SECU Committee Meeting
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Standing Committee on Public Safety and National Security
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EVIDENCE
Tuesday, June 16, 2026
[Recorded by Electronic Apparatus]
[Translation]
I call this meeting to order.
Good afternoon, everyone.
Thank you for being here for meeting number 44 of the House of Commons Standing Committee on Public Safety and National Security.
As you know, we're meeting pursuant to the House of Commons order of reference of April 30, 2026, and the motion that we adopted on April 30, 2026, to study Bill C‑22, an act respecting lawful access.
Welcome back to our distinguished witnesses. As we said last time, we're getting to know them very well. They must be getting to know us well, too.
From the Canadian Security Intelligence Service, we have Ramzi Nashef and Juanita M.
From the Department of Justice, we have Kimberly Gibner and Norman Wong.
From the Department of Public Safety and Emergency Preparedness, we have Richard Bilodeau, Shannon Hiegel and Fenton Ho.
From the Royal Canadian Mounted Police, we have Chief Superintendent Richard Burchill and Sergeant Aaron Gilkes.
Ladies and gentlemen, thank you again for being with us. We still have a lot of work to do today. As I've done a few times recently, I will encourage all members to be as efficient as possible when asking their questions.
According to my calculations and those of the clerk, we've spent 26 hours and 52 minutes studying Bill C‑22 so far, and only 10 and a half hours of that was devoted to clause-by-clause consideration. By my basic math, since we covered seven amendments during those 10 and a half hours, we would need another 270 hours of clause-by-clause consideration to complete our study of this bill. That would take us to the end of 2028.
I highly doubt that we want to continue debating this bill until the end of 2028, so I encourage all members to be efficient and disciplined during the proceedings so we can move forward as quickly and smoothly as possible.
(On clause 6)
The Chair: That said, I would remind you that, at the end of our last meeting, we had finished consideration of BQ‑4 and CPC‑3. That brings us to BQ‑5.
Mrs. DeBellefeuille, would you like to move BQ‑5?
Certainly, Mr. Chair.
I want you to know that I usually appreciate your sense of humour, but I think you went a bit too far when you speculated that, based on how much time we've put in so far, this study would go on until 2028.
Of course, if we had genuine co-operation among all parties, we could have done this in less time. However, I don't think there's really any room for discussion or debate when the government isn't necessarily willing to listen to our arguments or amendments.
I just want to put your humorous remark and tone into perspective. They did not sit well with me, as an opposition party member. I would have appreciated a bit more sensitivity from the chair.
Regarding amendment BQ‑5, this proposal stems from the brief submitted by the Barreau du Québec. As I'm sure you understand, the Barreau du Québec is, in my view, quite an important and credible witness. Amendment BQ‑5 reflects one of their recommendations. They propose changing the standard for making an order to disclose subscriber information from “reasonable grounds to suspect” to “reasonable grounds to believe”.
I actually supported the first part of the argument for “reasonable grounds to suspect”. I no longer recall which amendment it was, but I agreed with the government. However, this time, I think it would be more reasonable to introduce an amendment and change the threshold for obtaining the data.
With respect to this specific clause, I would like someone to explain to me how changing the threshold for accessing data and replacing “suspect” with “believe” in the context of the production order would hinder police work. This change would take us to a whole new level of accessing information and data. Why are you so attached to leaving it as is?
If my amendment is adopted, would that be the end of the world for police work?
Sergeant Gilkes, you're so good at explaining things clearly. Can you try to help me understand why the amendment proposed by the Barreau du Québec isn't a good idea?
Thank you for your question.
The best way to explain this is to say that we usually make this type of request when we're at the beginning of an investigation. When we're further along in an investigation, we have tools, such as the general production order, that we can use to obtain information. I'm thinking of the contents of the records kept by the company itself.
At the beginning of the investigation, we usually try to find connections, whether it's a statement of some kind, an account or an activity. Normally, this is a period when we try to expedite the exoneration of an individual.
This isn't about incriminating the person. We can conduct some sort of verification and find that, in the end, there is a connection to one person rather than another, which will allow us to remove that person from the list of suspects and move on to another person on the list, for example.
The question on my mind concerns the moment you gave me the same explanation, saying that all you want to know is whether or not the subscriber is receiving service. You told me that, at the beginning of the investigation, you just need grounds to suspect someone and that, based on that, you'll be able to continue your investigation.
Now, however, you're using the same argument to request an information production order. In my opinion, if you're requesting that type of order, it means you've progressed a bit further in the investigation. I'm not a police officer or a lawyer, but I can picture the situation. I agree with you. You've convinced me enough with your first argument.
Now, this is another tool for your investigation. It seems to me that you're exaggerating a bit when you say that you still just need to suspect someone, because you're at the beginning of an investigation. You're making the same arguments. You'll have to explain this to me, because I really want to understand.
As I mentioned regarding the confirmation of service, we need to identify the service provider to issue a warrant to obtain further information. This is one of our requirements for obtaining a standard production order.
Thanks to the confirmation of service, we can confirm that a specific company provides services to a specific telephone number or IP address, but we still don't know who the customer using that service is. We also don't know if there are other services available or offered by the company to the same person.
Normally, we use basic information—such as details that identify the person—to charge someone who claims they didn't access a particular account. If we confirm that company X is providing the service, we will then request information that supports the suspicion regarding the customer.
Yes, I'm sorry.
Next, we'll request customer information to confirm that the person associated with this IP address is the person who made the report or complaint, or to confirm that it's a completely different person and that we need to pursue another lead. This allows us to determine whether the person who filed the report is not necessarily the person associated with the IP address.
As I understand it, you want to keep the threshold as low as possible until you've linked the name to the right person, and then obtain a warrant.
As for linking the person to a telephone number, let's say I call you first. You ask me if Claude DeBellefeuille is a customer of the provider. The provider says yes or no to you. If they say yes, then you know my telephone number but not my name, and you continue investigating. However, by that point, it seems to me that you already have a pretty good idea.
If I add that you must have a good reason to continue the investigation—by having “reasonable grounds to believe”—are there currently any investigations where you tell yourself that if I don't give you that information, the investigation will end there?
I think you still have opportunities to obtain the information based on “reasonable grounds to believe” rather than “reasonable grounds to suspect”. Right now, you need “reasonable grounds to believe”, so you want to lower the threshold.
Yes, we want to lower the threshold, but the information that is available is also limited by the threshold. We're talking about a production order signed by a judge or a justice of the peace, so ultimately, it's a third party who will review the warrant and verify whether the request meets the threshold.
How could a lower threshold not be met if it's so low? It seems to me that with reasonable grounds to “suspect”, it's almost impossible for them to deny you that, isn't it?
It depends on the information being requested, and the information must be directly related to the information we've already collected.
As I mentioned, we're usually at the very beginning of the investigation and we have only one person's statement saying that a certain incident occurred. We have to build a case before presenting it to the judge.
We can't just say we believe it's true, simply “because”. We have to start conducting verifications. For example, we have to state that we've confirmed that Mr. So-And-So is a customer of a certain provider. We can then state that a certain individual is associated with a certain account. We then have reasonable grounds to suspect that this person may be involved in the investigation.
You would have access to the data, since I don't see any reason why you would be denied that.
Basically, as we speak, you need to have “reasonable grounds to believe” before moving on to the next stage of your investigation. You want to lower the threshold to make it easier to obtain data to continue your investigation.
What surprises me is that it's a bit like the lawyers versus the police. All the lawyers, the Barreau du Québec, the Canadian Bar Association and many experts have told us that giving you this ability would be the wrong way to go.
I'm sure you're an honest person, an honest police officer. You have a flawless track record. However, we know that no one is infallible. We know that there have been corrupt police officers. We know that there have been police officers who have been infiltrated.
We have some questions. Lawyers in Quebec and Canada are recommending that we don't go down this path, and what you're giving me as testimony right now is not convincing me to withdraw my amendment.
I know that my amendment will be defeated, but that doesn't make me want to withdraw it. Honestly, if I felt I was on the wrong track, I wouldn't be embarrassed to withdraw it, because I'm not an MP who plays politics. I'm genuinely interested in the content, and I want to improve the bill. However, your examples aren't convincing me. If you have any others, I encourage you to share them with us, because right now, I'm not convinced of the merits of having such a low threshold to access that data.
Do you want to give me another example?
Yes, I can provide you with one.
We're in the process of building a case to eventually secure charges. The information we receive at the very beginning of the case is information that has to be corroborated afterward for charges to be laid. For example, even if we have an IP address, we have to link it to a device. We have to then link that device to a person, and we have to then confirm that the person linked to that device is the one who was behind the keyboard or is indeed the person responsible for the crime.
The information we seek at the very start of the investigation is all information that we have to then corroborate through other methods and other information, which we have to seek through other orders, other warrants or other interviews.
Mr. Gilkes, I'm going to conclude with this, because I wouldn't want to be accused of filibustering.
I know that, after conducting an investigation, you successfully charge people. The investigators are good, and they manage to secure charges. However, today, it's as if you're telling us that you can't catch criminals with the tools you have. However, I know that your success rate is quite significant. I believe in your intelligence and your experience. According to your testimony, it's as if it were a life and death situation.
You aren't telling me that you're currently doing a good job, that you're succeeding in catching criminals even though the threshold is a bit higher, but that it would be easier if the threshold were lower. To me, that isn't necessarily a good argument. What I always have in mind is that there has to be a balance between security and privacy. What I'm hearing right now is that it would be easier, but it isn't impossible, since you're already doing it. Your success rate isn't 0%. You're successfully catching criminals.
