Transport Committee on Dec. 13th, 2023

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Thank you very much, Mr. Chair.

Of course, I believe it's quite fortunate that the rights of members to speak are being upheld in this case by the chair and by the clerks. I certainly understand, as has been said, that I'm no longer capturing Mr. Bachrach's attention or offering him something that he feels is compelling, but it's not really my job to keep him entertained. My job is to speak to the bill.

As you said, there is a direct link, whether or not the government now regrets putting it in there, because we're now talking about it. Maybe they hoped that this would be breezed past or that Bill C-26 would be considered irrelevant, even though it's the title of the clause we are debating and even though it specifically refers to what will happen if Bill C-26 receives royal assent.

To somehow believe that it's irrelevant to be talking about a bill that is specifically named and specifically referred to as having an impact on this piece of legislation is truly unfortunate. I appreciate the chair recognizing the relevance of the discussion, despite the fact that Mr. Bachrach and some others clearly might not enjoy the conversation. I don't operate for Mr. Bachrach's enjoyment, entertainment, captivation or any of the other things he's talked about. I will continue to read from the relevant information about the relevant—

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Mr. Chair, on a point of order, I feel that Mr. Strahl is misrepresenting my remarks.

I did not indicate that he was not entertaining me. I did not indicate that what he was saying was not important. I indicated that it was difficult to follow the relevance and that it was difficult to hear.

I appreciate that Mr. Strahl isn't in the room with us, but it was difficult to hear his presentation, because people in the room were talking about other things, like the Christmas party and the different things that are happening that are perhaps of greater interest to people.

That was my main contention and why I felt as though it was no longer relevant to what we were talking about. It was not meant as a critique of his entertainment value or of the importance of what he was reading. I will listen on with great interest.

[The Chair, Liberal, Peter Schiefke]

Thank you for the clarification on that, Mr. Bachrach.

I will try to do my part as chair to keep the chatter down in this room to ensure that members are able to speak and that we can hear them, even if they're joining us virtually.

Mr. Strahl, the floor is yours.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Thank you, Mr. Chair.

If there is a technical issue in the room—if the volume is not being brought up to the appropriate level—I would certainly hope the chair and others would correct that matter with IT staff, who are very capable. I know they do a great job of ensuring that members can be heard and that members who are speaking are—

[Xavier Barsalou-Duval, Bloc, Pierre-Boucher—Les Patriotes—Verchères, QC]

I have a point of order, Mr. Chair.

[The Chair, Liberal, Peter Schiefke]

I'm sorry, Mr. Strahl. I have a point of order from Mr. Barsalou-Duval.

Mr. Barsalou‑Duval, the floor is yours.

[Xavier Barsalou-Duval, Bloc, Pierre-Boucher—Les Patriotes—Verchères, QC]

Thank you, Mr. Chair.

It has been an hour now, if not more, that Mr. Strahl has been reading the documents he considers to be related to the bill, although we all have our own opinion on that. For the committee's benefit, could the member tell us how long he intends to read the documents, so we know whether the other committee members will also have an opportunity to speak before the end of the meeting? I think that would be useful for everyone.

[The Chair, Liberal, Peter Schiefke]

Thank you, Mr. Barsalou‑Duval.

The list right now is Mr. Badawey, Mr. Kurek, Dr. Lewis, Mr. Muys, Mr. Lewis and Mr. Bachrach.

I'm sure the members would like to know whether....

Oh, I also have Mr. Patzer, who just indicated to me once again that he wants to speak.

[Jeremy Patzer, Conservative, Cypress Hills—Grasslands, SK]

Yes, I did—about three hours ago, actually.

[The Chair, Liberal, Peter Schiefke]

Thank you very much for reminding me.

I guess the question is a relevant one for Mr. Strahl, so members are aware of when they can expect to have the floor—if at all.

Mr. Strahl.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

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—

[The Chair, Liberal, Peter Schiefke]

Mr. Strahl, I don't want you to go on to “furthermore” just yet.

As I promised some members, we will break now. It's 9 p.m. We will ensure everybody has a 10-minute break for the benefit of all members, as well as our witnesses.

This meeting stands suspended for 10 minutes.

[The Chair, Liberal, Peter Schiefke]

I call this meeting back to order.

I will turn the floor over, once again, to our esteemed member of the committee, Mr. Strahl.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Thank you, Mr. Chair.

