Volume 33 (November 29, 2022)

Wayne Mackay, Prof. (Law – Dalhousie University)

Merci beaucoup.

Volume 33 (November 29, 2022), page 7 33-007-17

Wayne Mackay, Prof. (Law – Dalhousie University)

Bonjour et bienvenue. My name is, as the Commissioner just pointed out, is Wayne MacKay, and I’m the Moderator for your session, and have the unenviable task of keeping people in -- within limits, in spite of all the good things you have to say. So the panel will address the roles played by three different things in the course of this: Social media in its various forms, which we’ll address first; mis- and disinformation, and I think malinformation is another term they’ve used; and thirdly, ideologically motivated violent extremism, and in particular, how all of these relate to the context of protest generally, and somewhat more specifically in the issues here. The diverse and impressive panel members to my left are -- I’ll just identify them and give them a very brief introduction: Dax D’Orazio, immediate left, the Skelton-Clark Postdoctoral Fellow, Department of Political Science, Queen’s University, and Research Affiliate Centre for Constitutional Studies, University of Alberta. And then next to him, Jon Penny, Associate Professor, Osgoode Hall Law School, York University, and Research Fellow with the Citizen’s Lab at the University of Toronto. And then Emily Laidlaw, Canada Research Chair in Cybersecurity Law, and Associate Professor, University of Calgary Law School. And next to her, David Morin, UNESCO co-Chair in Prevention of Radicalization and Violent Extremism, and full Professor in the Faculty of Arts and Humanities at the University of Sherbrooke. And last but not least, Vivek Venkatesh, UNESCO co-Chair in Prevention of Radicalism and Violent Extremism, who is also a full Professor at the Faculty of Fine Arts at Concordia University. So that is our impressive expert panel. Just very quickly, I’m just going to say a couple of words about process. Our objective as a panel is to explore these complex issues in a way that hopefully assists the Commission and the Commissioner, but also informs the broader public. And to pursue this, I will raise some general questions to explore, and then call upon either specific panel members or sometimes open it up to the panel. For the benefit of translators and the record, each member should identify themselves, or actually mostly I will do that; I will call on you and do my best to remember to identify your names so you’re on the record. We’re also reminded of the competing needs to be succinct and fall within our time limits, but on the other hand, speak slowly, in terms of kindness to the translators and the public record. And speaking for myself, that’s something we all have to focus on. I will be -- as Moderator, occasionally intervene if I feel we’ve gone beyond the proposed times. So with those relatively minimal introductions, I’m ready to start off, unless anybody has any questions. All right. So the first topic is social media; and, in particular, its impact on protests and those kinds of things, and the kinds of broad questions that I have in mind to be addressed on that topic is; how has social media changed the public discourse, stated very briefly; how has it impacted activism and protest; how has it impacted protest like the ones relevant to this Commission, and perhaps one that not -- hadn’t given a lot of thought to, but does it matter who is protesting in terms of what kind of social media they’re listening to. So with those very board questions, and lots of other things, I’ll turn it over to Professor D’Orazio to start us off.

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Dax D’Orazio, Post-Doctoral Fellow (Political Science – Queen’s University)

Thank you very much, Wayne, and pleasure to be here with you all for a very exciting conversation.

Volume 33 (November 29, 2022), page 10 33-010-04

Dax D’Orazio, Post-Doctoral Fellow (Political Science – Queen’s University)

I want to get the conversation kicked off by speaking specifically about three major consequences of the advent of social media for public discourse, understood in a very broad sense; and also for possibilities for debate, dissent, and activism. So the first major consequence, I think, is it’s fair to say the traditional gatekeepers of information can be bypassed. If we’re understanding social media and communication historically for a moment, traditionally information was filtered through very few hands. And every time we see a revolution in communication technology, we see some commensurate friction related to who controls the flow and circulation of information and also meaning. At the same time that we see the advent of social media, we also see some almost mutually reinforcing trends in the field of journalism, and some of that traditional circulation of information. I think it’s fair to say that there is a crisis in journalism, not just in North America but also around the world, where traditional outlets of information are struggling to keep the doors open, and there is also a waning of traditional forms of journalistic content. We also see a fracturing of audiences that consume information as well. And so the advent of social media doesn’t take place in isolation from these other political, economic changes in journalistic field. There are costs and benefits with this advent of social media, and a huge one on this front, as it relates to traditional gatekeepers, is that we have potentially more access to accurate and also more valued information. That said, we also see potentialities for a greater influence of things like conspiracy, rumour, hate, and also propaganda. The second major consequence of social media is that the delivery and circulation of our messages is both instantaneous and global. I’m thinking historically again. Our means of communication was traditionally conditioned by proximity to others with which to communicate and also the type of technology that we would be able to use. Social media has completely shattered those -- that conditioning, and we’re able to, at the touch of our fingertips, communicate with literally the whole world and also instantaneously. That led to what we might call techno-optimism, which was we could communicate with others across difference, and that would be a net positive for global society. We now, unfortunately, speak of digital detoxes, having a healthy distance between ourselves and digital spaces, about echo chambers being mostly privy to communication that confirms our own biases or beliefs, and so the friction or the cost and benefits on this front are that we have access to drastically more information, but that there are increased technological technical means of limiting and correcting falsehoods. They often spread much faster than truth might spread. Lastly, social media means that public discourse has arguably become more democratic and also accessible. Although we have these really lofty goals for what we could call the marketplace of ideas, it’s typically the case that those with the deepest pockets have historically had the loudest voices, and social media allows average people to contribute very substantially to public discourse to see themselves seen in public discourse and also register contributions and also complaints. Our public discourse as well is already saturated with information that is persuasive in one way or another or has some goal or idea already attached to it, and so social media has allowed individuals to eschew some of that purposeful information that’s in the public sphere and also create greater opportunities for dissent. The cost and benefit here is that social media often can lead to greater surveillance in a sense it’s been a godsend for the state security apparatus in some ways. It also can increase to -- or sorry, lead to increases in social conformity and also social control. And so we see a tension between making public discourse more accessible while also having some pitfalls associated with that, including surveillance and control. Speaking very specifically about how and why social media was impactful in the convoy, we -- Emily very helpfully mentioned in her paper that social media was the central nervous system of the convoy. I would definitely reiterate that. That’s a nice way of describing how social media was integral. Social media’s a way of creating and circulating meaning, and so before the convoy protest, some of the same messaging garnered momentum and public attention because of social media. It was a way of creating meaning, finding community and building eventually momentum for social and a political movement. It was also integral in mobilizing and organizing specific meetings and events, so it’s a way of people finding themselves together in something very, very specific and tangible. It’s also a way to publicize and, in another sense, memorialize specific events. It’s a way of capturing reality and signalling solidarity by consuming meaning together. It’s also a way to contest what you might describe as official sources and accounts and also to shape public perception, so sometimes it’s a way to go around what’s considered the mainstream or the dominant forms of information in society. It was also integral to fundraising activities, so it wasn’t passing around envelopes or hats to collect money. It left open fundraising to a large swath of individuals, even all over the world. It’s also a way to monitor opposition, to do something akin to counter-intelligence, and sometimes even target opponents. Not speaking specifically of the convoy protest, although that could also be the case, but social media’s a way to monitor those who might be in opposition to a specific movement or a specific idea. And lastly, we see social media used for real- time communication for coordination, so social media sites have communication modes often attached to them that are instantaneous, so people can text and coordinate with each other. They can also use encrypted radio chats as well, so social media’s also impactful in real-time communication. I’ll leave it there as an opener. I look forward to more discussion. Thank you.

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Wayne Mackay, Prof. (Law – Dalhousie University)

First of all, congratulations for coming in under time. I appreciate that. And I just had one additional though just in the minutes or so you have left.

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Dax D’Orazio, Post-Doctoral Fellow (Political Science – Queen’s University)

Sure.

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Wayne Mackay, Prof. (Law – Dalhousie University)

The question of who is in the protest, does that change what kind of social media they would have access to? Because it strikes me that many protests, including the convoy one, would have a variety of people, truckers, perhaps extremist groups, others, and does it make a difference who makes up the protest in terms of what kind of social media they’re likely to use? That’s a big question, so if you want to pass other panelists at some point, you’re welcome to do that, too.

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Dax D’Orazio, Post-Doctoral Fellow (Political Science – Queen’s University)

Sure. I can be very brief and then we can pass it along. I think perhaps a way to understand it is to think about it as layers. So some social media sites are more public facing than others. For instance, a Twitter or a Facebook or an Instagram, it is very public facing and is about publicizing very broadly a specific message or an idea or a concept or an argument, but there are other layers of communication within different social media sites where you might have different levels of encryption so that monitoring or surveilling is a bit more difficult. Only the participants see the end-to-end of that communication method. And so that more not necessarily surreptitious, but closely guarded form of communication or information sharing, I think, forms different layers. You have a more public-facing layer, which is garnering support in memorializing, in conveying details that are comfortable to be shared publicly, and then you have more subsequent layers that are perhaps more closely guarded for the insiders of the movement, let’s say.

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Wayne Mackay, Prof. (Law – Dalhousie University)

Okay. Thank you very much. So moving to the next sub-issue here, the existing regulation of social media or lack thereof, perhaps in some cases, and one perhaps bit more focused question, the possible impact of increased restrictions on protest or particularly disadvantaged or marginalized groups in society such as indigenous people as kind of a flip side of that. So with that, I’ll turn that over to Professor Penny to take the floor.

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Jonathon Penny, Prof. (Law – York University)

Thanks very much, Professor MacKay. And I just wanted to say I’d like to thank Commissioner Rouleau and -- for the invitation to be a part of this conversation and join this distinguished panel as well. Thank you for the questions, Professor MacKay. I think those are two really important questions in light of the issues before the Commission. So I’ll speak of two sort of general categories of regulatory framework, the first being law and statutory forms of regulation and, within that broader category, I’ll speak to some additional sub-categories of different kinds of laws that apply to social media content. And I’ll speak to, also, social media-based regulation, kinds of measures and techniques and tactics that social media companies themselves employ to deal with challenges when it comes to social media content. So speaking first to law and statutory regulation, I would say -- so this would cover any statutes and laws that govern social media content and related activity, so behaviour and actors that are related to the generation of content and its moderation and editing and regulation on social media platforms and services, for example. I would say that the single-most defining element of social media legal and regulatory frameworks in Canada is that there’s no single general law or regulation that covers social media content in Canada. Instead, it really is a patchwork of different laws and regulations that apply to and regulate different aspects of social media content. So within that broader framework and that key defining feature of law and regulatory frameworks in Canada, I’ll start with one sort of said category, that being intermediary laws. Now, why do we refer to these laws as “intermediary laws”? Well, the idea here is that social media companies are intermediaries, that is, they are links and connectors between users and -- who generate content, post and express on social media services, and the platforms or the services of the social media companies connect them with the audience, those who consume the content itself. So, generally, we talk to laws that create legal rules and duties in respect of content that’s generated by users, and how that is fed and conveyed to audiences and other users as well. Those are intermediary laws and rules and a few examples of those in Canada, we have certain specific laws that cover, for example, copyrighted material, where they’re very specific legal duties that social media platforms -- and that’s another term that I’ll use during my remarks before the Commission. The idea -- the concept of a platform of something that today scholars and experts typically use to refer to more -- larger, more influential social media companies; Google, Twitter, Facebook, and others. And I think the term itself, you can think of it as conveying the fact that these platforms provide an amplification of certain voices, the same way a stage or a platform in a town square allowed someone to speak to a broader audience and for their voice to be heard. That’s, in a way, how we can think of these social media companies or social media platforms. They platform; they provide a way of amplifying voices in content generation. So there are copyright laws, as one example of intermediary laws and liability, and with intermediary laws that create liabilities, potentially, for these social media companies and platforms, but they can, at times, avoid liability so long as they meet their duties. Copyright laws is one example. Quebec also has a specific law that creates a safe harbour, or legal protecture from liability for social media platforms if they remove illegal or unlawful content once they have notice of it. When we move beyond these defined intermediary laws, they’re also what I call sort of general statutory laws and rules that aren’t specifically designed for social media platforms or intermediaries but have implications for them, and indirectly create legal duties that social media companies and platforms have to abide by. I think a great example of this would be defamation law, right? So if a social media platform becomes aware of defamatory content that’s been posted, they have notice of it, they -- to avoid liability, then they have to remove that content. Another example is criminal law. So certain criminal law provisions; for example, if a Court Order is put in place where social media companies may have to remove certain kinds of unlawful content, be it child pornography; non- consensual intimate media that’s been posted there without the consent of the victim; terrorist or hateful propaganda, those are other examples of how criminal laws can apply to these platforms creating similar legal duties. And then the third sort of category of laws in this context that impact, maybe not social media content directly, but the activities around social media content but also impacts the broader ecosphere. So user information and user data is critical, it fuels the business model that a lot of these social media platforms make money, and they monetize user content. So privacy laws, data protection laws, these are another subcategory of laws and regulations and statutes that impact on content production, to the extent that they create legal rules and duties around how people’s information and data that are collected on these platforms can be used and shared and distributed. When there’s restrictions on that data, then presumptively it would make use of that information more difficult to target users. So, typically, social media platforms will use information around user data, user information, for targeted advertising to monetize people’s activities and social media platforms, but when we look at disinformation/misinformation, user information and user data is also used to target particular users or influence in social -- in disinformation campaigns online and offline. So in Canada we have a few examples of such laws, like the Personal Information Electronic Documents Act, PIPEDA, which creates rules around the collection, use, and sharing of personal information by organizations in Canada. Interestingly, however, you know, there are loopholes in PIPEDA; for example, political parties are not constrained by it. And that’s, I think, an important hole that needs to be addressed. And last, of course, but not least, there are social media-based regulations. And I use regulation in sort of the broader sense here. In this case, I’m referring to the rules and policies as social media platforms and companies themselves develop to deal with content and other issues on the platforms themselves, that can include content moderation policies; that can include privacy policies. And typically these kinds of measures are implemented through policies that are conveyed to users, but they’re often enforced through the actual design and features of the platforms themselves. There can be human-based forms of social media content, regulation, and moderation but, typically, one that we’ll be talking a lot at our comments today are algorithmic. So algorithms and technology are critical to help larger social media platforms deal with content, and deal with offensive content. Typically in these cases a lot of these measures are voluntary. As I said, there are not a lot of specific laws that create duties and obligations on behalf of these platforms to engage in social media content regulation and moderation, but they do so, often for business reasons. And because they do so for business reasons, when their business interests don’t align with certain content moderation, often measures that they take can be seen as ineffective. So that’s a broader look at the landscape. I’ll come to the final question that Professor MacKay offered there, and I think it’s an important one. There are, of course, many impacts of these kinds of increased regulation, and one impact in particular that my research has focused on in recent years is this notion of chilling effects. The idea that increased regulation but also surveillance, both by government, law enforcement, and security agencies, but also by the platforms themselves, right? In my research I found that this kind -- when users become aware of increase surveillance and data collection and data tracking it can have a chilling effect; that is, a chill meaning it can have a deterrent effect on people’s willingness to speak, engage, and share, both online and offline. And when it comes to more marginalized populations, my research has found that those groups are disproportionally impacted. And there’s a number of reasons for that I can get into later, but as these groups, who are already facing important barriers to participation in society; discrimination, racism, when you add on top of that concerns about targeted surveillance, targeted law enforcement action, you end up with a situation that groups who are already marginalized from the public, critical public and democratic discussion, are further marginalized by these kinds of measures. At the same time, I should say, it’s not a entirely simplistic view either; that is to say, increased regulation means a chilling effect. What I’ve also found in my research is that with carefully tailored laws, you can have laws that also facilitate greater participation and speech. Laws don’t just deter behaviour with threats of law, they also have expressive power; that is, laws convey values, they convey messages as to what a society views as valuable. And when a law is taken or enacted, it can send a message to certain marginalized groups that their speech and contributions are valued, and that can help facilitate speech. So I’ll leave my comments there, thank you.

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Wayne Mackay, Prof. (Law – Dalhousie University)

Thank you very much. And the next issue we’re going to -- the last in the social media part, is what changes or improvements are perhaps under exploration and maybe about to happen to improve some of the gaps in the existing structure that Professor Penny just talked about. And Professor Laidlaw is going to take the lead on that.

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Emily Laidlaw, Prof. (Law – University of Calgary)

Yeah, thank you Professor MacKay, and thank you for having me. Good morning, Commissioner Rouleau.

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Emily Laidlaw, Prof. (Law – University of Calgary)

Commissioner Rouleau, I -- so I co-chaired the expert panel with Pierre Trudeau that -- for Heritage Canada back in the spring, and our mandate was to -- not to come to some sort of consensus, but to have a conversation about what really should be the responsibilities of social media. And I had the pleasure of sitting on the panel with Deputy Morin, with -- who is with us today. And so we were not looking at what I would call the primary wrongdoers, which would be the individuals that are perhaps posting certain content online. We were more specifically looking at, okay, what are the roles of these platforms, or what John was just talking about is intermediary liability. And I think one of the most interesting things about our panel was despite not having a mandate to reach consensus, we circled around and agreed on some of the -- what I would call the core building blocks of what a law should look like for Canada. And I think that the first point I want to make is that we all concluded, I would say, that social media, or platforms should have what I would call a duty to act responsibly. Now, this was something that came out of the work of the Commission on democratic expression, and this is something that has been explored in other countries. We're seeing it with online safety bill in the UK, with their duty of care. It could be talked about as a due diligence model in the EU with the new Digital Services Act. It's a risk management obligations. And a duty to act responsibly, the way that kind of we were talking about it and the way that I think about it is that, you know, it's almost product safety that social media and other platforms should take care in the design of their spaces to be responsible, to protect their users from harm. It's not about perfection, but it's about turning their minds to how do their, your know, recommender systems work. What content moderation policies do they have in place? What might be the unintended impact on this in particular groups. But it's not just about protection from harm. It also should be about protection of human rights, about the right to freedom of expression, about the right to privacy, to equality. One of the fears about imposing too strong or stringent obligations on social media is that it might incentivize them to put in place kind of just blunt tools; right? An automated tool that is going to remove any sort of content that might have the whiff of hate speech or any sort of extremism. But often, hate speech is quite -- you know, the line between that and some more political views, what we would call expression that's core to democracy, that line between the two can be somewhat fine. So blunt automated tools are poor solutions. So if there's an obligation then to have a commitment to and realize the right of freedom of expression, then social media will have to think through, okay, what do we want to put in place that addresses maybe some of the risks of harm, maybe we have a lot of children that use this space, but also, what kind of tools do we put in place that maybe aren't going to have an unintended impact on freedom of expression, or end up being a system of surveillance. The other aspect that was key that we discussed was transparency. You know, one of the issues that we have is that we -- it's not easy to lift the lid to know how the algorithms work and how the decision making works for the various platforms on which we rely for discourse. And so almost kind of radical transparency is necessary and that includes access by researchers and other civil society groups to how these companies kind of operate and the algorithms is a form of accountability. This is something that's been implemented in the EU with the new Digital Services Act. The other thing that we circled around is the idea that we need a regulator. I mean, it is not realistic that we go to courts to address many of these issues. Often these are high volume. They are low value. And the court process is really just too slow and inappropriate to be dealing with many of these issues. What we need is a regulator like a Privacy Commissioner, but with the power to impose fines, that can audit the systems of these companies. It's about the systemic risk of the various social media. So they can investigate the companies, they can audit their behaviour, they can help develop codes of practice working with civil society, working with industry, and they can play an education role with the public. Now for some of the tougher issues. I think that, you know, one of the challenges that Heritage Canada faces, and I am sitting here just as interested as everyone else about what they're going to propose, would be scope, what's in and what's out. I mean, if we're realistically looking at creating a regulator, we can't impose all sorts of content and toxicity of everything that's out there on a regulator to investigate. Previously, they kept the scope quite narrow: terrorist propaganda, hate propaganda, violent expression, intimate image abuse, child sexual abuse and so on. And I think people quite rightly, including myself, said but there's so much other types of toxicity out there that's unlawful that should be addressed. And but the issue is, is that the regulator has to start somewhere. So at least I've landed that there is real justification, I think, for a regulator to maybe be more narrowly scoped at the beginning, and then it can build its capacity from there. Some of the other issues would be should this cover -- you know, what platforms should we cover. I've been using quite loose language here saying social media and platforms, but we often talk about it as the internet stack. Are we just talking about social media, the top layer? Are we going down a level and we're looking at domain name registrars? Are we looking at internet service providers? Are we looking at, you know, companies like Cloudflare that provide cyber security protection and so on? I think this is quite a controversial area, but when we're thinking about it in terms of corporate responsibility, maybe their obligations should be different but maybe there should be some responsibility there through legislation. The other is then, mis, dis and malinformation. It is one I guess the existential threats that we face. And there is a real concern though in legislation that this could become almost the poison pill. Because as I get into -- you know, in the next section, we're going to talk a bit more about some of the legal issues, but I'll just, you know, drop one point right now, which is there's a quite a bit of content of mis and disinformation that is lawful, or it's that lawful but awful. So for the government to create legislation that targets lawful expression likely won't survive constitutional scrutiny. But it's a very different thing to say, look, a company needs to be responsible, much like, you know, safe cars, about, you know, putting in place certain systems to manage risks. That has much clearer sense of I guess constitutionality than saying I, you know, want social media to target lawful expression and take it down. That would not survive constitutional scrutiny. And I think the last point that I'll make now, well, I guess two points, would be one is a controversial point was recourse. You know, the groups that are impacted by this need access to some form of remediation. And sometimes they get it through social media and sometimes they don't. And even if content moderation is in place, it doesn't always work very well. But the idea that every complaint about content could somehow be, you know, pushed to some sort of recourse body, it's just not practical. It won't work. But victims need access to something. And so what that should look like, should it just be for intimate image abuse, child sexual abuse images? You know, what should they have access to and what's realistic is a key point to discuss. And the last is size, and I think that what we saw with the convoy movement is that, you know, organizers and followers were all using all kinds of different social media. Some of them major social media, what we'd say is quite entrenched such as Twitter and Facebook and YouTube and Tik Tok, but also some smaller alternative social media like I'd say ButChute, Rumble. Of course, there were conversations about Zello and Telegram, et cetera. So the EU has looked at -- they've created risk management obligations just for very large platforms, and so that would be an obligation for companies to think through how does my recommender system work, and is it actually having an impact that could, you know, in a sense undermine democracy? That sort of obligation would end up in Canada, if we put something in place, only targeting the YouTubes of the world or the Facebooks of the world, but similar obligations would not exist for some of the smaller platforms. And that's not going to work, because as we see most of, you know, the users of social media use all kinds of different social media and are using some of these smaller platforms in social media to engage in these types of movements. So we have to think through with a type of law like this that, hey, targeting, you know, very large platforms is perhaps misguided, but how do we then deal with the smaller and medium size companies that perhaps do not have the resources in place to deal with some of these issues.

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Wayne Mackay, Prof. (Law – Dalhousie University)

I think that's a good point. Perhaps -- and I'm just realising I haven't followed me rule of whether I should introduce -- say Wayne MacKay every time I do this. But anyway, Wayne MacKay, Moderator. Can we switch topics, staying with Professor Laidlaw, but move to the topic she's already touched on of misinformation and disinformation, with two fairly targeted kind of roles, before we'll open it up to the panel for a broader discussion on this area, and that is the definition of the terms; and secondly, although you've touched on some of that, the regulations. So if you could start us off briefly on that, and then I'll open it up to the panel for the rest of this issue.

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Emily Laidlaw, Prof. (Law – University of Calgary)

Yeah, thank you, Professor. So I'm going to give the definition that UNESCO uses for mis, dis and malinformation, but I do want to note upfront that there is quite a bit of debate about what these terms means, in particular, for malinformation. So disinformation is the intentional spread of false information. So if you think a government-sponsored disinformation campaign. Misinformation is a bit different. So it is where information is intentionally spread, and it's false information, but the person believes it to be true. And I think a large swathe of what we see on social media, at least from individual users, is misinformation. So even if, say, a government launches a disinformation campaign it eventually seeds to people who then believe it to be true and then spread it from there. The last would be malinformation, and this is the one where there's not a lot of consensus on what it means. I rely on UNESCO that defines it as information that's based on reality, but that's distorted, you know, it has that kernel of truth to it, but it does include that everything else bucket. And it can include, potentially, hate speech, harassment, trolling, doxing where private information is shared publicly, other forms of violent and extremist content. And you know, one of the questions I was asked to think about to open up this discussion is what is this in law? What laws regulate mis and disinformation, and what is the tension there with the right to freedom of expression? So I was just talking about laws that, you know, that are being explored to target social media, but the laws that target mis and disinformation would be targeting the individual users that are posting the particular information. And we do have a variety of laws that target false information, but we do not have any law in Canada that broadly addresses or targets mis and disinformation, at least in the way that we're contemplating here. So we have a crime of spreading false news, but that was held to be unconstitutional in the case of Zundel, and other crimes that target false information would be crimes of hate propaganda, counselling terrorism, fraud, and in civil law, and Jonathan touched on a few of these, defamation. Defamation is where, you know, someone sues another individual or entity for spreading false information that impacts their reputation. And perhaps also I would put in here the tort of false light, so that has just been introduced or adopted in Ontario. So it's just sort of a hodgepodge mix of different laws that apply to some aspects of mis and disinformation. One of the issues is that a great swathe of this is what I call lawful but awful expression. It's hateful, but not hate speech; it's extremist content, but it is not counselling terrorism. So it's not unlawful in the traditional sense. And also, as we were just talking about, with the role of social media, and pushing, you know, through advertising and recommender systems, it might be that lawful but hateful content ends up being pushed to users over and over. So in law, these are difficult areas to deal with. In -- you know, under constitutional law, we have the right to freedom of expression. It is a broad right. It includes the right to seek, receive, and impart information and ideas. It includes the right to shock, offend, and disturb, and it also values false expression, in particular, if it's information that's of public interest. So restrictions of it are supposed to be narrowly construed. And we face a hurdle in this area because what is truth; right? What is the perception of truth in one particular scenario? And I've listed a few laws where courts have willingly, you know, addressed what would be false information, and consequences might flow from that, but much of what we're talking about on social media might be, you know, deeply held beliefs that are harmful but it's difficult to pin down truth or not truth of it. Also, much of the dis and misinformation that's spread, when we can identify what's false there's a lot more clarity to it, but some of it exploits what I would call the strategic ambiguity of it. They use humour, they use kind of the short, emotional memes, with visuals or short videos, that are known to be highly effective and impactful on users and play on jokes and say, "Well this is just a joke. This is just the grey area." This is really hard for law to address. And when disinformation has been criminalised in some countries, it has been used to target political opponents, dissidents, and so it's difficult to put in place these types of laws, and generally don't comply with international human rights. So the last point I want to make here before we open it up is the other side of this. As much as I have mentioned the breadth and depth of the right to freedom of expression, I always think of the comment by the Supreme Court that freedom of expression is freedom governed by law. There are laws that constrain it, and rightfully so. And I think John made a key point that, you know, laws help the right to freedom of expression of particular groups, marginalised and racialized groups, that are impacted by what happens online. People are driven from participating online, they are dehumanised by these experiences online, and therefore, they don't get to enjoy the right to freedom of expression. There is also a growing body of work in the area of the right to freedom of opinion, and that the recommender systems and the advertising push to users is in fact infringing on the right to form an opinion free from manipulation. And this is something that is developing in international human rights and needs to be contended with here. I'd say that there is two things I want us to think about as we have a discussion here, is one would be what are the laws that apply to individuals, the ones that are posting the particular information and engaging in certain conduct that may or may not be lawful or falls into the category of the lawful but awful? And the other would be what are the laws that then target social media and their responsibilities, whether it's through managing their advertising ecosystem, managing their recommender systems, you know, algorithmic accountability, or their systems of content moderation?