I don't want to belabour my arguments, but I have to say that I remain skeptical. Perhaps my colleagues will ask questions that will enlighten me more. I remain skeptical, but I don't want you to think that you haven't answered my questions well.
I'm wondering if this is a case of looking for an easy option. Basically, you're already doing your job very well, and you're asking the provider for confirmation. Why do you need a lower threshold to continue the investigation? I remain skeptical.
Thank you, Mr. Chair.
[English]
Thank you.
I really appreciate this time to ask some questions so that I'm a little bit more informed. I'm kind of new here with the bill. With my systems background, I'm going to have a lot of questions based on IT and such.
Bill C-22 contains two distinct parts. The second part, the supporting authorized access to information act, or SAAIA, is where the broad interception obligations, the ministerial powers and the electronic service provider requirements all live.
When we talk about the risk in this bill, we are largely talking about the SAAIA. Is that a fair characterization of where the most significant new authorities in this legislation are found?
I think both part 1 and part 2 are equally important to the lawful access regime. Obviously, from a technical and complexity perspective, part 2 is probably a little bit more complex and technical. However, I would say that both parts operate together to help give law enforcement the ability to gather the information they need to advance investigations.
The government has repeatedly assured Canadians that this bill will not create systemic vulnerabilities. That assurance is carrying a lot—
[Translation]
Once again, the Conservatives are discussing the purpose of the bill. I would like to point out that we are currently discussing BQ‑5, which deals with line 27 on page 7.
I understand that Ms. Cody wants further explanations, but all she had to do was come forward when we did this work in extenso for several weeks.
[English]
[Translation]
[English]
With all due respect, Mr. Chair, I don't think it's well noted. We are parliamentarians. We get to come here, and we get to ask questions. I will not allow anybody to get in the way of anybody asking a question, whether it be a Liberal member who has privilege or a Conservative member.
If Ms. Cody wants to ask a question about the bill, about the general nature of the bill and about how the general nature of the bill impacts line 27, or whatever it was, she has the right to do so. The fact that someone doesn't like it is irrelevant.
[Translation]
There is indeed a great deal of latitude in the questions that can be asked. Mr. Caputo's point has been duly noted. The same goes for Mr. Ramsay's point that it's preferable to ask relevant questions about the subjects discussed at the appropriate time. Right now, we are indeed discussing BQ‑5.
Ms. Cody, the floor is yours.
[English]
I want to know about the assurance, which carries a lot of weight here, so we can fairly look at anything else this bill claims to do. It would really help to know what the term actually means in law.
Does mandating interception capability in an encrypted system fall inside that definition, or outside of it?
I'll read it again so that it's clearer.
We've been told that this bill would not create systemic vulnerabilities. What I'm asking is, does mandating interception capability in an encrypted system fall inside or outside of that definition?
When looking at the definition of “systemic vulnerability”.... There might be amendments that speak to this as we move along. The minister has spoken about this publicly. The term “systemic vulnerability” is understood to mean, from a government perspective.... It is not targeting end-to-end encryption. As such, the answer to your question will depend on a specific situation. If the regulation or a ministerial order mandates something, the core provider, person or company subject to the order would not have to do anything if it creates a vulnerability in their system.
That's how the legislation in part 2 is constructed. There's a process for developing regulation that everybody is familiar with. Ministerial orders have a very specific process that involves electronic service providers, law enforcement, the minister and the intelligence commissioner. There's a process there. At any point during that process, if an electronic service provider says to us—because they know their system best—that introducing a capability would create a systemic vulnerability, there's an opportunity to address this and make sure it doesn't.
A law describes what should happen and sets out consequences when things go wrong, but it does not physically prevent an attack from occurring. The assumption this bill seems to rest on is that if the rules are clear enough, the infrastructure will be safe. However, rules do not stop a breach. They describe what happens after one. The people targeting Canadian systems do not factor in what Parliament has passed. They look for a door. This bill would require that a door be built into every qualifying service provider.
What in this bill—not the rules around it but the technical reality—keeps that door from being found?
Taking a quick step back, the legislation would not apply to every single electronic service provider from day one. For an electronic service provider to be covered by the legislation, either it would have to be covered as a core provider through the regulation, or it would need to be identified through a ministerial order...to develop any capability that is mandated by the regulation or the ministerial order. The legislation is not intended to introduce vulnerabilities into systems. We don't refer to back doors. We don't believe it creates back doors. I think there's a letter from the CSE that was shared with the community on some of these points.
Whether or not it's in this legislation as it currently stands, it is the responsibility of companies to protect their cybersecurity. They do it every day. Attacks happen. We had testimony from my colleagues at the service: No system is 100% protected from cyber breaches. I think we all know this from what we see every day. Companies are well positioned to defend their systems.
This legislation has safeguards to prevent new vulnerabilities from being introduced into systems.
On that note, in 2024, Chinese state-sponsored hackers, specifically Salt Typhoon, got into lawful intercept infrastructure that had been built into American telecom systems. The access point that existed for authorized law enforcement became the way a foreign state got in. Bill C-22 asks Canadian providers to build that same type of architecture.
Did the Department of Public Safety do a threat assessment specifically on that scenario and, if it did, is there something we can see?
We're obviously aware of that information on Salt Typhoon. Without going into detail on that specific situation and breach, I can tell you that we always learn from past breaches in different situations.
This is obviously something we'd keep in mind with the implementation of this legislation, should it become law. We'd work with companies as the legislation gets implemented.
The term “electronic service provider” in SAAIA is extraordinarily broad. It could capture telecoms, messaging apps, cloud storage, AI platforms, email services and potentially much more beyond that, and many of those providers are not Canadian companies. They are headquartered in the United States, the European Union or elsewhere, and they operate under the laws of those jurisdictions.
Can this committee get a clear answer on exactly which categories of service are captured under that definition and which are not, and does that obligation apply equally to providers headquartered outside Canada?
I'll start, and I might go to my colleague Shannon Hiegel, who's with us virtually today.
As I explained earlier, who the legislation will end up applying to specifically will be determined through regulation on core providers. We've talked a lot about telecommunication service providers probably being one of the most important electronic service providers that might be subjected to part 2. Then, in ministerial orders, they will be able to identify electronic service providers after that. There's a process for decision-making in terms of who it gets applied to in regulation, and the same thing goes for ministerial orders.
As for differences in applications, whether or not they're domestic or international firms, maybe I can ask my colleague Shannon to elaborate on that.
I would be quite specific in pointing out that “electronic service provider” in the act refers to, in proposed paragraph (a), providing the service to a person in Canada or, in proposed paragraph (b), carrying out all or part of its business activities in Canada.
What we're trying to ensure is that Canadians can have the certitude that we are covering any type of electronic service provider that services and operates within the jurisdiction of Canada. I think that's certainly an important definition and explanation to give you related to your question.
Thank you.
Anyone who has worked inside a data system knows that security gaps do not only come from outside attackers. Every time a service provider adds a third-party program, every time two systems get connected and every time a new software link gets built in to meet a requirement like the one this bill creates, a potential gap opens. The interception architecture, SAAIA, will not be built once and left alone. It will be patched, updated and connected to other systems by providers of very different technical capacity, and each of those moments is an opportunity for a gap to open that nobody anticipated.
Does this bill require any ongoing security testing of the interception infrastructure after it is built, or does the obligation end at construction?
This legislation is part of an ensemble of legislation, but I would point out to you that companies already take a number of steps to protect their systems. They do so in collaboration with their own service providers, with third parties and with the Canadian centre for cybersecurity, which is a good partner of the private sector specifically on critical infrastructure.
I would also point out that Bill C-8, which received royal assent late yesterday, imposes a number of obligations on federal critical infrastructure owners, including cybersecurity and in relation to third parties. I think we need to look at it in totality in terms of what is done in the private sector and the obligations they have in regard to other pieces of legislation, but also, it is their responsibility.
We know that companies do this. They want to protect their systems because it's good for them and it's good for their customers. They are all constantly patching whether or not this legislation exists. As this legislation gets implemented and there are discussions with the government in terms of the regulations and ministerial orders, again, the legislation allows ESPs to say, “I can't do that because it introduces a systemic vulnerability.”
There are a number of safeguards in the legislation but also in totality in terms of obligations that apply to a number of providers.
Thank you.
You're saying that there's going to be a lot of security being looked at with the bill, but in August 2025, hackers got into the House of Commons by exploiting a Microsoft vulnerability and pulled employee names, job titles, office locations, email addresses and device information belonging to members and staff. Canada's own cyber—
I have a point of order, Mr. Chair.
The last three questions and this one are irrelevant to the topic we are studying on the clause. If our Conservative colleagues are willing to be productive, I suggest to them to get back to the topic and questions on the clause, please.
Thank you very much, Mr. Chair.
I would note that this morning, the Liberal government House leader put on notice a motion to silence debate and shut down this committee's work. For members like Ms. Cody and me, who have taken a keen interest in this bill and others, today may be our only opportunity because of what the Liberals are doing to shut down this committee's work. For them to try to use their points of order to silence very legitimate questions on this bill even further is shameful.
It's the same point of order, Mr. Chair.
Again, we are studying clause-by-clause. We did hours of study in this committee for this bill. I suggest that we be more productive and, instead of spending 11 hours like last week filibustering, focus on the clause and ask questions relevant to the clause so that we can pass it. Those questions will definitely have a place to be asked.
Let me try to reconcile those two views.
