I am just getting started, Mr. Chair.
I will read this document to the end. Then I will probably have some other briefs that are very important and give some great insight into Bill C-26, which is extremely relevant. I will speak until I believe my point has been made. Evidently, I still have some work to do to convince some members of the committee that we should be concerned about this bill and its link to Bill C-33.
I'll continue reading this document until it ends. At the end of every brief that I submit to the committee and read into the record, I kind of take stock then and determine whether I believe the point has been received or whether there is further relevant information.
I'm sorry, but I can't give a more specific answer. I know we're eight minutes away from Mr. Iacono's next break. I will continue reading this particular document, because I know many of my colleagues are interested in my picking that back up.
The next section of this brief talks about privacy impacts and section 8 of the charter.
20. Bill C-26 proposes several new information collection and sharing powers, and may include the collection or sharing of personal information. Many of these powers are insufficiently bounded or defined. The potential privacy risks posed by the powers are heightened by the absence of key accountability and oversight mechanisms. The breadth of the unsupervised information collection and sharing powers heightens the risk that the legislation, if passed as drafted, could unreasonably interfere with section 8 of the Charter in at least three [or] four ways.
21. First, the federal government's Charter statement posits that Bill C-26 does not interfere with section 8, in part, as a result of the fact that the “the information being gathered and shared in this context relates to the technical operations of TSPs, which are commercial entities”, as opposed to “personal biographical information that attracts a heightened privacy interest”. However, Bill C-26 does not explicitly draw this distinction between technical information or other forms of personal information when defining collection or information sharing powers in the bill.
22. Instead, Bill C-26 provides authority to compel a broad array of information-holders to disclose a broad array of information. While the Charter statement for Bill C-26 emphasizes the regulatory nature of the scheme in Bill C-26, unlike other statutory inspection powers that have been subject to Charter challenges historically, there is no reason to interpret the statutory powers in Bill C-26 as applying only to information in which there is a low expectation of privacy. Rather, section 15.4 would provide authority to compel “any person” to provide “any information” under “any conditions that the Minister may specify,” so long as the Minister believes it is relevant to its order making powers. The persons and entities subject to this provision in many circumstances play an integral role in the lives of people in Canada, and may well be information-holders in respect of highly sensitive or personal information.
23. Second, while some aspects of Bill C-26 are regulatory in nature, Bill C-26 also creates criminal offences punishable by imprisonment for non-compliance with specified orders or regulations. Statutory powers authorize collecting and sharing information for the purposes of “verifying compliance or preventing non-compliance” with those orders or regulations. The legislation therefore creates risks that information will be compelled or shared during investigations pertaining to the criminal offences created by Bill C-26, or other offences. Furthermore, the breadth of the order making powers under Bill C-26 mean that the collection of information for the purposes of making such orders may cause serious consequences that are separate and apart from any regulatory or criminal prosecution.
24. Third, section 8 also protects privacy by requiring adequate accountability and review mechanisms to accompany information collection powers, even in administrative or regulatory contexts. The Supreme Court states that “[w]hile less exacting review may be sufficient in a regulatory context, the availability and adequacy of review is nonetheless relevant to reasonableness under s. 8.” Canadian constitutional law has long recognized that without clearly defined safeguards (often including prior judicial oversight), legislation that authorizes intrusions on reasonably held expectations of privacy is inconsistent with s. 8 of the Charter. In some circumstances involving searches that are not subject to warrant requirements, the Court still expects that additional safeguards will be established to ensure the requisite level of transparency and accountability, and to help ensure that such powers are not abused. For example, requiring notice to the persons whose information is affected allows the affected individuals to identify and challenge invasions of their privacy, as well as seek a meaningful remedy. Appellate courts have recognized a range of accountability measures when assessing the reasonableness of search and seizure powers, such as: notice requirements (including after-the-fact notice); reporting obligations (to independent institutions or Parliament); the availability of clear mechanisms for review of the exercise of collection powers; clear rules limiting collection powers to what is necessary, reasonable, and proportionate; and record-keeping requirements.
25. Part 3 of this brief will identify several mechanisms that are necessary to improve accountability surrounding the proposed powers in Bill C-26. For example, the draft legislation proposes broad information sharing powers with no notice requirements. This would mean that individuals and organizations whose information has been collected would have no way of knowing of the fact that information has been shared, thus thwarting review and challenge. Individuals who have private information held by, and collected from, third-party organizations would also not be aware that their information has been collected in the first place, let alone shared with other government entities.
26. Fourth, the extensive confidentiality provisions in Bill C-26 may actually further undermine accountability mechanisms surrounding the bill's proposed information collection powers in ways that would be difficult to reasonably justify under s. 8. Section 15.4 of the proposed Telecommunications Act authorizes the Minister to require “any person” to provide “any information” under “any conditions that the Minister may specify.” These conditions would foreseeably include conditions to extend confidentiality obligations to the Minister's use of collection powers. The secrecy provisions in Bill C-26, and the authority to extend those secrecy obligations through further “conditions”, could effectively chill or silence individuals or entities from notifying other persons that their personal information has been collected, or from challenging the exercise of government power. Furthermore, excessive secrecy surrounding existing—