Volume 33 (November 29, 2022), page 29 33-029-04

Wayne Mackay, Prof. (Law – Dalhousie University)

Okay, thank you very much. So we'll now open it up to the panel in a moment. Professor Laidlaw has already raised a couple of questions. There's a couple I will add among those that you can discuss. One is the scale of the problem or how much harm is caused by misinformation and disinformation, is a broad question. And a second, which was actually submitted, is the question of whether the definitions on misinformation, disinformation apply to the government as individuals and, if so, in what way? So with those kind of broad questions, I’ll open it up to the panel and if somebody just gives me a signal, I’ll recognize you. Professor Morin.

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David Morin, Prof. (Sciences politiques – Université de Sherbrooke)

Oui, merci beaucoup, Wayne et Monsieur le Commissaire. L’intervention de mes collègues m’amène à faire deux commentaires sur la relation complexe entre l’utilisation des réseaux sociaux et les évènements d’Ottawa. En termes de gestion de crise — certains diront une crise de sécurité publique, d’autres diront une crise de sécurité nationale, je pense que ç’a été largement débattu à savoir si on est devant une crise de sécurité nationale ou non —, je dirais que cette relation-là, elle est extrêmement complexe, et le collègue D’Orazio décrivait bien un petit peu les impacts, si vous voulez, des réseaux sociaux sur l’environnement d’une crise comme celle qu’Ottawa a connue, et je dirais qu’il y a ici un paradoxe. Les réseaux sociaux, par exemple, vont nous permettre de collecter beaucoup d’informations en amont du mouvement de protestation sur les objectifs, elles vont nous permettre de voir si, effectivement, un certain nombre de groupes extrémistes parlent, par exemple, de recréer un 6 janvier, comme on l’a vu à l’assaut du Capitole, à Ottawa; elles vont nous permettre de voir si on est plutôt sur une contestation de l’obligation pour les camionneurs de se vacciner ou si on a aussi des éléments plus séditieux qui disent que ce qu’on faire, c’est bloquer Ottawa, c’est faire tomber le gouvernement en place, et cetera. Donc, paradoxalement, les réseaux sociaux nous donnent une certaine visibilité sur les causes du mouvement. Si le renseignement est bien collecté et si le renseignement est bien analysé. Maintenant, dans le contexte du mouvement lui- même, les réseaux sociaux créent quand même une certaine volatilité. Et vous posiez la question tout à l’heure, Wayne, ce qu’on a vu à Ottawa, c’est finalement beaucoup de gens d’horizons politiques très différents venir participer à cette manifestation-là. Il y avait des gens avec leurs enfants, des familles qui vraiment contestaient les mesures sanitaires, d’autres qui avaient des agendas politiques beaucoup plus extrémistes et les réseaux sociaux permettent ça. Pour répondre à la question que vous posiez tout à l’heure, les réseaux sociaux sont comme un menu au restaurant. Ils déposent toutes sortes d’idées en ligne puis après les individus s’approprient certaines idées, se font eux-mêmes leur propre menu, et participent au nom d’une cause commune en fonction de toutes ces idéologies-là qu’ils récupèrent. Donc là, il y a quand même, en termes de gestion de crise de sécurité, une volatilité associée aux réseaux sociaux, ne serait-ce que parce que, par exemple, si les réseaux sociaux disent « on est 100 000 personnes à Ottawa…

Volume 33 (November 29, 2022), page 33 33-033-20

David Morin, Prof. (Sciences politiques – Université de Sherbrooke)

C’est vrai, je vais ralentir, alors. Si on est 100 000 personnes à Ottawa, c’est sûr que ça peut créer un effet boule de neige. Donc, la désinformation peut effectivement avoir des impacts, Dax le décrivait tout à l’heure, sur le plan opérationnel aussi, on peut s’écrire sur les messageries cryptées en disant on se retrouve à 1 kilomètre d’ici, et cetera. Donc, elle crée, de mon point de vue, effectivement, une difficulté supplémentaire en termes de gestion de crise. Ça, c’est mon premier aspect et je pense que c’est important de le souligner de nouveau. Le deuxième élément, c’est sur la question de la régulation, et je laisserais mes collègues, comme ils l’ont très bien fait, s’exprimer là-dessus. Il y a quand même un élément, moi, qui me frappe, c’est que lorsque la Loi sur les mesures d’urgence a été créée il y a plus de 30 ans, les réseaux sociaux n’existaient pas. Donc, on a quand même ici une loi qui nous parle de mesures d’urgence dans un contexte sécuritaire où les réseaux sociaux n’existaient pas. Et quand je dis ça, je dis ça pourquoi? C’est parce que dans une manifestation où il pourrait y avoir des éléments de violence, le gouvernement — et là, je fais attention à ne pas dépasser l’objectif qui m’est fixé de venir commenter ici —, mais dans un contexte de Loi sur les mesures d’urgence, si on est dans un environnement volatil, instable, on peut parfois se servir d’une loi sur les mesures d’urgence de manière préventive, c’est-à-dire, quand une province, et cetera — et je vais faire un parallèle face à un évènement climatique extrême — met en place des mesures d’urgence, parfois c’est pour obliger les gens à sortir de chez eux, donc avant même que la tempête ne soit arrivée, on prend les devants. Donc, cette Loi nous sert à prendre des mesures préventives. Dans un contexte volatil de contestation où effectivement on voit qu’on a toutes sortes d’individus qui participent à un mouvement où les réseaux sociaux accélèrent ce mouvement-là, effectivement, il peut y avoir ici des enjeux particuliers. Donc, mon deuxième point — et je m’arrêterai ici — était ce commentaire à l’effet que vraiment, pour moi, un des manques probablement de cette question, de cette Loi sur les mesures d’urgence, c’est le fait que ces fameux réseaux sociaux, ben, n’étaient pas considérés à l’origine et qu’ils complexifient — je dis bien « complexifier » — parce qu’ils ne créent pas la problématique. Ça, c’est important. Que ce soit la propagande, l’extrémisme violent ou les protestations sociales, elles n’ont pas attendu les réseaux sociaux pour exister. Dans un certain nombre de cas d’ailleurs, les réseaux sociaux sont positifs aussi, ils permettent du progrès social. Enfin, je ne vais pas revenir sur les exemples du Printemps arabe, du mouvement #MeToo, et cetera, mais mon point était celui-là, vraiment sur la gestion, sur la question aussi de la prise en compte de ces réseaux sociaux là dans la gestion d’une crise de sécurité nationale au regard de la Loi qui est actuellement en vigueur. Merci beaucoup.

Volume 33 (November 29, 2022), page 35 33-035-13

Wayne Mackay, Prof. (Law – Dalhousie University)

Professor Venkatesh?

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Vivek Venkatesh, Prof. (Fine Arts – Concordia University)

Thank you, Professor MacKay, for the opportunity to intervene, and thanks also to the Commission and Commissioner Rouleau for this invitation. As a humanist, as a pedagogue and also a multi- media artist who leverages various data points in social media to create different kinds of installations, I’m going to approach this question that’s being asked from two perspectives. One is that I think we need to acknowledge that social media allows for pluralism and that pluralism is essentially in, at least, our determination of liberal democracy. What we’re seeing, though, is a certain dehumanization of those who express what is commonly known as populist rhetoric and that’s, I think, a pity in the way we’ve observed the characterization of those who have been participating in the convoy. Populism in and of itself is an important expression of liberal democracy. I think it’s important for us to recognize that those who feel disenfranchised and those who feels that a hegemony of sorts in their definition is imposing restriction on liberties or on certain equalities that they expect from their liberal democracies, those two major pillars, that they should be allowed to protest that particular imposition. Where social media, I think, has to be viewed beyond just the regulatory, beyond just the legal standpoint and in collaboration, especially, with big data companies is in how conversations, discussions, dissentions, consensus building, however we want to see these, how those are manipulated through the software and through the algorithms that are being employed, developed and, in a certain sense, imposed on its users. I’ll give you a specific example of this, and this is coming from a journal. And I printed out the abstract and the recommendations. The September 2022 issue of “Decision Support Systems”, which speaks to this notion of coordinated, inauthentic behaviour. And this is particular important because through the use of chats and bots and various other software, we’re seeing a version of what Shoshana Zuboff has called “surveillance capitalism” take on a much larger -- a much larger space in social media. What coordinated in authentic behaviour does is it takes on certain views -- viewpoints. It assigns those viewpoints to what is known as either unexpected, suspicious or exceptional similarity that you see amongst users, which basically means that you can create users that are not real, right, that are particularly virtual, and then you’re able to create an outreach to a population that is subscribing to the echo chambers that Professor D’Orazio spoke about, thereby spreading a certain mis or disinformation or malinformation as Professor Laidlaw defined for us. So in that particular case, there have been several reports by companies such as Meta, who are the parent organization of Facebook and Instagram. I believe Alphabet as well has released reports on how they've managed to curtail what they're calling coordinated inauthentic behaviour. The Rohingya -- the tragedy in Rohingya, the Stop the Steal Campaign, various smaller but highly impactful antisemitic and racist discourses that have been propelled by such kind of software have actually been curtailed by tech companies. So one thing to think about is how can we learn from the ways in which technology companies are imposing regulation and how can we also render those as transparent as possible. I'll stop there perhaps, so that those who are dealing with this from a legal standpoint can debate this. But as a humanist, I think we are coming to a point where if we can't listen to one another without necessarily dehumanizing them, then we are at a threshold of being unable to deal with dissention.

Volume 33 (November 29, 2022), page 37 33-037-14

Wayne Mackay, Prof. (Law – Dalhousie University)

Wayne MacKay, moderator. Just before we move to somebody else, I was struck by your term about coordinated inauthentic behaviour. How do you describe inauthentic? It's kind of like that line between normal and abnormal. What's authentic and what's inauthentic?

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Vivek Venkatesh, Prof. (Fine Arts – Concordia University)

Yeah, this is actually being debated in fact as we speak about the liminal space in which those terms lie. I think the inauthenticity is reflecting specifically the fact that humans aren't propagating the information online, that these are being propagated by machines and machine algorithms.

Volume 33 (November 29, 2022), page 40 33-040-04

Wayne Mackay, Prof. (Law – Dalhousie University)

Okay. Great. All right. Moderator MacKay again. I open it up to any other comments. We have about five minutes or so left before we move to the next topic. Yes, Professor Laidlaw.

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Emily Laidlaw, Prof. (Law – University of Calgary)

Yeah, thank you so much. And, Vivek, I'm just thinking a bit about what you had to say, and it brought home I think one of the key aspects of, you know, what we're struggling with right now with freedom of expression, which is, you know, social media, as Dax was saying, has opened up such huge opportunities for discourse and for everybody. And so we almost need to break down what the problem area is that should be regulated through law, what sort of we're okay with leaving alone; right? And some of this is this commitment to the messiness of freedom of expression to be able to discover and figure out who you are and hear other ideas. The struggle that we're having now is that because of the sheer volume and the kind of equitable access on social media is that the opportunities to dehumanize and harm other individuals is made that much easier. So on a practical level, it's easier to cause harm and it creates a regulatory issue. But in thinking through what the role of the law is here, we also have to think of what other things regulate. And so Twitter is a great example here because at the moment, if we had a law in Canada, would it make a difference right now? Perhaps. In my ideal world, it would set the standards of what we expect for corporate responsibility here, that Twitter has certain standards in place to deal with inauthentic behaviour, to address content moderation, access to remedy for individuals. So that is where I think a law could help. But it's not as though Twitter, as I think Elon Musk has discovered, is somehow operating in a regulation-free zone, because, what, the marketers don't want to have to advertise on that platform. Ah, well, then they're going to regulate a particular way. Do you know who else doesn't want it? Users. So users leave the platforms when they don't want this particular space. But also, others further down, for example, the digital storefronts, the app stores right now are imposing conditions on Twitter to continue to carry the Twitter app. So there's all kinds of different mechanisms that are often at play when we talk about what regulates expression and what regulates what we say and do on social media.

Volume 33 (November 29, 2022), page 40 33-040-16

Wayne Mackay, Prof. (Law – Dalhousie University)

Professor D'Orazio?

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Dax D’Orazio, Post-Doctoral Fellow (Political Science – Queen’s University)

I'd like to pick up on some of the insightful comments from my colleagues and speak specifically for a moment about some of the practical and also moral tensions in drawing the lines of free expression in online spaces and specifically on social media. So the first one is practical, and that is built on millennia of histories of censorship. Censorship or content moderation, however you'd like to describe it, has several millennia of history and there's always a tension between having restrictions or content moderation that is either too broad or too narrow. If restrictions are too broad, we can get chilling, for example. We constrict public discourse in ways that are unmerited, and that is a problem, not just for self-realization or the pursuit of truth, but democracy itself, us being able to have something akin to a marketplace of ideas is a pillar of liberal democracy. On the other side, if our content moderation, if our restrictions are too narrow, they might be ineffective. They might only capture, for example, the outer margins of expression. And so the problem there is that they're not actually making our online spaces safe and accessible for everyone. And so that tension between regulations being either too broad or too narrow is seen throughout the history of censorship and also freedom of expression. The other thing or the other tension is practical, but also in a sense moral, and it is presently, because social media platforms for the most part are considered intermediaries or platforms rather than publishers, there's a disjuncture between the protections for expression citizens have in the public sphere, understood in a very big and broad sense, and the protections for expression that they have in online spaces. And so if we believe in free expression, if we think that it is the lifeblood of democracy, it may be the case that it is a problem that citizens have less protections for their expression on private platforms that are nonetheless have become the default public sphere. I think it's -- it is the case that people increasingly, if they want to be apprised of current or public affairs, are opening Facebook or Instagram rather than opening a newspaper or reading a periodical. And so that distinction between public and private on these platforms is really important and lurking below the surface of how we devise meaningful regulations related to content restrictions or potential conflict restrictions.

Volume 33 (November 29, 2022), page 41 33-041-27

Wayne Mackay, Prof. (Law – Dalhousie University)

Okay. Professor Penny, we've got about two minutes left.

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Jonathon Penny, Prof. (Law – York University)

Sure. Sure, thanks. And I thought I'd pick up on a few nice comments from my colleagues here. You know, when we talk about freedom of expression, you know, speaking as a scholar, you know, there are certain assumptions when we speak of freedom of expression as to why we see it as a key value, why we want to protect it and cultivate it in a democratic and free and democratic society. And, you know, one of the assumptions of freedom of expression the lawyers often talk about is the idea of a marketplace of ideas; right? If you allow for people to engage with each other that the best ideas in the end will rise to the top and win the day. But I think when we move to the new digital public sphere, as Professor D'Orazio has spoken quite eloquently on, the reality is, is that some -- a lot of those assumptions that we have about debate in the public sphere, debates that we would have in the town square, discussions in broader society, when we move to an online context, it's quite clear that with platforms they have their thumb on the scale; that is, platforms are designed to favour certain kinds of speech, behaviour and activities. And often it's the kinds of activities and speech behaviour that they can monetize. And one of the unfortunate realities of the social media landscape is that often more harassing, polarizing, tribalistic, hateful engagement leads to additional polarization amongst different groups. It's that kind of engagement that these platforms often favour at the expense of more civil discussion and discourse. And so then I think that leads us also to the point that was also raised by Vivek earlier on, is this notion of surveillance capitalism. What are the business models that encourage and incentivize this kind of behaviour, where this kind of activity and expression is favoured, which drives, as Professor Laidlaw set out quite eloquently earlier, drives certain marginalized groups; women, visible minorities, more often targeted by this more antisocial behaviour on platforms, which additionally skews the marketplace of ideas that we lawyers love to talk about.

Volume 33 (November 29, 2022), page 43 33-043-16

Wayne Mackay, Prof. (Law – Dalhousie University)

Moderator MacKay again. Excellent panel and discussion on this; it could go on much longer, but I want to move on to our next interesting topic, and pretty well on time at this point, which is the topic of ideologically motivated violent extremism; and, in particular, the role that that plays in society generally and in particular in relation to protest. And just some of the broad questions to consider when Professor Morin kicks us off on this in a moment, is the source of that term, “Ideologically motivated violent extremism,” some examples, perhaps; and, in particular, its relevance to the issues at hand. So that with in mind, Professor Morin, the floor is yours.

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David Morin, Prof. (Sciences politiques – Université de Sherbrooke)

Merci beaucoup, Wayne. Oui, j’aimerais prendre quelques minutes pour, en fait, tenter de resituer les évènements d’Ottawa dans l’évolution ou le contexte plus large finalement de l’évolution de l’extrémisme violent à caractère idéologique, si vous me le permettez. Avec, comme propos préliminaires, le fait que s’il est assez singulier dans sa forme et dans son ampleur, ce qui s’est passé à Ottawa n’est pas un évènement isolé, d’une part, on a vu des choses similaires au cours de la dernière décennie, et il n’est pas non plus seulement dû à la pandémie même si la pandémie a été un accélérateur de détresse psychologique probablement, mais également de contestation antigouvernementale et que la pandémie a aussi finalement été instrumentalisée par d’autres agendas politiques. Pour faire cette brève démonstration-là, je reviendrais sur trois points principaux sur l’évolution de l’extrémisme violent que je vais relier aux évènements d’Ottawa. Le premier, c’est l’émergence, si vous voulez, d’une forme de convergence des luttes sur le plan idéologique. Certaines disent convergence, d’autres vont dire confusion, un peu, idéologique, je vais revenir là-dessus tout de suite. L’élément ici, c’est d’essayer de dessiner un écosystème radical extrémiste et, dans cet écosystème, d’y mettre un certain nombre d’idéologies. Donc, on a, par exemple, l’extrême droite; on a les mouvements antigouvernementaux; on a l’extrême gauche; on a dans une certaine mesure, même si on ne le relie évidemment pas à la question idéologique, mais plus à la question religieuse, le djihadisme, que j’élimine de la conversation ici; on va avoir l’extrémisme plus religieux; l’extrémisme motivé par la haine des femmes qui, je le rappelle, au Canada, est ce qui a fait le plus de victimes en termes d’actes terroristes — si on prend le temps long entre l’attentat de la Polytechnique il y a une trentaine d’années, hein, à Montréal et l’attentat de Toronto, en fait les attentats de Toronto puisqu’il y en a eu deux, donc c’est le nombre de morts le plus élevé au Canada. Donc, dessiner cet écosystème-là, et c’est ce que je disais tout à l’heure, dans cet écosystème finalement, les gens vont choisir un certain nombre d’éléments et se construire un petit peu leur propre menu radical, donc ça crée de la difficulté évidemment pour nous en tant que chercheurs, mais également pour les milieux de pratique pour collecter l’information, collecter le renseignement, et puis essayer d’avoir finalement des cases beaucoup plus claires. Donc, c’est dans cet écosystème-là que se situent un peu les évènements d’Ottawa avec quand même — et ça, j’insiste là-dessus — une domination de ce qu’on va appeler la droite radicale. Quand je parle de droite radicale, on peut parler des idéologies classiques comme le néonazisme, comme le néofascisme, l’extrême droite, le suprémacisme blanc, le nationalisme blanc, donc on a quand même — et puis Vivek parlait du populisme — la montée en Occident du populisme de droite. Et donc, ça, on a vu très, très clairement, une réappropriation de cette… de la part de cette droite radicale du mouvement de contestation. Notre équipe de recherche a observé pendant 18 mois une cinquantaine de leaders complotistes, et sur ces 50 leaders complotistes — 45, en fait, pour être exact —, la moitié appartenait à la droite ou à… en fait, à l’extrême droite canadienne et québécoise, 20 % appartenait au mouvement plutôt anti-autorité, et 25 % à l’alterscience qui, elle, a été le nouveau dans le portrait à la faveur de la pandémie. Donc, mon premier point, c’est ça, c’est dessiner ce nouvel environnement et cette multiplicité des idéologies, mais elle est évidemment très, très importante et elle précédait la pandémie. Je vais y revenir tout de suite sur cette question de l’extrémisme de droite qui précédait la pandémie. Mon deuxième point, c’est, et il illustre ça, le fait que le défi aujourd’hui, c’est que, oui, il y a des groupes organisés, mais il y a beaucoup d’individus, d’acteurs solitaires, je parle bien d’acteurs solitaires, pas de loups solitaires parce que les loups ne sont pas solitaires, d’une part, et d’autre part, parce que les acteurs solitaires ne sont pas tout à fait solitaires, on parle des réseaux sociaux depuis tout à l’heure, et ils sont capables évidemment d’échanger sur les réseaux sociaux, ils sont capables de s’abreuver des réseaux sociaux pour passer à l’acte violent. Enfin, je vais vous citer un chiffre de la Global Terrorism Database, qui est une référence en la matière, qui explique qu’au cours des dernières années, près de 60 % des actes terroristes ont été commis par des acteurs solitaires versus des organisations clairement identifiées. Ça, c’est extrêmement important parce que dans le contexte d’un évènement comme Ottawa, une des craintes était évidemment beaucoup plus l’acteur solitaire qui s’abreuverait de discours en ligne ou pas pour passer à l’acte violent. Donc là, on est sur une tendance très lourde en termes d’extrémisme violent. Et mon troisième point, les formes de l’extrémisme violent, et c’est là évidemment où je vais vous donner trois chiffres qui sont fondamentaux et qui expliquent pourquoi aujourd’hui on parle plus d’extrémisme violent que seulement de terrorisme, et cetera. Le premier élément, la première forme de violence, ce sont les crimes haineux. On a eu ici à Ottawa, et là, je vais vous donner des statistiques qui sont des statistiques publiées par le gouvernement du Canada. En 2016, les corps de police déclaraient 1 400 crimes haineux; en 2020, ils ont déclaré près de 2 700. On a donc une augmentation tendancielle de crimes haineux déclarés par la police. Alors, c’est des statistiques qu’il faut prendre avec des pincettes, il peut y avoir plus de corps de police qui déclarent, ce ne sont que des crimes déclarés, il n’en reste pas moins que c’est une augmentation tendancielle considérable. Quels sont les trois principaux types de crimes haineux? La race ou l’origine ethnique, la religion et l’orientation sexuelle. Ces trois catégories-là me laissent penser que, sans être le monopole de l’extrémisme de droite, on peut évidemment les relier à des formes d’extrémisme de droite. Ma deuxième forme ou mon deuxième type de violence : les actes terroristes. Là, je vous cite encore le Global Terrorism Database. Entre 2014 et 2019, donc avant la pandémie, on avait une augmentation de 250 % — je répète, 250 % —, des incidents terroristes liés à l’extrême droite en Occident. Donc, les attentats d'Utøya au début 2010 en Norvège commis par Anders Breivik ont ouvert une décennie d’actes terroristes liés à l’extrême droite. Ça n’a pas fait disparaitre la menace djihadiste en Occident, loin s’en faut, mais ça a créé réellement une nouvelle… enfin, « une nouvelle »… en fait, la résurrection d’une forme d’extrémisme qui est l’extrémisme de droite. Donc, c’est dans cette cour-là qu’on joue, et, au Canada, l’attentat de la Mosquée de Québec, l’attentat de London, Ontario, sont les preuves que le Canada est lui aussi impacté par cette montée des incidents terroristes d’extrême droite. Et mon dernier point, la dernière forme de violence — et vous allez voir pourquoi je la cite — concerne les manifestations violentes. Là aussi, je vous cite le Global Terrorism Database : entre 2011 et 2019 — et c’est intéressant d’arrêter ces statistiques juste avant la pandémie parce qu’elles montrent qu’il y avait déjà des tendances lourdes qui ont été finalement accélérées par la pandémie —, donc, entre 2011 et 2019 on a une augmentation de 278 % des manifestation violentes en Occident. Vous pouvez penser, par exemple, aux gilets jaunes en France qui sont une espèce de cocktail bizarre entre l’extrême gauche, l’extrême droite, et d’autres formes de violence urbaine. Nous avez, évidement, l’assaut du 6 janvier aux États-Unis, qui a été probablement le summum d’une manifestation violente, et je le répète, qui est très documenté aujourd’hui, l’assaut du 6 janvier, on le voit clairement que, oui, si ce sont tous des sympathisants de Trump, on a quand même des groupes extrémistes reliés à ces incidents, que ce soit des gens qui appartiennent au mouvement QANON ou que ce soit des gens qui appartiennent directement à des groupes comme les Three Percenters, les Proud Boys, autant de groupes qui sont considérés par certains comme des organisations terroristes, finalement pour arriver évidemment aux incidents d’Ottawa. Donc, ce que je voulais introduire ici, c’est le fait que les évènements d’Ottawa, et je fais attention aux comparaisons, il faut pas évidement comparer les évènements d’Ottawa aux évènements du 6 janvier et de l’assaut du Capitol, ça n’a rien à voir, OK? Mais l’idée ici étant de dire que ce type de manifestations violentes avec des groupes extrémistes violents et des idéologies violentes sous-jacentes existaient bien avant la pandémie. La pandémie a probablement servi de catalyseur ou d’accélérateur d’une tendance lourde qui était la montée de l’extrémisme de droite en Occident. Donc, ça me paraît vraiment important de rappeler ça et ce sera mon dernier point dans cette conclusion. Je regarde Wayne, il ne m’a pas encore fait un regard terrible pour me couper.

Volume 33 (November 29, 2022), page 45 33-045-09

Wayne Mackay, Prof. (Law – Dalhousie University)

Getting close.