It's about freedom and focus. It's the freedom to ask questions, but we want to focus on the topic raised by a particular amendment. If we want to have an efficient and productive discussion, we need to focus as we engage freely on the topics of our conversations.
We have a limited amount of time, as you rightly said, MP Lawton. Therefore, we'll encourage both freedom and focus.
MP Cody—
Do we have unanimous consent to continue while the vote is going on?
Some hon. members: No.
The Chair: I hear that we don't have unanimous consent, so we'll suspend. We'll have 10 minutes after the vote and then we'll resume again.
[Translation]
I call the meeting back to order. Thank you for being back.
We were discussing BQ‑5. I believe Ms. Cody had nearly finished her remarks.
If you would like to continue, you have the floor, Ms. Cody.
[English]
Thank you, Chair.
I would definitely like to make my comments since it is our people who are asking for this information. It's not like they're just going to a drawer and making a request to a service provider and it pulls out a file. It includes a lot of information going through systems and third party software. To be clear, we need to ensure that when people are asking for private information, they know what tools are being used, so they can be comfortable when they submit that request.
I'll continue with my questions. Because this bill requires service providers to build and maintain an infrastructure for a production order as a permanent feature of their systems, the threat environment that this infrastructure has to withstand is directly relevant to whether this bill is fit for purpose. Published cybersecurity assessments have found that AI tools have made it possible for people with relatively modest skills to scope out systems, find vulnerabilities and carry out attacks that used to require serious expertise and resources. The window between finding a weakness and exploiting it has narrowed dramatically.
Was any analysis done on what the interception infrastructure of this bill mandate looks like as an attack surface in that kind of environment? If not, what is the basis for bringing this forward without it?
The focus of the legislation in part 2 is to establish a floor of capabilities, providing law enforcement with some of the information needed to advance their investigations. At the end of the day, the legislation is about creating those conditions, but it's up to the individual companies that are going to be subject to the regulations and the ministerial orders to determine how they meet those obligations. They will have to ensure that there are no systemic vulnerabilities in the system.
That's the answer that I would give. To be quite frank, it's hard to say, in advance, that if you do it this way, this is a vulnerability. Ultimately, the responsibility lies with the company to meet the obligations of a production order, a search warrant or whatever the case may be, and to provide the information that's being requested following a judicial authorization.
Thank you.
The security of the interception infrastructure this bill requires to be built to follow these production orders will depend entirely on whether that infrastructure can withstand the tools currently available to those who want to break into it. Before Claude Mythos was released to the public, it found a security flaw that had been sitting undetected in a widely used operating system for 27 years.
[Translation]
As far as I understand, we're in the middle of a debate on BQ‑5. This question has nothing to do with BQ‑5.
Mr. Housefather, I understand your point of view very well.
For this debate to be as effective as possible, it's best to focus on the subject of the amendment at hand, which is BQ‑5, but the chair can't compel members to do so.
[English]
Thank you, Chair.
I'm going to continue with my questions. These are questions that I feel are important.
I have a point of order.
Mr. Chair, I do not believe that when you are on a specific amendment, you are allowed to stray off of that specific amendment to the point where you are asking about the bill as a whole and it has nothing to do with that specific amendment.
I would ask you to look at whether or not these questions are relevant because we have a choice. We can actually go through all of the amendments tonight. We have seven and a half hours to go through all the amendments, or we could do nothing and then be subject to a programming motion that will have us only vote on amendments and not discuss them.
Mr. Chair, please check whether or not she has to stay relevant because it's not relevant.
[Translation]
[English]
I have the same point of order.
Mr. Housefather wasn't here before when we had an identical discussion. Once again, we have Liberal members trying to silence very legitimate questions being raised by members of this committee.
It was incredibly patronizing that Mr. Housefather was asking you to check Ms. Cody's questions. If Bill C-22 were to pass, the government could check whatever it wants on people's devices, I guess, but these are incredibly important questions. The fact that these Liberals are threatening, even in this committee process, to use the programming motion as a way to deny members the opportunity to speak is exactly why it is important to interrogate and scrutinize this bill.
[Translation]
[English]
As committee members—not only the Liberals but Conservatives and the Bloc—we had lots of hours on this committee and we did ask all these questions. Can we just be relevant? We are doing clause-by-clause. We are not doing a study with a question period here. We are doing clause-by-clause. We have to stick to the clauses. We have to study the relevance of the clauses and ask questions that are relevant to the clauses so we can move forward. Those questions will be coming soon and there will be time. If we can pass at least part 1 and move to part 2, then Ms. Cody can ask those questions when it's relevant. Thank you.
I don't believe I need to repeat what you just said. I think these points are well stated, and I expect everyone to take them into account as they proceed efficiently through this meeting.
Ms. Kirkland.
Can I ask something here? I think Ms. Cody is getting through her questions. I also think that it's possible she could get through her questions if she would stop being interrupted, and we could move on to the next amendments. I do think that she's going to get through her questions and then we'll move on. She has a right to ask them. I think we should just....
Just in the spirit of collaboration here, Ms. Acan had mentioned the importance of passing part 1. Are the Liberals taking us up on our offer to expeditiously pass part 1, which we've been offering for weeks now and which is not even all that contentious?
I have a point of order. Mr. Lawton should know very well that part 1 without part 2 is not a bill. It doesn't make sense.
My understanding of what MP Acan said is that if we want to proceed efficiently through part 1 and eventually part 2, then we have to do that in the sequence of the amendments. That's therefore why it is suggested, though obviously not made obligatory by the chair, to focus on the topic of the amendment that is currently under consideration if we want to proceed eventually to other amendments thereafter.
MP Cody.
Thank you.
Through you, Chair, in the matter of trying to collaborate with the members across, I will reduce the number of questions, but I do feel that there are important questions I want to ask and I'll continue with them. I'll be able to continue more quickly if their points of order do not interrupt. I think that would be a fair compromise. I'll continue.
To go back to the question, the security of the interception infrastructure this bill requires to be built to follow these production orders will depend entirely on whether that infrastructure can withstand the tools currently available to those who want to break into it. Before Claude Mythos was released to the public, it found a security flaw that had been sitting undetected in a widely used operating system for 27 years. It cost only $50 and took hours, where human researchers would have needed months. Just last week—
[Translation]
[English]
Yes, I hear it. You're asking someone to make an order based on what they believe. To do that, they're going to use a tool and they have to be confident that the tool is going to access the information properly, correctly and accurately. If you're going to have a judge who is looking to be satisfied by the information on oath, these questions do need to be answered, so they are relevant. Thank you.
I'll go from the top and continue again so that there's no miscommunication with the question. The security of the interception infrastructure this bill requires to be built to follow production orders will depend entirely on whether that infrastructure can withstand the tools currently available to those who want to break into it. Before Claude Mythos was released to the public, it found a security flaw that had been sitting undetected in a widely used operating system for 27 years. It cost only $50 and took hours, where human researchers would have needed months. Just last week, Anthropic released Claude Fable 5 and Claude Mythos 5, making that level of capability broadly available for the first time. The U.S. government's response was immediate, an export control directive forcing Anthropic to suspend global access to both models entirely. It was the first time a government has shut down an AI company's products over national security concerns.
Has the Department of Public Safety looked at what AI-powered vulnerability discovery at that speed and that cost actually means for the long-term security of what this bill is asking to be built?
The short answer to that is no, because the legislation does not mandate that specific things be built. That will be something that will be done through regulation and/or ministerial orders subject to that. As part of that process, we expect security conversations to be part of the consultation process, whether it's with internal government experts or with the people who may be subject to regulation. Obviously, it's an evolving environment. I am not one of those foremost cybersecurity experts, and I won't delve too much into that. However, we will be consulting with experts as we move forward and, subject to the regulations, that will dictate how we approach it.
One of the core assumptions underlying this bill is that data moves only when someone with legal authority requests it, but the infrastructure SAAIA creates will operate in an environment where that assumption does not hold. Claude Mythos did not wait to be asked. During a controlled stress test directly relevant to the kind of security environment this bill's infrastructure will face, it decrypted—
I'm sorry, Ms. Cody. What you're saying is both dense and quick, and I suspect that it must be quite difficult for interpreters to follow the rhythm.
Okay. I was just trying to hurry so that I could get through it.
Anyway, one of the core assumptions underlying this bill is that data moves only when someone with legal authority requests it, but the infrastructure SAAIA creates will operate in an environment where that assumption does not hold. Claude Mythos did not wait to be asked. During a controlled stress test directly relevant to the kind of security environment this bill's infrastructure will face, it decrypted and exposed confidential internal documentation on its own, following its own logic to a place nobody directed it to go, and then flagged to a researcher that it had gotten out. That is not a malfunction. That is the system working as designed and going further than anyone intended.
Claude Mythos is not unique in this. AI systems of this capability class, built by any number of companies in any number of countries, operate the same way. The interception infrastructure this bill creates will exist in an environment where AI systems can reach, surface and expose data without a request, without authorization and without anyone knowing it is happening until after the fact. Where in this bill does the government account for that?
Thank you for the question.
First, I'll clarify that the legislation being discussed today does not create a surveillance infrastructure. It does not mandate specific types of capabilities. That's a process that won't even be done through regulation because it will not mandate a massive surveillance infrastructure. As the development of the regulations proceed, security will be part of that process. Systemic vulnerability analysis will be part of that process.