Thank you for giving me a reference point to begin my comments again, which start with:

Furthermore, excessive secrecy surrounding existing orders or regulations would further undermine accountability, as courts or oversight bodies wouldn’t be able to assess whether collection or sharing of information was reasonably necessary and proportionate in furtherance of those secret orders or regulations. In short, it is unclear how the proposed confidentiality and secrecy provisions align with the need for accountability measures to ensure there is not an inappropriate intrusion into s. 8 Charter rights.

27. The Charter statement notes various information sharing agreements that are contained in the legislation. However, there are broad information sharing powers in Bill C-26 that are not subject to any information sharing agreements, or limitations on how the information may be used once shared. Furthermore, the majority of the Supreme Court has previously noted (in the context of other information disclosure powers accompanying supervised warrant provisions in the Criminal Code), that information sharing agreements are not “a panacea”, given that there is “always a risk that a foreign law enforcement agency may misuse the information disclosed.”

Part 3. Towards More Secure, Transparent, Accountable Governments and Telecommunications Networks in Bill C-26

28. This Part 3 summarizes recommendations identified in Cybersecurity Will Not Thrive in Darkness, as well as supplementary comments and recommendations flowing from the Charter analysis set out in Part 2. The report, including its specific textual recommendations, is enclosed as Appendix B. Where recommendations are identified in this brief for the first time, they are numbered with letters (i.e., Recommendation 1A) to maintain the original numbering of the report.

Here are some recommendations:

I. Limiting powers to order modifications to organizations’ technical or business activities

29. To include appropriate safeguards surrounding compulsion powers under Bill C-26, Cybersecurity Will Not Thrive in Darkness makes the following recommendations:

a. Recommendation 1: Orders in Council and Ministerial Orders Must be Necessary, Proportionate, and Reasonable. Currently, the legislation allows the government to issue an order when necessary to secure the Canadian telecommunications system. However, necessity is an insufficient curb on the government’s power; Bill C-26 should impose more conditions regarding the specific circumstances under which the government can exercise its power.

b. Recommendation 2: Orders Should Include a Reference to Timelines. The draft legislation should be amended to include a requirement that telecommunications providers must implement cybersecurity demands or orders within a reasonable period of time in situations where compliance with a demand or order would require significant or material changes to the recipients’ business or technical operations.

c. Recommendation 3: Government Should Undertake Impact Assessments Prior to Issuing Orders. Government assessments of its orders should identify secondary- or tertiary impacts that would have the effect of worsening an organization’s cybersecurity practices or stance. These assessments should be presented to telecommunications providers along with any demands or orders or regulations that are based upon these assessments. Such assessments should be included in any and all proportionality analyses of government demands or orders.

d. Recommendation 4: Forbearance or Cost/Cost-Minus Clauses Should Be Inserted. The government may issue a direction that could severely alter how a telecommunications provider is able to offer a service to customers. The legislation should be amended such that telecommunications providers can seek forbearance of certain orders where implementing them would have a material impact on the providers’ economic viability. Alternatively, if an order or regulation would have a deleterious effect on a telecommunications provider’s economic viability and the government demands that the order be fulfilled regardless, the provider should be compensated on either a cost or cost-minus basis.

e. Recommendation 5: The Standards That Can Be Imposed Must Be Defined. Without a clear definition of what a “standard” in the draft legislation entails, it becomes difficult to assess what kinds of standards the government is seeking to implement and whether it is adopting them safely. The legislation should be amended such that it is clear what kinds of standards are within and outside of the scope of the legislation. The evidence and analysis in Finding You underscore that urgent action is needed to establish mandatory security and privacy standards for telecommunications providers to require security postures that address the vulnerabilities in signalling protocols that enable mobile geolocation surveillance threats.It should also be made explicit that an order or regulation compelling the adoption of particular standards cannot be used to deliberately or incidentally compromise the confidentiality, integrity, or availability of a telecommunications facility, telecommunications service, or transmission facility. The intent of this recommendation is to prevent the government from ordering or demanding that telecommunications service providers deploy or enable lawful access-related capabilities or powers in the service of “securing” infrastructure by way of adopting a standard.