Volume 33 (November 29, 2022), page 51 33-051-02

David Morin, Prof. (Sciences politiques – Université de Sherbrooke)

Oui, c’est ça, c’est ça. C’est que le Canada, même si, au Canada, cette menace est probablement moins importante qu’elle nous l’est, par exemple, qu’en Amérique, les chiffres, les rapports de renseignements successifs montrent qu’elle est bien présente. La question est de savoir si elle est bien évaluée par les acteurs de la sécurité dans notre pays, si elle est évaluée à la hauteur de ce qu’elle est, de ce qu’elle représente, et des risques à la sécurité nationale qu’elle soulève. Merci beaucoup.

Volume 33 (November 29, 2022), page 51 33-051-03

Wayne Mackay, Prof. (Law – Dalhousie University)

Thank you. But I’m just going to ask one question and either -- I’m going to turn over to Professor Venkatesh after that. Either one of you or both of you might be able to answer this. As you probably noticed lawyers are a bit obsessed with definitions, and one of the questions I have in the term itself, how do you -- how does one define ideological, in terms of the, you know, ideologically motivated violent extremism, or even violence? Although I know that could be a whole thing on that, so maybe I’ll throw that out generally to both of you to comment on briefly. But Professor Morin, if you want to start off on that?

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David Morin, Prof. (Sciences politiques – Université de Sherbrooke)

Oui. En fait, il n’y a pas vraiment de consensus sur la façon dont on le définit, mais l’extrémisme violent, il y a deux éléments ici. Le premier élément, c’est qu’il y a une catégorie d’analyse assez large qui nous permet, par exemple, d’englober deux types de crimes reconnus dans le Code criminel. Ça va être les crimes haineux, d’une part, et le terrorisme, d’autre part, parce que souvent avant, on se focussait simplement sur le terrorisme, et donc, on disait… on liait l’extrémisme violent au terrorisme; or, aujourd’hui, on voit — et puis c’est ce que je vous décrivais tout à l’heure — un spectre beaucoup plus large de types de formes de violence, que ça soit les crimes haineux, le terrorisme ou des manifestations violentes. Donc ça, nous, du point de vu de l’analyse, en tant que chercheurs ou pour les agences de sécurité, ça leur permet d’avoir un plus large spectre. Ensuite, la question de l’idéologie, écoutez, là, je vous dirais que ça ne fait pas consensus et puis je ne veux pas rentrer dans un débat infini, mais les agences de sécurité au Canada prennent l’idéologie de manière assez restrictive pour finalement avoir des distinctions, donc là, on va reposer davantage la réflexion sur les dimensions plus politiques de l’extrémisme violent et, par exemple, on va distinguer les catégories idéologiques de celles plus politico-religieuses et éventuellement de celles qui constituent plutôt juste une cause unique. Donc, on va faire ces distinctions-là, si vous voulez, ce sont des distinctions qui, à mon avis, sont analytiques, mais avec le type d’environnement que je vous décrivais tout à l’heure, je pense qu’on se situe souvent dans des zones beaucoup plus grises. Donc là, actuellement, ce qui permet au système de justice de sanctionner l’extrémisme violent, ce sont notamment les questions des crimes haineux et du terrorisme. Sur la question de l’apologie du génocide, et cetera, c’est beaucoup plus complexe là, vraiment, c’est très contraignant sur le plan juridique, alors je ne suis pas juriste, donc je fais attention à ce que je dis, surtout s’il y en a beaucoup dans la salle. Mais donc, en gros… en gros, c’est ça.

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Wayne Mackay, Prof. (Law – Dalhousie University)

And we appreciate that.

Volume 33 (November 29, 2022), page 53 33-053-08

David Morin, Prof. (Sciences politiques – Université de Sherbrooke)

Surtout que je sais que je suis enregistré. Voilà.

Volume 33 (November 29, 2022), page 53 33-053-09

Wayne Mackay, Prof. (Law – Dalhousie University)

Okay. Professor Venkatesh, on that or a much broader intervention.

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Vivek Venkatesh, Prof. (Fine Arts – Concordia University)

Thank you. Yes, so this is Vivek Venkatesh here. I just want to build on what my colleague, Professor Morin, pointed out as the Government of Canada’s distinction between ideologically motivated violent extremism and those that are religiously motivated, and also politically motivated. But they also point out that it’s very difficult to distinguish whether and how the three different types of violent extremism that have been defined interact and influence one another. And I think that’s important to take into account whenever one creates policies, whenever one is debating laws that are being put in place in order to prevent this work. But my sense as a humanist, again, would be to decry the fact that the original meaning of ideology; which, if I’m not mistaken, is the science of ideas, has been reduced to one that describes perhaps fringe thoughts, fringe movements, fringe collections that have come together which are destructive in orientation. And I think that that needs to be brought back to bear on how we name, so the nomenclature itself is important, but also how we treat this notion of ideologies. I’d like to just also build on some of the work that my team has conducted, and I want to acknowledge the work of my colleague and my former Postdoctoral Fellow, Ryan Scrivens, who conceived a really interesting study where he gained access to 10 former Canadian right-wing extremists. So these were in various Neo-Nazi movements from anywhere from six months to more than 20 years, and over the course of 18 months he and our team at Concordia University conducted life course narratives with these eight men and two women. And I’d like to focus specifically on the role of the internet in facilitating right-wing extremism, specifically. And what we found is not very dissimilar from what has already been described in other literature from the West, specifically in the United States, in that falling into the trap of Neo- Nazism and right-wing extremism happens very much on a face-to- face basis; it goes through underground meetings; it goes through being groomed to a certain extent, when you are young and feeling disenfranchised. And these are analyses that -- and themes that have come to bear with the interviews that we have looked at. But, importantly, the internet was seen as a facilitator for entrenching these values and this was done through forums; this was done through what Professor D’Orazio rightly labelled as siloes or echo chambers, where you get patted on the back for points of view that resonate within a small, and sometimes much larger, circle of people who share a specific opinion of yours. But if you come back to my contention and the contention of big tech companies that coordinated inauthentic behaviours, and in fact magnify these narratives to an exponential scale, and you can imagine how easy it is for someone who’s falling into the extremist movements to be influenced very, very heavily by a narrative that is repeated over and over again. And the danger, I guess, that we face when we look at the specific events in Ottawa is if there are certain so-called fringe elements within the convoy, and they are working the data that they are receiving on social media, the information they’re receiving on social media, and some of which may be coordinated and inauthentic in its orientation, then there’s a likelihood that they will want to act on the specific information, misinformation, disinformation that they’re receiving. So the internet, in and of itself, plays what we're calling a secondary role. You do need a community ,very often in right-wing extremist movements, to build a camaraderie, build a sense of belonging, build an identity with which you feel comfortable, and then you can find solace and find ways in which you can describe your own dehumanizing rhetoric towards the other. And then, unfortunately, act it out, right, through violent means. So I wanted to make this point particularly because this work has been -- is quite instrumental in the way that we are describing prevention programs that can help us to bring some of these former extremists or these extremists out of these movements.

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Wayne Mackay, Prof. (Law – Dalhousie University)

Thank you very much and, Professor Laidlaw.

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Emily Laidlaw, Prof. (Law – University of Calgary)

Yeah, thank you. I want to build on what Vivek is saying and maybe add a point about social media content moderation because when we talk about violent extremism, I mean, we have particular laws that address, you know, counselling terrorism and hate propaganda, et cetera, but there isn't a law against extremism. And so we're often -- you know, we are turning to social media right now to set down through content moderation, through self regulation what kind of expression they're willing to host or not. And so when we talk about some of the fringe platforms or social media, we're usually talking about social media that do not proactively monitor content to action and that just rely on legal definitions of -- and only remove content that is unlawful. And so we're actually dependent on social media to proactively take some steps to address the forms of extremism that Vivek was talking about is -- you know, sort of entrenching different views. So let me give an example of how difficult this can be right now. I mean, one example I gave is just the use of jokes, but the other is that often groups talk in code. So let's imagine a video that is posted on Tik Tok and someone is saying some just, you know, antigovernment-type message, which in and of itself is, I mean, there's nothing wrong with having that view and wanting to express it, but behind them are guns, for example, on the bed. And this is an example that's been given to me previously. What is social media supposed to do about that? Some of this is that kind of the slow violence of just normalizing certain rhetoric and sometimes coded messages in the background, and social media's having to grapple right now with how to address this. This is lawful expression, but it might not be expression that they want to host in their space. But if we're talking about the, you know, private spaces as becoming the new public sphere, which is something that Dax was talking about, then they have to take seriously freedom of expression, but they are setting their own limits to address what is lawful, but extremism.

Volume 33 (November 29, 2022), page 56 33-056-08

Wayne Mackay, Prof. (Law – Dalhousie University)

Moderator MacKay. Professor D'Orazio, over to you.

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Dax D’Orazio, Post-Doctoral Fellow (Political Science – Queen’s University)

Thank you. Hopefully just two quick points. I think it's vitally important to build upon what's already been said to take a peek behind the curtains and actually look at what motivates social media companies, so what the algorithms look like and what the infrastructure of those companies actually look like. The algorithm itself or the architecture itself essentially has two impulses. One impulse is to maximize engagement, and that is just keeping eyeballs on the apps, on the devices as much as possible, using any means necessary. In that broad sense, the content itself is a derivative problem of a much larger algorithmic problem which is engagement is strategized at any cost, and sometimes to the detriment of the wellbeing of the actual users themselves. We're only now catching up to in the public sphere having an important conversation about the social, political and psychological effects of social media engagement. We've talked at length about the positives and also some of the negatives, and so getting that balance right is very important. The business model too of some of big data is to ask for forgiveness rather than permission. And so they're often engaging in grand social experiments in commodifying the human experience and our own personal and private data for their own self interests, sometimes completely surreptitiously, or at least on, you know, a contractual basis that can easily be questioned. Eventually, we have a very large public scandal that gives us a peek behind the curtains like a Cambridge Analytica, like an Edward Snowden. But for the most part, people are blissfully unaware of the way that their experiences are commodified, repackaged and sold when they engage on social media sites. The other thing that I'd like to mention is that when we're trying to understand the problem and the risks of extremism that's specifically online in the sense that it comes about and it's nourished in online spaces, I think we need to make a really important distinction between the people that we might say are the useful ignorance, who as a result of the pandemic especially might be incredibly isolated, incredibly lonely. It's been a time in which we've had some social isolation and detachment. It's also true that in the last few decades we could say that most people consume the mental equivalent of junk food. And so our informational literacy is not -- doesn't conform to some of these big, lofty goals that we have for the citizen in the theory of liberal democracy. So we need to make a distinction between those who get swept up in these movements, these ideas, these arguments online and those who actually pose some real legitimate danger to the public sphere, those that are explicit manipulators, those that are motivated by sometimes very dangerous ideologies, and also those that are just shameless entrepreneurs at the end of the day. So again, making a distinction between those who might harbour some good faith and engage in online content, sometimes extremist content, say, unknowingly, in a sense, or at least out of a desire for creating meaning and also creating community and those who are the propagators explicitly of misleading information for profit and also for ideology.

Volume 33 (November 29, 2022), page 57 33-057-18

Wayne Mackay, Prof. (Law – Dalhousie University)

Moderator MacKay again. Professor D'Orazio was just talking earlier about the echo- chamber effect and then I think Professor Venkatesh mentioned the sort of what I would call maybe fractured communities that are out there and people who get reinforced in their beliefs. And, Professor Penny, you haven't had a chance to intervene yet, so I'll throw those two in your direction and either of the other two can elaborate if we have moments to do that so.

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Jonathon Penny, Prof. (Law – York University)

Sure, thank you, Professor MacKay. Professor Penny. I'm not sure if this is -- these comments are directly responsive to that question, maybe in part. And, I mean, some of this comes back to the broader regulatory challenges on these questions as well. Back in 2019, I was a visiting researcher at the Technology and Social Change Project at Harvard Kennedy School's Shorenstein Centre. We looked at what we called disinformation and media manipulation campaigns. The reason why we used the specific term campaign was these were examples of coordinated efforts to manipulate media and to spread disinformation. And in particular, we included -- we looked at a number of case studies including some case studies of disinformation and media manipulation campaigns during the 2019 Canadian election. And peeling off a point that Professor Laidlaw made earlier, one of the challenges here is, you know, we talked about surveillance capitalism, we talked about business models and the challenges with these platforms, and the business model that monetizes antisocial behaviour, and that includes disinformation and misinformation, for example. But at the same time, the disinformation campaigns that we studied in 2019, a lot of the most successful ones were ones that had been seated many years prior to 2019. These were stories and ideas, and false stories, false rumours that percolated in far-right social media groups, whether we're talking on the chance, 4Chan, others, far right nationalist groups on Reddit, for example, where they had been certain rumours and false stories were percolating for years. But once the election comes around, we have greater media coverage. There was a coordinated effort to use tactics what we call working these false rumours up the chain, trying to get larger, influential accounts, larger social media platforms to share this kind of information. And, of course, there were even some successful disinformation coming through. We had mainstream journalists asking questions of politicians about these rumours that had been already discredited, debunked by other journalists. But the point, the broader point that I'm getting at here is that when we're thinking about how to deal with this from a legal, regulatory, even societal perspective, we can talk about the large platforms and that's really important and the business models and I've been also been banging the table on that count, but we -- also, if we're going to be thinking through new ways or new regulatory frameworks, we also have to think about these more extreme marginal communities where a lot of these hateful content, disinformation campaigns are planned, coordinated and conceived, and then later spread in critical moments like during elections, which mislead voters and have impacts.

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Wayne Mackay, Prof. (Law – Dalhousie University)

Right. I think we're almost at the end, but I'll -- Mr. Morin, I'll take one final intervention here and then we'll move on to the final stage.

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David Morin, Prof. (Sciences politiques – Université de Sherbrooke)

Oui, merci beaucoup. Deux courts commentaires. Un des défis majeurs, en fait, qu’on a face à cette question, je pense, de l’extrémisme, c’est d’arriver à tracer la ligne entre ce qui est acceptable en termes de discours extrémiste et ce qui ne l’est plus en termes de violence politique. Et donc, la plupart des gens s’entendent pour dire qu’il faut être beaucoup plus rigoureux sur la question de l’apologie de la violence, de l’apologie du terrorisme, des crimes haineux, et cetera, mais Émilie, ma coprésidente en est témoin, c’est beaucoup plus difficile quand on parle de désinformation. Et donc, quand on parle des idées extrémistes qui sous-tendent finalement la violence, si vous prenez la théorie du grand remplacement qui postule l’idée selon laquelle, par exemple, nos gouvernements cherchent à remplacer les populations d’origine dans les sociétés occidentales par des populations immigrantes, on comprend tout le potentiel nocif, toxique et violent que recèle une telle théorie, mais qu’est-ce qu’on fait avec cette théorie-là sur les réseaux sociaux, qui est de la désinformation claire, qui est une forme de discours extrémiste, qu’est-ce qu’on en fait? Et là, ça, c’est extrêmement difficile de tracer cette ligne-là. Pour nous, la question de la désinformation l’est aussi, alors on pourrait peut-être s’attaquer aux campagnes massives de désinformation, #StopTheSteal, Vivek en parlait tout à l’heure, qui est un bon exemple à mon avis, qu’est-ce que là on fait par rapport à ça. Donc ça, c’est mon premier point sur la question du défi finalement, est-ce qu’on accepte collectivement les extrémistes, mais ce qu’on n’accepte pas, c’est la violence au nom de l’extrémisme. Même ça, c’est difficile, hein, à accepter que dans une société pluraliste que décrivait Vivek, démocratique, on l’accepte, et en même temps on sait pas quoi faire avec ça parce que c’est pas parce qu’une idée n’est pas violente et qu’elle n’appelle pas directement à la violence qu’elle ne recèle pas une violence symbolique majeure dans le discours, et les minorités racisées en sont témoins malheureusement dans notre société. Et mon deuxième très court commentaire concerne beaucoup plus la question de la régulation. Ce qu’on observe beaucoup, c’est que le point commun entre tous ces mouvements extrémistes, c’est la perte de confiance dans nos institutions — pas seulement ça, mais beaucoup ça — et que le risque ici est de surréagir. Dans un pays comme le Canada, l’extrémisme est encore à un niveau — entre guillemets — « acceptable » si on compare par exemple avec ce qu’il est aux États-Unis, et je pense que le fait de surréagir pourrait devenir là aussi largement contre- productif, en fait. Et donc, si on se dote dans nos sociétés d’instruments juridiques qui sont très, très contraignants, on va aussi renforcer finalement le discours et le narratif des extrémistes, et ça, je pense que c’est un autre défi qu’on a vraiment en tant que société pour savoir où on tire la ligne. Y’a pas de recette magique, enfin, y’a pas de mode d’emploi, mais on sait que dans les sociétés, on a tendance à être trop punitif. La réponse sécuritaire finalement, c’est un pis-aller, ça ne fonctionne pas sur le moyen et sur le long terme, et je pense que ça aussi, il faut collectivement qu’on questionne, et puis je pense que c’est le sens aussi d’une partie des propos de Vivek, quand on écoute les extrémistes, il faut écouter les griefs aussi qui sont adressés par les extrémistes à notre société, que ce soit la justice sociale, le manque de confiance dans les institutions, et cetera, et cetera. Je m’excuse, je suis sorti un petit peu de la question juste des réseaux sociaux, mais je souhaitais apporter ces deux éléments-là additionnels. Merci.

Volume 33 (November 29, 2022), page 61 33-061-21

Wayne Mackay, Prof. (Law – Dalhousie University)

Thank you very much, and it was very interesting and important, so I'm not concerned about that. I guess and we now are about to move -- Moderator MacKay here -- to the final stage of this, which is an opportunity without interruption, unless you want interruption, to give your sort of thoughts and reflections on the complex issues presented to this panel, and then any advice or ideas that you might wish to suggest to the Commission or to the public more generally on these complicated issues. And maybe just in case we do run out of time, I want to say for myself personally I thought it was an extremely interesting and diverse conversation on extremely important topic, so I complement you all on that, and outstanding efforts to stay within the timeline, so I appreciate that. So what I will now suggest, and we'll just go around the table, I guess, in the order -- maybe the same as we started with Professor D'Orazio first, just to your overall thoughts, reflections, conclusions on these complex topics and any advice or suggestions that you might have. So over to Professor D'Orazio to start us off.

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Dax D’Orazio, Post-Doctoral Fellow (Political Science – Queen’s University)

Thank you. Yes, indeed, a lot of generative conversations, so thanks to all my interlocutors. I want to pick up on something that was just mentioned by David that we hadn't quite mentioned yet, and that is that policy responses are always laden with unintended consequences. And if we're thinking about free expression specifically, that is definitely the case as well. One of the things that's notable with online extremism is that even though we might develop meaningful regulations, the speed and the pace of technological innovation means that policy and government in a sense is always sprinting to try to catch up. Extremists often get ditched from one platform and pop up on another, and it is definitely the case that we've not yet seen the full, broad scale of what social media will actually look like. We will actually probably see within the next decade another complete rehauling or evolution in communication technology that facilitates new forms of engagements in meaning making and also extremism. Getting that balance right and speaking again of those unintended consequences, we want to make sure that we are not completely driving extremism underground. There's also a case to be made that we want extremists out in the open, that it's much easier to context extremism when it's out in the open and not lurking in the dark corners of the internet. We also want to be mindful that part of the impetus and the personal and also collective identity making that happens in extremist movements is based on this idea of being antithetical to the mainstream of the dominance of the normal. And so in a sense, being pushed to the margins is almost worn as a badge. It's a way to symbol authenticity and belonging. And I think the policy also needs to grapple with that paradox, that if one's identity creation is based in opposition to the mainstream, policy shouldn't further that division. We need to think about shoring up trust in public institutions and also the public sphere. So again, a very difficult balance to be had. Speaking specifically and very quickly about social media regulations, I really think what needs to happen among policy makers and public intellectuals, among journalists, et cetera, is to think about social media in the framework of consumer protection. As I mentioned before, we're just now catching up to some of those ramifications, some of which are deeply personal, about how social media is changing our social and political world. It's not the case that social media needs to be a punitive and venomous hellscape. It is possible to make the online space safe and accessible for everyone to expand the public sphere, to improve it, to increase public participation and debate and deliberation at a time when trust and confidence in public institutions -- trust in public institutions is waning, sometimes precipitously, or at least it seems. And so getting that balance just right is just important, and I appreciate conversations to that effect.

Volume 33 (November 29, 2022), page 64 33-064-24

Wayne Mackay, Prof. (Law – Dalhousie University)

Okay. Moderator MacKay here, and it’s over to Professor Penny.

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Jonathon Penny, Prof. (Law – York University)

Great. And yeah, I’d like to again just say it’s been great to be part of this conversation with this excellent panel. Evelyn Dewick is a professor at Stanford, and she has a line that she often uses in writing about content moderation. She says, “Everything is a content moderation problem”. In way, when you’re thinking about misinformation and disinformation, I’m almost the opposite of thinking, that is to say, I think some things are a content moderation problem. When it comes to this particular challenge, disinformation and misinformation is a human behavioural problem. We’ve talked in this panel about coordinated inauthentic behaviour, which is a critical important -- that is certainly a key factor in this problem. Algorithms a key part of this problem. But the reason why we keep seeing these disinformation campaigns and media manipulation and misinformation being shared at scale is that it works. People are fooled. People have psychological biases. Professor Laidlaw nicely lays out in her paper the psychological -- some of the psychological foundations to the disinformation problem, that is, people have a confirmation bias, they look for information that confirmed their own personal world view. They have an identity-affirming bias, looking for information and stories that they’d like to share with others that affirm their own cultural biases and world view. And then on top of that is social psychology, the reality that we can speak as a society and how we want to promote freedom of expression and pluralism and these key broader mainstream values, but there are also these groups, extremist groups, ideological groups that exist on mainstream social media platforms that have an entirely different set of social norms where trolling, harassment, spreading false stories and rumours about people is celebrated and encouraged rather than discouraged the way we would see in broader society. So there’s a human behavioural side to this, and I think if you go back to, you know, the definitions that Professor Laidlaw set out nicely in the beginning, you can see the real challenge if we are to draft specific laws to deal with content because when it comes to distinguishing between disinformation and misinformation, it’s a question of intent, a person knowing is spreading false content as opposed to someone who’s innocently doing so in good faith but are doing so because they like the story and it confirms their prior assumptions about the target of the story, for example. And so you see the challenge from a regulatory and legal perspective of tailoring very specific laws deals with specific content, which is why I would join in Professor Laidlaw’s recommendation. I agree. I like the idea of a more generalized duty, a duty of these platforms and intermediaries to act responsibly. In the UK context, it’s been proposed and described as a duty -- generalized duty of care. Why do I prefer that rather than having more specific laws on this count or that specifically target certain kinds of content, although in some cases that will be necessary as well, because it closes gaps, it can encourage platforms to deal with more than just the bare minimum of lawful or offensive content, maybe dealing with some content that drives certain users from platforms, marginalized groups, visible minorities, women who are disproportionately targeted by abuse online. You can have that kind of a generalized duty that can also get these platforms to deal with misinformation, disinformation as well. A generalized duty also means that we don’t tailor laws. Earlier I talked about more obscure places online where more extremist communities percolate and seed false rumours and stories that later get picked up by broader actors and larger platforms and, in some cases, mainstream media. The rules that you would tailor for those kinds of online contexts would be far different from the legal rules you would tailor for social media platforms. But if you have a more generalized duty that can be defined through -- over time with certain regulations over time, more specific applications over time by courts, you can see how that can be applied both to the large-scale platforms but also to those more obscure places online as well.

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Wayne Mackay, Prof. (Law – Dalhousie University)

We perhaps should move on. We’re going to run out of time, but thank you. Professor Laidlaw?

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Emily Laidlaw, Prof. (Law – University of Calgary)

Thank you, Professor MacKay. You know, I’m sitting here listening to my colleagues, and there are just so many different angles to this. And I think one of the oft-repeated solution, which is -- you know, causes some to roll their eyes but is -- because we all know it to be true, is that it’s a multi-faceted solution. If we really want to target the problems of dis, mis and malinformation, we are looking at, you know, education, we’re looking at underlying social and economic factors. We’re looking at improving laws in the area of social media regulation, which we’ve talked about a lot today, but it also might be in areas such as funding of media. And of course, we have a Bill on the table examining that right now. I have been advocating strongly for a law specifically to address the responsibilities of platforms and social media specifically and it’s this, you know, duty to act responsibly. We need this law, but it’s not a solution to everything. It is -- it would be one piece of the pie. And I think one thing I want to emphasize with the few minutes I have here is that it’s not a perfect solution and it should not be a perfect solution. Working at its best, it’s really about kind of lifting the game, in a sense, to just work in the direction of a healthier ecosystem. My fear is the be careful what you wish for aspect of this, and I think this is something that Vivek and David have been warning about, is the risks of over-regulation and kind of, you know, I guess too much intervention in some of these spaces. So it’s really a question of how do we make this healthier, how do we make sure that everyone is welcome to participate in these spaces and that social media are taking care to think through the impact of the design of their spaces, of the content moderation systems that they do or do not set in place and the impact on users and on society. The well, it’s not going to be a perfect solution to that, if it is operating appropriately there is an error rate, right. But the assessment needs to be what, then, would be the bottom line of the expectation of these companies. One would be to have in place certain content moderation systems. One is algorithmic accountability. And I say that with some hesitation, and that would be to the extent that there is access to be able to review and hold them accountable for their algorithmic impact. And by accountability, I don’t mean that it’s outcome based. Rather, what I would say is can they then explain and justify the approach that they are taking to work towards a healthier ecosystem. And I think I might leave it there and pass it on to my colleagues and just say that, you know, it’s time, I think, as a solution that Canada introduces some sort of regulation here to start addressing some of the underlying issues.

Volume 33 (November 29, 2022), page 69 33-069-19

Wayne Mackay, Prof. (Law – Dalhousie University)

Moderator MacKay, over to Professor Morin.