I will also say that the legislation creates, for companies, a framework that will need to be followed to level the playing field in terms of being able to provide this information, and the information will be provided to law enforcement only if and when there's a judicially authorized production order to do so. It will be up to the company, at that point, to fulfill their obligations under that court-ordered production order.
At the end of the day, as I said earlier, right now the companies already have a lot of this data that might be subject to the regulations and to ministerial orders, and they already take a number of steps to protect that. In the face of the threats that you just mentioned, in terms of AI capabilities to sniff out cybersecurity vulnerabilities, they are very good at protecting their systems, and they continually try to get better by engaging third parties and by working with folks like those at CSIS and the Canadian centre for cybersecurity.
Thank you.
When a production order is requested and the officer believes that there is a reason to pursue or to inquire, SAAIA does not appear to draw any practical distinction between the data of a person who is the subject of a production order and the data of innocent people who share an account with that person. I see that as a significant gap.
Most Canadians share phone plans, cloud storage and digital accounts with family members. A production order targeting one person on a shared account does not stop at that person's data. It pulls everything on that account, including the private information of people who have never been suspected of anything and have no idea that an order was ever made. The bill may intend for providers to limit disclosure to what is ordered, but the technical reality of shared accounts is that one person's data cannot always be practically separated from another's.
Canadian law already recognizes this principle in other contexts. A joint bank account holder cannot be compelled to hand over funds or information belonging to the other holder simply because that person is under investigation. Why does that protection exist at the bank, but when it comes to a telecom or digital service provider through which a family shares an account, the technical architecture makes that same separation nearly impossible? What enforcement mechanism in this bill ensures providers actually achieve it?
Thank you for the question.
The bill doesn't speak to production orders or address tools that, whether it's CSIS or law enforcement, are already used to compel production of information. The situation that you describe exists today in the current environment, whether it's within telecommunications or others.
I might turn to the RCMP for a practical perspective about how they deal with that. I don't know whether the Department of Justice or the service can also add to that. It is more of a question about how production orders are applied for and then given by judges.
I appreciate the question. Actually, I very much appreciate your highlighting the complexities that police are currently dealing with.
This is something, as mentioned by my colleague previously, that we regularly deal with, and it's partly why we have experts who do analysis on the information we actually receive. Their intention is to establish who might be the originator of a particular type of traffic. That speaks to the information we actually request when we're asking for information—for example, in production orders—because it's not just the information related to the offence itself. It's also information related to the use of a particular device, at a particular time and in a particular place that we try to collect. We use that for attribution to a particular individual at a particular time.
This is something that we're actually very familiar with, and we do it on a regular basis. However, I very much appreciate your highlighting the complexity.
The National Security and Intelligence Review Agency, the body that would be expected to oversee the authorities, has raised concerns about whether it has sufficient access to do that job effectively. At the same time, SAAIA stops service providers from telling anyone that a demand was ever made against them. The public does not know, the oversight body cannot fully see, the companies cannot say anything and the person whose data was accessed may never find out.
How does that combination produce real accountability, and who, exactly, is in a position to catch a problem if one comes up?
I have a point of order.
Mr. Chair, I respectfully listened to Ms. Cody's last question. It is the same as her others.
We're in a section in which we're making a determination whether we should amend “reasonable grounds to suspect” to “reasonable grounds to believe”, which is a debate about what legal standard to apply to part of this bill. It's a very important debate. It's a very important discussion, but this question is entirely unrelated to the discussion, which is the purpose of this amendment.
Mr. Chair, if these questions are allowed, then it means that these same questions could be repeated with each and every amendment and each and every subamendment that is introduced, irrespective of the relevance to that amendment or subamendment.
I would respectfully submit, Mr. Chair, this is not how clause-by-clause is supposed to proceed.
That's right. Part of the blame is on me, and I appreciate that. I have, also, the responsibility to allow some freedom. However, it is true that if we want to vote on a particular amendment, the topic of the discussion needs to be on that amendment; otherwise, we will never proceed to the consideration of other amendments.
If we want to consider amendment BQ-5, then I would certainly encourage everyone to focus on the topic, the content of that amendment, in the questions and answers.
I will conclude with the last two questions, then. I've had several, and I've turned them away. I do feel that these are correct to ask because we are asking our law enforcement to believe in what they put in the order. To do so, they have to understand and have confidence in the accuracy of what they're going to be retrieving, and what may or may not happen before they do it. I do think that it does have some relevance to believing, so I will continue.
The United States just demonstrated that it can shut down AI tools used by Canadian service providers overnight, with no notice and by executive order. Canada is asking those same providers to build and maintain permanent interception infrastructure under this bill. What is the government's continuity plan when the tools a service provider depends on are switched off by a foreign government's decision? Does this bill create any obligation to disclose that kind of disruption to the people whose data sits behind it?
Thank you for the question. The bill doesn't address that. It's not within the scope of the legislation.
Again, I'm going to mention that Anthropic flagged the cybersecurity risk of Claude Fable 5 and Claude Mythos 5 before the United States government acted. The company raised the alarm first. The U.S. ban came within days of release. Canada has said nothing.
This bill asks Canadians to trust that the government understands the AI threat environment well enough to build permanent interception infrastructure inside it. However, when both the company that built the tool and then a foreign government moved, before Canada even asked a question, that trust has to be earned.
Is the government's position that it needs a foreign government to identify an AI national security threat before it will act? If that is the standard, how many days behind Washington should Canadians expect their government to be?
I have a point of order.
Mr. Chair, people are not here to answer for the government as to the government's intentions on something that has nothing to do with this bill. That is a question she could ask in question period. This is not a question for these witnesses. It's on a subject that is not part of the bill. She's asking them a much greater question about the government's intention. The question is unreceivable.
That is a risk, indeed, of asking those types of questions, but obviously you are free to ask them. Then we'll see whether the answers are either reasonable or up to the expectations that you're setting.
Madame DeBellefeuille, go ahead.
[Translation]
I want to tell you that these rapid exchanges are very difficult. Mr. Housefather also speaks at the speed of light. I understand that. The interpreter who is interpreting is very good. She's interpreting very quickly, but I'm sure she won't last until midnight like that.
I don't know if you noticed that I don't have a headset today. It's banned because it hasn't been tested, so I only have an earpiece. It's very difficult for me. I would ask my Conservative and Liberal colleagues to slow down. We'll be here until midnight. I would ask them to speak more slowly so that I can keep up and participate in the discussion. Otherwise, I will remove my earpiece and you can call me when it's time to vote.
It's a question of privilege for members. They must be able to participate in the discussions in either official language. The opposite would be true, but in this case, it's particularly true, because Mrs. DeBellefeuille uses the interpretation and is often seated near those who speak quite quickly, so please keep that in mind as you speak from now on.
[English]
Ms. Cody, would you like to continue, or is that, as you said, the end of your questioning?
I have one more relevant question. Thank you.
I want to know if there is going to be a more clear definition. Will “belief” be strong enough for an arrest, or could it be a suspicion or a thought? Is there a risk that “belief” will come from false accusations or an act of bad faith by someone who wants to create distress for another person?
I'll go to my colleagues from the RCMP.
When you're going to a court to apply for a production order on “reasonable grounds to believe”, there's a robust process to draft up affidavits and get a judge to sign off on that.
As to what that means in practice, I'll go to Sergeant Gilkes.
I was just wondering if there's going to be a more clear definition of “belief”, because it could be a suspicion or it could be just a thought by someone. Is there a risk that when you're going to be making a production order to investigate someone, it could be from a false accusation or an act of bad faith by someone who wants to create distress for another person? We've seen complaints get called in...you know, there's a neighbour upset about someone.
When you have a word that is so vague, like “believe”, what definition are we actually going to use and follow to ensure that the strength of “believe” is going to be enough to warrant an investigation and not just chase someone down a rabbit hole?
Thank you for your question.
Essentially, especially if we're going to be presenting our information to obtain to a judge or a justice, they have a guideline themselves. It is, in fact, subjective, but they were trained to properly assess whatever grounds are being put before them. They have their own tests, which will test whatever grounds are being put before them, and they will attribute the level of grounds which have been or have not been met.
We can present only what we learn, what we collect in terms of evidence. If it does not meet the grounds and the judge or the justice feels that it's either “to suspect” or “to believe”, then, quite simply, it's not signed and not attributed or active as a warrant.
I'd like to thank all of you for answering all of these questions that I had and your patience with them. I will conclude.
I'm going to have to make an effort to remember that, because we went to Timbuktu and came back via Vladivostok, and now we're returning here.
So let me remind you that BQ‑5 seeks to replace line 27 on page 7 with the phrase “are reasonable grounds to believe” with the phrase “are reasonable grounds to suspect”. One word is being changed.
Then there are two conditions:
(a) an offence has been or will be committed under this Act or any other Act of Parliament;
(b) the metadata is in the core provider's possession or control and will assist in the investigation of the offence.
Also, I believe it was Mr. Gilkes who spoke to us about, among other things, a case involving the online sexual exploitation of children. In that case, the amendment to replace “reasonable grounds to suspect” with “reasonable grounds to believe” would require a much higher standard of proof even before the identity is known.
I don't want to assume anything, so I'd like to ask the Royal Canadian Mounted Police officers a question.
Roughly how many crimes or cases of sexual exploitation occur in Canada each year?
[English]
[Translation]
[English]
We can certainly do that. Is there unanimous consent to continue the proceedings?
Some hon. members: No.
The Chair: There is no unanimous consent, which means we will need—
We'll need to stop now. I suppose there might be a bell.
