way to limit the regulatory power this definition grants to the government. The only way to do so would be to specify what's excluded.

Isn't that right?

[Michael Geist]

I think, as a starting point, this notion of people engaging with information or information services in that way, as David Fraser noted, really does encapsulate everyone.

If what we're really talking about is that you have...and the vision is.... It's difficult, because it's just speculating. If it's just that core providers are the major telcos, but we're thinking about others that provide what might be viewed as parallel types of services, that's what I would have thought an electronic service provider might be, but that's not what we have in the definition right now.

[The Vice-Chair, Conservative, Frank Caputo]

Thank you very much, Professor Geist and Madame DeBellefeuille.

Now we will go to Mr. Baber for five minutes, please.

[Roman Baber, Conservative, York Centre, ON]

Mr. Fraser, you're a lawyer in good standing with the law society of Nova Scotia.

[David Fraser]

I am.

[Roman Baber, Conservative, York Centre, ON]

You've been practising for over 25 years.

[David Fraser]

As of last month, yes.