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David Morin, Prof. (Sciences politiques – Université de Sherbrooke)

Oui, merci. Quel regard poser, avec un peu de recul, sur les évènements d’Ottawa? De mon point de vue, le principal enseignement, dans ma perspective, c’est le fait que notre démocratie est forte et fragile à la fois. Elle est fragile parce que, à partir du moment où une partie de nos concitoyens ne croient plus dans les institutions démocratiques, qu’elles soient politiques, juridiques, médiatiques, scientifiques, alors les règles du jeu changent. Dans un contexte actuel marqué, mes collègues l’ont bien décrit, par des polarisations sociales fortes, je pense que ça nous montre quand même comment on a tendance à prendre les démocraties pour acquises et à sous- estimer finalement leur fragilité. Dans le même temps, je dirais que les démocraties… la démocratie canadienne reste forte, et c’est un peu le message que j’aimerais envoyer aussi aux gens qui ont manifesté à Ottawa, la Commission Rouleau est un puissant exercice démocratique. Dans quel régime autoritaire on verrait 75 témoins défiler devant une Commission pour parler de ce qu’ils ont fait, pour revenir finalement sur une décision politique qui est celle de la mise en place d’une Loi sur les mesures d’urgence? Quelle que soit l’issue finalement de cette Commission, quelles que soient les conclusions qu’elle tire, l’exercice lui-même devrait nous convaincre du fait que nos institutions fonctionnent quand même plutôt bien, de manière transparente, et cetera. Donc, peu importe, en fait, la conclusion, pour moi, c’est l’élément de force ici. Et le deuxième aspect de ma conclusion ici ne se situe plus dans les institutions, elle se situe sur la conversation sociale. Comment est-ce que l’on peut à la fois doter nos institutions démocratiques des outils suffisamment puissants pour se protéger et comment, de l’autre, on peut essayer de renforcer le lien social, de renforcer le dialogue social, et je pense que ça, ça n’appartient plus aux gens qui sont autour de cette table, ça nous appartient tous individuellement — puis probablement que c’est l’humanisme de mon collègue qui me teinte ici quand je dis ça, ça fait ça à force de travailler longtemps avec des gens —, et c’est vraiment l’idée selon laquelle, et je ne me permettrais pas de faire une recommandation à la Commission, mais comment examiner finalement ces évènements-là avec une certaine empathie, une certaine bienveillance pour à la fois réfléchir aux victimes, et puis on a quand même pas tant parlé que ça des victimes, notamment à Ottawa, y’en a quand même eu beaucoup, mais à la fois aussi des griefs qui sont adressés par les gens qui venaient manifester. Donc, je m’excuse, c’est plus… ici, ça relève plus de la philosophie politique que de recommandations concrètes, mais je pense que c’est important de conserver ça en tête parce que cette Commission — encore une fois, je le répète —, pour moi, d’un point de vue de chercheur, d’un point de vue de quelqu’un qui travaille sur les questions de sécurité et de quelqu’un d’humaniste démocratique, est quand même un exercice fascinant et incroyable qui, à mon avis, nourrit aussi ou peut contribuer dans une certaine mesure à renforcer la confiance d’une partie de la population dans nos institutions. Merci.

Volume 33 (November 29, 2022), page 71 33-071-19

Wayne Mackay, Prof. (Law – Dalhousie University)

First of all, before I turn it over to Dr. Venkatesh to get the last word on this part, I just want to comment that I think that’s a really important -- they’re all important points, but your point about the Commission and the hearings themselves are a reaffirmation of democracy in Canada and the fact that this kind of hearing is statutorily imposed in the Emergencies Act itself I think is something we should take some pride in, so I like that. So Professor Venkatesh, last word on this part.

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Vivek Venkatesh, Prof. (Fine Arts – Concordia University)

Merci. Alors, je vais juste prendre le relais et de la part de madame Laidlaw et de la part de monsieur Morin parce que c’est important, je trouve, pour moi, de porter mon chapeau comme pédagogue. S’il y a des suggestions, je dirais, à offrir, pas nécessairement des recommandations, mais des suggestions à offrir à des compagnies, des médias sociaux, à des personnes dans le monde politique qui nous aident à instancier, à réédifier notre démocratie libérale, je pense qu’il faut prôner une forme de pédagogie qui est beaucoup plus sociale que quelque chose qui reste dans les cultures, qui reste dans les écoles, qui reste dans nos institutions postsecondaires. Et par ça, je veux dire qu’on a besoin de promouvoir une réflexivité, une réflexivité qui nous aide à humaniser — pour reprendre les paroles de monsieur Morin —, à humaniser l’autre, et ça, c’est quelque chose qu’on ne voit pas assez souvent dans nos discussions en ligne autant que dans nos discussions face à face. Les discussions deviennent houleuses très, très souvent trop rapidement. Alors, comment est-ce qu’on peut développer des cadres pour poursuivre des discussions où on peut percer nos propres silos, nos propres chambres d’écho, pour qu’on puisse être à l’écoute de l’autre sans nécessairement réagir dans une façon où on commence à critiquer la personne au lieu de critiquer ou de proposer des idées sur le phénomène qui est devant nous? Je vais citer alors peut-être deux personnes qui m’ont beaucoup influencé avec leurs écritures. Il y a la grande politologue Chantal Mouffe, elle est belge d’origine, elle travaille maintenant en Angleterre, mais elle parle surtout d’une façon de développer un pluralisme qui est agoniste et pas nécessairement antagoniste. Comment est-ce qu’on peut être confortable dans la dissension. Ça, c’est quelque chose que j’essaie de développer moi-même, mais aussi avec les politiques qu’on développe autour des médias sociaux et la régulation, mais aussi nos comportements dans les médias sociaux. Et une deuxième chose que je vais mentionner ici, c’est comment est-ce qu’on peut développer une insécurité intellectuelle dans nos conversations, et ça, c’est Eamonn Callan de l’Université Stanford qui propose des cadres pour développer une insécurité intellectuelle pour qu’on puisse se questionner à tout moment, pour qu’on puisse être en dialogue civil en prenant la « francheté » et aussi une charité interprétative, et cette charité, c’est important parce que, dès qu’on est en désaccord avec quelqu’un, on a besoin de donner un peu de temps et pour nous de réfléchir, mais aussi de questionner cette personne pour voir d’où elle vient, c’est quoi les épistémologies, c’est quoi les origines de vos connaissances, comment est-ce que vous, vous avez développé cette opinion. Et avec cette charité interprétative, je pense qu’on peut développer des cadres beaucoup plus pluralistes où on pourrait être à l’écoute, on pourrait être en dissension plutôt que développer des modes de consensus en tous moments. Je vais arrêter là et merci beaucoup pour cette occasion de partager avec vous.

Volume 33 (November 29, 2022), page 73 33-073-28

Wayne Mackay, Prof. (Law – Dalhousie University)

Thank you very much for all of that. Just on a last point, if I could ask one final question, a definition question, big surprise, which is “agonistic” as opposed to “antagonistic”. I think I know what that means and I quite like it, but I wondered if you’d just take a second to -- Professor Venkatesh, just to give me a short statement of what that means.

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Vivek Venkatesh, Prof. (Fine Arts – Concordia University)

I try and read Chantal Mouffe every week as much as possible just to remember to listen before reacting, but I think their conception of agonism revolves around allowing for the possibility that you do not have to arrive at a consensus at every point in time and an agreement because of the dilution of the issue at stake. So an agonism will allow you to be very, very fiercely protective of your opinion, very fiercely protective of the rationale behind your opinion, but also at a certain point in time think, okay, there are different ways in which this particular issue is being proffered or offered to me because of the perspective of the other. That’s how I see it.

Volume 33 (November 29, 2022), page 76 33-076-08

Wayne Mackay, Prof. (Law – Dalhousie University)

Thank you very much. Now, my understanding, and the Commissioner can correct me, we now take a break to solicit whatever questions may be submitted and we’ll return with some questions from Commission counsel, if I understand that correctly, to the panel. And of course, the Commissioner can ask questions at any time. I don’t know if you have any questions at this point, or...?

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Wayne Mackay, Prof. (Law – Dalhousie University)

Thanks. So I think I’m right, we’re adjourned for now.

Volume 33 (November 29, 2022), page 77 33-077-04

Wayne Mackay, Prof. (Law – Dalhousie University)

Thank you.

Volume 33 (November 29, 2022), page 77 33-077-07

Wayne Mackay, Prof. (Law – Dalhousie University)

Welcome back. And just to clarify, I have not been appointed Commission counsel in that short time, but I have been asked to answer the -- to pose the question, so I think that’s maybe a vote of confidence. I hope so, anyway. We have six potential questions, so I will -- and I have a tight time because my understanding is that the translators leave at a certain point here, so we’ll have to be as concise as we can. So with that preamble, and maybe the only other thing I should add; as you probably know some of these questions, at least the core, came from participants, others are added in other ways. So first question and maybe I’ll reverse my order here and go to Professor Venkatesh first on this one. The role of labelling, and labelling in an antagonistic rather than, perhaps, agonistic way in society generally, but maybe particularly in the media; is that a problem and one that can be addressed? And I guess maybe put that a bit more clearly; that the media in particular is tending towards finding conflict, not binding agreement, and is that in the mainstream media a big problem? And maybe one shouldn’t blame it all on social media and those kinds of things. So if I -- if you can get a clear question out of that, and give me a short answer, I’d appreciate that.

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Vivek Venkatesh, Prof. (Fine Arts – Concordia University)

Yeah. Thank you.

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Wayne Mackay, Prof. (Law – Dalhousie University)

And that’s Professor Venkatesh.

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Vivek Venkatesh, Prof. (Fine Arts – Concordia University)

Thank you. Yeah, this is Vivek Venkatesh here. Yeah, this is a good question, and the sign of a good question is the hesitation that I have in responding to it. Where I think I will lead off, and perhaps invite more reflection, is to think carefully about the role of journalism, specifically in promoting pluralistic forms of discussion. And so to what extent are we asking for journalists to create spaces for pluralism; whether those spaces are inhabited by antagonistic forms of discussion versus more agonistic forms I think is a question of education, and also of intent, right, to a certain extent. What do I intend to do here? Do I intend to rile the person speaking on the other side of the issue, or do I intend to think more carefully about, okay, do I -- am I learning something about the issue? Am I going to provide a specific perspective because someone thinks differently about this? And I don’t think that we should be demonizing either form of those, right? I think that antagonism is necessary when injustices, inequalities are consistently meted out on marginalized groups of people. And so part of this comes with, not with looking specifically at one media outlet and saying we need to encourage pluralism in that media outlet. The question is; does the media environment allow for a fair representation of multiple viewpoints. So to what extent are we, in fact, encouraging multiple viewpoints to emanate from various media outlets? The second question, which is related to it is; what tools are available for the public? Whether those tools are pedagogical, whether they are political, whether they are legal; what tools are available for the public to be able to enact some form of fact-checking, some form of figuring out the veracity of what they’re listening to? So part of that responsibility lies in regulations, lies in policies, part of it also lies in our education system. So it’s a very short way of saying the answer is very complicated. But I am thankful, though, to be a citizen of, and to be living in, a country where I know that I can find divergent opinions on a topic. But I also rely on my ability to make certain critical decisions about which opinions am I going to side with, based on the veracity of what’s being presented.

Volume 33 (November 29, 2022), page 78 33-078-15

Wayne Mackay, Prof. (Law – Dalhousie University)

Okay. Thank you very much. Moderator MacKay here again. A follow-up is, again, as briefly as possible, a sort of subset of that; in particular, what’s the role of the mainstream media in labelling, for example, extremist groups, as being right-wing or left-wing, or a particular extremist group? And anyone who wants to volunteer on that, I’ll just -- you can take that one on briefly. David, do you want to -- Mr. Morin?

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David Morin, Prof. (Sciences politiques – Université de Sherbrooke)

Yes. Oui, merci beaucoup. Permettez-moi de faire un bref retour sur la question précédente pour donner un exemple à la Commission. Depuis deux ans en temps de pandémie, on a notamment, par exemple, beaucoup utilisé le terme « complotistes » pour désigner une partie des gens qui appartenaient de contestation des mesures sanitaires; parfois, ce terme-là a été utilisé à bon escient, mais il l’a également été à mauvais escient pour essayer finalement de disqualifier toute contestation des mesures sanitaires. On a vu aussi beaucoup dans les médias utiliser des termes comme — au Québec par exemple — « covidiot », « turistata », « coucou », et cetera, pour là aussi désigner une catégorie de la population. Donc, j’ai deux commentaires à ce sujet-là. Le premier, c’est que les données scientifiques qu’on a montrent que parmi les facteurs d’adhésion au complotisme et aux mouvements extrémistes, il y a aussi l’idée qu’on est stigmatisé, la perception qu’on est discriminé. Donc, en fait, plus on utilise ce type de vocabulaire qui étiquette, qui stigmatise, plus finalement on renforce l’adhésion à une forme de radicalité politique. Le deuxième élément que je voulais dire, c’est que — et là aussi, c’est pour rappeler que les institutions fonctionnent —, le Conseil de presse au Québec a blâmé certains médias pour avoir utilisé ces termes-là. Donc, ça, souvent on en parle assez peu, mais c’est aussi une preuve que le système fonctionne. Je voulais juste ajouter ça sur le deuxième… la seconde question, ça va être très, très bref. Ce dont on s’aperçoit finalement, c’est que de plus en plus les groupes extrémistes utilisent en fait finalement ce qu’on appelle les médias alternatifs. Donc, mes collègues parlaient des réseaux sociaux, et cetera, mais en fait on a de plus en plus la création de médias qui sont alternatifs — je ne citerai pas de nom ici pour faire de publicité à personne — et on les a vus extrêmement présents pendant le convoi à Ottawa. On a vu des journalistes — en fait, d’ailleurs, c’est un problème, qui est un journaliste et qui ne l’est pas, maintenant n’importe qui peut dire qu’il est journaliste —, et donc, avoir effectivement des… ce qu’on appelle de la « réinformation » ou d’autres types d’informations alternatives sur les évènements, et cetera. C’est ceux qui disaient qu’il y avait 100 000 personnes à Ottawa alors que, vous avez lu les rapports de police comme moi, les grosses journées, on parlait plutôt de 10 000. C’est ceux qui effectivement répandaient toutes sortes d’informations. Donc, on voit de plus en plus, en raison de la méfiance vis-à-vis des médias mainstream… d’ailleurs, la méfiance vis-à-vis des médias mainstream, elle ne concerne pas juste des extrémistes, hein, c’est très répandu malheureusement dans la population en général, mais on a vu se constituer effectivement des médias alternatifs, et certains qui sont très, très, très suivis, c’est-à-dire par des centaines de milliers de personnes, sur les réseaux sociaux avec finalement toutes les apparences de vrais médias, des reporters sur le terrain, et cetera, et cetera. Donc, je pense que là aussi, effectivement, il y a une espèce de… pas de guerre, le mot est trop fort, mais en tout cas de concurrence importante de la part de nouveaux médias, et là, la question du financement est évidemment très, très, très, très importante parce que pour que ces médias fonctionnent, ils ont besoin de financement. Voilà. Merci.

Volume 33 (November 29, 2022), page 80 33-080-09

Wayne Mackay, Prof. (Law – Dalhousie University)

Okay. Another question, on a somewhat different slant, is the -- should there be part of the recommendations from this Commission include suggested changes to the Emergencies Act? And I guess, ideally, time and ability to do this, any suggestions would be welcome. So I sort of throw that out; I mean, Emily or John or David, or any number of you, but a number of people, that’s an open question. David, if you want?

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David Morin, Prof. (Sciences politiques – Université de Sherbrooke)

La question la plus glissante de la matinée, n’est-ce pas?

Volume 33 (November 29, 2022), page 82 33-082-23

Wayne Mackay, Prof. (Law – Dalhousie University)

I was I was surprised you took it on but...

Volume 33 (November 29, 2022), page 82 33-082-25

David Morin, Prof. (Sciences politiques – Université de Sherbrooke)

Ben, y’a deux éléments pour moi importants dans ce que je comprends de ce qu’est la Loi sur les mesures d’urgence, mais évidemment vous la maitrisez mieux que moi. La première, comme on le disait tout à l’heure, je pense que toute la notion de réseaux sociaux est finalement pas tellement prise en compte, et je le rappelle, ce que je disais tout à l’heure sur la question de volatilité finalement de la gestion de crise, ça me semble quand même important de voir comment elle peut être mise à jour là-dessus. Le deuxième volet, de ce que je comprends, et là je mets plus mon chapeau de chercheur en sécurité nationale, c’est peut-être de donner une vision un peu plus large de la sécurité nationale que celle qui est comprise dans la Loi sur le SCRS qui elle-même, à mon avis, est assez datée, la Loi sur le SCRS, je sais que c’est un autre débat, mais qui mériterait probablement d’être un petit peu dépoussiérée, si vous voulez mon bien humble avis. Donc, je pense que… et là, on l’a vu, est-ce que la question, par exemple, de la sécurité économique, et on a vu l’importance de certains 11 stratégies au Canada, et cetera,, certaines frontières, et cetera, est-ce qu’on devrait englober ça? Je pense que oui. Je pense qu’il y a la question aussi de la sécurité climatique qui devient un vrai enjeu sur certains éléments de la sécurité nationale, donc je pense qu’on pourrait avoir une vision un peu plus large de ce qu’est la sécurité nationale. Donc, c’est vraiment pour moi les deux éléments importants du point de vue de la Loi elle-même.

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Wayne Mackay, Prof. (Law – Dalhousie University)

Okay. A different -- somewhat different angle and maybe Professor Laidlaw will be a logical one for this one. What's the role of political actors within the definition of misinformation and malinformation and so on, and to what extent should regulation capture those players as well as others?

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Emily Laidlaw, Prof. (Law – University of Calgary)

That's a great question, and there's no easy answer. I would say that any actor can contribute to misinformation and disinformation. So often, if we look at, say, a disinformation campaign, so one that's intentionally launched, they -- let's stay it's state based, so that would be government, that would be political actors in power that have made that decision, but then they will often then target key influencers because they have a large following, and it might be media, or it might be certain political actors, it might be other types of influencers, and then that then spreads from there to individuals who consume it, and maybe believe it, and things go viral. So political actors absolutely can play a key role in spreading both dis and misinformation, and I would also say malinformation in the way that they might label and perpetuate whether it's stereotypes or other forms of hate; right? So they're like anybody else in that system, they just have power and influence.

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Wayne Mackay, Prof. (Law – Dalhousie University)

Another question, and in fact, I was going to send it in you direction, but do a quick -- well, maybe I can ask my question and you can add that and then do the other one? The second question beyond that one is the role of anonymity in social media in terms of explaining the impact and the hurtfulness of that, and from my days in dealing with cyberbullying, I thought of you on that. So, first of all, add on this one I just -- and then address that as quickly as you can.

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Jonathon Penny, Prof. (Law – York University)

For sure. So just ---

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Wayne Mackay, Prof. (Law – Dalhousie University)

And that's Professor Penny.

Volume 33 (November 29, 2022), page 85 33-085-06

Jonathon Penny, Prof. (Law – York University)

Yeah, just very quickly, yeah, Professor Penny speaking. Just very quickly to add to my colleague, Professor Laidlaw's comments here on the role of political actors. Something I mentioned earlier which I think really needs to be fixed in Canada is the glaring hole in our privacy and data protection laws which presently do not cover political parties. We have documented cases both in Canada and abroad where, like, for example, the Cambridge Analytical scandal is a great example of where you have misappropriated personal information, user data that was then used for targeted influence operations, disinformation, misinformation, all of that. And if you have political actors that have access to people's personal information and there's no constraints on it, that's a real problem for the challenge that this Commission needs to be addressing. So that's one. To come to the second point, again, this is a really hard problem, because anonymity really is important to broader democratic discussion; right? There are certain things that one might be more willing to say when those comments are not necessarily tied to one's professional standing, or to their identities, or would not say it because they might risk their job. So anonymity provides some protections to have broader and more robust democratic debates, but there, of course, is a darker side to anonymity on social media platforms. It's often used as cover to allow more abusive behaviour, and that goes -- includes intentional spread of false information. It gets into some of the other more abusive behaviour that we have talked about, harassment, intimate privacy violations, harassment, online abuse, all of that. And so there are different balances that different platforms have come to. Some platforms have real name and sort of a non-anonymity policy. Some, for example, like Twitter, promote anonymity and are fine with it as a policy, though that may change under the new ownership, it's unclear. So I think that if there are going to be laws that would address anonymity, we have to be really careful because while you do have those concerns about abuse, you also don't want to undercut the ability of anonymous users to participate in robust democratic discussion they wouldn't otherwise without that protection of anonymity. Maybe one balance that you see in some platforms where you have internal identity verification but public facing anonymity, and that is going to avoid more bots and trolls that want to hide their actual identity and persona is engaged in more abusive behaviour.

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Wayne Mackay, Prof. (Law – Dalhousie University)

Final question to Professor D'Orazio, very large one, and you can add on that as well. I'll do as I did with Professor Penny, but the question is what kinds of mental health and other wellbeing impacts come from social media and misinformation, malinformation? That's a very large question, so first of all ---

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Dax D’Orazio, Post-Doctoral Fellow (Political Science – Queen’s University)

M'hm.

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Wayne Mackay, Prof. (Law – Dalhousie University)

--- add on the second one and then address that one.

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Dax D’Orazio, Post-Doctoral Fellow (Political Science – Queen’s University)

Okay. I actually want to rewind, if I may, to make some really quick points for the ---

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Wayne Mackay, Prof. (Law – Dalhousie University)

Yeah, and it's Mr. D'Orazio speaking.

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Dax D’Orazio, Post-Doctoral Fellow (Political Science – Queen’s University)

Thank you. Parallel to the rise of social media, we've seen a really intense fragmentation within the field of journalism, and so what that means and why it's consequential for our discussion today is that journalistic information is increasingly tailored for specific audiences rather than a big and a broad audience. And so the consequences of that are that there are declining incentives for journalistic curiosity for intellectual humility, for example. And one of the things that's notable in the contemporary period is that the was often an anxiety or a hesitance to provide a platform or legitimacy to ideas that are quite easily discredited, but it's still important for the public to be able to understand why specific ideas come to the floor, and also why people might attach themselves to a specific movement, even if we might intersubjectively agree that it has some harmful elements attached to it. And so there needs to be an explicit understanding that trying to understand one's motivations, whether that's on an individual basis or a collective basis, is not the same as providing unearned legitimacy. And so the role of the media is really crucial in trying to explain to a broad public why somebody might come to a specific position, even if we might in the aggregate disagree with it. On the point about anonymity, I'd echo what Jonathon mentioned already. It essentially is a double-edged sword. If we want to expand the ambit of public discourse to make it more accessible, to improve democracy, we need to have opportunities for people to blow the whistle, and anonymity is a huge shield for whistleblowers who often have not a great experience in blowing the whistle, be able to do so anonymously. And so if platforms increasingly make requirements that your identity is tethered to your profile or your engagement, for example, there needs to be some commensurate thinking about what the disclosure of wrongdoing can look like that still remains anonymous because that is definitely one of the positive impacts of social media, if we're thinking about the broad contours of democratic participation. To circle back around to the psychological, the sociological effects of social media, we now have a relatively substantial and growing by the day, body of literature that's interdisciplinary, that's showing that perhaps left to its own devices, social media has in a way surreptitiously confirming our own biases, leading to negative personal habits and traits, and essentially allowing individuals and groups to lean into some of their most unsavoury predilections. We're now starting to think about social media engagement as an addiction, for example. We're talking about having a digital detox. And so the conversation that desperately needs to be had is how to salvage and repair some of the positive elements of social media, while thinking comprehensively through some of the negative externalities of engagement online, which we've discussed relatively at length today.

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Wayne Mackay, Prof. (Law – Dalhousie University)

Okay. Well, I'll just say a quick word and then turn it over to the Commissioner to have the final word here. But I thank you all very much for outstanding contribution, and you know, very much for respecting the time and doing things in a very helpful way. And I think maybe I'll ask the Vic over there whether we were agonistic, but think we were pretty close to agonistic if not antagonistic as a group, and I think that's a good thing. So anyway, thank you very much for doing that, and I'll turn it back to the Commissioner to end things off anyway he wishes.

Volume 33 (November 29, 2022), page 89 33-089-04

Wayne Mackay, Prof. (Law – Dalhousie University)

This is your big opportunity.

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Wayne Mackay, Prof. (Law – Dalhousie University)

Bigger than talking to me.

Volume 33 (November 29, 2022), page 90 33-090-05

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Oui.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Merci, beaucoup. Good afternoon, Commissioner. Bonjour tout le monde. I'm Professor Vanessa MacDonnell from the University of Ottawa, Faculty of Law, where I am an Associate Professor and Co-Director of the U Ottawa Public Law Centre. I am moderating this afternoon's roundtable, and we have five experts joining us this afternoon. In person, we have Dr. Ambarish Chandra, Associate Professor of Economics, University of Toronto; Dr. Philip Boyle, Associate Professor in Sociology and Legal Studies, University of Waterloo. Puis en ligne, nous avons Florence Ouellet, économiste junior pour François Delorme Consultation, étudiante en économique, cheminement économie politique, à l’Université de Sherbrooke; François Delorme, professeur adjoint au Département des sciences économiques à l’Université de Sherbrooke et PDG de François Delorme Consultation. We also have Professor Kevin Quigley joining us, who is Scholarly Director of the MacEachen Institute for Public Policy and Governance, and Faculty Member at the School of Public Administration at Dalhousie University. And I hope I've just established my Maritime credentials by pronouncing MacEachen properly. Cette table ronde porte sur les infrastructures essentielles, les corridors commerciaux et la circulation des biens et services essentiels au Canada. The experts will discuss today questions around what critical infrastructure and trade corridors are, their risks and vulnerabilities, who is responsible for managing these risks, and what gaps and tensions arise in the governance of critical infrastructure and trade. So because we have a group that is, you know, partly in person and partly online, I am going to do my best to make sure that we're all actively engaged in the presentation, but I do ask your indulgence if it turns out that, you know, working between these two mediums, media proves a tiny bit challenging. Okay. So we are going to begin this morning by talking a little bit about the basics, some definitional questions, and we're going to start with the question of what critical infrastructure is, and on this question I will begin with your, Professor Boyle.