Whatever happens, 10 minutes after the vote is the maximum time that I would be waiting for people to come back. If everyone is back, I will start before that.
[Translation]
I call the meeting back to order. Thank you for coming back.
We'll move on.
Mr. Ramsay, you have the floor.
Thank you very much, Mr. Chair.
First of all, I would like to say that I disagree with your assertion that, at this rate, we would finish in 2028. I suggest it would be more like 2029.
After three hours of discussion, we've made no progress on an amendment that is essentially very simple. Indeed, as Mr. Gilkes explained to us, it specifically addresses cases of online child sexual exploitation. So this is an issue that should command unanimous support.
I know the witnesses didn't have any statistics on this. If I suggest that there are around 20,000 cases of online child sexual exploitation a year, am I far off the mark?
[English]
Thank you for the question. I still don't have exact numbers from our RCMP units. However, I would like to call on my colleagues from the Department of Justice, just to repeat.... They did have some Juristat statistics on that the other day. If they could repeat them, then I can speak to context.
Thank you. I have a few statistics from a variety of sources.
The Canadian Centre for Child Protection, which I believe appeared as a witness here, received about 23,000 in 2024. These are all reports they receive from the public that they refer to Canadian law enforcement. The National Center for Missing and Exploited Children in the United States refers approximately 100,000 child sexual exploitation cases to Canadian authorities every year. Juristat reported that police incidents were at approximately 17,000 reports last year. Importantly, 94% of these cases are not cleared by police because of either insufficient evidence or the impossibility of identifying criminals.
I would also like to add—it doesn't have to do with child sexual exploitation—that in terms of Internet fraud cases, only about 5% of Internet fraud cases are reported at any given time. In the first three months of this year, there were 8,000 reports that were processed by police, totalling $188 million. In 2025, it was almost $800 million, and again, that's only 5% of Internet fraud cases.
[Translation]
Mr. Chair, I would suggest that these numbers speak for themselves. I'm really surprised that our colleagues opposite have the reflex to vote against a clause that is extremely simple. Let me remind you that it concerns just one word and that it will allow, as the title of part 1 of the bill states, timely access to data and information.
I would like to hear what the RCMP witnesses have to say about this. Acting in a timely manner is what will make it possible to arrest more criminals, cybercriminals, and those responsible for fraud and sexual exploitation cases.
These are not small numbers. We're not talking about 10 children. We're talking about thousands of cases.
If we are serious about fighting crime in 2026, then we agree on—
[English]
[Translation]
We agree with Bill C‑22.
[English]
Absolutely. Please listen to what I say.
[Translation]
I speak in French, so you may need your earpiece.
[English]
Mr. Chair, members of the Conservative Party talk for hours, and then they criticize me.
I'm talking about BQ‑5. I'm talking about substituting the word “suspect” with the word “believe”.
[English]
My point of order is that I would like to be treated with respect. I'm simply asking for clarification.
Are we talking about BQ-5? He said he would support the amendment, which I was surprised by, so I'm trying to understand.
Thank you.
The question is whether you were speaking about BQ-5. It is a relevant question. It's not necessarily a point of order.
[Translation]
This is for the law enforcement representatives.
Does the fact that we can act quickly—and here we agree that, if we change the requirement in BQ‑5 from “reasonable grounds to suspect” to “reasonable grounds to believe”, we will slow down the proceedings—mean that, in many cases, we won't be able to access the information because the evidentiary threshold will be higher?
Am I correct in saying that several hundred, if not thousand, cases will bypass the judicial proceedings that should be the norm in cases of cybercrime or fraud?
[English]
Thank you for the question.
Speaking to the tools proposed in this legislation, “reasonable grounds to suspect” in the confirmation of service and subscriber information production order would, yes, speed up that process and help assist with the backlog of cases, most certainly. That's because you'd be, at the very beginning of an investigation, looking to attach somebody to a device that has been reported in a criminal offence.
The threshold of “reasonable grounds to believe” is much higher. At the beginning of an investigation, trying to get to that level—given the complexity of online crime and the volume of complaints—is very difficult, yes.
[Translation]
Mr. Chair, I think we've just heard clearly, after all this debate about “reasonable grounds to suspect” and “reasonable grounds to believe”, why Bill C‑22 adopted “reasonable grounds to suspect”. It's because there are aspects of this issue that involve thousands of crimes that will remain unsolved.
Our party, the Liberal Party of Canada, cares about the safety of Canadians. This party wants criminals to go to jail.
[English]
The bad guys should go to jail.
[Translation]
We'll defend this principle, which our opponents, our colleagues on the other side, have literally renounced. They demonstrated this today in this committee, which has become a farce.
I'll leave it at that, Mr. Chair.
[English]
Thank you, Mr. Chair.
This is to whichever official—perhaps one of our witnesses from law enforcement.
Can you please give us an example...and if you have a concrete example, that would be ideal, but if you need to go into the realm of the hypothetical, I would understand. Can you give an example of someone who would fall between the two evidentiary thresholds at issue—the one originally put forward in Bill C-22, as drafted by the government, and the one in Madame DeBellefeuille's amendment?
I basically want to know who's being captured by one definition but not the other, in order to justify changing or not changing it.
I suppose I could return to an example I used previously.
Someone makes a complaint that they've been defrauded at a financial institution. There's money missing from their account, and they're alleging that someone defrauded them of the funds. However, the bank might make an allegation or a counter-statement saying that they believe the individual is the one responsible. At this point, we cannot necessarily say that we believe an offence has been committed, but we suspect that one has, maybe. We can't automatically take one person's word over the other's. We are not at that stage yet. We don't have enough information to make that assertion. We start to build our grounds by collecting information, and some of that would be subscriber information.
Following on this logically, the number of people who fall into the “reasonable grounds to suspect” bucket would be fundamentally different from the “reasonable grounds to believe” number. In one, you're going to have a broader net, which means, statistically, you're going to have more people captured who are not criminals and not going to be charged, let alone convicted.
Do we have any sense of how big that pool would be? We're talking about who these extraordinary powers Bill C-22 would grant authorities apply to. No one has issues with laws being used against people who have broken the law. We have issues with laws like these being used against people who haven't. How many more people in that category would be caught up by this definitional change, if Madame DeBellefeuille's amendment is not put in the bill?
I can't really speak to exact numbers, but we did hear, from our colleagues at the Department of Justice, the number of cases that are not going forward as a result of not being able to confirm basic information at the beginning of an investigation. This information has to be obtained in a timely fashion because of the nature, the speed and the complexity of the investigations that we're currently seeing.
I can't speak to an exact number for the difference that would be caught there, but I can speak in terms of the grounds to suspect. Once again, the production order itself is scoped in a way that it's not providing the content of the information or of the accounts that are being held by the individuals, but it's providing identifying information as to who the account holder might be or the services that are actually provided. This could allow for connections to be made, which could allow for assertions and corroborations to be made with other information that's been received early on in an investigation.
I suspect I will probably have some more questions when we get to the overarching question on clause 6, but I appreciate that on BQ-5.
Thank you, Sergeant.
I can supplement that answer to your question, if it's helpful, because I think you're asking an important question. I want to make sure that I put it in the context of...because our colleagues from the RCMP talked about this in a previous meeting. They're going to have a device number, for example, and they're going to go and ask a provider if it belongs to them—Rogers, for example. If Rogers says, yes, that's my device number, they will ask a judge to issue a production order on a reasonable grounds to suspect to get subscriber information for that particular device. It won't be associated with 50 people or 100 people, it will be directed only at that device number to get subscriber information for that device number. That will be related to that investigation.
The way you were asking your question.... It's not a basket of people that you capture. It still has to be grounded in a specific crime and specific to that information you're trying to get. I just wanted to provide that clarity.
I appreciate it. What I was referring to was the aggregate of people suspected of different crimes by different law enforcement bodies. I'm not talking about the Venn diagram, if you will, but the concentric circles of people caught in beyond a reasonable doubt versus reasonable belief or reasonable suspicion. However, I appreciate your contribution there.
I'll yield at this time, but when we get to clause 6, I feel like, depending on how the Liberals vote on what I think is a very good amendment, we may have further questions.
[Translation]
[English]
Thank you. I have many questions, but I just want to ask one question for now, based on the answer given by Mr. Wong to MP Ramsay's question. It's a follow-up of the previous question.
I get that there are numbers. You can talk about hundreds or thousands of cases in which investigations cannot be completed for many reasons. You gave the number, but I did not see the connections between the threshold for asking for information and the number of cases that could not be further investigated. There may be thousands of cases where you cannot complete the investigation, but the question is this: What percentage of those dead cases were caused because you did not have the reasonable grounds to suspect in order to get the information?
I don't see the causation here. The numbers of cases could be great, but what is the actual percentage of cases that could not be investigated further due to the obstacle that you mentioned?
Thank you for the question.
Perhaps I wasn't clear when I spoke, but the recent Juristat report said 94% of cases were not cleared—and this is for child sexual exploitation cases. The two main reasons they gave were that they had insufficient evidence—either they couldn't meet the evidentiary threshold to get, probably, the next tool, or they were unable to identify the suspect. Those are the two main reasons that 94% of child sexual exploitations are not cleared.
The subscriber information production order is designed to help police lower that number, because it will provide quicker access to evidence so that they could identify the suspects and decide whether or not to pursue an investigation.
