CARPAY: Bill C-22 is a threat to hard-won liberties

John Carpay writes, "No matter how important public safety may be, we would be foolish to surrender our fundamental freedoms, starting with the essential right to privacy."

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By: John Carpay

John Carpay, B.A., LL.B., is President of the Justice Centre for Constitutional Freedoms.

In free societies, police must go to court to obtain a warrant before conducting ongoing surveillance of a person’s communications. This system has protected both public safety and individual liberty for centuries. Yet that hard-won balance now stands under threat from proposed legislation that would dramatically expand government power.

MPs will soon vote on Bill C-22, the Lawful Access Act. The federal government claims that Bill C-22 is needed in order to give police and CSIS broader surveillance powers to go after criminal activity, and that it’s an improvement over its earlier version Bill C-2, which was shelved last fall following massive public outcry. Under the pretext of “public safety,” this legislation would expand state power over ordinary Canadians while doing nothing to address the actual legal architecture that allows transnational criminal networks to operate in Canada with near impunity.

Given its broad definition of “electronic service providers,” Bill C-22 would require “core providers” like Rogers, Bell, Google and WhatsApp to retain metadata for up to one year, and build systems for rapid data handover when law enforcement presents a valid authorization. These requirements would also come with gag orders, preventing the companies from informing Canadians when or why their data was accessed. The bill also lowers the legal standard for police to obtain users’ subscriber information from “reasonable grounds to believe” to the much weaker “reasonable grounds to suspect.”

Why do Canadians cherish privacy in the first place? If a person has nothing to hide, why should they care if the authorities can read their emails, texts, or AI conversations? Why does Section 8 of the Charter expressly protect Canadians against unreasonable search and seizure?

Even completely innocent people who have nothing to hide rightfully cherish their ability to think, speak, explore ideas, and meet with others, without the state silently observing their every move. If we are not comfortable with a nosy neighbour or even a close friend knowing everything about us, why should we accept the state having that power?

Beyond the intrinsic value of privacy, there is also a practical reason to oppose expanding government surveillance: human nature is a mixture of good and evil. Governments are made up of people, and people in power can do great harm. More citizens were murdered by their own governments in the 20th century than soldiers who died on the battlefields. From Stalin and Mao to Hitler and Pol Pot, state surveillance was a key tool to enforce obedience and crush dissent. Privacy is the shield of a free people.

Law professor Michael Geist has described mandatory metadata retention as one of the most privacy-invasive tools available, creating backdoor surveillance capabilities that extend well beyond the government’s stated anti-crime goals.

The technology sector has responded with alarm and defiance. Signal has warned it would rather withdraw from Canada than compromise the privacy promises it has made to its users. In an interview with the Globe and Mail, Signal’s vice-president of strategy, Udbhav Tiwari, put it bluntly: “End-to-end encryption is incompatible with exceptional access, no matter how creative the route taken to achieve it.” He called such provisions “a grave threat to privacy everywhere.”

Apple and Meta have formally opposed the bill, with Meta warning it could turn private companies into an arm of the government’s surveillance apparatus. Shopify CEO Tobi Lütke has called Bill C-22 “a huge mistake” that “may well end up dealing a death blow to Canadian tech viability.”

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VPN providers have been equally outspoken. Proton VPN declared: “Complying with foreign surveillance orders without Swiss legal process is a criminal offence. Not happening.” Toronto-based Windscribe highlighted the government’s hypocrisy in encouraging VPN use while driving VPN companies out of Canada. NordVPN has confirmed there is no scenario in which it would compromise its no-logs policy, and will consider “all viable options, including limiting or, if necessary, removing our presence from Canadian jurisdiction.” The company also noted that the EU’s highest court has already struck down this kind of mass data retention law twice.

Non-profit digital rights advocacy group OpenMedia argues that Bill C-22 “continues to create an unprecedented and extraordinarily dangerous surveillance architecture that could impact every digital tool people in Canada depend on every day.”

Even American lawmakers have voiced serious objections. House Judiciary Chairman Jim Jordan and House Foreign Affairs Chairman Brian Mast warned that Bill C-22 would create significant cross-border risks to the security and data privacy of Americans.

No matter how important public safety may be, we would be foolish to surrender our fundamental freedoms, starting with the essential right to privacy.

Now is the time for freedom-loving Canadians to contact their MP and urge her or him to vote against Bill C-22.