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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Thank you, and thank you to the Commissioner for this opportunity to be here today. In general, critical infrastructure refers to the physical systems and networks that are essential for the functioning of our social, political, and economic activities of a country. In the federal National Strategy for Critical Infrastructure, critical infrastructure is defined as: "...processes, systems, facilities, technologies, networks, assets and services essential to the health, safety, security or economic well-being of Canadians and the effective functioning of government." The National Strategy further subdivides critical infrastructure into ten sectors: "Energy and utilities; finance; food; transportation; government; information and communication technology; health; water; safety; and manufacturing." Each of these sectors have lead federal departments that are responsible for CI related activities specific to that sector and for liaising with provincial, territorial and private sector partners with shared responsibility for critical infrastructure. Government concern for critical infrastructure really emerged or catalysed since roughly the Year 2000. So events such as the Y2K computer changeover problem, 9/11, the 2003 blackout focussed concern that our collective reliance on complex and large scale systems introduce new vulnerabilities in which localised crises would cascade into widespread or to have widespread detrimental effects for society. It is precisely this concern that led, during the COVID lockdowns, to having certain areas of the workforce declared to be essential, so that basic government and economic functions could continue during those lockdowns. It was also during the -- or it was the same concern that arose during the Rogers telecommunications disruption earlier this year, in which some public services, including police and other emergency services, were disrupted when they relied on Rogers for telecommunication services. And what all these events highlight is that our social, political, and economic functioning of the society depend on large-scale, complex, and in some cases highly tenuous networks, and the people who operate those networks, the human resources that make these networks run, and that these networks, because of their complexity and interconnected nature, are vulnerable to all kinds of failures and disruptions that are difficult to predict, yet can have widespread societal disruptions or consequences.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you, Professor Boyle. So we’re hearing that here are a wide range of sectors that are considered to have critical infrastructure. Going to you, Professor Quigley, can you perhaps elaborate on some of these threats to critical infrastructure that Professor Boyle has identified?

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Kevin Quigley, Prof. (Public Administration – Dalhousie University)

Sure thing. I want to start off by just saying thanks so much for having me at the panel discussion, and also thank you, Professor MacDonnell for your pronunciation of “MacEachen” which is spot on, so you have established your credentials, your Maritime credentials. So threats to critical infrastructure come in different shapes and sizes. The climate change and natural disasters are the ones that get a lot of attention these days. They include floods, wildfires, hurricanes, earthquakes, and ice storms. There can be terrorist plots like the Toronto 18; terrorist attacks like 9/11; labour unrest like the strike action; environmental protest at seaports; cyberattacks like the one we saw in Estonia in 2007 which disabled part of its banking infrastructure; industrial failures, which can be sometimes accidents that result in bridge collapses, train derailments; there are nuclear examples like Chernobyl, for example; water contamination like Walkerton; contamination of food supply, an example like a foot and mouth disease spread. So threat level can be understood in terms of risk, and I note there’s been quite a few references to risk in some of these panels’ discussions, so risk is perhaps a little bit worth unpacking at this point. Risk is generally understood as a function of probability and consequence. So on the consequence side, all of these events are consequential when they occur, judging by dollars lost, property or reputational damage, or body count in the case of death. By taking a step back, some can be more consequential than others, and these consequences are not necessarily viewed or shared equally. On the probability side, some of these events occur more often than others. So when we think of 9/11, it’s likely a once-in-a-lifetime event; we hope. When we think about wildfires and hurricanes, they occur from time to time, and in the same regions from time to time. So I’ll note Halifax, for instance, we’re on a hurricane path so every few years we have a pretty devastating hurricane that blows through the region. Another distinguishing feature is the presence of a malicious actor. When nature disasters occur, we can build up infrastructure to protect ourselves; dykes, for example, to protect against flooding in flood-prone areas. When you have a malicious actor, you have an adaptive agent so protecting airports might result in a malicious actor targeting trains. So when you’re trying to protect yourself against those who would do your harm, you have to take a holistic view, otherwise you’re building half a fence. And as they say, building half a fence is no fence at all. Finally, I’ll just underscore that the importance of access to predictive data is an important consideration when examining risk problems. The number of car accidents is actually very predictable every year; year-in and year-out it’s pretty stable. The number of terrorist attacks or bridge collapses is not. This necessitates a different approach, which I think we’ll explore in more detail during the discussion. I’ll stop there.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you, Professor Quigley. At this time, would any of the panellists like to provide additional remarks on this first theme? Okay. So -- and I believe we’re going to come back to this discussion of risk as we get further into the discussion and talk a bit more about how risk is evaluated, and how that needs to factor into the policy response to these threats to critical infrastructure. D’accord, maintenant on va… j’ai une question pour monsieur Delorme et madame Ouellet sur la question de qu’est-ce que c’est qu’un corridor commercial, et peut-être je commencerai avec monsieur Delorme.

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François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

Est-ce que vous m’entendez?

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Oui, on vous entend maintenant. Merci.

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François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

Parfait. Merci beaucoup. Alors, merci beaucoup de l’invitation à venir témoigner à cette Commission. Je laisserai monsieur Chandra préciser plus en détail qu’est-ce que c’est techniquement un corridor et un corridor commercial. Florence Ouellet et moi, ce que nous voulions faire aujourd’hui en premier lieu, c’est d’établir la question de, un corridor commercial, en quoi est-il vulnérable, en quoi est-ce que la façon dont nous transportons, nous échangeons nos marchandises entre le Canada et les États- Unis, par exemple, peut être qualifiée d’un segment ou d’une façon de transporter les choses de façon vulnérable ou pas. Alors, je vais laisser Florence nous parler un peu de la position du Canada vis-à-vis les États-Unis et vis-à- vis le portrait commercial au niveau des exportations et des importations, et ensuite je continuerai sur comment est-ce que tous ces effets-là ont des impacts sur l’emploi, mais aussi un impact sur les emplois indirects, et je donnerai peut-être un exemple pour illustrer un peu comment est-ce que ça fonctionne. Alors, Florence, peut-être, est-ce que tu peux nous donner un premier état de la situation en ce qui a trait au commerce avec les États-Unis. Merci.

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Florence Ouellet, Économiste junior (Sciences économiques – Université de Sherbrooke)

Oui, certainement. Est-ce que vous m’entendez?

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Florence Ouellet, Économiste junior (Sciences économiques – Université de Sherbrooke)

Oui? Parfait.

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Florence Ouellet, Économiste junior (Sciences économiques – Université de Sherbrooke)

Bonjour, je m’appelle Florence Ouellet. Merci pour l’opportunité de participer à cette table ronde. Alors, pour ce qui est des corridors commerciaux, premièrement, il y a certainement un élément géographique à la notion de corridor commercial parce que ça permet le transport de biens et services entre certaines régions qui sont parfois deux pays distincts. Dans le cas du Canada, certains corridors commerciaux, en particulier entre le Canada et les États-Unis, peuvent être des éléments très névralgiques pour l’économie canadienne. Un exemple, on considère le Canada comme étant une petite économie ouverte parce qu’elle transige une part relativement grande de ce que l’économie canadienne produit dans une année avec l’étranger, et puis la grande majorité de cette production-là est échangée avec les États-Unis. Comme on le mentionne dans le document fourni à la Commission par monsieur Delorme et moi, environ 62 % du commerce total canadien se fait avec les États-Unis. Pour donner un ordre de grandeur, par exemple, le deuxième plus grand partenaire commercial du Canada, selon ce qu’on a trouvé dans la rédaction de ce papier-là, c’est la Chine, puis la proportion tourne plutôt autour de 9 % du commerce international canadien. Ensuite, l’Ontario suit exactement la tendance canadienne dans le sens de l’ouverture de l’économie puis de la dépendance avec les États-Unis pour le commerce international, et puis le commerce de marchandises représente une part encore plus importante du commerce entre les États-Unis et le Canada et l’Ontario, sans surprise puisque, ben, on partage une frontière terrestre avec l’Ontario et le… pas avec l’Ontario, pardon, avec les États-Unis. La grande part de ce commerce-là se fait par transport routier, donc par camions, ce qui explique qu’il y a plusieurs infrastructures critiques, comme l’expliquaient les professeurs Boyle et Quigley, qui font partie des corridors commerciaux et qui peuvent être très vulnérables à certaines perturbations de l’ordre de la manifestation du convoi des camionneurs qui a bloqué le pont Ambassador, par exemple en février dernier. Je vais laisser monsieur Delorme compléter l’explication sur les corridors commerciaux.

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François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

Donc, ce qui est important de comprendre de ce qu’a expliqué Florence, c’est que, évidemment, on l’a entendu avec le sous-ministre des Finances la semaine dernière, Michael Sabia, on l’a tendu avec la ministre Freeland aussi lorsqu’elle a témoigné, le Canada est fortement tributaire du commerce routier par camions qui passent par le pont Ambassador avec les États-Unis. Ça, c’est un premier effet. Le deuxième effet aussi qui est important, c’est que, évidemment, chaque emploi, par exemple, dans le secteur automobile, prenons l’exemple du secteur automobile en Ontario, c’est pas seulement l’emploi dans le secteur manufacturier dans le secteur de l’automobile qui est à risque lorsqu’il y a des perturbations du pont Ambassador ou du trafic routier. Évidemment, ce travailleur-là de l’automobile, il a une maison, il fait son épicerie, il contracte des polices d’assurance, donc cet emploi-là déclenche ou est responsable de plusieurs autres emplois dans l’économie. Certaines études montrent que le multi… ce qu’on appelle un multiplicateur, ça veut dire que cet emploi-là, il est responsable de combien d’autres emplois indirects, ça peut aller jusqu’à huit emplois dans le secteur manufacturier automobile. Donc, c’est la raison pour laquelle, quand il y a des perturbations au niveau du transport routier dans le pont Ambassador, qui est un… comme Florence l’a expliqué, une veine névralgique au niveau du secteur automobile ontarien, eh ben, c’est beaucoup d’autres emplois qui sont périphériques au secteur automobile qui doivent être tenus en compte. C’est pas seulement le secteur automobile qui est à risque, c’est tout ce qui gravite autour du secteur automobile. Et quand on… et je vais terminer là-dessus, quand on fait des calculs pour essayer de voir quels sont le nombre d’emplois qui sont à risque, qui dépendent directement du pont Ambassador, on est arrivé autour de 350 000 emplois qui dépendent du commerce qui transite par le pont Ambassador, donc c’est autour de, en gros, 4,5 % des emplois en Ontario et autour de 2 % des emplois au Canada. Ça peut sembler faible, mais si ces emplois-là sont perdus de façon permanente, si les perturbations s’étaient prolongées, on peut penser que la perte d’emplois temporaires et les couts économiques auraient été beaucoup plus élevés et peut-être que certaines pertes d’emploi auraient été permanentes. Alors, merci beaucoup.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Merci, Monsieur Delorme. Professor Chandra, there are two issues that were raised that I'm hoping you might be ale to elaborate on here a little bit. The first is how trade corridors in Canada are defined by trade networks with the U.S., and then the importance of truck trade was also mentioned, and I'm hoping you might be able to speak to that as well.

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Ambarish Chandra, Prof. (Economics – University of Toronto)

Yeah, thank you, Professor MacDonnell. So, you know, if you could look at most international trade around the world, the two most common modes by which goods are sent to and from or between countries is by air and by sea, but that's actually not true in the case of Canada and the United States. We have -- you know, the vast majority of our goods are actually transported over land, mainly by truck, although they do a slightly smaller extent by pipeline or by rail. And, you know, and not only are Canada and the U.S. each other's largest trading partners, we're also the single biggest trading relationship in the world. So we're quite unusual in that sense that we -- our trade is mainly over land because that's an outlier by world standards, But, yeah, the vast majority of our land-based trade is by truck. Something like 63 percent of all goods that are imported and exported between Canada and the United States travel across the land border by truck. And there are thousands of these trucks that enter Canada every day. There's -- you know, on an average day, there's something like 14,000 trucks enter Canada from the United States. And so when we think about our trade corridors, we really should be envisioning our land- based trade corridors with the United States because that's really most of what we trade. And specifically, when we think about our critical infrastructure, there's roadways, there's highways, but really, most importantly, there are bridges. And the reason for that is that, as we just heard, you know, Ontario is the sort of centre point of trade with the United States. In fact, it's disproportionately the case that Ontario trades with the U.S. Ontario has 38 percent of Canada's population, but it receives 63 percent of incoming trucks, so it really -- you know, by contrast, Quebec has 24 percent of Canada's population but only gets 11 percent of trucks. So trade is disproportionately concentrated in Ontario. And what's striking about Ontario is that the province is entirely separated from the United States by water bodies, by either the Great Lakes or by rivers. So that means as to enter Ontario, you have to cross a water body, which means you have to cross a bridge. And so there's really just four bridges, all of which are in southern Ontario, that carry the vast majority of our trade. And so our critical infrastructure is dependent on these bridges. We can talk more about it I think as the conversation proceeds, but just as a single point, the Ambassador Bridge is easily the most important of these bridges, getting 30 percent of our trade. But, yeah, these four bridges constitute our critical infrastructure.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you. So I'm going to push you a little further into the conversation here, Professor Chandra, because the Ambassador Bridge is critical to the discussion here at the Commission, obviously played an important role in the events that gave rise to this Commission, and we know that the bridge was blocked for a period during the events that took place. So I'm wondering here if you can, you know, tell us a bit more of the backstory, you know, how is it that Canada and Ontario became so dependent on the Ambassador Bridge as a trade corridor?

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Ambarish Chandra, Prof. (Economics – University of Toronto)

So in -- as best as I can tell based on my research, a lot of this has to do with what I would call historical accident and then mass dependence. So the Ambassador Bridge was built almost a century ago. It was completed in 1929. It was built to facilitate trade across the Detroit River between Michigan and Ontario. And once it was completed, it was used heavily by the auto industry because Ford and General Motors and other car manufacturers had plants in both Michigan and Ontario, and so they relied on the bridge extensively, going back to the 1930s and since then. And the trade over the bridge became so important commercially, economically that we saw a lot of investment made to support the bridge. Investments were made both by the private sector as well as by government. So the private sector, you know, the firms that traded invested by building, you know, warehouses, sorting facilities, loading docks in order to, you know, quickly and efficiently transport goods that were coming on and off the bridge. Governments invested by, you know, building highway on ramps and off ramps, there's Ontario 401, Interstate 75 and 96 in the U.S., all of these Interstates point directly at the Ambassador Bridge. Governments also invested by allocating custom's agents, building custom's inspection facilities and so on. And so the more investment that the bridge attracted, the more efficient it became to process the vehicles, and so the more traffic it actually attracted, including by non- auto industry actors. And so we sort of got into this cycle, which you can think of as, you know, virtuous or a vicious cycle by which, you know, it attracted more traffic, so we, you know, threw more infrastructure investment at the bridge and so on. And so now the Ambassador Bridge is, you know, absolutely vital to Canada/U.S. trade getting 30 percent of our trade, and it's not as though it's all the auto industry. If you -- so like I said, Ontario gets about 63 percent of trade with the U.S. You might think that that's dominated by the auto industry, but it's actually not. But by my calculations, even the non-auto industry, so everything other than automobiles, is still heavily concentrated in Ontario, a little bit less, more like 55 percent, but, you know, that just goes to show you how even other industries became reliant on the Ambassador Bridge over time.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Okay. Thank you, Professor Chandra. I'd like to invite those who are on the screen with us to contribute to this discussion. Monsieur Delorme, Madame Ouellet, Professor Quigley, would you like to add anything at this moment about the significance of the Ambassador Bridge as a trade corridor?

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François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

Ben, la seule chose que… ah, je vais laisser Florence intervenir.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Okay. Madame Ouellet?

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Florence Ouellet, Économiste junior (Sciences économiques – Université de Sherbrooke)

Oui. Merci. En fait, si je peux employer une illustration pour faire une somme de ce qui a été dit jusqu’à maintenant, ce que mes collègues avons expliqué jusqu’ici, ça prend vraiment une forme d’entonnoir, si vous voulez, pour placer comme il faut le pont Ambassador dans son contexte puis son importance, en fait, pour l’économie canadienne, donc la dépendance du Canada, et en particulier de l’Ontario, au commerce avec les États-Unis, l’importance de l’industrie manufacturière, le secteur automobile et autres, comme Professeur Chandra vient de l’expliquer, mais il faut aussi se rappeler que cet entonnoir prend ensuite la forme d’un sablier, si je peux me permettre cette image-là, parce qu’ensuite il y a plusieurs répercussions sur… qui sont beaucoup plus vastes et qui deviennent indirectes, mais qui sont néanmoins très importantes, comme l’a expliqué mon collègue monsieur Delorme, avec l’analyse des multiplicateurs pour, par exemple, les emplois générés ou perdus par millions de dollars de production perdus ou ajoutés selon ce qui peut arriver au pays avec le pont Ambassador.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Monsieur Ouellet (sic), est-ce que vous voulez ajouter quelque chose?

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François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

Moi, c’est monsieur Delorme, mais…

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Ah, pardon! Pardon.

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François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

C’est parfait. C’est parfait. Mais simplement pour dire que, quand on compte et on résume en dollars ce que vient d’expliquer de façon très pédagogique madame Ouellet, c’est autour de 150 à 400 millions par jour que s’évaluaient les couts des perturbations sur le pont Ambassador. Donc, on voit que c’est extrêmement important en termes de conséquences économiques du côté canadien. Alors, merci beaucoup, Madame MacDonnell.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Merci. Professor Quigley, I see that your hand is up. Would you like to add something here?

Volume 33 (November 29, 2022), page 106 33-106-18

Kevin Quigley, Prof. (Public Administration – Dalhousie University)

Sure. I’ll just add a couple of terms I think that are useful in terms of thinking about risk problems that can maybe complicate or simplify things for us a little bit. I think one is we often talk about resilience in this field. The term gets used a lot. I feel like it’s probably losing a little bit of traction just because it gets used all the time to describe a whole bunch of different things, and I think it has many, many definitions. But usually, when we talk about resilience, we’re talking about some sort of adaptive capacity or flexibility or some capacity to bounce back after a failure. That’s really important, the capacity to bounce back, either through some sort of technical means or organic means. But I’m not really sure that fully satisfies the discussion today, so there are a couple other terms that I think are worth thinking about. One is the concept of redundancy, so when we’re thinking about managing risk, the question is, do we have redundant systems in place. So we might think about multiple bridges rather than one bridge, so if we’re thinking that -- when we think about redundant systems, it’s the concept of having another system in place that can help us to achieve the same goal if the first system fails. Now, that’s an expensive way to manage risk, but nevertheless, that can be important if you have a critical system in place, so do we have some redundancy in place that can manage to step in, let’s say, if the first system fails. And the second concept is the concept of robustness in our infrastructure. And so when we’re thinking about robustness, and I’m referring particularly to the International Risk Governance Council framework, when they talk about robustness, they’re talking about systems for which there isn’t necessarily redundancy, for which there isn’t necessarily resilience. And therefore, we have to make a special effort to protest that infrastructure or to make that infrastructure strong because if it fails, there will be massive consequences, cascading effects to the failure. So I think this concept of redundancy and robustness can be helpful for us today.

Volume 33 (November 29, 2022), page 106 33-106-21

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Great. I might come back to Professor Chandra to ask you just a bit about how these concepts are relevant in the context of the trucking industry and in relation to the Ambassador Bridge and the situation in Ontario generally.

Volume 33 (November 29, 2022), page 108 33-108-04

Ambarish Chandra, Prof. (Economics – University of Toronto)

Yeah. I think as Professor Quigley said, these are all concepts that I think an efficient system would exhibit or features that a good system would exhibit, but in the case of trucking, I’d say that redundancy is actually something that’s lacking and, again, redundancy in the sense, as Professor Quigley said, of a component that isn’t critical on its own but that can function in the case of failure of another component. But if you think about trucking, cross-border trucking and the fact that we’re so reliant on these bridges in southern Ontario, there’s actually -- if one of these bridges fails and, you know, we saw a six-day failure or a blockade in February of this year, but there could be others kinds of failure. There could be infrastructure failure, there could be earthquakes, natural disasters, terrorist attacks and so on. If one of these bridges fails, the next best alternative, really, isn’t a very good substitute. When the Ambassador Bridge was blockaded, some trucks were diverted to the Bluewater Bridge a couple of hours north, but that’s time consuming, it’s costly, plus there’s -- it’s -- you know, for technical reasons, paperwork has already been filed, it’s not easy to just divert traffic or, for that matter, all the way around Lake Erie to the Peace Bridge between Buffalo and Ontario on the eastern side. By contrast, the infrastructure we have over roadways does exhibit redundancy in a more robust way so, for example, if you think about all of the -- there’s about 107 ports of entry in the land border between Canada and the United States. And for most of the border, if one of these road crossings is blocked or blockaded or just not available, traffic can be diverted fairly easily to nearby border crossing. That’s not true in the case of the bridges, which is another concern because, you know, we’ve concentrated so much traffic into this one small area and there’s really no redundancy built into the system so when something goes wrong, as it did in February, there’s really no good solution.

Volume 33 (November 29, 2022), page 108 33-108-09

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right. Okay. Thank you. So we’re going to move now into what I might call the kind of policy side of our discussion where we’re going to go a little bit deeper on the tools that currently exist to protect Canada’s critical infrastructure, trade corridors and the flow of essential goods and services, but also to sort of examine those existing tools with a critical eye and to ask whether there are governance gaps and challenges that need to be addressed. So I think I’ll start with you, Professor Boyle. Do you want to talk a little bit about the existing tools that are in place?

Volume 33 (November 29, 2022), page 109 33-109-17

Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Yeah, thank you. Maybe the first thing to say is that the Criminal Code makes it an offence to detonate an explosive device in public infrastructure, so that is a crime defined in law. Beyond that, I think it’s fair to say that responsibility and authority for critical infrastructure protection or security or resilience is diffuse, at best. And by that, I mean I’m not aware of a single legislated point of authority or responsibility for critical infrastructure in all its permutations. Rather, it seems that overall responsibility for critical infrastructure is implicit to the statutory responsibilities of the lead federal departments that lead the 10 different infrastructure sectors as well as the residual emergency management responsibilities of the federal government. Most of those responsibilities are shared with provincial and territorial governments as well, so on the government side, responsibility for critical infrastructure is a shared enterprise between federal, provincial and territorial governments. Then we have to acknowledge that most critical infrastructure is privately owned and there’s different numbers that are pegged to this, 80 percent, 85 percent, 90 percent. Fair to say a vast majority of critical infrastructure is privately owned, so that means responsibility for critical infrastructure is shared not only vertically amongst different levels of government, but horizontally with private sector owners and operators of critical infrastructure. So on the question of who’s in charge, then, of critical infrastructure, the answer is, it depends. It depends on the statutory and jurisdictional context in which an accident, a crisis, in which something happens or, to put it roughly, what happened and what was affected will determine who is responsible after the fact. In the early 2000s, the federal government was prompted to take more of a proactive role to try to coordinate these various government and private sector actors towards a common aim of enhancing Canada’s critical infrastructure resilience. Public Safety Canada is currently responsible for that role, and the main policy framework or instrument for making that happen is the National Strategy for Critical Infrastructure, which was adopted in 2009. My understanding is that Public Safety Canada doesn't have any distinct powers to instruct or compel other levels of government or private sector owner/operators to undertake specific CI related obligations within the National Strategy. So one way to -- that his might change would be to empower Public Safety Canada to be able to mandate minimum service requirements or standards that could be tailored for particular sectors, and think this might work in sectors where there's a small number of fairly powerful companies, such as communications or energy. Another limitation of the National Strategy is that as it was formulated in 2009, it does not include Indigenous groups or municipalities as stakeholders as they are defined in the National Strategy. The National Strategy is a policy framework that enables federal, provincial, and territorial governments to work together with the private sector. Indigenous groups and municipalities are not included in that framework. So another broad, you know, high level limitation to our governing strategies for critical infrastructure in Canada is this omission, and one way that could be improved going forward is to include municipalities and Indigenous groups as stakeholders under the National Strategy. And actually, I know this is a known issue for Public Safety Canada, and it was identified in a recent review of the National Strategy for critical infrastructure by Public Safety Canada. So this is already very much on their radar. It's also worth noting some newer developments in the field of critical infrastructure protection that have happened over the last couple of years. In the summer of this year, the Province of Ontario joined Alberta and Manitoba as provinces that have introduced provincial legislation that create punishable offences, punishable by fines or by jail time, having to do with interfering with critical or essential infrastructure. So for the record, this legislation is in Alberta, the Critical Infrastructure Defence Act of 2020; in Manitoba, the Protection of Critical Infrastructure Act, 2001; and in Ontario, the Keeping Ontario Open for Business Act, 2002. The details of these provincial level laws are different, they define critical infrastructure in slightly different ways or they might refer to essential rather than critical infrastructure, but they all make it an offence to interfere, either to enter or to interfere with the operations of critical infrastructure, as they are designated in law. And I think there's reasonable concerns here about the extent to which these provincial level initiatives might encroach on freedoms to assembly and the freedom to protest in Canada, which is an issue that I'd be happy to return to later in our discussion.

Volume 33 (November 29, 2022), page 110 33-110-02

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you, Professor Boyle. So you've introduced two themes here that we're going to take up in a little bit more detail, and the first is the sort of multi-level governance issues or the federalism challenges that are associated with protecting critical infrastructure. And I know that there is a separate discussion, separate panel which is going to be devoted to some of the federalism issues, but we will expand on those a bit today. And the second issue is the public/private divide and the fact that a great deal of critical infrastructure is actually in private hands. And in fact, in the discussion that we were having leading up to this panel, I think one of the things that was suggested in the discussion was that sometimes when it comes to, you know, a single piece of infrastructure there may be aspects of that infrastructure that are public and aspects which are private. So sometimes the sort of ownership of the infrastructure is complicated, or once you layer on the regulation there is sort of a complex picture of public and private. So I'd like to next go to Professor Quigley, and I'm hoping that you might elaborate a little bit on the significance of the fact that so much critical infrastructure is in private hands.