I would also like to say, in terms of the example that Sergeant Gilkes gave, that it's important when tools that the police use might generate other leads. You know you're investigating a bad guy, and that bad guy has known associates, or he's phoning other people. Some of the tools in the Criminal Code allow us to monitor the activities of these bad actors. Those numbers that are generated are the types of identifiers that need to be tied to an individual. Therefore, a lower-threshold tool with specific information allows police to get only the identifying information so that they can identify who's on the other end of that number.
The tools that are available for them today are the general production orders, and those would allow police to access any and all information when they can eventually reach that threshold. That's a longer process, but it's also much more privacy-invasive for, say, the pizza delivery guy whom the bad guy called. Instead of saying that he's the pizza delivery guy and no longer a suspect, he is now the pizza delivery guy whom the police have all the information on. These tools are not only meant to provide police with greater flexibility and agility in investigations but also meant—because they're specific production orders—to protect privacy.
Mr. Wong, I think you have opened up another can of worms. By what you just mentioned, you're saying that one can lead to the other and to many others. This is exactly why we are being cautious. You were just telling me that this is a way to open up the gate to investigate many more people who may or may not be associated.
If I may, these tools have existed in the Criminal Code for many years. This tool that I'm speaking about has existed in the Criminal Code since 1993.
Right.
I want to ask another question because of time.
Even if your logic is right and you can make that connection, saying that it's because of the high threshold that you cannot go on to further investigation, that doesn't mean it is a legislative problem. It could be a procedural problem where you cannot get the order, warrant or whatever you need to have to further investigate. It could be a lack of resources. It could be the work hours, or the judge may be on leave, on vacation. It could be many other reasons that you cannot get that kind of permission or authorization in time. That doesn't mean it's a problem in the law itself. It could be a problem in the administration. It could be a problem with procedure or a problem with resources.
Why do you need to change the law and not review your procedures so that you can get the information through the legal means faster, in a timely manner, instead of making this big hole and opening up many cans of worms?
Thank you again for the question.
All of the procedures are actually statutory. They're in the Criminal Code. It's been since 2014—my colleague has mentioned this, and I think I have, too—when the Supreme Court decided in Spencer that there was a gap in the law and that the police's common law power was insufficient to get this information. Absent a reasonable law, police have had to avail themselves of the general production orders. This gap has existed in the law for the last 12 years.
I'll just stop there.
Thank you, MP Au.
Shall BQ-5 be adopted?
An hon. member: I'd like a recorded division.
There is a recorded division being asked for. I also forgot to mention that CPC-4 and NDP-4 are identical to that amendment, so the vote on that amendment will therefore lead us to skip CPC-4 and NDP-4 due to their being identical.
[Translation]
Mr. Clerk, I would ask you to proceed with a recorded vote.
(Amendment negatived: nays 6; yeas 5 [See Minutes of Proceedings]
Amendments NDP‑4 and CPC‑4 are identical to the amendment we just dealt with, which takes us to NDP‑6.
Mrs. DeBellefeuille, do you want to present BQ‑6?
Yes, Mr. Chair.
I move that Bill C‑22, in clause 6, be amended by adding after line 3 on page 8 the following:
(5) An order must not be made if executing it would disclose medical information or information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries.
This recommendation comes from the Privacy Commissioner. It therefore seems to me that it makes sense for health information to be protected by solicitor-client privilege or notarial privilege. That said, I hope to have the support of my colleagues.
[English]
Thank you very much, Mr. Chair.
Thank you to Madame DeBellefeuille for introducing this. I want to ask the officials a couple of questions.
Do any protections like this exist elsewhere, to your knowledge, in other statutes under other circumstances?
Thank you for the question.
There is a general provision that applies to all production orders in the Criminal Code that allows the person served with the production order to object on the grounds that information is privileged. As far as lawyers are concerned, this is already covered. That's found at section 487.0193 of the Criminal Code, so this already exists.
In relation to the clinics, we've heard testimony before, and there are ways for a production order to be used against medical clinics or other things because of insurance fraud and such. Again, this is a judicially authorized production order, so the judge has the final say on whether or not the information sought is appropriate.
Mr. Wong, I think you were speaking specifically, if I'm not mistaken, about the solicitor-client angle at first. You said a lawyer could object to an order, but they would not have a guarantee of being successful in that.
Is it a correct interpretation of your comments that the onus is on them to prove why that privilege needs to be invoked?
Yes, but there are certain rules against getting production orders against lawyers' offices and certain procedures that have to be followed. This is with respect to people who usually receive these production orders, and they have the ability to object on that basis as well.
From what you're saying, this is not redundant. This is actually shifting the situation quite significantly, it would seem, because now there is a statutory exclusion under this amendment. It isn't just replicating what's already in law, is it?
In terms of what its objective is, it may be redundant. In relation to its scope, as I mentioned, there may be many reasons that police might need to serve a production order on a health clinic. It wouldn't be redundant in that way, but in relation to the solicitor-client information, it may be redundant.
I hope you understand that I'm asking this question seriously: Is medical information defined, or is that term in and of itself subjective, in your view, in terms of what would constitute medical information if this amendment were adopted?
Medical information is not defined, to my knowledge, in the Criminal Code. Generally, the courts use ordinary dictionary meanings of things. It could be broad or it could be narrow, depending on the court that is interpreting it.
I mean, if we want to look to not too distantly in the past, there was a period in which vaccination status was actually highly germane to some regulations and restrictions on where you could go. I know that one of the concerns raised in relation to the broader issues of Bill C-22, specifically looking at metadata, is that location data would be retained. If we are talking about the type of information that could be made available, I know that a lot of people would be very mindful of whether vaccination status or other medical decisions and choices and things like that were subject to it.
As worded, would this protect someone's information related to vaccination status from being disclosed as part of a production?
I would say that this type of information is not available under the subscriber information production order. The subscriber information is defined. Vaccination status would be more privacy-focused. If police required that information, they'd have to get a general production order under the higher “reasonable grounds to believe” standard.
Again, there has been a lot of discussion in this committee and also elsewhere about exactly what information is contained in that. I take your point, but if there is no risk that medical information would be transmitted as part of this, what would be the harm in making it crystal clear that the information is safeguarded? The same is true of solicitor-client information. If the view is that this information is not really at issue in what would be contained in subscriber details, why not offer the assurance that these pretty critical details will be protected?
All I can say is that it would make it inconsistent with other provisions in the Criminal Code that could lend to the interpretation that this type of information is disclosable for the other provisions in the Criminal Code, or all the other production orders. As I think I started off with, it creates a bit of redundancy in relation to the aspect of solicitor-client information. As I mentioned, again, there may be many reasons why police might want to confirm that a suspect is a patient at a particular clinic so that they can get subsequent types of production orders to obtain more evidence.
My understanding is that there is a lengthy body of evidence about solicitor-client privilege. It isn't just about communications between lawyers and their clients; it's even about the identity of clients. Am I understanding that correctly?
That's understandable. I appreciate you sharing your expertise on all these things. If one of your colleagues is more suited to answer my next question, that's fine.
This is where my question stems from: Because a lot of the information we're talking about—let's go to metadata for a moment—is about which phone numbers have been in communication with others, that could reveal a relationship that would be privileged, could it not?
If we are trying to protect solicitor-client privilege in explicit terms, I think that Madame DeBellefeuille is right to put that in clear language. I know the Supreme Court has held in the past this is a principle of fundamental justice. This is under section 7 of the charter. It's a hugely important right.
I am not a lawyer, but being in politics, I have the misfortune of working alongside many of them. I greatly appreciate and respect a lot of what my colleagues do and what you all do, and I thank you for it, all jokes aside and being married to someone who's soon to be a lawyer as well.
What I take from your earlier comment, Mr. Wong, is that we, as a principle, are trying to protect solicitor-client privilege. We have mechanisms to do that already, so why not spell it out explicitly? I know that's a point of argumentation on the merits of the amendment. I'll make that rhetorical instead of getting you to weigh in on that. I would encourage my Liberal colleagues to very strongly consider supporting that. I'm willing to hear from other colleagues from different parties on this.
I would also point out medical information. A lot of the opposition to Bill C-22 has come from people who fundamentally distrust this government. I would say, having seen what this government has done and is trying to do in other bills, that's with good reason. If we are trying to safeguard and remove the reasons that Canadians are distrustful of this particular legislation, I don't know why we would not want to make it airtight, especially if the official position of the government is that none of these things would ever be conveyed in this process anyway. Why not spell that out? I think it's reasonable. I am open to hearing arguments to the contrary.
I will yield at this time, but I think it certainly merits consideration by my colleagues from the Liberal Party.
Thank you, Mr. Chair.
Thank you again to our witnesses for appearing and providing their valuable feedback and testimony on these different portions of the bill.
I wonder if our colleagues from the Department of Justice could just.... I'm not an expert on solicitor-client privilege, other than when I used it as a lawyer and had to engage in that. To Mr. Lawton's point, yes, the identity of a client can certainly be privileged. I've had many cases where the identity of the client was an important factor to keep confidential.
Of all the standards of confidentiality, my understanding has always been that solicitor-client privilege is probably at the top of the list. Is that a fair assessment?
This is for Ms. Gibner or Mr. Wong.
I'm sorry. Could you repeat that? I was trying to get help from my colleagues behind me as you were asking the question.
Yes, bring them to the table.
My view has always been that solicitor-client privilege is at the top of the list of confidentiality that can exist between two people.
I would say it is. There is a partial provision in the Criminal Code that talks about searches on lawyers' offices. When we're talking about the subscriber information production order, we're not considering it being served on production orders because there's a special process any time a lawyer's office has to be searched. This is when police do not know that a prior privilege situation exists, and it allows the holder of the information to object on that basis.
