The committee hearings on Bill C-22, the lawful access bill, kick off later today with an appearance by Justice Minister Sean Fraser and Public Safety Minister Gary Anandasangaree, who will presumably use the opportunity to affirm their support for the bill and reject concerns that certain elements are inconsistent with the Charter of Rights and Freedoms. That position reflects the government’s Charter statement on the bill, which was released late last month. The statement walks through the Charter implications of new provisions such as the confirmation of service demand, yet what makes it particularly notable is that it avoids addressing some of the bill’s biggest concerns altogether with scant or no attention paid to mandated metadata collection and the risks associated with systemic vulnerabilities. Indeed, it is as if the government believes that if it ignores the potential violation of fundamental rights, the issue magically disappears.

The wilful blindness is particularly problematic in the case of mandated metadata collection for up to a year. This includes transmission data such as date, time, duration, and type of communication, the identifiers of the devices involved, and information identifying the device’s location. This is the architecture of a national surveillance database that covers virtually every Canadian, with data retention for up to a year regardless of whether any user is suspected of wrongdoing. Despite the obvious concerns and Supreme Court of Canada jurisprudence, such as Spencer and Bykovets, that recognize the informational privacy interests in identifying online activity, the Charter Statement is silent on the issue.

The silence is particularly hard to defend given the international experience with similar regimes. The Court of Justice of the European Union struck down the EU Data Retention Directive in 2014 in Digital Rights Ireland, holding that blanket retention of all users’ metadata is a disproportionate interference with the rights to privacy and data protection guaranteed by the EU Charter. The Court reaffirmed and expanded that conclusion in Tele2 Sverige in 2016 and La Quadrature du Net in 2020, holding that general and indiscriminate retention of traffic and location data is incompatible with EU law and that targeted retention linked to specific threats is the constitutionally permissible alternative. Moreover, national courts in Europe that apply constitutional protections substantially equivalent to section 8 of the Canadian Charter have repeatedly held that such a regime cannot stand. To ignore that body of jurisprudence in a Charter Statement on a directly analogous Canadian regime is a discouraging refusal to engage with the question that should have been at the centre of any Charter review.

The metadata silence is the most important omission, but it is not the only one, as the statement glosses over much of Part 2 of the bill. The Statement does not address the systemic vulnerability provisions or the internal contradiction between the safeguards in subsections 5(5) and 7(5), which preserve a provider’s right to refuse compliance that would introduce a systemic vulnerability, and section 12, which requires unconditional compliance with orders, and section 13, which provides that orders prevail over regulations. It does not address the cross-border architecture beyond two short paragraphs on the international production request in section 487.0181. And the SAAIA’s design for CLOUD Act and Second Additional Protocol equivalence is entirely absent from the analysis.

Under the Department of Justice Act, a Charter Statement must be tabled in Parliament for every government bill introduced in Parliament. The government claims that “Charter Statements help inform parliamentary and public debate on a bill.” However, Parliamentarians and the public can’t be viewed as informed if the government avoids addressing the most Charter-vulnerable elements of its legislation. Some amendments to Bill C-22 are essential, but they aren’t likely if the government insists on remaining wilfully blind by not even acknowledging the risks to Charter rights posed by Bill C-22.