Volume 33 (November 29, 2022), page 113 33-113-11

Kevin Quigley, Prof. (Public Administration – Dalhousie University)

Sure. So I would like to maybe unpack a little bit of the complexity that Professor Boyle has articulated about on the sort of owner/operator relationship of critical infrastructure. So as noted, there's lots of private sector ownership, and the number of 70, 80, 90 percent gets kicked around, as Professor Boyle suggested. I'm not really sure how you would measure that, but the number gets used. It's certainly said frequently that the Federal Government does not much own much of the critical infrastructure. Most of it in government hands is with the province or municipalities, but not actually a lot with the Federal Government. What we can say, however, is that telecoms, power supply, and banking, which are often referred to as the iron triangle of critical infrastructure, for those inside the club, these are largely privately owned. Sometimes infrastructure is publicly owned but privately managed, like airports. In short, the private sector plays a significant role in most of the critical assets on which we rely every day. I think this is actually a very important theme when we return to Professor Boyle's or we recall Professor Boyle's definition of what critical infrastructure is, these are assets we rely on entirely on as a country every day. They are largely in private hands. Public Safety Canada often plays a coordination role between these owners and operators, and absolutely it has taken on -- it took on new interest in the sort of post 9/11 world and the post Y2K phenomenon, as Professor Boyle has mentioned. Public Safety Canada encourages relationship- building and information-sharing, but it is a fairly light touch regulation. There are a number of reasons why private companies, and public too, it's fair to say, but private companies don't wish to disclose information about vulnerabilities in their infrastructure. At a minimum, their share value would be at risk if they disclosed the vulnerabilities that they were carrying. On another point, if you consider the list of 10 critical sectors that Professor Boyle articulated at the outset, they are very different in terms of governance. There's a number of factors that work against a standardised approach. Some are regulated by the Federal Government, where some are regulated by the provincial and municipal government. Some are monopolies, some are oligopolies. Those two in particular have particular concerns from a risk of point of view, we have to make sure they don't fail because they're monopoly service providing a critical service, so there's usually great concern for government to work with and protect those monopolies and oligopolies. Other sectors, though, are highly competitive markets for which individual failures would not be that consequential at a macro level. So I'll just maybe underscore this point about trucking, and may Professor Chandra has a follow-on comment to make about this. But it seems to me when we think about trucking, there are so many service providers. I mean, the bridge itself is a single point of failure, looking at the Ambassador Bridge, about which we have to be concerned, and I know there has been concern about, you know, dropping the number of truckers, et cetera. But nevertheless, there are a number of trucks and some number of trucks could fail and it wouldn't really be that consequential at a macro level, unlike say a bank failing, which would be very, very consequential. So the way we manage the risks in the sector can be quite different because the characteristics of the sector are very, very different. I think I'll also just mention that some failures can impact individual communities. So again, going back to something like Walkerton water contamination, obviously a huge impact on Walkerton. The failure of a particular hospital can have a consequence for a rural community. But again, these are not issues that will necessarily raise questions about national stability, whereas a bank or an airline failing could actually have a much greater impact nationally in terms of national stability. So those are some of the characteristics I would say that make the space very complicated in terms of having some standardised approach. I think we've defaulted into, as I've mentioned, and I think Professor Boyle has noted, a kind of coordination role that Public Safety Canada plays, but perhaps an absence of strong standards. I'll pause there.

Volume 33 (November 29, 2022), page 114 33-114-07

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you, Professor Quigley. I think this is a bit of a theme of these policy discussions that it's complicated, and I think you very usefully started to deconstruct the private sector a bit for us and to point out that, you know, the private sector contains a number of different entities, including, you know, from the large telecom company, for example, to the small trucking company or perhaps even the individual truck driver. I think that takes us back quite naturally, then, to the question -- the specific questions around the Ambassador Bridge. And I’m wondering, Professor Chandra, if you want to talk a bit about perhaps the regulatory challenges that the kind of fractured nature of the trucking industry poses. But then I guess the flip side that Professor Quigley has also identified is that fractured nature of the industry might also decrease the risk that in an emergency there’s going to be a widescale disruption in the industry.

Volume 33 (November 29, 2022), page 117 33-117-03

Ambarish Chandra, Prof. (Economics – University of Toronto)

Yeah, I’m happy to. It’s actually useful to think of some examples, so where Professors Boyle and Quigley mentioned the 70 to 90 percent figure for private infrastructure, private ownership of infrastructure, in some sectors it’s 100 percent. So in pipelines and railroads, both the operators and the infrastructure itself is entirely privately held. And another example that seems small but is actually very important is network cables. So the data that we transmit to and from other countries; basically, intercontinental transmission to Europe and to Asia, all of that happens over undersea network cables. And for the most part, in fact -- well, Canada mostly piggybacks off of United States, in terms of their network of cables, but those cables are entirely privately owned. They’re owned by technology giants; governments don’t own them. And so we’re entirely dependent on the private sector in those cases. But coming back to trucking, actually in the case of trucking, a lot of the infrastructure is not privately owned, it’s publicly owned, whether it’s federal or provincial, but, you know, the roadways and highways and most of the bridges that connect US-Canada are, in fact, publicly owned. The one glaring example is actually the Ambassador Bridge itself. So the biggest bridge by far is actually in private hands, and has been, you know, for decades. In fact, it was -- it’s in family hands, belonging -- owned by a family, a Detroit-based family, and the patriarch of that family, who passed away a couple of years ago, was particularly, I would say, antagonistic towards Canada. Frequently blocking Canada, Canada’s government’s attempts to build rival bridges; taking Canada’s government to court on multiple occasions, and essentially leveraging his position and the influence and the importance of his bridge to demand and extract concessions from the Government of Michigan, the Government of Canada, and so on. So that’s a situation where, you know, private ownership is actually very striking, but that’s not the case for the other bridges. And so that’s one example I’d give about private ownership, and across different sectors, but the other thing that’s striking about trucking is that, again, the actual individual players are also private, so the individual truck drivers, the trucks they own or they drive. There’s about 160,000 truck drivers that ferry goods back and forth between Canada and the US, mostly based in Canada but about a quarter are based in the US. They’re mostly -- some of them are loosely affiliated with large organizations but for the most part, they’re independent contractors; they choose their hours, they choose which jobs to take on. And, you know, for the most part, the system actually works remarkably well; we don’t even have to think about it. But -- and as Professor Quigley mentioned, if -- you know, a failure for a small part of that network, it doesn’t really matter. You know, by contrast, airlines and railroads are very concentrated; there’s just six or seven big commercial players. So they’re also easier to regulate; the government can require them to, you know, have certain standards, which is harder to do in the case of trucking because there’s just so many, they’re so diffuse, and the entire network is so decentralized. It’s more difficult, much more challenging to regulate or require the trucking industry to do certain things. Like I said, it’s often a feature that in the industry actually works very well the vast majority of the time, but sometimes it comes with costs.

Volume 33 (November 29, 2022), page 117 33-117-20

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Okay, thank you. I’m wondering if any of the other panel members would like to offer a comment before I see Madame Ouellet.

Volume 33 (November 29, 2022), page 119 33-119-27

Florence Ouellet, Économiste junior (Sciences économiques – Université de Sherbrooke)

Oui. Merci. En fait, j’amènerais peut-être une petite nuance du point de vue de la résilience puis la robustesse des corridors commerciaux en ce qui a trait au camionnage, comme les professeurs Chandra et Quigley l’expliquaient. Une particularité qu’il faut noter à propos du commerce entre le Canada et les États-Unis, c’est, entre autres, les chaines d’approvisionnement transfrontalières intégrées. Ça, ça veut dire que, par exemple, un produit comme une automobile va traverser en totalité ou en partie plusieurs fois la frontière avant d’être complètement fabriqué. Donc, par exemple, les pièces vont arriver des États- Unis, puis là y’a une partie de la voiture qui va être assemblée au Canada avant de retourner aux États-Unis, et cetera, pour finir par être vendue d’un des deux côtés de la frontière. Donc, oui, ça, les impacts de quelques ou… du camionnage qui est perturbé d’une manière ou d’une autre n’aura pas l’impact immédiat de l’échec ou d’une ruée bancaire (phon.), par exemple, mais ça peut quand même être le premier domino de quelque chose qui finit par être assez significatif. Un exemple de ça, ce serait, par exemple, les États-Unis qui remettent en question la fiabilité du Canada à l’égard de certains accords commerciaux. Par exemple, la ministre Freeland en parlait justement à la Commission récemment dans son témoignage que ça s’est retrouvé sur son bureau même si, par exemple, le pont Ambassador est une propriété privée, de certains partenaires américains qui trouvaient que le Canada était moins fiable qu’ils pensaient avant d’un point de vue commercial. Aussi, peut-être que le camionnage est une partie de la chaine d’approvisionnement entre le Canada puis les États- Unis qui est moins concentré; par contre, il y a certaines industries, comme l’industrie manufacturière, qui sont pourtant très concentrées du point de vue des fournisseurs. Donc ça, ça veut dire que si, par exemple, il y a un fournisseur aux États- Unis qui ne peut plus accomplir son travail pour un partenaire canadien pour x raisons, bien, il n’y a pas vraiment d’alternatives ou les alternatives qu’il y a sont pas fantastiques. Donc, je crois que c’est une nuance à laquelle il faut penser quand on envisage les infrastructures puis les corridors commerciaux comme le pont Ambassasdor et le camionnage.

Volume 33 (November 29, 2022), page 120 33-120-02

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Merci. Monsieur Delorme?

Volume 33 (November 29, 2022), page 121 33-121-16

François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

[…]

Volume 33 (November 29, 2022), page 121 33-121-18

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

On ne vous entend pas. Pardon.

Volume 33 (November 29, 2022), page 121 33-121-19

François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

C’est parfait. Je m’excuse. Le point que vient de faire madame Ouellet est extrêmement important. Je prendrais l’image d’un Lego ou d’une construction en Lego, oui, peut-être qu’on n’a pas un gros morceau de Lego comme un avion ou une banque, mais chaque morceau de Lego dans ce qui a trait au transport ou aux chaines d’approvisionnement intégrées joue un rôle critique pour la solidité de l’ensemble des Lego. Donc, c’est… même si le petit Lego n’est pas important, il est tellement important dans la chaine et dans la séquence de la chaine de production que la défaillance d’un petit morceau pourrait causer des… avoir des conséquences extrêmement importantes même si le morceau comme tel est très petit.

Volume 33 (November 29, 2022), page 121 33-121-21

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Merci. So Professor Boyle has given us a sense of the existing tools that Canada has to protect its critical infrastructure, and we’ve also talked a bit about the challenges that exist or some of the gaps in governance of critical infrastructure and trade corridors. Now we’re going to move to perhaps another tension that exists, or another challenge, which is the protection of critical infrastructure in circumstances or in ways that are also respectful of individual rights and freedoms. And so Professor Boyle, I’m wondering; you touched on the possibility of a tension between robust regulation of critical infrastructure and freedom of expression, freedom of peaceful assembly. So I’m hoping now that maybe you can flesh that out a little bit.

Volume 33 (November 29, 2022), page 122 33-122-06

Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Yeah, thank you. And I’m happy to have this opportunity to weigh in on this question in this venue. My concern at this point is that the events of February of this year, and the subsequent invocation of the Emergencies Act will intensify government concern around the problem of critical infrastructure protection, which is a valid concern. But it will intensify concern in such a way that will lead to enhanced police powers that will pose a threat to freedom of assembly and protest. The protection of critical infrastructure is already part of a justification to strategically suppress protest groups in Canada through pre-emptive intelligence gathering and the strategic incapacitation of protests on the ground. Indeed, this is the default experience of many Indigenous protest groups and environmental movements in Canada who challenge traditional -- or excuse me; who challenge infrastructure projects on traditional Indigenous lands. And I think it’s entirely reasonable to think that the new provincial offences related to interfering with critical infrastructure that I mentioned a few minutes ago, will become part of this toolkit, insofar as they provide a legal authorization to stifle and police protests in the vicinity of designated critical infrastructure, just like how the Public Works Protections Act was used during the G20 in 2010 to effect arrests around the protected Convention Centre in downtown Toronto. Now we heard yesterday at one of the round tables that the freedom of assembly, unlike the freedom of expression - - I hope I'm getting this right -- is intrinsically tied to space and occupying space, by being present in space and taking up space. And I think these provincial laws, if they are broadly construed, might make it practically impossible to occupy space in that very important way in any meaningful or visible way in dense urban centres where multiple protected zones might overlap and where arrests might be authorized by the ambiguous offence of interfering with designated critical infrastructure. So I think there's a very real concern in this moment, in this historical moment that the events of February will lead to the introduction of new or revitalized or enhanced police powers to protect critical infrastructure that will have a dampening effect on freedom of assembly, which as we heard yesterday, is intrinsically tied to taking up space, occupying space. This concern I think is already playing out at the provincial level, and so I'm concerned that the events of February of this year might refocus federal energies and federal attention on protecting critical infrastructure in a way that was much like how the FLQ crisis focussed federal attention and energy on what was known at that time as vital points in Canada. So one of the -- or on the question of the tension between critical infrastructure protection and freedom of assembly, my hope is that one outcome of this Commission might be to amplify to all audiences, all levels of government that new measures to protect critical infrastructure cannot be broad and sweeping, and cannot come at the expense of freedom of assembly and protest in Canada. Thank you.

Volume 33 (November 29, 2022), page 122 33-122-21

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you. So I think you're echoing some of the discussion yesterday in underlining the importance of the right to peaceful assembly in a democratic society and the importance of safeguarding that right. And I think as we discussed yesterday, you know, one of the challenges that exists is, of course, how we ensure robust protection of these rights while also addressing situations where the exercise of those rights runs up against other compelling state objectives or the rights of others. And so thank you for introducing the way that critical infrastructure is related in important ways to this conversation. Professor Quigley, on the theme of it's complicated, I'm wondering if you might weigh in here a little bit to talk about how different types of critical infrastructure might present sort of different challenges in terms of regulating in ways that are protecting of Charter rights and, you know, free expression and the right to peaceful assembly in particular.

Volume 33 (November 29, 2022), page 124 33-124-23

Kevin Quigley, Prof. (Public Administration – Dalhousie University)

Sure, so I think there are a couple of ways I would think about this. One is the category of infrastructure itself and then I'd like to talk separately about how these risks are socially constructed, which is a little maybe closer to my research area. I think that on the question of the category of risk itself, it's worth remembering that government is a category on that list of 10. And so if we were to identify government as a place that had to be protected and couldn't be a target of protest, then that would mean, say, for example, no more protests in front of the Ontario legislature. And I can tell you my whole life I've seen protests in front of the Ontario legislature for a number of different reasons, and I can't imagine us saying that you can't protest there anymore. So there would be one element of almost the absurd. I will say though that there might -- where I think it might get a little trickier, and I've mentioned this to Professor Boyle, if you think about something like nuclear technology that's been a kind of a flashpoint for protests for decades, there may be some genuine concerns about safety and security in protesting around that environment, so there's tension there, I think. Obviously, it's an area where there have been a lot of concerns though about the use of technology, nuclear technology and protests. You also have some disasters and crises. So I think there's -- that tension has to be managed there I think with some of these areas where there could be some serious concerns about safety. But I want to just shift a little and talk about social construction of risk and how threats and events happen in a particular context, that the concerns are amplified and shaped in the moment and will influence the tools that are invoked. So natural disasters are frequently referred to as acts of God. Traditionally, they're seen as nobody's fault, although I think that's changing a bit more with a lot of the climate discussion. But traditionally, they're seen as nobody's fault, and that makes it harder to hold people to account. So, for example, decisions to build infrastructure in flood-prone areas, you know, who made those decisions, when did they make them, why did they make them, and can we hold those people to account afterwards when there's some flooding. That's harder if we think of acts of God as nobody's fault. So where we build infrastructure can put people in harm's way in natural disasters and we need to think about that. In contrast with industrial failures like bridge collapses and train derailments, accountability can be actually rather narrow and ruthless, and I'm talking about the sort of popular media context. It can often neglect the broader context in which risks are managed in industrial settings. So, for example, not just the owner of the infrastructure, but also the inspections that occurred, the training culture that exists, the safety culture that exists, and I would point to Lac-Mégantic as providing some examples on this front that the accountability was rather narrow, and in fact, there were a number of different organizations that shared some responsibility for the rail derailment -- for the train derailment, pardon me, on Lac- Mégantic. So in the particular context of the protests in February, popular media plays an important role in amplifying and also in attenuating risks. So here I'm referring to mainstream media, not the discussion we had earlier today that focussed largely on social media, although mainstream media have social media outlets, of course. So between January and March 2022, according to our research, there have been nearly 600 articles published across the Toronto Star, the National Post and the CBC News on the Freedom Convoy. In contrast, cyber threats normally get very little coverage, partly due to the complexity of the issue, partly because companies don't want to disclose their cyber failures when they occur, and partly due to the absence of a central figure in the narrative. We often don't know who is responsible for cyber attacks. There is no "bad guy" to frame the story. So while these events can be highly consequential, they don't get nearly as much attention and certainly not as much media attention. I'll just put the little caveat, that if you can get a bad guy or some sort of famous celebrity associated with the technology, you get a lot more media coverage. But if it's a hack for which no one knows who's responsible, it gets a lot less attention, but it may be very, very consequential. And then you contrast that with a protest where you had 600 articles in 3 main media outlets in Canada over 1 month. That's a lot of media attention. I'll also point out there's ambiguity in the polling data and public sentiment that occurred in February. A February poll by Angus Reed indicated that 70 percent of Canadians opposed the protesters approach and behaviour. A separate poll reported by the Economist noted that 46 percent of Canadians believed the protesters frustration was legitimate and worthy of some sympathy. So you have this sort of highly fluid popular context where you're not -- people seem to be opposed to the method but sympathetic to the cause, so it's maybe a little bit difficult to interpret where popular opinion landed. This, of course, matters to politicians and policy makers where public opinion stands at a particular moment in time in the middle of these crises. And finally, there’s the capacity -- and I want to go back to this notion of private ownership and highly concentrated power. There’s the capacity of powerful actors in society to shape views. Larger, better funded companies have stronger lobbying capacity, and typically have better access to decision-makers. They are better able to shape and influence the manner in which governments understand the problem. So comparing major banks’ or airlines’ ability to influence decision-makers, to the individual truckers that Professor Chandra referred to, for example, would suggest that there -- that some have better access and influence than others. I note that the last week, that Minister Freeland referred it -- to the Commission, she referred to discussions she had with the CEOs of banks during the protests. This is not unusual in these kinds of events. I’ve studied many of these events before, and it’s not unusual for CEOs to engage with Ministers in different countries, during these crises. I’m not suggesting it’s wrong, but it seems to be the case that powerful interests have ready access to governments during these events. Less organized, less well- funded organizations have less access. I’ll pause there.

Volume 33 (November 29, 2022), page 125 33-125-13

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you, Professor Quigley. I’m now going to bring Madame Ouellet into the conversation to help us understand what is, perhaps, the sort of other side of the coin. So we’ve talked about the importance of robust protection of rights; rights to protest, rights of free expression, and now I’d like to take us to a discussion of the types of public interest that might justify the limitation on rights, and how we might evaluate those public purposes. And where I’m going here, Madame Ouellet, is that earlier you introduced this concept of supply chains, or the kind of -- the complex interrelationship between aspects of the supply chain. And this suggests that a disruption to one part of the supply chain can cause this chain reaction sort of across the supply chain, in terms of disruption and the like. So I’m just wondering if you might be able to talk a little bit about, you know, what those effects can be, where you have a piece of critical infrastructure that is shut down, for example, by a public protest.

Volume 33 (November 29, 2022), page 129 33-129-15

Florence Ouellet, Économiste junior (Sciences économiques – Université de Sherbrooke)

Oui, merci. Donc, d’un côté, oui, certainement, il faut absolument considérer, comme l’expliquaient mes collègues, la liberté d’expression, la liberté d’assemblée, tout ce dont on vient de parler, mais aussi on peut considérer d’un autre côté que ces manifestations-là, comme on a vu en février dernier, peuvent enfreindre ou empiéter sur certains droits et libertés de gens qui, en théorie, n’ont pas grand-chose à voir dans le conflit entre les manifestants et ce contre quoi ils manifestent. Par exemple, dans le cas des chaines d’approvisionnement, on peut penser aux gens qui perdent du travail à cause du blocage de certains corridors commerciaux comme le pont Ambassador. Il faut un moyen de quantifier ça. Comment on arrive à le faire, c’est avec les multiplicateurs. Donc, le nombre d’emplois dans une industrie dépend en partie de la demande pour les produits de cette industrie-là. Par exemple, si l’industrie automobile reçoit un million de dollars de plus de demandes, ben, l’industrie automobile va devoir engager x nombre d’employés de plus ou créer l’équivalent de x emplois à temps plein de plus pour répondre à cette demande-là. Inversement, si, par exemple, l’industrie automobile perd un million de dollars de production parce que, par exemple, les pièces ne peuvent pas se rendre à l’usine où les voitures sont fabriquées, bien, c’est certains emplois ou l’équivalent d’emplois à temps plein qui se retrouvent détruits de façon temporaire ou permanente. Ces gens-là qui perdent temporairement ou de façon permanente leur emploi, c’est complètement hors de leur contrôle, puis ils se retrouvent comme dommage collatéral, en fait, d’un conflit avec lequel en réalité ils n’ont rien à voir. Il serait intéressant, remarquez, de colliger davantage de données sur les impacts réels au niveau des emplois de la manifestation sur le pont Ambassador. Autre chose qu’on peut considérer aussi, c’est l’occupation du centre-ville d’Ottawa par le convoi des camionneurs. Demandez à n’importe qui qui voulait simplement se rendre au travail pendant ces semaines-là et qui avait à passer par le centre-ville d’Ottawa, ils n’ont pas des beaux souvenirs, puis à quelque part, ça enfreint aussi leurs libertés puis leurs droits parce que, en même temps, c’était pas… c’était pas un après-midi que ça se passait puis après les camionneurs s’en allaient, ils sont restés là pendant… pendant quand même longtemps. Donc, y’a les droits et libertés de ces personnes aussi à considérer puis c’est là que ça devient quand même un dilemme là, je vous avoue.

Volume 33 (November 29, 2022), page 130 33-130-06

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Oui. Merci. I mean, I can’t help but just sort of jump in here, in my own capacity as a constitutional law scholar, to say, you know, I think one of the challenges in all of this is identifying whether these -- the disruption of the type that you’re talking about, whether this -- these are sort of economic interests alone that are being disrupted, or whether there’s more to this than just economic considerations. And that’s, of course, relevant because under section 1 of the Charter, under our constitutional analysis, the courts have been very reluctant to conclude that economic considerations alone are sufficient to justify infringements on constitutional rights. So my sense is, you know, one of the challenges for the Commission is how we characterize the nature of the disruption when it comes to the Ambassador Bridge, in particular, where the -- you know, certainly economic interests are very strongly at play. But there may also be considerations that go beyond that. All right. So ---

Volume 33 (November 29, 2022), page 131 33-131-23

Florence Ouellet, Économiste junior (Sciences économiques – Université de Sherbrooke)

Oui ---

Volume 33 (November 29, 2022), page 132 33-132-14

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Oh, pardon.

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Florence Ouellet, Économiste junior (Sciences économiques – Université de Sherbrooke)

Pardon.

Volume 33 (November 29, 2022), page 132 33-132-16

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Oui, oui, s’il vous plait.

Volume 33 (November 29, 2022), page 132 33-132-17

Florence Ouellet, Économiste junior (Sciences économiques – Université de Sherbrooke)

Oui. Florence Ouellet. Je me permettrais même d’ajouter, on se bute, peu importe jusqu’où on pousse cette réflexion-là, on se bute souvent à un dilemme de quels droits et libertés enfreignent les droits et libertés d’autres personnes parce que, si on pense à ce contre quoi le convoi de camionneurs manifestait, c’était, entre autres, l’obligation d’être vaccinés contre la COVID-19 pour passer d’un côté à l’autre de la frontière entre le Canada et les États-Unis. Le fait de ne pas être vacciné a, ce qu’on appelle en économie, des externalités négatives. Ça, ça veut dire qu’il y a des parties des gens à l’extérieur des simples personnes, qui doivent prendre leur propre décision à propos, par exemple, du fait d’être vacciné ou non, qui vont vivre les impacts de cette décision-là malgré eux. Un exemple qu’on connait peut-être mieux d’externalité négative, par exemple, si c’est la fumée secondaire de cigarette, par exemple, si y’a quelqu’un à côté de moi qui fume, puis, ben, moi, j’ai pas le choix de respirer, mais c’est pas moi qui ai pris la décision de respirer de la fumée de cigarette, c’est la personne à côté de moi. Alors, il y a toute la notion de, bon, c’est pas… c’est pas la faute des gens qui vivent au centre-ville d’Ottawa si ils doivent vivre les conséquences du convoi des camionneurs, mais en même temps, ces gens-là manifestent contre quelque chose qui a des externalités, positives ou négatives, quand même significatives aussi, mais, d’un autre côté, on comprend aussi, comme l’expliquait le professeur Quigley, qu’il y a des gens qui pensent que la cause du convoi de camionneurs, on pouvait sympathiser avec aussi. Donc, c’est vraiment des questions très intéressantes qui vaut la peine d’explorer davantage, selon moi.

Volume 33 (November 29, 2022), page 132 33-132-19

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Merci beaucoup. All right. So I have a couple of other questions. What I’d like to do, though, now is I want to make sure we have lots of time to gather the panelists’ recommendations for the Commission on some of the things that we’ve discussed today. And so what I’d like to do now is turn the discussion to, you know, what we need to be thinking about at a policy level going forward. We’ve started some of that discussion, but, you know, in light of the stakes, the economic impacts, but also the relevance to rights, how should we be thinking about critical infrastructure and trade corridors, moving forward? Que devons-nous retenir de cette table ronde jusqu’à présent? Professor Chandra, I will go to you first.

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Ambarish Chandra, Prof. (Economics – University of Toronto)

Sure. I -- one of the things that I write about, so I -- obviously I feel like it's important, is the question of diversifying our trade, and especially the way in which we trade with the United States. I've already mentioned how Ontario is the -- disproportionately attracts truck traffic and trade from the United States. We -- you know, Ontario gets -- punches well above its weight, getting 63 percent of income in trucks, as opposed to just 30 percent of population. It's more than that, though. Virtually every U.S. state, certainly every large U.S. state, the majority of its exports enter Canada at Ontario. That's true even for states like California, to the west, the majority of California's exports to Canada come to Ontario. So we are highly concentrated in a way that's a little concerning, I would think, in Southern Ontario on these bridges in terms of critical infrastructure. And so the -- what this means is that there are certainly goods and merchandise that are ultimately headed for Atlantic Canada or the Prairie provinces, some of which are actually passing through Southern Ontario, being sorted and then routed on to the final destination, which raises the risks that has, you know, obviously increased fuel costs, increased labour costs, increased risk of spoilage of perishable goods enroute, but there's just the risk, you know, concentrating all this risk into a small geographic area. And what that means is if there is catastrophic events or, you know, unforeseen events, whether they're national disasters or human caused interventions, like blockades or terrorist attacks, we're vulnerable to that -- something like that happening in Southern Ontario, which really could be catastrophic for the entire country. So as another example, we actually have a rival to the Ambassador Bridge being built right now, the Gordie Howe Bridge, which is under construction and will be operational hopefully like within a couple of years, but -- and the Gordie Howe Bridge is right next to the Ambassador Bridge. So in some sense, it does take the pressure off our reliance on this one privately owned bridge, but on the other hand it's just yet another bridge, and so in some sense we're just concentrating our risks even further by our reliance on the Gordie Howe Bridge. And so the concerns I would have would be if there are, let's say, weather related or climate related disruptions, you know, we already saw this year the Mississippi River dried up to a large extent and was almost non-navigable for large stretches, which is sort of incomprehensible to people who study trade because we take for granted that goods flow up and down the Mississippi and then they connect at the Great Lakes to roadways and railways across North America. What would happen if the Mississippi was non-navigable at some future date in some future year? Or what would happen if the Great Lakes keep rising, as they have been doing, and forecasts are that they will continue to do year after year? If there's a risk of flooding in Southern Ontario around the Great Lakes area, that's going to impact all of the roadways and highways that connect to these bridges and make us -- leave us especially to disruption. So what I'd like to see, I'm happy to hear what others have to say, but my hope would be that we have some sense of whether Canada is thinking about diversification down the road, so not to say that we're going to completely revamp North American trade, it's just not feasible, but on the margin are there small changes, certain investments, certain government decisions that can push us towards a more diversified trading network that leaves us less vulnerable and less concentrated on the Southern Ontario region? That would be one of the things that I would like to discuss further.