I believe Madame DeBellefeuille's amendment speaks to that same objective.
As I see it in this amendment, I don't think the issue is that somebody who's in receipt of a production order and thinks it may disclose information that's subject to solicitor-client privilege couldn't object. I would assume, regardless of what type of production order or demand for information you receive from any government authority or otherwise, you could always raise an issue of solicitor-client privilege. After the fact, you could always raise it.
I see nodding heads. Okay.
I raise that because it's not after the fact that's at issue. It's signalling to those who are making the production orders, or who are considering the scope of information or the place to search, to make it very clear that this type of information is off limits. I think it's more of a signal in the law.
I want to ask a couple of questions about it. You made a comment that, in your view, it might be redundant. Is that right, Mr. Wong?
Yes, but if I could briefly comment on what you were talking about, I think Sergeant Gilkes talked about this earlier. When it's at the beginning of an investigation, if it's nothing but numbers, police have no idea what those numbers relate to, because they don't know who the people are who are implicated in the investigation.
I think part of the issue with this on the front end is that police don't know what they don't know. They're trying to identify the people who are implicated in the offence. Even if this were here, they would not be able to determine whether or not it was a medical clinic attached to the phone number, or a lawyer's office. They don't know until that information is produced.
Why, then, in the confirmation of service provisions of Bill C-22, are there specific carve-outs for solicitor-client privilege?
Those carve-outs relate to who can be served with the order. The confirmation of service demand or the “information demand”, as it was called in Bill C-2, was a general tool that could have been served on any provider of public services.
Generally right now, in the Bill C-22 version, because it's limited to telecommunications service providers, that articulation or that clarification is arguably unnecessary. I think the government wanted to make it crystal clear that they were listening to stakeholders and made the carve-out, because most medical clinics, as far as I know, are not telecommunications service providers.
Thanks for that. I think you're agreeing with me.
The government, at least with respect to the confirmation of service demand, did include that very clear marker to say...and it's not just with respect to this that it can be requested. The section doesn't make reference to it being requested. It just says that a demand must not be made if the confirmation would disclose the information.
I think you're quite right that it was made on purpose to signal that this information—medical and solicitor-client privilege—is off limits. I think what we're suggesting is, what is the downside of doing the exact same thing for arguably the more intrusive tool, which is the production order? The confirmation of service demand is certainly less intrusive, we've established, than the production order itself. Why not make that same declaration here that we have that information again out of scope?
Thank you again for the question.
I think the difference is that under the confirmation of service demand, it's a statutory power for the police to exercise without judicial supervision. Here, when we're talking about the subscriber information production order, it's at the discretion of a judge.
Perhaps I can point back to my RCMP colleagues to give some examples of instances where they may need to serve it on medical clinics or other clinics or areas where this might be relevant.
In terms of the difference between the two, I think there was some concern by the government that because it's a demand, a police officer statutory power, that wasn't sufficient supervision. However, because this is a production order, it fits in the realm of all the other production orders and benefits as well from all the general provisions in the production order scheme.
Thank you for the question.
I suppose for us the challenges that we see, particularly, for example, in medical records.... This is an example that you can see in the case of an assault, where an individual who's a suspect of an assault or the suspect of a particular crime has been injured in some way. Let's say it was a gunshot wound or something and we're fairly certain that this individual would have been harmed and would have needed medical attention. It's not uncommon for police to canvass an area and try to figure out which hospital they might have went to.
Asking whether an individual has been in the hospital is one question, but then it's confirming what type of treatment they may have received, not actually seeing the medical records but seeing if that person was actually checked into the hospital and if they received treatment at that time. That would be, at this point, some of the information we would require, without getting the actual content of the records, in order to carry forward the investigation.
Thank you for that, Sergeant Gilkes.
I guess I'm having a bit of trouble with the idea that we shouldn't include this because there's sufficient supervision. You mentioned a judge. These will not just be issued by judges. They may be issued by justices of the peace who may have no legal training at all, so we could have a discussion about the level of supervision.
Leaving that aside for a moment, we're always reviewing this after the fact. Whether it's a confirmation of service demand or a production order, “Was it done correctly?” is always going to be asked after the fact. If the information violated solicitor-client privilege, that would be a basis to appeal, but it's up front to make that signal.
I want to provide another example.
In other circumstances, at least in terms of what I was able to find, this is specifically laid out in legislation. In the CSIS Act, there's a specific provision with respect to orders. It allows a judge to revoke or vary an order if they're satisfied that it would disclose privileged information. That's the same situation—a production order or getting information—but it's in black and white to make sure it's clear that information subject to privilege should be protected.
Why include it in some, such as the CSIS Act, but not in Bill C-22? We've already included it in another provision. I always look at an act and say, “Well, if Parliament says something in one section but doesn't say it in another section, that means something.” I would prefer to be consistent. I think we can all agree. I'm not going to talk about medical information because I don't have enough knowledge, right now, to speak to that, but I don't think there is disagreement that solicitor-client information should be protected under a production order or a confirmation of service demand.
The bill says that this would be protected under the confirmation of service demand itself, so why not be consistent?
Thanks, again, for the question.
I really don't think the bill is inconsistent. As I mentioned before, section 487.0193 already exists in relation to that.
I also mentioned that there's a special process police have to follow if they're going to search a lawyer's office. I don't think it's very common that lawyers' offices are served with production orders because of the reason we talked about: solicitor-client privilege. There are already a lot of protections for solicitor-client privilege in the Criminal Code, so if we're just focusing on that part of the amendment, I would say that it's completely redundant. Although it's not up front in the provision itself, it's in a provision that applies to all production orders. This provision, section 487.0193, would apply to this new production order.
That's fair enough. Thank you for your comments, Mr. Wong.
I will just say that I don't see any harm in saying, for greater certainty, that this is important. We've done that in another section of the bill. You provided reasons for why you think that is, but when we're dealing with something like solicitor-client privilege—which is at the top of the hierarchy of information that should be protected.... Searching a lawyer's office, yes, is going to put it smack dab in front of somebody.
Solicitor-client privilege can be held in many different places. It doesn't mean you're just searching my former law offices. I would be much more comfortable if it were clear in Bill C-22 that privileged solicitor-client information is off limits for production orders.
Thank you.
Thank you, Mr. Chair.
A lot was said just now about solicitor-client privilege. Would I be correct in saying that the Supreme Court ruled in Lavallee that the name and address of a client is generally not covered by solicitor-client privilege?
Would I be correct in saying that the Supreme Court ruled in Lavallee that the name and address of a client is generally not covered by solicitor-client privilege?
For example, as I understand it, it was determined in R v. Budd that the identity of a client is not privileged unless that identity is critical to the essence of solicitor-client communications. Presumptively, the name of a client is not privileged.
I think that's contextual, as you said. If the name of the client would reveal some aspect of that, then it may.
In the context of the limited information that could come under such a production order, is that even possible given what can be provided under this type of an order?
Not only would I say it's not possible, but in the scenarios that we've talked about it would be, I think, impossible for police to determine from the outset whether or not it's going to involve that unless they were actually targeting a lawyer's office. Then there are lots of protections in the criminal law for that.
Thank you, Mr. Chair.
I was hoping Mr. Housefather would continue for a few more moments so I could finish the paragraph in Lavallee. One thing that is worth noting is that Lavallee is clear that identity can be. There is a clear statement in that ruling that there are cases where that is germane. It isn't a blanket rule that the name of a client is not privileged. We're talking about things that can be here. I think when we're drafting legislation, when we're giving the government new powers, we have to think of edge cases. We have to think of areas that will push the boundaries because that's what prevents this from being unconstitutional legislation or constitutional legislation in a lot of cases. We've certainly had at other committees discussions about the Supreme Court's own usage of hypotheticals to push those boundaries, even without a fact scenario requiring it.
I just want to return—and Mr. Mantle started off down this road—to this duplication.
Mr. Wong, you seem to say, and I do not want to put words in your mouth so please tell me if this is not the case, that if the existing “for greater certainty” clause in clause 31.... This is under “Confirmation of Service Demand and Judicial Control”. Just for certainty of what I'm talking about, it says:
For greater certainty, a demand must not be made if the confirmation would disclose medical information or information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries.
That was in Bill C-22. Now we have Madame DeBellefeuille's amendment, which would insert in clause 6, “(5) An order must not be made if executing it would disclose medical information or information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries.”
The substantive part of it is identically worded. The difference is that where it appears in Bill C-22, it talks about “For greater certainty”.
Do I understand your earlier point, Mr. Wong, correctly that, in your opinion, if that clause in Bill C-22 were not there, it would make no difference at all and the bill would be exactly the same?
Arguably, I think it would be the same without it because the confirmation of service demand now is limited only to telecommunications service providers. I'm not aware of any lawyer's office or doctor's office that runs its own telecommunications service. They're the only ones who can be served with a confirmation of service demand.
I guess as a belt-and-suspenders sort of thing since there was such a public concern that this information might be disclosed. It's highly unlikely in the current drafting of the bill because of the limited scope of the confirmation of service demand, but there might be instances where there is a telco that knows for certain that what they're going to reveal.... I think Sergeant Gilkes has talked about IP addresses being sold to other providers and then their services being sold. It might end up being an online health sort of telco that might fall under the definition. That would preclude the confirmation of service demand being issued against them.
Thank you.
Mr. Chair, I don't have a full agenda of the names of the witnesses. Am I understanding correctly that the Liberal government has not made the Privacy Commissioner available to this committee as we engage in this work for clause-by-clause?