II. Secrecy and Absence of Transparency or Accountability Provisions

30. As noted above, Bill C-26 has “extensive and overly onerous secrecy and confidentiality requirements.” Laws that impose meaningful limits on the freedom of expression must be balanced and reasonably justified. While some confidentiality will be appropriate to ensure that unresolved security vulnerabilities are effectively brought into control, certain powers in Bill C-26 go further than what is required to accomplish cybersecurity and national security objectives. Furthermore, certain powers proposed are unaccompanied by reasonably available measures to protect the public’s interest in access to information concerning an important area of government action. In light of identified deficits concerning excessive secrecy or the absence of accountability provisions, we reiterate the following recommendations from Cybersecurity Will Not Thrive in Darkness:

a. Recommendation 6: Orders Should Appear in The Canadian Gazette. In Bill C-26, orders are required to be published in the Canadian Gazette, but the Minister has the authority to “direct otherwise in the order.” As such, “the result is that the government might issue orders that never appear in the Canadian Gazette, and there is no requirement for the order to ever be published in a complete and non-redacted format.” The potential effect could unjustifiably restrict meaningful public debate on a matter of public importance and, as a consequence, the freedom of expression. The legislation should be amended such that orders must be published within 180 days of issuing them or within 90 days of an order being implemented, based on whichever condition is met first. The legislation should also expressly define circumstances that justify secrecy.

b. Recommendation 7: The Minister Should Be Compelled To Table Reports Pertaining to Orders and Regulations. To better safeguard the public interest, privacy, and the freedom of expression, the legislation should further be amended such that the Minister of Industry is required to annually table a listing of:

the number of orders and regulations that have been issued

the kinds of orders or regulations that have been issued

the number of telecommunications providers that have received the orders

the number of telecommunications providers that have partially complied with the orders

the number of telecommunications providers that have completely complied with the orders

a narrative discussion of the necessity, proportionality, reasonableness, and utility of the order-making power

c. Recommendation 8: Non-Disclosure Orders Should Be Time Limited. Bill C-26 also proposes gag provisions with respect to Orders in Council or Ministerial Orders, which are not limited either temporally (i.e., how long is secrecy necessary?) or substantively (i.e., what circumstances justify secrecy?). As noted at paragraph 15, non-disclosure orders affect not only the recipient of the gag order, but, also, the public's right to information that informs democratic debate. The legislation should be amended to include time constraints surrounding non-disclosure orders.

d. Recommendation 8A: The Circumstances Purporting to Justify Confidentiality in a Non-Disclosure Order Should Be Defined In The Legislation.

e. Recommendation 9: The CRTC Should Indicate When Orders Override Parts of CRTC Decisions. The legislation should be amended to, at a minimum, require that the CRTC post a public notice attached to any of its decisions where there is a contradiction between its decision and an Order in Council or Ministerial Order or regulation that has prevailed over part of a CRTC decision.

f. Recommendation 10: An Annual Report Should Include the Number of Times Government Orders or Regulations Prevail Over CRTC Decisions. The legislation should be amended to require the government to annually disclose the number of times it has issued orders or regulations that prevailed in the case of an inconsistency between a given order or regulation and a CRTC decision, as well as denote which CRTC decision(s) were affected.

g. Recommendation 11: All Regulations Under the Telecommunications Act Should Be Accessible to The Standing Joint Committee for the Scrutiny of Regulations. The legislation should be amended such that the Standing Joint Committee for the Scrutiny of Regulations is able to obtain, assess, and render a public verdict on any regulations that are promulgated under the proposed draft reforms to the Telecommunications Act, as well as on regulations pertaining to the Telecommunications Act and that are modified pursuant to s. 18 of the Statutory Instruments Act.

III. Deficient Judicial Review Process

31. Bill C-26 contemplates that telecommunication providers may initiate judicial review proceedings in respect of orders or regulations issued under the proposed legislation. In pages 22-24 of his report, Dr. Parson identified problems that would arise if Bill C-26 is passed without amending section 15.9. As drafted, section 15.9 would permit a series of mandatory limits on open court principles, which would prevent judges from exercising judicial discretion in balancing the need for secrecy or confidentiality with the public's interest in disclosure. As noted at paragraph 15 in this submission, the Charter protects open court principles that apply in the context of judicial review, including Charter protections for the freedom of expression.