Volume 33 (November 29, 2022), page 134 33-134-11

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Can I just ask you a clarification question to get maybe, you know, just a bit more precise on what this might look like, as a non-expert? So you said the Gordie Howe Bridge is, you know, just another bridge. What are -- like what are the alternatives to more bridges? So when you say at the margins could we diversify, can you maybe just tell us a bit more about what the options are?

Volume 33 (November 29, 2022), page 136 33-136-21

Ambarish Chandra, Prof. (Economics – University of Toronto)

So if we're talking about trade into Ontario, there is no option, you have to cross a bridge to get to Ontario from the United States. Whether it's the Detroit River or the Niagara River or the St. Mary's River, or the St. Claire River, you have to cross a water body. The alternative would be to not rely on bridges, in other words, not rely on Ontario. So there are plenty of land crossings on the U.S./Canada Border, the Champlain/Lacolle crossing comes to mind. It connects Quebec and New York State. It's a land-based crossing. It doesn't need a bridge, it's a roadway. Anytime there's a blockade it's far easier to clear, far cheaper to maintain than a bridge. That bridge or that crossing is well under capacity. In fact, I would argue that Quebec, in particular, is deeply underserved by our current network of truck traffic, and that crossing could be easily handled many more -- especially if expanded and if the right infrastructure is diverted towards it, it could easily be expanded to handle, you know, the same capacity as the Ambassador Bridge. The same would be true at, you know, crossing out west, that Alberta has the Coutts crossing, for example. So I would say our reliance on these bridges that, particularly, cross into Ontario, is the problem.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Got it. Okay, thank you. That's very helpful. Let's continue with the folks who are in the room, and then we'll go to our colleagues online. Professor Boyle?

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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Yeah, thank you. I wanted to maybe get to some of my recommendations by responding to what Mme Ouellet was saying earlier about balancing rights between different groups. And certainly, I understand that that's a part of what the Commission is looking in to. And I don't really have an answer to that when it comes to what ought to be done with respect to critical infrastructure and balancing the right to protest with protecting critical infrastructure. You know, I do want to reiterate, though, that I think the provincial legislations that I've touched on a couple of times in Alberta, Manitoba, and Ontario, are good examples of how not to go about introducing new powers to protect critical infrastructure. I think these three pieces of legislation are problematic in a couple of ways: One, is that as is typical of various policy reports and laws and government, you know, reports on critical infrastructure, critical infrastructure is introduced in a way that -- in the form of lists, right, or it says critical infrastructure is bridges, airports, energy facilities, et cetera, or any other location designated by a provincial authority, an Attorney General, a Department of Justice, something like that. So basically, critical infrastructure can be whatever the government wants it to be in certain circumstances and situations. Then the actual offence is also quite broad, which is interfering with critical infrastructure. That too, I think, could mean many things. I understand the need to perhaps introduce enhanced protective security measures around some, you know, high value targets. In that case, it would be nice if those locations were explicitly defined in law, the actual offences were explicitly defined in law, what can and cannot be done in this area, defined quite narrowly, perhaps publicly posted in the same way that we do with airports, or, as Professor Quigley said earlier, nuclear power stations. Like that I can certainly understanding. But I think these very broad understandings of critical infrastructure and offences related to critical infrastructure make those offences prone to abuse, prone to selective and strategic enforcement in certain situations where it's convenient to invoke them. And so I don't know what should be done, necessarily, but I know that I don't think that's a good way of what ought to be done, yet that's what's happening at the provincial level.

Volume 33 (November 29, 2022), page 137 33-137-28

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you. One of the things that we talked about yesterday is sometimes we tend to think about the right to assemble or the right to peaceful assembly in binary terms. So, you know, either you are fully allowed to protest without condition or it you get sort of shut down, and the importance of thinking about that in-between, which allows, you know, substantial realisation of the right or recognising the existence of compelling interest. And to me, your comments are very much in this vein, you know, the need to be very careful about thinking about how these rights are restricted, and particularly, you know, the importance of thinking carefully about, you know, ex anti, significant ex anti-restrictions on protest, which I think in the context of critical infrastructure is maybe something that's on the table to a degree that it's not in other contexts. And so I think you're raising something that's very helpful that wasn't part, perhaps, of our discussion yesterday.

Volume 33 (November 29, 2022), page 139 33-139-17

Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

I have a couple more things.

Volume 33 (November 29, 2022), page 140 33-140-06

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Please. Yeah.

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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Yeah. I just wanted to go back to some other thoughts about the National Strategy, and particularly with respect to the issue of stakeholders. And again, Public Safety Canada is aware that this is a limitation of the National Strategy. But municipalities and Indigenous groups really need to be brought into that conversation in a more structural way. I think they're consulted on a sort of ad hoc basis, but they're not defined in the strategy as sitting at the table. And they should be in there for different reasons. For municipalities, I think it was Professor Quigley mentioned earlier, that -- so first of all a very small fraction of our critical infrastructure is publicly owned. Very little of that is owned by the federal government. A little bit more of that is owned by provincial governments, but the vast majority of it is owned by municipal governance, and at least that's according to the Federation of Canadian Municipalities, which estimates that about 80 percent of public infrastructure is urban, municipally owned or regulated infrastructure. So they really need to be at the table as well for those discussions. The issue is the opposite for Indigenous groups and it's the lack of infrastructure, so they need to be brought into that conversation as well, which I think touches on the announcement yesterday, and I hope I got the details right, about Justin Trudeau making a police -- Indigenous police forces essential infrastructure in Canada on the horizon. So that is a positive move in that direction.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you. This is really helpful. One of the questions that has come to us through this process is actually exactly what you've just mentioned, which is, you know, should municipalities, should Indigenous governments play a greater role, particularly since they're often the first responders in ---

Volume 33 (November 29, 2022), page 141 33-141-08

Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Yes.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

--- in this kind of situation.

Volume 33 (November 29, 2022), page 141 33-141-15

Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Yeah, yeah.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Great. Okay. So now let's move to the folks online. Professor Quigley, do you want to sort of jump in here? One of the things that we've been discussing today are -- is the challenge and the importance of coordination when it comes to emergency response, and I'm hoping that you might be able to talk a little bit about, you know, can we do better in this area when it comes to coordinating emergency responses where critical infrastructure and trade corridors are impacted.

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Kevin Quigley, Prof. (Public Administration – Dalhousie University)

Sure, I think I can offer a couple comments here. I think I'll preface my comments with just a general observation I feel I -- I feel about this field generally and I've felt for a long time. And one is this bias - - I know there's a question about, you know, should we have a list of critical infrastructure, and I think that the -- I always -- I'm always a little sort of suspicious of that sort of approach that somehow critical infrastructure can be put on a list on a spreadsheet and we can say those are the critical assets and we have to protect them. And I think it's because of this earlier point that I made that there's this sort of contextual piece that goes along with these crises and disasters. They happen in particular ways, in particular moments, they're amplified certain ways, there's a certain amount of hysteria that obviously goes along with -- often goes along with it. And so whoever is responsible has to deal with all of those circumstances in that particular moment in time, and then often has to respond in a way that seems reasonable, which is quite challenging. And so critical infrastructure, you know, we talk about the Ambassador Bridge, clearly, this is a piece of very significant infrastructure for the country. There are other times though when you see, like, these sort of small bridges to a village in Newfoundland, or some, you know, single road going to a territory that is there for delivering food supply to those communities and for those communities that is critical infrastructure, and they depend on it. So it may seem small in sort of mezzo macro level terms, but it's important for those particular communities. And I think it's worth noting as well that a bit along the lines of Professor Boyle's comment around Indigenous communities, you know, rural communities often can be quite vulnerable because they have very little infrastructure, but what they have they're depending on as a sort of lifeline for the community. It's also the case in small ---

Volume 33 (November 29, 2022), page 141 33-141-27

Kevin Quigley, Prof. (Public Administration – Dalhousie University)

Sure, by all means. It's because my comments aren't scripted in that case, so I just get all kind of worked up when I start to -- I shouldn’t have prefaced it, you see. I shouldn't have prefaced my comments. So I think, anyway, small communities I think have little infrastructure and what they have they depend on. And, you know, even more so the case with telecoms failures and whatnot where you've got small communities that when telecoms fail, they can't call ambulances and things like that during crises. So my point simply is that to establish a list and say this is the list of critical infrastructure I think would be challenging, bureaucratically appealing, administratively appealing, but hard to actually put into action, plus, you'd have to determine how you're going to do it. What's on the list? What's off the list? Who's responsible for it? Who's responsible for the list because you have to actually keep it up to date? Who's managing that asset? What does it mean to be on the list? What are the standards that you have to actually achieve if you're on the list, if you're considered part of critical infrastructure? Those are interesting questions, I have to say, and they're, as we've said before complicated. So could we actually establish those standards. The second point I'll make as a preface is just, again to reiterate, that the assets are largely in private sector hands. So we talk about stakeholders, which really, to me, masks the concept of private interest and interest groups, which we use a lot less frequently, but political scientists still like to use this term about interest groups, their interests. And insofar as those private interests can align with public good, then it can provide good infrastructure and managed efficiently with some stability. I think a lot of the assets are in private hands because there's an optimism that they are more creative, innovative and efficient, and that can very well be the case. But there are risks that go along with such a large private interest in our national assets and upon which we rely every day. And as Professor Chandra mentioned earlier, that in some cases were publicly funded in the first instance and then maybe privatized later. So, on that note, I'll also just mention that as Professor Boyle has said, that Public Safety Canada is engaged in a process of reviewing the national strategy. I encourage them to continue along that path. And I think that one of the issues that continues to challenge us in the way we address the risks associated with critical infrastructure is the fact that you have so many different interests, complex governance settings, but particularly private interests, and the coordination function or the regulation function seems to be rather light touch on that in the whose managing the infrastructure, what standards should they be achieving, what degree of transparency should we expect if you are managing critical infrastructure, and who is accountable and to whom are you accountable. I think those are all important questions that have really existed for quite some time that I think we need to continue to pursue in the management of critical infrastructure. I'll pause on that point.

Volume 33 (November 29, 2022), page 143 33-143-08

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you, Professor Quigley. I'm going to go to Mme. Ouellet and M. Delome in a moment. There are a couple of things though that arise from your comments, Professor Quigley, that I think are perhaps worth pursuing just briefly with the rest of the panel. So one is, I just want to note that you've introduced another dynamic here with your comments. We had talked about the sort of multilevel governance challenges. We had talked about the public/private challenges, but you've also now introduced rural and urban as another dynamic for us to keep in mind in thinking about critical infrastructure, and I just want to note that as important. The other piece here is, you know, this question of do we need more central coordination when it comes to the protection of critical infrastructure. Do we need the equivalent of a FEMA in the United States? You know, to what extent should we be thinking about something like that? And one of the questions that came through to us that I'd like to put to the panel as a whole now is in thinking about the ways that we protect critical infrastructure, you know, how in your opinion do we balance the use of kind of emergency planning tools with other regulatory tools, right, more general regulatory tools? So to what extent do we want to treat critical infrastructure as being related to emergency planning, and to what extent do we want to think about it as being, you know, something that we need to think about regulating in perhaps a more proactive way, in a way that focusses on the strength of our infrastructure. Monsieur Delorme, est-ce que vous aimeriez offrir un commentaire sur ce sujet-là peut-être?

Volume 33 (November 29, 2022), page 145 33-145-08

François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

Non, c’était sur votre partie sur les recommandations, Madame MacDonnell. Alors…

Volume 33 (November 29, 2022), page 146 33-146-10

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

D’accord. Alors, peut- être…

Volume 33 (November 29, 2022), page 146 33-146-12

François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

…je peux attendre avant d’intervenir, oui.

Volume 33 (November 29, 2022), page 146 33-146-14

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

OK. Parfait. Professor Quigley, do you want to come in on this point?

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Kevin Quigley, Prof. (Public Administration – Dalhousie University)

Sure, I'll offer some observations. I think on the question of do we need a FEMA, it has been commented before that the Canadian -- so with FEMA, of course, you have an agency that is responsible for coordinating federal government actions during an emergency, and Canada doesn't have the equivalent. In some respects, Public Safety Canada emerged in the post-9/11 environment as a response to Homeland Security. Homeland Security needed a department to work with, so a number of organizations were merged. In the same way that a number of organizations were merged in the U.S. to create Homeland Security, a number were merged here to create Public Safety Canada. But there isn't the equivalent of a FEMA here, and it has been commented before that in the case of certain crises, there's so much -- there's so many organizations involved. And if we're only talking about large-scale devastation, like, we're talking about a west coast earthquake sort of thing, you would be bringing in so many supplies from so many different regions, and so it does beg the question does it require some coordination, because in an emergency, you need certain -- like, you know, if you think about Walmart, for instance, Walmart's considered to be quite excellent at supply chain management and responding during crises, but they'd probably need some direction in terms of what supplies can they bring. And so there's a coordination function in an emergency. And so I think it does raise an interesting question, and that could be -- I think that can be investigated. I think on the question of emergency and response versus, you know, ongoing maintenance of infrastructure, for me in some respects, like, they are separate but they're also the same; right? I think when I listened to Professor Chandra talk about just the huge significant dependence that we have on the Ambassador Bridge, I think he makes the compelling case that this is significant vulnerability for our country, and if that infrastructure fails, you know, what would the consequences be. So, you know, part of it is about emergency response maybe in a crisis, but I think a more thoughtful response is to say, you know, to what extent does this represent a significant risk, and, you know, in some -- when I think about sort of the normal accidents literature, Charles Perrault, I mean, he would say you have to say to yourself the system is going to fail, and then ask yourself what does that look like, and can you live with it. And now I would say that the way we've talked about the failure of the Ambassador Bridge the answer is no. So what are we going to do about that? And we can focus on the threat side, but I think that only gets you so far, to a certain extent. And I think one of the themes that has come up repeatedly in our discussions today is the governance side. To what extent have we got to modify the way we're managing these assets, so that we don't have these single points of failure that can have these massive cascading effects. And I think this is kind of a -- this event in itself has brought this into focus, although I'm sure, you know, many scholars, Professor Chandra among them, is aware of that. And so now we need to do something about it and there's an opportunity here to start addressing some of these risks.

Volume 33 (November 29, 2022), page 146 33-146-19

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you.

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Kevin Quigley, Prof. (Public Administration – Dalhousie University)

I'll pause there, yeah.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you. Professor Chandra, would you like to jump in here?

Volume 33 (November 29, 2022), page 148 33-148-20

Ambarish Chandra, Prof. (Economics – University of Toronto)

It's just very interesting to hear all these points of view, and I agree with a lot of -- almost everything that's being said. I think I certainly do think that governments should be aware of risks on an ongoing basis, especially because the potential negative fallouts are more than just -- you know, so Mme. Ouellet mentioned the effect on jobs and so on, which is absolutely important, but just on a day-to-day basis, our food supply in Canada is so heavily dependent on trade and incoming trucks from the United States, especially at certain times of the year. So in February, we're getting almost all of our fresh food from the U.S., and we really can't afford to have that be interrupted. It's a matter of, you know, of feeding people, which is even more critical I would say than the jobs. And there's other critical supplies that come in every day, medical supplies, vaccines, they all, you know, come in by truck. So I guess my hope or question would be do we have a plan for inevitable failure going forward? And some of these failures we can even start to foresee are just becoming more common as driven by climate risks. You know, I mentioned the Mississippi becoming almost non-navigable this year. Well, we saw the same thing in Europe. The Rhine River was briefly non-navigable as well, which was also a big, you know, trade corridor within Europe. We saw the Swiss Canal blockade for weeks in last year. So I think governments around the world are scrambling to on the fly come up with solutions when things go wrong, but things will keep going wrong and maybe at an increasing frequency. So, yeah, my questions would be would -- does the federal government have a plan for flooding in the Ontario region, or drying up of the Mississippi, or wildfires that cut off access between B.C. and Washington just becoming increasingly common. And so I would say these are both critical threats as well as ongoing threats that we need to be aware of.

Volume 33 (November 29, 2022), page 148 33-148-22

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you. Just continuing then with the folks in the room, Professor Boyle, would you like to add something here?

Volume 33 (November 29, 2022), page 149 33-149-28

Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Yeah, on the question of do we need a more centralized approach, it's -- you know, I think critical infrastructure protection in Canada, you know, already is conceptualized largely within the framework of emergency preparedness and emergency management, and that whole field is already in a federal system shared between the federal and provincial governments. And then, of course, all the responsibilities that different federal departments have within their respective statutory responsibilities. So it's hard to imagine how Public Safety Canada could adopt much more of a different role than what it already is being a steering, coordinating body more than anything else. Although I did say earlier it might be useful for Public Safety Canada to be able to work with those lead federal departments to have tailored or more developed, more enhanced systems and practices for enhancing resilience within those specific fields. But I don't think an overall one-size-fits-all approach would work. The other thing I wanted to touch on is the idea of lists. So Professor Quigley mentioned that the idea of a list of critical infrastructure is bureaucratically -- might be bureaucratically attractive. And I believe it was in one of the more recent critical infrastructure action plans put forward by Public Safety Canada that mentioned for the first time having a list of national critical infrastructure. And then in the subsequent action plan, I don't think that activity appeared again. So it looked like there was some maybe interest in developing a list, but then it got dropped somewhere down the line. I just want to say that, you know, in my own research, I've looked into old civil defence planning activities pertaining to what used to be called vital points. And the federal government for the better part of 60 years did maintain lists of facilities that it thought were important for Canada to go to war. This was -- all took place underneath the War Measures Act. And everything that Professor Quigley said about the difficulties of updating lists, maintaining lists, defining the formulas that would determine what was a vital facility versus another facility that was not, what did it mean to be on the list, all that is true. What I would add to that is that, you know, having looked at 60 years of list making through the Cold War, it's also true that all of those lists were tailored to the last war, right, not what was useful going forward. So during much of the '50s, quite a points list was concerned with industrial war, and then it was nuclear war. And then during the FLQ crisis, it was found that those lists made for nuclear war were next to useless for the October crisis at that time, so a new list was made. So I think it's bureaucratically attractive, as Professor Quigley said, but logistically very difficult to arrive at a meaningful list of what critical infrastructure might be, except for very smallest and most high value locations and facilities and things like that. Thank you.

Volume 33 (November 29, 2022), page 150 33-150-03

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you, Professor Boyle. Et merci, Madame Ouellet et Monsieur Delorme pour votre patience. J’aimerais maintenant vous inviter de — peut- être on pourrait commencer avec monsieur Delorme — offrir des commentaires, des suggestions pour le commissaire au sujet de qu’est-ce qu’on devrait retenir de cette discussion en bref.

Volume 33 (November 29, 2022), page 151 33-151-27

François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

Ben, c’est sûr, moi, c’est pas mon… ce n’est pas notre zone d’expertise à Florence Ouellet et moi, mais le mémoire que nous avons préparé pour la Commission n’amène pas de recommandations comme telles, notre exercice est d’essayer d’évaluer surtout, on l’a fait pour le centre-ville d’Ottawa, mais pour le pont Ambassador, combien d’emplois étaient à risque, et au meilleur de notre connaissance, on est arrivé au chiffre de… autour de 350 000 emplois en Ontario. Est-ce que c’est beaucoup? Est-ce que ce n’est pas beaucoup? C’est pas à moi de juger. Et on a fait la même chose pour… en termes d’activité économique. Est-ce que, par exemple, 275 millions, on est arrivé autour de 150 à 400 millions par jour. Est-ce que c’est beaucoup? Est-ce que c’est pas beaucoup? Si je dis que c’est autour de 0,1 % du PIB, ben, c’est sûr que ça apparait comme négligeable, mais si… le point que j’essaie de mentionner ici, c’est si la perturbation ou le blocus avait perduré et qu’on était arrivé à un mois et que je vous dis que les pertes en termes d’activité économique eut été 8,5 milliards par mois, là, on arrive à quelque chose qui est plus important. Et donc je pense que le point, on ne peut pas, de notre… de nos travaux, de notre analyse arriver à est-ce que c’est trop, est-ce que c’est pas assez. Ce qu’il faut considérer avec l’étude que l’on a faite sur les impacts économiques, c’est : qu’est-ce qui se serait passé, est-ce que les impacts deviennent importants à mesure que le nombre de jours passe et que les mois… pas les mois, mais les jours deviennent des semaines et que des semaines deviennent un mois. Alors, c’est dans cette optique-là, je pense, que notre étude doit être prise en ce qui a trait à la vulnérabilité et de l’importance des impacts économiques. C’est : est-ce que le temporaire risquait de devenir permanent. Alors, je sais pas si madame Ouellet veut ajouter quelque chose?

Volume 33 (November 29, 2022), page 152 33-152-06

Florence Ouellet, Économiste junior (Sciences économiques – Université de Sherbrooke)

Je pense que monsieur Delorme a mentionné pas mal tout ce qui était pertinent. Par contre, j’ajouterais peut-être que notre mémoire a malgré tout une certaine ligne directrice qui est la vulnérabilité de l’économie canadienne et ontarienne et celle des emplois également envers certaines infrastructures critiques, comme le pont Ambassador. Notre rapport mentionne aussi brièvement la question de l’approvisionnement en nourriture que le professeur Chandra soulignait — c’était très pertinent d’ailleurs, merci —, puis donc, notre rapport, même s’il ne mentionne pas explicitement de recommandations, irait probablement dans le sens des commentaires qui ont été faits jusqu’ici autour de la table ronde, donc… Merci.

Volume 33 (November 29, 2022), page 153 33-153-12

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Merci beaucoup. Now, Professor Quigley, is that an old hand, as they say, or did you wish to come in and offer something? You’re muted. I was hoping I was going to get to say that.

Volume 33 (November 29, 2022), page 153 33-153-26

Kevin Quigley, Prof. (Public Administration – Dalhousie University)

It’s never a meeting until somebody’s muted. Anyway, I almost made it two hours without that mistake. It’s a comment, probably an extension of Professor Boyle’s comments about lists, if that’s useful. Or have we passed that?

Volume 33 (November 29, 2022), page 154 33-154-03

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Yes. No, I think, you know, we’re getting our final points on the table, and you should feel free to speak to that issue.

Volume 33 (November 29, 2022), page 154 33-154-09

Kevin Quigley, Prof. (Public Administration – Dalhousie University)

Okay. Well, in that case I’m going to make two separate points, but one is about the issue of -- the issue of the list. I think that one thing that -- so Professor Boyle made reference to Y2K, which is a case study near and dear to my heart, I have to say. And one of the things they did in the UK, that I thought was very interesting, in the run-up to Y2K was they grouped a lot of the critical -- they identified 26 critical sectors, and they were all subject to a sort of standard audit. And each of those sectors, the audit for the sector was published, and they were given a red mark, which meant you weren’t ready for Y2K; a yellow, which meant you were getting there but not quite ready; or blue -- not green, blue; nobody got green when it came to Y2K because nobody was ever 100 percent sure that it wasn’t going to go off without a hitch, but you got blue if it meant you did the best you could and we think you’re ready. So the idea was that no -- there was no disclosure on any particular company; it was the sector as a whole that got the evaluation, so they were kind of all in it together. Now, there’s a whole bunch of reasons why that doesn’t necessarily work out. A lot of the stuff in critical infrastructure is voluntary by nature, by the way. So these private companies participate if they want to. If it gets a little bit too tough, they might actually defect. So that’s always a risk, that they won’t actually participate in these strict audit functions, so the audit function might be a little bit too easy or a little bit too light. But, nevertheless, it does introduce some level of accountability at the sector level. It creates an opportunity to establish, you know, what are the standards we should be looking for in this sector, and then some outward reporting of how those sectors are doing. So -- and then there’s a collective responsibility that the sector has to be ready for some improvement. So I just put that in as one example of an exercise that happened when a crisis was occurring at a deadline, and it was meaningful, and I think those critical infrastructure owners and operators wanted to tell the world they were ready, so they were interested to buy into some process. There were some, as I say, weaknesses and flaws, but I felt it was a more ambitious approach than I’ve probably seen since then of actually trying to pull the owners-operators together and say, “There are going to be some standards, and we want to hold you to them.” I will say, also, that some of these pre-event evaluations aren’t always super strong, and I know there was some evaluation of which country was best ready for a pandemic, and the US and the UK finished number one and number two. And I think after the pandemic occurred, people questioned whether or not those pre-event evaluations were really all that rigorous. So sometimes before the crisis, it’s not quite the same as during the crisis. But it’s something, and I thought it was an interesting mechanism. Let me just make one separate point that I didn’t make earlier, which I think is important for the discussion, it’s the notion of a precautionary principle, because we haven’t actually mentioned that, so I just want to introduce this to the lexicon. In the risk community, I think generally speaking, people are -- it’s a concept that largely emerged through environmental studies and a feeling of trying to protect the environment. The precautionary principle has since been criticized quite a bit for its absence of a standard definition, absence of standards, absence of accountability. However, there is some sympathy when you’re dealing with a risk that is highly catastrophic, potentially catastrophic, and irreversible, that you would adopt a precautionary approach. The term “Precaution” was used a lot during the pandemic, and I think there was some precautionary rationales that underpinned some of the actions in this particular exercise we’re talking about. So I just wanted to put that term, “Precaution” in play as well as something that is criticized in the risk community, I think rightly so for its vagueness, and who pays for precautionary approaches; not always clear who pays. But that there's some sympathy when you’re dealing with a potentially catastrophic, irreversible risk. So I’ll just pause on those points, but I would just offer them.

Volume 33 (November 29, 2022), page 154 33-154-12

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you, Professor Quigley. So we have about five minutes left, and so I might take us to one final question -- possibly two if it goes quickly -- that came to us through a Commission Counsel. And this one deals -- well, both questions -- we’ll see if we get to them -- deal with the mechanics of critical infrastructure protection. So the first question is that critical infrastructure is located where people live, work, play, and study. And, you know, what does that mean for how critical infrastructure should be protected so as to ensure the interests and needs of the local communities or the host communities in which they’re located. So this isn’t a question that you were prepared for, but I think, you know, it’s possibly an interesting one for us to explore, and I’m wondering if there is anyone who would like to kind of talk about this idea of host communities; communities that are home to specific types of critical infrastructure and their -- what their stakes or interests are in regulation.

