Thank you, Mr. Chair.
On behalf of the Centre for Free Expression, I want to thank all of you for the opportunity to appear here today before you.
Bill C-22 poses a serious and unacceptable risk to the privacy right of Canadians—both as an individual right and a social right essential to participate meaningfully in democratic discourse. The Centre for Free Expression's work is premised on understanding that democracy is a regime founded on ongoing public discourse about what is legitimate and what is illegitimate in society—a discourse that is necessarily without any guarantor and without any end, and one we all have a right to participate in and to be informed by.
Privacy is fundamental for freedom of expression and democratic discourse, specifically what Neil Richards has termed “intellectual privacy”, which is the “protection from surveillance or interference when we are engaged in the process of generating ideas—thinking, reading,” and when we are discussing these with those close to us “before our ideas are ready for public consumption.” In our evolving digital world, much of our reading, thinking and private communications are mediated by electronic technologies that make possible unprecedented forms of surveillance by the state, digital platforms, marketers and even those in our social networks.
The right to privacy is recognized as a human right in international law that Canada has signed and ratified. It is enshrined in the United Nations' 1948 Universal Declaration of Human Rights, which Canada supported and endorsed. While Canada's Charter of Rights and Freedoms does not mention privacy specifically, our courts have made clear that section 8 protects privacy.
In R v. Spencer, Justice Cromwell wrote, for a unanimous Supreme Court, in paragraph 15, the following:
This Court has long emphasized the need for a purposive approach to s. 8 that emphasizes the protection of privacy as a prerequisite to individual security, self-fulfilment and autonomy as well as to the maintenance of a thriving democratic society....
Further, at paragraph 36, he wrote:
The nature of the privacy interest does not depend on whether, in the particular case, privacy shelters legal or illegal activity. The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought.
Finally, at paragraph 41, he wrote:
There is also a third conception of informational privacy...the understanding of privacy as anonymity. In my view, the concept of privacy potentially protected by s. 8 must include this understanding of privacy.
In R v. Marakah, Chief Justice McLachlin discussed the privacy implications of modern electronic communications. She wrote:
Preservation of a “zone of privacy” in which personal information is safe from state intrusion is the very purpose of s. 8 of the Charter [and] this zone of privacy extends beyond one's own mobile device; it can include the electronic conversations in which one shares private information with others. It is reasonable to expect these private interactions—and not just the contents of a particular cell phone at a particular point in time—to remain private.
Bill C-22 is the latest in a long string of proposals to undermine Canadians' right to privacy in the name of fighting crime and protecting national security. While all rights are weighed by our courts in light of these competing interests and priorities, the proponents of Bill C-22 have lost sight of the priority that our charter and courts have given to protecting expressive freedom, and hence to the privacy rights that help make political expression and democratic discourse possible.
Bill C-22 would also supercharge state surveillance by, first, establishing a new low threshold for production orders under the Mutual Legal Assistance in Criminal Matters Act, so foreign entities could submit a request to the Minister of Justice for the production of transmission data or subscriber data in the possession or control of a person in Canada. To be granted, the request would only have to meet the low bar of “reasonable grounds to suspect”. There would be no dual criminality requirement, meaning the foreign offence need not also be an offence in Canada.
Second, it would create the framework for Canada to ratify the second additional protocol of the Budapest convention, a multilateral data-sharing treaty that attempts to expedite the speed and volume of data sharing among foreign law enforcement agencies at the expense of human rights.
Third, it would make possible a Canada-U.S. cross-border data-sharing agreement, which Canada is currently negotiating with the United States under the U.S. CLOUD Act. As the Citizen Lab's Kate Robertson wrote that this would mean “US surveillance activities covered by the agreement would no longer require oversight from Canadian authorities or judges, thus relinquishing a core element of Canada's sovereignty under international law.”
Finally, the supporting authorized access to information act, through both public regulations and secret orders, would allow the government to require the broadly defined category of “electronic service providers” to make wide-ranging and drastic modifications to their systems in order to facilitate access for law enforcement, threatening encryption. It will also require all ESPs to retain sensitive personal data about users for up to a year, without adequate safeguards to protect against security vulnerabilities that such orders will create. The new regime would also lack adequate accountability or transparency provisions.
Thank you, and I look forward to your questions.