32. Cybersecurity Will Not Thrive in Darkness recommends (Recommendation 12) that Bill C-26 should explicitly enable appointment of amicus curiae or a special advocate during judicial review. The legislation should be amended such that, at the Court's pleasure, amicus curiae or a special advocate can be appointed to contest and respond to information provided by the government in support of an Order in Council, Ministerial Order, or regulation under s. 15.8 in when evidence is sufficiently sensitive to bar a telecommunications provider's counsel from hearing it.

33. We also recommend:

a. Recommendation 12A: Section 15.9 Should Be Amended To Ensure The Judge Retains Authority To Balance The Public Interest In Disclosure Against The Interest In Confidentiality: In general, mandatory limits on open courts (which prevent the judge from balancing the public interests at stake), are generally viewed as excessive infringements on section 2(b) rights. For example, even in analogous provisions of the Canada Evidence Act (permitting secrecy in judicial proceedings for matters injurious to international relations, national defence or national security or endanger the safety of any person), the judge retains the authority to determine that “the public interest in disclosure outweighs in importance the public interest in non-disclosure”. The same safety valve should be incorporated into section 15.9 of Bill C-26, in order to ensure that any limits to openness minimally impair freedom of expression.

b. Recommendation 12B: Where Summaries Are Provided Of Evidence And Information Received By The Court, Pursuant To Section 15.9(1)(C), These Summaries Must Also Be Available To The “Applicant and the Public”. As noted at paragraph 15, the open court principle protects the public’s and the media’s interest in the openness of court proceedings. Practically speaking, the public’s right of access to judicial summaries of this nature is typically accomplished by marking such summaries as an exhibit to the proceedings. The public’s right of access to exhibits is a corollary of the open court principle.

c. Recommendation 12C: The Triggering Threshold Justifying Limits On The Openness Of The Proceedings Should Not Be Higher Than That Which Is Already Contained Under Analogous Provisions Of The Canada Evidence Act. In that regard, we recommend mirroring the language from the Canada Evidence Act through the following amendment:

Section 15.9(1)(a) “…if, in the judge’s opinion, the disclosure of the evidence or other information would [changed from “could”] be injurious to international relations, national defence or national security or endanger the safety of any person”.

IV. Extensive Information Sharing Within and Beyond Canadian Agencies

34. Bill C-26 proposes to create broad information sharing powers within and beyond Canadian government agencies, without accompanying those powers with necessary limits, oversight, or accountability mechanisms. As noted at paragraph 24, the absence of reasonable procedural safeguards to review government powers that infringe upon privacy interests can render legislation invalid under section 8 of the Charter. To impose more appropriate guardrails on the proposed powers to share information within and beyond Canadian agencies, Recommendations 13-20 of Cybersecurity Will Not Thrive in Darkness are the following:

a. Recommendations 13 and 14: Relief Should Be Available If Government Mishandles Confidential, Personal, or De-Identified Information. The legislation should be amended to enable individuals and telecommunications providers to seek relief should the government or a party to whom the government has disclosed confidential, personal, or de-identified information loses control of that information, where that loss of control has material consequences for the individual, or for a telecommunication provider's business or technical operations.

b. Recommendation 15: Government Should Notify Telecommunications Providers How It Will Use Collected Information, and Which Domestic Agencies Information Will Receive The Information.

c. Recommendation 16: Information Obtained from Telecommunications Providers Should Only be Used by Government Agencies for Cybersecurity and Information Assurance Activities. Information should not be used for the purposes of signal intelligence and foreign intelligence activities, cross-department assistance unrelated to cyber-security, or active or defensive cyber operations. These restrictions should apply to all agencies.

d. Recommendations 17 and 18: Data Retention Periods Should Be Attached to Telecommunications Providers’ Data and to Foreign Disclosures of Information. The legislation should be amended to highlight that confidential information will be retained only for as long as necessary to make, amend, or revoke an order under section 15.1 or 15.2 or a regulation under paragraph 15.8(1)(a), or to verify the compliance or prevent non-compliance with such an order or regulation. Similarly, an amendment should also require that the government attach data retention and deletion clauses in agreements or memoranda of understanding that are entered into with foreign agencies. Retention periods should be communicated to the affected telecommunications providers.

e. Recommendation 19: Telecommunications Providers Should Be Explicitly Informed Which Foreign Parties Receive Their Information. Given that foreign parties can use information to launch investigations and bring non-penal charges against providers, the government should provide some notice when telecommunications providers’ information is being, or has been, shared for cybersecurity purposes.

f. Recommendation 20: Legislation Should Delimit the Conditions Wherein a Private Organization’s Information Can Be Disclosed. As drafted, section 15.7(1) appears to set an excessively low threshold for disclosing information, and could enable significant sharing of private, if not confidential, information, to address unspecified threats that are not set out in the legislation. Proposed textual amendments are found on page 30 of Cybersecurity Cannot Thrive in the Darkness (Appendix A to this brief).

