Phil Boyle
Phil Boyle spoke 23 times across 1 day of testimony.
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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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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.
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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.
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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.
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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)
I have a couple more things.
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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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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)
Yes.
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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)
Yeah, yeah.
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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.
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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.
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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 ---
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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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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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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.
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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.
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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.
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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.
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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.
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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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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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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)
Absolutely.
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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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Phil Boyle, Prof. (Sociology and Legal Studies – University of Waterloo)
--- that's a concern.