Volume 33 (November 29, 2022), page 157 33-157-10

Florence Ouellet, Économiste junior (Sciences économiques – Université de Sherbrooke)

Je suis Florence Ouellet.

Volume 33 (November 29, 2022), page 158 33-158-03

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Oui.

Volume 33 (November 29, 2022), page 158 33-158-04

Florence Ouellet, Économiste junior (Sciences économiques – Université de Sherbrooke)

Je peux offrir un élément de perspective peut-être. Dans le cas du pont Ambassador, par exemple, c’est le premier auquel je pense parce que notre rapport à monsieur Delorme et moi était concentré sur cet élément d’infrastructure critique là en particulier, j’ai aucun doute que la communauté de la ville de Windsor, qui est l’extrémité canadienne du pont Ambassador, va trouver qu’elle a intérêt probablement à une certaine règlementation ou à explorer certains projets de politique en ce qui concerne le pont Ambassador parce qu’il y a beaucoup d’emplois, entre autres, dans cette communauté-là qui sont très nombreux et reliés aux industries qui dépendent en grande partie du pont Ambassador, comme l’industrie manufacturière et le secteur automobile. Donc, c’est un exemple probant que je…auquel je pense.

Volume 33 (November 29, 2022), page 158 33-158-05

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Merci beaucoup. Would anyone like to add something here? Professor Quigley?

Volume 33 (November 29, 2022), page 158 33-158-19

Kevin Quigley, Prof. (Public Administration – Dalhousie University)

Maybe just to note that if I think about Halifax, for example, I mean, as a port city, I think there are obligations for social licence on behalf of those who move their goods through cities like Halifax, and some of the ports, particularly in the US, have been points for protest and -- because of the, you know, differing environmental standards, environmental concerns about the way some of the infrastructure affects the water and the community. So I think there’s an obligation on our operators to be mindful of that, and I think that some of them are because if they lose their social licence they won’t be able to move their goods through those ports.

Volume 33 (November 29, 2022), page 158 33-158-22

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right. So that maybe this -- on this question, you know, it sort of cuts both ways. On the one hand, those local communities need the infrastructure, but they also have interests that -- in those communities that may well give rise to protests, or strategic interruptions of that infrastructure.

Volume 33 (November 29, 2022), page 159 33-159-06

Kevin Quigley, Prof. (Public Administration – Dalhousie University)

That’s right. And I think there’s some other infrastructure; I’m thinking about nuclear power in Deep River, I think, for example. It’s -- you know, I think it’s the highest concentration of PhDs in the country because they’re good at doing nuclear. So those things have to exist somewhere, and you want to make sure qualified people are -- manage them. And there’re benefits for the community in doing so, but risks.

Volume 33 (November 29, 2022), page 159 33-159-12

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you. Okay. So I think we’ve come to the end. I won’t attempt to squeeze another question. I think we’re better to cut -- sort of close on time. I can turn things over to the Commissioner to close the session?

Volume 33 (November 29, 2022), page 159 33-159-20

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Yes.

Volume 33 (November 29, 2022), page 159 33-159-28

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right.

Volume 33 (November 29, 2022), page 160 33-160-02

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Would you like to say something before I begin, or we can -- okay. Well, welcome back everyone. Thank you.

Volume 33 (November 29, 2022), page 160 33-160-17

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

It’s true.

Volume 33 (November 29, 2022), page 160 33-160-21

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Monsieur Delorme? He might be there without his camera on.

Volume 33 (November 29, 2022), page 160 33-160-23

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Le voilà. Rebienvenue. So we have a series of questions that I’m hoping I can take you through in the next 30 minutes or so. And I think we’ll begin with the concept that perhaps hasn’t really been discussed today, and perhaps doesn’t even exist. And so the question for you is, you know, should this be something that we’re conceptualizing; and that is, international trade corridors. So we’ve talked generally about trade corridors today; we’ve also talked about the Ambassador Bridge, but we perhaps haven’t surfaced sufficiently the fact that there is an international dimension and that many of the trade corridors we’ve been talking about today are corridors that involve, not just multiple Canadian jurisdictions, but the United States. And so my understanding is, to date, in the policy and in the sort of legal thinking there isn’t this notion of an international trade corridor, which would be a concept that perhaps has distinctive characteristics; that differentiate it from trade corridors that are fully within the borders of Canada. And so I’d like to invite the panellists. Si vous avez des commentaires sur ce sujet, est- ce qu’on devrait commencer à penser à ce concept-là de façon plus profonde, peut-être? Oui, s’il vous plait, Monsieur Delorme.

Volume 33 (November 29, 2022), page 160 33-160-26

François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

Mais je ne suis pas sûr de parfaitement comprendre la question, mais est-ce que le concept de corridor commercial…

Volume 33 (November 29, 2022), page 161 33-161-23

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Oui.

Volume 33 (November 29, 2022), page 161 33-161-26

François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

…qu’il soit à l’intérieur des frontières canadiennes ou international, c’est un concept empirique, dans le sens, ben, est-ce que y’a beaucoup de camions, y’a beaucoup de passagers qui passent.

Volume 33 (November 29, 2022), page 161 33-161-27

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Mm-mm.

Volume 33 (November 29, 2022), page 162 33-162-03

François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

Évidemment, au Canada, on a une zone de… c’est une zone de libre-échange à l’intérieur des provinces pour la plupart des produits; évidemment, lorsqu’on a une frontière avec les États-Unis, ça complexifie les choses, mais si on avait un camion qui passait par année sur le pont Ambassador, ce serait un corridor commercial international, c’est juste que ça serait un minuscule. Donc, vraiment, ce qui est important ici, c’est est-ce que y’a des marchandises et même des services qui traversent le pont ou les corridors commerciaux internationaux qui sont principalement avec les États-Unis, comme on en a convenu dans la première partie, mais est-ce que ces corridors-là sont des corridors avec un « C » majuscule ou avec un « C » minuscule? Et à ce niveau-là, je pense que c’est davantage, comment je comprends votre question, un concept empirique qu’un concept théorique parce qu’un corridor, c’est quelque chose qui nous amène à observer quelque chose qui va dans une direction ou une autre, commercial, c’est ce qui amène la valeur des marchandises, et internationale, c’est ce qui traverse une frontière.

Volume 33 (November 29, 2022), page 162 33-162-04

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Mr. Chandra, would you like to come in here?

Volume 33 (November 29, 2022), page 163 33-163-16

Ambarish Chandra, Prof. (Economics – University of Toronto)

I'll just take a very literal view of the phrase, straight corridor, I think it's also coming back to the idea that, again, most of the trade, all the trade that we do with Europe and Asia and the rest of the world doesn't involve those literal trade corridors because they're over air and sea. And so the vessels and the planes and the ships leave those countries, go through international airspace, international waters and then arrive in Canada, but in the case of the U.S. there are literal trade corridors, these bridges and roadways, and so I think that's where the definition is important. Not being a legal scholar at all, I would say, though, that any -- given the importance of the Ambassador Bridge, which is clearly international -- of international concern to both Canada and the U.S., it shouldn't -- you know, it almost seems to me like a technicality that the roadway, which is under municipal control, should be able to block and international bridge, and so it to me seems as though the importance of such that there should be a unified framework ---

Volume 33 (November 29, 2022), page 163 33-163-18

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right.

Volume 33 (November 29, 2022), page 164 33-164-09

Ambarish Chandra, Prof. (Economics – University of Toronto)

--- to deal with all points of access to something like a international bridge.

Volume 33 (November 29, 2022), page 164 33-164-10

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right. So I think -- you know, I think that you're right, that in talking about this being a literal trade corridor it is an international trade corridor. I guess the question is or one of the issues that arises is this raises complex jurisdictional issues, then, in terms of how you protect that infrastructure and sort of who's in charge, and that there may have been -- it may be the case that, in fact, rather than, you know, being a technicality the perception about where a protest is happening might very well impact the view on the ground about who is in charge, and that perhaps, you know, are there ways of thinking about this which might give -- permit jurisdictional coordination around issues of common concern. So thank you, Professor Chandra. Je vois maintenant monsieur Delorme?

Volume 33 (November 29, 2022), page 164 33-164-12

François Delorme, Prof. (Sciences économiques – Université de Sherbrooke)

Oui, j’aimerais oser une réponse au commissaire, qui n’est pas une opinion juridique, mais je me souviens quand je travaillais au ministère des Finances, on cherchait à prendre une décision si on allait réparer le vieux pont Champlain à Montréal ou en construire un nouveau, et ce dont monsieur Rouleau parle, parlant de… je me souviens que les tabliers du pont, je mélange peut-être les juridictions, mais il me semble que les tabliers du pont étaient de juridiction fédérale et le pont comme tel, ce qui traversait le fleuve Saint-Laurent, était de juridiction provinciale, et… oui, c’est ça, et donc, on avait un problème juridictionnel en termes de qui allait payer quoi et est-ce que les tabliers étaient en plus mauvaise… en plus mauvais état que le pont comme tel. Alors, j’oserais dire que, oui, il y aurait un besoin de définir ce que c’est une infrastructure critique ou un corridor commercial international dans ce contexte-là et ça ferait du sens d’avoir des accords entre fédéraux ou fédéral- provinciaux qui pourraient préciser ce genre de corridor international. Là, je pense que c’est important.

Volume 33 (November 29, 2022), page 164 33-164-27

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Professor Quigley, and then Professor Boyle.

Volume 33 (November 29, 2022), page 165 33-165-19

Kevin Quigley, Prof. (Public Administration – Dalhousie University)

Just a quick observation to say that I think the question of jurisdictional responsibility would apply equally to questions around the port, the seaports, and you've got the same kind of mess there in terms of the seaport itself is federally regulated, but when you get those trucks off or when you get the goods off the boat there are municipal issues, provincial issues, and do they cross provincial borders, there are additional federal issues. So you have a complex space with seaports also, so it wouldn't just be about road transport bridges to the U.S.

Volume 33 (November 29, 2022), page 165 33-165-21

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

And Professor Quigley, not to put you on the spot, but are there existing regulatory mechanisms or tools that permit those sort of what might be considered jurisdictional constraints to be overcome in a space where, you know, there are multiple overlapping jurisdictional interests?

Volume 33 (November 29, 2022), page 166 33-166-03

Kevin Quigley, Prof. (Public Administration – Dalhousie University)

So -- I mean, I'm reluctant to say because I'm not aware of any, but what I am aware of is this fact that we normally talk about the complexity of jurisdictions when it comes to seaports. That there are ---

Volume 33 (November 29, 2022), page 166 33-166-09

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right.

Volume 33 (November 29, 2022), page 166 33-166-13

Kevin Quigley, Prof. (Public Administration – Dalhousie University)

They're all involved, and there are a lot of private sector operators, and as we've talked about with trucking, there are many private truckers on that one space. So it's a very, very complicated space. I'm not aware of any overriding kind of authority that could sort of seize control. I suspect there is none.

Volume 33 (November 29, 2022), page 166 33-166-14

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you ---

Volume 33 (November 29, 2022), page 166 33-166-20

Kevin Quigley, Prof. (Public Administration – Dalhousie University)

I will -- maybe one other point I would say is that I can recall an issue of speculation that a boat was bringing in a number of people -- there was sort of people smuggling going out of port, and the various government agencies had to prepare because they had -- they were led to believe that a boat was coming in and they didn't know what boat it was and they were bringing people in. And I remember there were at least 14 different government departments from various jurisdictions that were responsible for standing at the ready in case this boat arrived, they didn't know which boat, and in case they had people on and they didn't know. And they had to do it all quietly because they were worried that if the boat found out that they were caught for smuggling that they might do something bad with the people who were on the boat. But anyway, there were at least 14 different departments involved in that exercise. I remember it was something that happened quite a few years ago in Halifax. But it's a complicated space, even within the Federal Government, a lot of different government departments have responsibilities, but it's spread out over quite a few. Yeah.

Volume 33 (November 29, 2022), page 166 33-166-21

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Professor Boyle?

Volume 33 (November 29, 2022), page 167 33-167-13

Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Thank you. This question of how to clear up jurisdictional disputes or uncertainties and how to incorporate private sector actors, how to incorporate different layers of regulation and statutory responsibilities made me think of airports, to add another piece of this puzzle that Professor Quigley has added about the seaports. It seems to me that airports must have found a way to work out a lot of these uncertainties already. I don't know the nuts and bolts about how that is done, but I wonder if airports would provide something of a transposable model that could be applied in other situations where similar problems arise, like the Ambassador Bridge.

Volume 33 (November 29, 2022), page 167 33-167-14

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

So maybe this takes me to a follow-up question, which is we've talked at some length today about, you know, the need for coordination across government or between levels of government. What you're suggesting sounds like it raises an additional possibility, which is to think -- you know, approach these issues from the bottom up, and to think about the level of jurisdictional coordination that might be required around a particular piece of critical infrastructure. And I'm wondering if anyone has thoughts on that model? You know, would it be helpful to have a plan in advance in thinking about, you know, strategic planning around the protection of critical infrastructure, so that it's clear, you know, when it comes to a particular piece of critical infrastructure, who does what in the event of an emergency. Do you want to come back ---

Volume 33 (November 29, 2022), page 167 33-167-26

Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

I think, you know, this reminds me about what we talked about earlier, and the idea that a one size fits all approach is not going to work. So yes, a bottom-up governance approach tailored to particular infrastructural locations, facilities, assets could very well work I think. Again, you know, I -- and I want to go back to my concerns around freedom of assembly, freedom of protests. As long as those governance arrangements are very tailored to particular locations, particular places that are -- that -- where it's transparent that these are the security practices that are in play, and not -- and we don't give into the temptation to want to sort of introduce very vague, very general ---

Volume 33 (November 29, 2022), page 168 33-168-14

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right.

Volume 33 (November 29, 2022), page 168 33-168-27

Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

--- powers to protect critical infrastructure, where people don't know exactly what is infrastructure and what isn't, then, you know, that -- I've already said that's a problem. But particular institutional arrangements for particular locations might be a way to strike that balance that we talked about earlier as well.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

And does that also maybe look like, you know, thresholds? Like given your concern for freedom of expression and freedom of peaceful assembly, does that maybe look like thresholds for triggering some sort of, you know, restrictions on protests around critical infrastructure rather than sort of a standing sort of restrictions?

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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Yeah, I think all of this would have to be tailored to particular vulnerabilities.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right.

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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

You know, risk is an ever- changing, you know, condition, so there might have to be some changing level of, you know, security and precautions, given a particular risk environment. But if they were tailored and specific to particular locations and not disperse big powers, then that might be a good way to strike that balance.

Volume 33 (November 29, 2022), page 169 33-169-15

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right. Professor Quigley?

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Kevin Quigley, Prof. (Public Administration – Dalhousie University)

I'll just offer some thoughts about emergency planning exercises that sometimes happen in anticipation of these kinds of events, because this is one of the sort of favourite exercises of agencies that work in this area. They sort of imagine a scenario and they think about how are we going to respond to this particular scenario. And so one of the things they do too often is they work with public agencies. They always say, you know, you don't want to meet somebody in a crisis, you know, meets them for the first time in a crisis, so they want to know who all the emergency responders are, and that sort of stuff. Sometimes these exercises are a little bit false because they only bring together agencies from the same order of government because they're -- they've been told to sort of work out an exercise, so they kind of develop these scenarios that are not really very realistic. Because the thing about disasters and crisis is they don't respect jurisdictions. Disasters and crisis come and hit you the way they do, and they will hit all three orders of government. The very fact that a province is responsible for emergency response in the first place means the province is going to be at the centre of anything that's -- any sort of seriously devastating issue is going to go well beyond one piece of infrastructure or the community at large. So one is we need to have approaches that where we actually bring a lot of the stakeholders together. It's hard traditionally to bring the private sector in on these emergency response exercises. Maybe they don't see the value, maybe they're too busy, I'm not sure, maybe they don't want disclose their vulnerabilities. Certainly noted, with some concern from public agencies, that private sector agencies don't necessarily come to emergency response exercises, and they should. And then I think the other thing that we need to do in these exercises is we need to actually get better at trying to establish clearly what are we trying to learn from emergency response exercises, and we have to declare them, and then we have to monitor over time if we're getting better at emergency responses. Too often these emergency exercises occur, there isn't really kind of serious report afterwards, there's no benchmarking, and we have no sense if anybody's ever getting better at these things. There's just a kind of occasional exercise that they kind of make up, and then they run a few things, and then there's a hotwash afterwards where they kind of report out, and then it -- but there's not necessarily sufficient and rigorous follow up to show if we're actually getting better at emergency response. So I think there's a fair bit of learning that could be done from public agencies, and the private sector, that's owning and operating a lot of these infrastructures.

Volume 33 (November 29, 2022), page 169 33-169-23

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Anything else on this point? Okay. So I'll move on to another question, then. We've talked only a bit about rail, and so I'm wondering, you know, are there considerations that are particular to the protection of rail as a piece of critical infrastructure? Perhaps because it is a significant, sort of physical piece of infrastructure that runs throughout Canada, or because particular groups are particularly likely to protest by disrupting rail. So I'm just wondering if the panel has any comments that it'd like to offer on the protection -- the unique considerations related to the protection of rail?

Volume 33 (November 29, 2022), page 171 33-171-16

Ambarish Chandra, Prof. (Economics – University of Toronto)

I can just jump in with a little bit of background more than anything else.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Professor Chandra. Only just for the transcript. Thank you.

Volume 33 (November 29, 2022), page 172 33-172-03

Ambarish Chandra, Prof. (Economics – University of Toronto)

Sure. In some ways, the - - our trade over rail is -- well, it's a lot less important than by truck. It's about 16 percent of our trade with the U.S. But it's also easier to regulate because there's far fewer actors. There's basically Canadian National, Canadian Pacific, and then two big U.S. firms, BNSF and Union Pacific, I think, across the border, and transport maybe grain, coal, and so on. And in some ways, the nice thing is that the operators also own their own railroads, and so, you know, CN operates on CN tracks and so on. So they're very much -- they also have a strong incentive to make sure infrastructure is upgraded and maintained and so on. I'm sure there's challenges around rail, but it also strikes me at first blush to be a lot easier than regulating or the challenges that come ---

Volume 33 (November 29, 2022), page 172 33-172-05

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right.

Volume 33 (November 29, 2022), page 172 33-172-20

Ambarish Chandra, Prof. (Economics – University of Toronto)

--- around trucking.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you. Professor Boyle?

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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Thank you. Yeah, I mean, railways are an interesting case because that's where the idea of protecting something really break down. You can't protect a rail network, you can't protect all of it anyway. You might be able to protect particular, you know, bridges where rail networks come together and have to cross a major geographic feature, and you can protect that bridge or that tunnel or something, but you can't protect rail networks overall. It's interesting in my research on civil defence measures during the Cold War is that railways were always treated separately from other industrial facilities for that very reason because you couldn't protect rail like you could protect a manufacturing facility. And so what they've tried to do, and I think what still is the case, is trying to build redundancy and resiliency into those networks. So if particular components of a rail network goes down, there is still other opportunities to move things around, whether it's other rail networks or other modalities of transportation because I think, you know, security, protection, that breaks down in that context of a network that can't be secured. And that goes for a lot of things. Electrical grids, you know, entire highway systems, right, it's -- we need to be thinking about resilience more than securing and protecting individual points in those networks.

Volume 33 (November 29, 2022), page 172 33-172-24

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right. Professor Quigley?

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

And I'll ask everyone to speak slowly if you don't mind.

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Kevin Quigley, Prof. (Public Administration – Dalhousie University)

Yeah. I'll just point out that, you know, when I think about rail, first off I think about how you can't really move the track. I mean, this is one of the flexibilities that you have with trucking that makes trucking very appealing in terms of its adaptive capacity that you don't have with rail necessarily, notwithstanding Professor Boyle's comments about some additional rails where flexibility is built into the system. The other thing I would just note is there is quite a bit of work done around critical infrastructure and various pressures that are exerted on the railway lines through the Lac-Mégantic experience. So I think there's actually quite a bit of documented evidence about challenges with managing the railway line and protecting and the sort of push for efficiency and maybe safety over -- lapses I guess that occurred. So I think there's quite a bit of work that has been done there that could be looked at and fair questions about whether or not Transport Canada has made progress in that area and whether or not private industry has made progress in that area.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you. Anyone else on that point? Okay. So I'd like to turn us or take us now to yet another form of infrastructure that we touched on, perhaps briefly, but to any great extent, and that is cyber infrastructure. And you know, wondering whether we have the regulatory tools that we need to deal with threats to Canada's cyber infrastructure. Professor Boyle?

Volume 33 (November 29, 2022), page 174 33-174-17

Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Thanks. I was wondering when this would come up at some point in this discussion.

Volume 33 (November 29, 2022), page 174 33-174-26

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

This is your moment.

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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

I mean, when it comes to the cyber, I -- you know, I don't know. I don't know enough about cyber policies and digital security. But certainly part of, you know, the cyber infrastructure is material, and it comes down to server farms, and buildings in Downtown Toronto and other places around Canada. And so the only thing I would say about the cyber is that, you know, the internet is also a physical location, and so a lot of these concerns come to bear on cyber security as well that we've been talking about. Private ownership of cables, for example, and how that introduces vulnerabilities to cyber networks. So the internet is also a material network as well.

Volume 33 (November 29, 2022), page 175 33-175-01

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

And maybe just a follow- u p question. Are there different considerations at play when we're talking about domestic threats to cyber infrastructure as opposed to foreign threats, or are there different regulatory tools that we need? And perhaps I'll go to you first, Professor Boyle, and then to Professor Quigley.

Volume 33 (November 29, 2022), page 175 33-175-14

Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

I -- you know, again, I'm not too -- I don't think I have enough knowledge to be able to answer that properly.

Volume 33 (November 29, 2022), page 175 33-175-20

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

I can go right to Professor Quigley, then. Oh, you're muted, Professor Quigley.

Volume 33 (November 29, 2022), page 175 33-175-23

Kevin Quigley, Prof. (Public Administration – Dalhousie University)

Don't worry, you didn't miss much. It was just to say that I actually agree with Professor Boyle, that I also don't know much about this. And in fact, I think it's interesting and telling that it's a sector that's -- the importance is significant, and experts are saying that we should be more aware of the vulnerabilities. I think the Society of Actuaries has talked about this particular domain is maybe one of our greatest vulnerabilities. But I'm not sure that it gets a lot of popular attention, and there's the sort an awareness of the vulnerability, but I'm not really sure we're ready for the consequences of a significant failure. So I also couldn't comment I think with any great intelligence to translate on it, other than to say that in my own research around popular attention to cyber it gets very, very little, dare I say, the least amount of coverage of all the key sectors, I think partly because, as I mentioned earlier, it's complex, it's hard to see who is responsible. And in many respects, people, I think, enjoy the technologies they have and they want to be continued -- to be a certain level of deregulation and freedom and flexibility in the way they use technologies, they don't necessarily want them regulated and limiting to what they can do with their technology. So there's a lot of resistance and ignorance around the space that I think that allows the vulnerabilities to flourish.

Volume 33 (November 29, 2022), page 175 33-175-26

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you. I think we - - oh, Professor Chandra?

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Ambarish Chandra, Prof. (Economics – University of Toronto)

I'll just jump in with one point. This is -- I don't particularly have expertise in this area, but I do have colleagues at U of T who are working especially in this area. And coming back to the issue of network cables, which is what their research is on, it was pointed out to me that, you know, every time we communicate over the internet, send and receive messages or download information, data is being transmitted all around the world, but in particular, even messages or information that is transmitted domestically within Canada is almost invariably passing through the United States at some point. It's a well-known fact. And in the past, Canadian scholars and legal experts have raised the concern that the NSA in the U.S. has, in some ways, the right to seize or intercept these messages, and that's been a well-known problem, and it's not clear that there's ever going to be a solution to that.

Volume 33 (November 29, 2022), page 176 33-176-25

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right. Thank you. We have time for one more question, and it's for you, Professor Boyle. So you noted earlier in your comments that you had concerns with the way that provincial laws placing restrictions on protests in the vicinity of critical infrastructure were drafted, and that those are not a good -- they don't represent a good model of protection of critical infrastructure while balancing civil rights. Do you have any suggestions for what a good model would look like?

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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Thank you. I want to be clear that those provincial laws don't necessarily regulate free speech or freedom of assembly per se. They -- what they do is create defence for interfering with critical infrastructure. And what I wonder is does that fairly broad idea of interfering with critical infrastructure, could that capture protests? So that's part of my concern there. I think that a, you know, productive model going forward might be along the lines of what we had talked about, even just in this brief discussion, about if there is a need to designate certain locations, certain facilities as critical and in need of additional protective measures that perhaps there's a single multi-jurisdictional unit that is responsible for governing those locations. That might mean that there is federal funding that would be tied to that to provide the enhanced protection. I think that as long as it's transparent and not secret or ambiguous about where these locations are, and what or is or is not allowed in these vicinity of these locations, that could be a productive way forward. I think the concern from a rights perspective is that the provincial laws, as they are, are ambiguous on a couple of levels. First, in terms of what is or isn't critical infrastructure, basically under those laws it could be anything that the government decides on a Monday could be critical infrastructure. And then the very broad idea of interfering with critical infrastructure ---

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right.

Volume 33 (November 29, 2022), page 178 33-178-23

Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

--- is I think just simply too broad, the specific understanding about what is or isn't allowed in certain areas.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

I think I'll just close by saying that the point you're making is perhaps related to that one of the panels that will be held later this week on law enforcement. I understand you to be saying and having said earlier, that, you know, we have to think not only about sort of what's in the law, but the way it will subsequently be ---

Volume 33 (November 29, 2022), page 178 33-178-27

Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Absolutely.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

--- used by law enforcement. And I think I heard you sort of suggest that there is a concern that you create a broad power and that then vests the law enforcement with discretion about how that power is utilised, and there is a concern that where there is substantial discretion there is a potential for selective enforcement.

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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

Yes, yes. Selective or convenient or strategic enforcement of ambiguous categories of offences. Yes, I think ---

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right.

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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)

--- that's a concern.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you. So we are at the end of our time. J’aimerais remercier tous les panélistes. I'd like to thank all of our panelists. And I will turn it over to the Commissioner to close the session, for real this time.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you.

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