V. Costs Associated with Security Compliance

35. As noted above, imposing substantial costs of compliance on telecommunications providers may have the potential to impact upon the accessibility of telecommunication services, the digital divide, and Charter-protected rights or interests. To address concerns surrounding the costs associated with security compliance, Cybersecurity Will Not Thrive in Darkness makes the following recommendations:

a. Recommendation 21: Compensation Should Be Included for Smaller Organizations. There should be a mechanism whereby smaller telecommunications providers (e.g., those with fewer than 250,000 or 500,000 subscribers or customers) that have historically been conscientious in their security arrangements can seek at least some temporary relief if they are required to undertake new, modify existing, or cease ongoing business or organizational practices as a result of a government demand or order or regulation. Such relief may be for only a portion of the costs incurred and, thus, constitute a “cost-minus” expense formula.

b. Recommendation 22: Proportionality and Equity Assessments Should Be Included in Orders or Regulations. The results of these assessments should be taken into consideration by the government prior to issuing an order or regulation, should be provided to telecommunications providers alongside associated orders or regulations, and should be included in any evidentiary packages that may be used should a telecommunications provider seek a judicial review of any given order or regulation.

c. Recommendation 23: Government Should Encourage Cybersecurity Training. The government should commit to enhancing scholarships, grants, or other incentives to encourage individuals in Canada to pursue professional cybersecurity training.

VI. Vague Drafting Language

36. The last set of recommendations pertain to ambiguities in Bill C-26. Notably, Bill C-26 does not specify the kinds of security threats that might be addressed by orders or regulations; fails to define key concepts like “interference”, “manipulation”, and “disruption”; provides the Minister with unnecessarily open-ended powers; and lacks clear guidelines as to how personally identifiable information that is obtained from telecommunications providers is to be treated. As a result, Cybersecurity Will Not Thrive in Darkness makes the following recommendations:

a. Recommendation 24: Clarity Should Exist Across Legislation. The government should clarify how the envisioned threats under the draft legislation (“including against the threat of interference, manipulation or disruption”) compare to the specific acts denoted in s. 27(2) of the CSE Act (“mischief, unauthorized use or disruption”), with the goal of explaining whether the reformed Telecommunications Act would expand, contract, or address the same classes of acts as considered in the CSE Act.

b. Recommendation 25: Explicit Definitions for “Interference,” “Manipulation,” and “Disruption” Should Be Included in the Legislation or Else Publicly Promulgated.

c. Recommendations 26 and 27: Ministerial Flexibility Should Be Delimited (i.e., remove open-ended language around powers such as “among other things”). In the event that a corresponding amendment is needed for Ministerial powers constrained to emergency circumstances, those powers should be subject to judicial review in Federal Court, including assessment for necessity, reasonableness, and proportionality. Decisions emergent from review should be published by the Federal Court.

d. Recommendation 28: The Legislation Should Make Clear That Personal Information and De-identified Information is Classified as Confidential Information. As noted above, the federal government's Charter statement appears to conclude that it is not the intent of Bill C-26 to authorize the collection and sharing of personal information. If that is the case, the legislation should expressly say so. Alternatively, personal and de-identified information should be treated as confidential.

e. Recommendation 28A: Individuals Should Be Explicitly Informed If Their Information Has Been Collected Or Shared. If the federal government does not expressly state that personal and de-identified information should not be included in collection and sharing powers, it should ensure that notice obligations are extended to individuals whose information is impacted by the collection and sharing powers under Bill C-26.

f. Recommendation 29: Prior Judicial Approval Should Be Required for the Government to Obtain Personal or De-identified Information from a Telecommunications Provider. The information is further to be used exclusively for the purposes of making, amending, or revoking an order under s. 15.1 or 15.2 or a regulation under paragraph 15.8(1)(a), or of verifying compliance or preventing noncompliance with such an order or regulation.

g. Recommendation 30: The Government Cannot Disclose Personal or De-identified Information to Foreign Organizations.

