New report by Citizen Lab finds serious Charter concerns with proposed federal cybersecurity legislation, Bill C-26

Civil liberties groups welcome call to make Bill C-26’s impact on equality, freedom of expression, and privacy a central consideration of Parliamentary committee study

28 NOVEMBER, 2023 – The federal government’s draft cybersecurity legislation, Bill C-26, contains serious deficiencies and risks impacting the Charter rights of people in Canada to equality, freedom of expression, and privacy. 

That’s according to a new report by the Citizen Lab at the Munk School of Global Affairs & Public Policy at the University of Toronto, which highlights that Bill C-26’s Charter implications “should be a central consideration for this Committee, and throughout the Parliamentary process ahead.” 

The report has been submitted to the House of Commons Public Safety and National Security Committee which is expected to commence its scrutiny of Bill C-26 shortly. Among the significant Charter concerns identified by the Citizen Lab report’s authors, Kate Robertson and Lina Li, are:

• Equality: The absence of key transparency, accountability, and proportionality requirements in Bill C-26 raises equality risks surrounding its implementation. Bill C-26’s lack of safeguards increases the risk that equality-undermining measures will not be adequately prevented or addressed. For example, adverse impacts could undermine efforts to redress disparities in Internet access between rural and Indigenous communities and the rest of Canada; result in mandated rules that impede access to assistive technologies for persons living with disabilities; or expose certain groups, including journalists, lawyers, and dissidents to a heightened threat of hacking and espionage.   

• Freedom of Expression: Bill C-26’s excessive secrecy jeopardizes the freedom of expression rights of the public, the media, and commercial entities. Courts and government should be open and accessible or risk impeding meaningful discussion on matters of public interest. Such discussion is especially important in the cybersecurity sphere, and greater transparency in Bill C-26 is required to ensure this.

• Privacy: Bill C-26’s new information collection and sharing powers are insufficiently bounded or defined, posing a potential privacy risk exacerbated by the absence of key accountability and oversight mechanisms. The bill permits the government to collect the personal information of Canadians, creates criminal offences which incentivise over-sharing, and its extensive secrecy undermines the ability of courts or oversight bodies to assess whether such information collection is proportionate and necessary.  

Civil society organizations campaigning to fix Bill C-26 have welcomed Citizen Lab’s findings, stating that they reinforce long-standing concerns, and that significant amendments are required to uphold civil liberties and strengthen public confidence in the resulting cybersecurity framework. These organizations recently submitted detailed recommendations to make sure the legislation “delivers strong cybersecurity for everyone in Canada, while ensuring accountability and upholding our rights.” 

These recommendations reflect the findings of a previous Citizen Lab report, entitled Cybersecurity Will Not Thrive in Darkness, by Dr. Christopher Parsons which was published last October. The legislation has been subject to fierce criticism for its impact on civil liberties since it was first introduced by former Public Safety Minister Marco Mendicino in June 2022.

The groups and expert individuals campaigning to fix Bill C-26 are: the Canadian Civil Liberties Association, the Canadian Constitution Foundation, the International Civil Liberties Monitoring Group, Ligue des Droits et Libertés, the National Council of Canadian Muslims, OpenMedia, the Privacy and Access Council of Canada, Professor Andrew Clement, and Dr Brenda McPhail.

QUOTE:

"Today's report should set alarm bells ringing on Parliament Hill. As written, Bill C-26 gives the government and its spy agencies a blank cheque to intrude on our private lives and endanger our fundamental Charter rights. Frankly, as currently drafted it is little more than a spy agency wishlist. MPs need to fix this risky and deeply-flawed legislation so that it delivers the cybersecurity we need, while protecting the freedoms we hold dear. Canadians deserve nothing less." -- Matthew Hatfield, Executive Director, OpenMedia