The House of Commons public safety committee started its clause-by-clause review of Bill C-22 last week, the stage at which the lawful access bill’s actual statutory language is settled and the privacy safeguards are either written in or left out. The witnesses the committee included said a lot about the government’s commitment to addressing privacy concerns and to ensuring a balanced bill. Clause-by-clause reviews typically include departmental officials as witnesses, who provide support to the committee by answering technical questions. Years ago, officials were viewed as non-partisan, but today officials invariably defend the government’s position and subtly (or not so subtly) argue against amendments. Including non-departmental witnesses is very rare since they have already had the chance to make their case to the committee. Yet the RCMP and CSIS, the agencies that have lobbied for these powers and will wield them, were on hand last week to guide members through the Bill C-22 amendments. Those witnesses will be unlikely to support potential privacy-focused amendments. Even more astonishing, efforts to include Philippe Dufresne, the Privacy Commissioner of Canada, whose recommendations several of the amendments under consideration are drawn from, were rejected by Liberal MPs on the committee.

The departure on Bill C-22 is not the presence of departmental officials from Public Safety and Justice, whose attendance is routine, but the inclusion of the RCMP and CSIS, the operational agencies that sought the legislation in the first place. The contrast with how Parliament has handled comparable legislation is telling. When the Justice committee conducted clause-by-clause review of Bill C-13, the last lawful access bill to reach that stage, the officials at the table were from the Department of Justice, and the police and intelligence agencies that would use the powers were not there to advise members on the amendments.

On Bill C-22, those agencies are positioned as the expertise members rely on at the very moment they decide whether to accept limits on the powers they asked for, while the independent privacy regulator is refused a seat. No one disputes that the RCMP and CSIS should be heard on a bill that affects their work, and the committee did hear them at length during its hearings. If the committee is going to include them, surely there must also be a place for the Privacy Commissioner, who has proposed multiple amendments to better address the privacy risks in the bill. Removing the Commissioner from the room as those amendments are voted on is not neutral management of the committee’s time.

This is the latest step in a pattern that has run through the bill’s handling from the start. Dufresne was consulted after Bill C-2 collapsed, but the mandatory metadata retention regime that is the most significant new privacy intrusion in Bill C-22 was not in Bill C-2 and was added when the bill was reintroduced, so the Privacy Commissioner was not consulted on the surveillance map of every Canadian that the bill would mandate for up to a year. The SAAIA then excludes his office from any oversight role in the regime. When he tabled his amendments on May 26, the Minister said only that he would look at them, with the amendment deadline hours away. The committee has now declined to let him return to explain the very recommendations it is debating. Each step has narrowed the Privacy Commissioner’s role, and the cumulative effect is a bill being amended with the regulator’s proposals on the table and the regulator kept off it.

The government continues to describe Bill C-22 as a careful balance between the needs of law enforcement and the privacy rights of Canadians on the most consequential lawful access legislation in more than a decade. A process that includes the agencies seeking the powers as clause-by-clause witnesses while refusing to let the Privacy Commissioner return does not suggest the government is serious about striking that balance.