Part 4. Concluding Remarks

37. We urge this Committee to take seriously the recommendations that were identified in Cybersecurity Will Not Thrive In Darkness. We note that most of these recommendations have been either reiterated or expanded upon by the Joint Submission to this committee submitted by civil society organizations and individuals. In detailing these recommendations for this Committee's study, we also urge the Committee to consider the additional Charter interests that are engaged by Bill C-26, including equality, non-discrimination, freedom of expression, and privacy, as described in Part 2 of this Brief. We echo Dr. Parsons' view that “cybersecurity efforts through Bill C-26 should seek to build trust between the government and non-government entities, including the general public,” and that independent bodies (including the Privacy Commissioner of Canada, National Security and Intelligence Committee of Parliamentarians, or National Security and Intelligence Review Agency) should be integrated into the government's assessments of the necessity, proportionality, and reasonableness of Orders in Council, Ministerial Orders, or regulations.

38. Citizen Lab's recent report, Finding You (enclosed as Appendix C), documents continuing vulnerabilities at the heart of the world's mobile communications networks. The report's findings underscore that cybersecurity has not thrived in darkness. Historical and continuing deficiencies in oversight, transparency, and accountability of network security have led to serious geolocation-related threats associated with contemporary networks. The report notes that the “failure of effective regulation, accountability, and transparency has been a boon for network-based geolocation surveillance.”

39. While Canada needs to move forward in combating threats to its telecommunications and critical infrastructure, it should not do so at the expense of democratic norms and safeguards, public transparency and accountability, or respect for the Charter and human rights. Rather, a human security and human rights approach to cybersecurity requires the recognition of the importance of accessible and inclusive cybersecurity, public accountability, and public transparency when regulating telecommunications and cybersecurity.

The rest of it is just a bit of a biography of the individuals who were involved in putting that together.

I think I've given you a fairly comprehensive.... It's a lot for the committee to think about when we want to go back to clause 124, which deals specifically with Bill C-26.

I certainly recognize that there are some who didn't want to have this conversation, but I think this provision, with Bill C-26 being such a key part of this clause.... We need to consider whether or not we should support a clause that contains linkage to a bill that clearly has so many glaring errors. So many critical civil society organizations have come forward and said this is something we need to amend. We need to make changes, because there are significant concerns about the impact on privacy, data sharing and government reporting when they collect information from individuals or other entities. I believe we should give strong consideration to voting against this particular clause. The information I provided should formulate part of that discussion, but I know other members have some concerns they want to share with the committee.

Therefore, Mr. Chair, I will turn the floor over to the next speaker. However, while I still have the floor, I would indicate that I would like you to put me at the end of the speaker list, as well. I'd like to hear what my colleagues have to say, and then have the opportunity to follow up. Could you add me to the list and perhaps give us all a reminder, as I turn the floor over, what that list looks like, to make sure I have a place at the end of it?

Thank you, Mr. Chair.

[The Chair, Liberal, Peter Schiefke]

Thank you, Mr. Strahl.

The list, as it stands right now, is Mr. Badawey, Mr. Kurek, Dr. Lewis, Mr. Muys, Mr. Lewis, Mr. Bachrach and Mr. Patzer.

Oh, Mr. Lewis is no longer here.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

We can add Mr. Strahl at the end of that.

[The Chair, Liberal, Peter Schiefke]

Yes.

With that, I will turn the floor over to Mr. Badawey.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Mr. Chair, I have a point of order.

I'm wondering if you might consider rationing time, given the length of the speakers list and the fact that, as of now, we only have an hour and 45 minutes. There are breaks built into that. I'm worried we're not going to hear from every member on the list.

In the interest of sharing time equitably among speakers, could we discuss rationing the time?

[The Chair, Liberal, Peter Schiefke]

Unfortunately, Mr. Bachrach, that is inadmissible.

I look to Mr. Badawey for the following remarks.

The floor is yours, sir.

[Vance Badawey, Liberal, Niagara Centre, ON]

Thank you, Mr. Chairman.

Thank you to Mr. Strahl for the opportunity, after his riveting two-hour intervention. With that, I have to say, Mr. Chair, that we will be supporting clause 124.

However, I'm sort of perplexed over the process right now, all of a sudden, when we're down to our last three or four clauses to pass, including the amendments attached. I say “perplexed” simply because we went through clause-by-clause on clauses 1 to 124 out of, I believe, about 126 clauses, not including the schedule, short title, title, the bill as amended, and reporting the bill to the House. The last very important motion would be on whether or not we would order a reprint. I'm sure that will be a two-hour discussion as well.

With that all said, I'm perplexed because, Mr. Chair, we've had a great deal of discussion and debate on all of the clauses. That discussion was very important, because those clauses included amendments. That brings me to my point. If there was such a concern with what the process included.... I have to give a lot of credit to both the NDP and the Bloc, who brought many amendments forward. The Conservatives brought a few forward as well.

I'm perplexed Mr. Chair, because if there's concern, then why, for clauses before 123 and 124—which we're speaking about right now and we're going into clause 125, on which I'm sure we're going to have another two-hour discussion—were no amendments brought forward by the Conservatives? You would think there would be something on clauses 1 to 124. The concerns brought forward are valid. I respect that. Amendments that I would only assume were put forward to deal with those concerns were voted on, after debate. We have been moving forward in a very expeditious manner, only to now come to the last two or three clauses. Of course, we've been discussing those last two or three clauses for the past four meetings.

Mr. Chair, I'm actually a bit confused. I've been here for eight years.

Mr. Chair, again, I can't understand Mr. Strahl and members of the Conservative Party. To expedite this bill—as we have done with other bills in the past—if in fact there are concerns and thoughts given to the different clauses, I would actually recommend that we not spend two hours reading a document that's been around for quite some time. Let's get some work done by bringing some amendments forward and polishing up some of the clauses that in fact some of the members might have a concern with.

Thank you, Mr. Chair.

[The Chair, Liberal, Peter Schiefke]

Thank you very much, Mr. Badawey.

I know Mr. Kurek has been waiting patiently. Therefore, it is a pleasure for me to turn the floor over to him.

Mr. Kurek, the floor is yours.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Thank you very much, Chair.

I appreciate the remarks that my colleague Mr. Strahl made, especially in light of the interconnectedness of Bill C-33 and Bill C-26 and how, in light of those connections, it becomes incredibly relevant.

To address a few of Mr. Badawey's previous points, I find it perplexing myself how the Liberals seem to have this tendency to find concern with anyone who is unable to buy what they're selling hook, line and sinker.

Certainly when I hear from constituents, which I do on a very regular basis, they encourage me to do everything I can to ensure I am being their voice in the nation's capital. When it comes to some of the legislation that may not always garner the headlines it deserves—and certainly Mr. Strahl mentioned it in the brief he presented before this committee—I think it is important for Canadians to know how, with the discussions we have, whether before the transport committee or the various other duties that all of us undertake on a regular basis in the nation's capital, there are important connections that do in fact take place.

Just to note, if you would permit me, Mr. Chair, I endeavoured to have a discussion—and I even had an object lesson—on 2019 rural Alberta special areas wheat. I looked forward to discussing that in the context of Bill C-234. Now, I wouldn't want to be off topic from the conversation around the bill we have before us today, but certainly I would express my disappointment that we didn't have the opportunity to discuss that common-sense Conservative bill that would have brought needed relief to families and support to our great farmers from coast to coast.

I want to ensure that I stick to the conversation we have before us when it comes to the way that the bill this committee is studying and the impact that some of the.... As Mr. Strahl stated, when you have a bill that references a previously passed bill, one of the concerns that were highlighted—and certainly it's not limited to this one—is that when briefs are submitted, sometimes they don't get the due opportunity to be engaged in. The fact that Bill C-26 is currently being studied at committee, I think, speaks to this interconnectedness. I know that Conservatives have endeavoured to—

[Xavier Barsalou-Duval, Bloc, Pierre-Boucher—Les Patriotes—Verchères, QC]

I have a point of order, Mr. Chair.

[The Chair, Liberal, Peter Schiefke]

Mr. Barsalou‑Duval, you have the floor.

[Xavier Barsalou-Duval, Bloc, Pierre-Boucher—Les Patriotes—Verchères, QC]

We are seeing some things on the monitor, on the back of what may be the computer, the Surface device or the tablet belonging to the Conservative member who had the floor just now, that refer to the Conservative Party. Would these things not be regarded as partisan signage?

I would like to know your opinion on that, Mr. Chair, to know how it should be handled in the committee.

Thank you, Mr. Chair.