My understanding is that the Privacy Commissioner did come as a witness several weeks ago. You may not have been present, but he was here. Ms. Kirkland can testify to that.
The Privacy Commissioner was not here for clause-by-clause. The reason it's important is that the Privacy Commissioner was the—
[Translation]
Mr. Chair, you said he appeared as a witness, which is true. However, I don't know if you recall, but he was referring to the tabling of his brief, and we didn't have it in front of us. Was that the brief that did not get distributed?
Was that the time when we didn't have his recommendations in front of us, and he was speaking as if we were discussing the matter with full knowledge?
I'm confused. I may be mixing him up with another witness.
Could you confirm whether, at the time he testified, we did not have the brief and that it had not been sent by the clerk? Was it in relation to that brief that the clerk apologized?
I would appreciate it if you could clarify that for me.
I would have to consult the minutes of the meetings. However, I recall that all the briefs were submitted and translated, except for one or two, which were sent out just a few days ago. All the others have now been available for some time.
Mr. Chair, I just want to finish my remarks.
You said he came to testify, which is true. However, we were all surprised not to have his brief translated into both languages, including his recommendations, in front of us. This is an important distinction to make.
I'm not a lawyer or a notary, but I have a good memory. I can tell you that our clerk apologized for that brief. I don't hold it against him. He forgot to send it to us so that we could have it in front of us to question the commissioner. This is an important distinction, and I would like Mr. Lawton to know that. He wasn't there, but I remember it very well.
Okay. If your brief is much more accurate than mine, then that's good news.
Mrs. DeBellefeuille confirms that this is indeed what happened. We could check with the clerk, but I think we can take him at his word.
Ms. Dandurand, the floor is yours.
Mr. Chair, I have a point of clarification.
I generally take the word of Mrs. DeBellefeuille, who has an exceptional memory and knows just about all the details.
As I recall, it was the Barreau du Québec. If I'm not mistaken, the commissioner came to testify at the end of May, and we had had his brief for a few weeks already.
[English]
Mr. Chair, before we go on, instead of relying on memory, shall we find out from the minutes what was submitted at the time? Otherwise, we are basing this on memory, which could be faulty. May I suggest that we pause and find this out from the minutes?
Good. That's what we'll do.
As the analysts and others do that behind the scenes and behind the screen, let me turn back to MP Lawton for any additional input.
[Translation]
Thank you, Mr. Chair.
That was a good question from my colleague Mrs. DeBellefeuille.
I believe the recommendation was made by Mr. Dufresne.
[English]
I think this is exactly why it would have been valuable to have the commissioner testifying about the amendments that were very important to protecting the privacy rights of Canadians. I know that this was something my colleagues attempted multiple times to have happen. It's unfortunate that the Liberal government did not want to do that and have now introduced legislation that further weakens the power of the Privacy Commissioner. That seems to be adding insult to injury for someone who's trying to help Canadians.
In any event, I appreciate that very much. I would just submit to this committee that if the government felt it suitable to make crystal clear in the statute that medical information and solicitor-client privilege would not be at issue in the confirmation of service....
Again, it's a lot harder to draw a line from confirmation of service to medical information or solicitor-client privilege. If that were the argument from the government in that section, I see no reason why they would not want to make the same crystal clarity in the actual production component, where there is potentially a greater connection between these two things—unless, as Mr. Mantle suggested, it was deliberate to not offer that certainty and not offer that assurance. The government has had months to work on this bill. You have to assume that everything in it is deliberate, just as you have to assume that everything not in it is deliberate.
That speaks to the broader point of why cutting short this committee's process and preventing us from being able to subamend amendments is an incredible violation of the rights and privileges of members.
Thank you.
Thank you, Mr. Chair.
I want to also comment. I think I heard Mr. Housefather say that some of the information in the subscriber production order was minimally identifying or narrow. I take a very different view. We've established that the confirmation of service is certainly much less intrusive, but the subscriber information is quite broad. It goes beyond just the potential to identify a name or an identifier of a person. I'm not sure I agree with his point that there's no likelihood that it might be disclosed in this. It could include all the types of services provided, when those services were provided and anything that identifies devices, equipment, etc. I want to put that on the record. That's a different view on the scope and how broad the production order for subscriber information is.
Second, I will reiterate that it would be fabulous and useful to the committee to have the Privacy Commissioner here to speak on his suggested amendments. I know we have asked for unanimous consent multiple times to get consent to bring the Privacy Commissioner here, so I'm not going to do it again because it will be futile with the members across the way. This is an example of how this process has become fouled by the members opposite who simply don't want to devote sufficient time to going through this bill in a civil and substantive way in order to deal with these issues.
They may not like being reminded of those decisions, but we will continue reminding them of those decisions.
Thank you.
Thank you, Chair.
I want to take a moment to defend the honour of my colleague Mr. Lawton. It seemed like there was a lot of anger thrust toward him just now when he said that we really want the ability to possibly add subamendments to amendments. If the Liberals get their way and they choose to follow through on a programming motion, the truth is that not only will we not get to look at each amendment and possibly suggest subamendments, but we will also be hiding that from Canadians because they will be deemed moved. Canadians will not be able to see what the amendments are until they've already been voted on. They will not be able to give their opinion or their thoughts.
I would just ask that we consider that. I urge the Liberal government, based on this information, to move forward and have good amendments on this.
I can assure law enforcement as well that we want to give you the tools you need, but we need to do this right. Voting without the ability to add subamendments or voting on amendments without the Canadian public even knowing what they are...because they don't get to see them if they are deemed moved. We don't get to read them, and the public doesn't get to see them until after they're voted on. I want that very clear and on the record. That's all I'll say on this point.
Thank you.
[Translation]
[English]
Mr. Chair, that would have been very reasonable. To my knowledge, having been here now 10 years, you normally can get through somewhere between six and seven amendments an hour in a clause-by-clause. Right now, we've been going since 3:30, and we've gotten through one vote. That only happens if people procedurally block us from doing our work. That seems to be what's been happening today. The Conservatives are desperate to not vote on anything, desperate to ask anything about everything that has nothing to do with the amendment at hand. They don't want us to move forward.
Then we have no choice but to do a programming motion. If I see in the next hour that we get through six amendments, then I'll see that we're starting to work, but so far, in the last several meetings, Mr. Chair, we haven't done any of that.
Thank you.
Because you said that, I feel like I need to respond.
I will respectfully disagree. We are trying to move through these. We've had legitimate questions. Every question has been legitimate. In fact, I think we're just about ready to move on with regard to this one.
The truth is that we wouldn't need to spend so much time asking questions on the amendment and the bill had we had enough study before clause-by-clause to be able to fully study the bill and understand it. For instance, when the Privacy Commissioner was here, there were only two rounds of questions. We couldn't even ask him about his suggested amendments. We didn't have them at that point, as Ms. DeBellefeuille said. That is the issue I take, which is why I asked last week for consent to have the Privacy Commissioner here. The Liberals blocked that, as they have been doing. We've been trying to move, and the Liberals have been blocking the movement that we've been trying to make.
I want to leave it at that because I genuinely would like to see us move forward on some amendments. That is the truth. Despite the arguments happening across the table, I think we can move on and ask some excellent questions, as my colleagues have been asking tonight.
Thank you.
[Translation]
[English]
Thank you, Mr. Chair.
I will disagree with my colleague, Mr. Housefather.
All of the questions I've asked this evening have been directly on point. In fact, all of the questions I've asked at this committee have been directly on point, and I would stand by that. We can go through the transcript together and look at that.
I'm trying to understand a complicated bill that has sweeping repercussions for Canadians, for our security interests and for our privacy interests. There's no magic formula for how many clauses should or shouldn't get passed in a set amount of time. It's contextual. It depends on the complexity of the clause, the complexity of the bill and how a clause interacts with other clauses. I don't think it's a fair assessment to draw a blanket generalization about how many clauses should or shouldn't be done.
It sounded to me like the programming motion was being used as a cudgel or as blackmail, that if the government sees that this is moving to its liking—
[Translation]
Mr. Mantle, there seems to be a problem with the interpretation.
[English]
Let me speak in my broken English to see whether interpretation is working.
[Translation]
Thank you, Mrs. DeBellefeuille, for pointing that out.
[English]
Thank you, Mr. Chair.
It's always good to have some levity at the table. That's a good reminder for me as well.
I'll begin my thought again. It sounded to me like Mr. Housefather was suggesting—and he can go on and clarify in his own words—that if the government is seeing progress, whatever that may be, to its liking, programming would not be necessary.
That seems to me like blackmail rather than civilly and substantially engaging in the content of this bill and giving it the appropriate time and consideration it requires. It is certainly not the fault of the opposition that this government waited 10 or 11 years to bring forward lawful access legislation and then, in the last week of Parliament, decided to try to ram it through the House.
I will respectfully disagree that the programming motion is a necessity on the part of the government. It is not. The government has had sufficient time to do this. I'm going to ask the questions I need to ask so that I, as a voting member, am comfortable with whichever way I decide to vote on this bill.
[Translation]
[English]
Thank you so much, Mr. Chair.
The word “blackmail”, of course, is completely offensive. It would be like me saying, when the Conservatives said that they would allow part 1 of the bill to go forward as long as we split the bill and didn't have part 2, that it would be, under Mr. Mantle's words, blackmail. I would never call it that, but he would.
All I can say is that I've been here for 10 years. I know when people are genuinely trying to move forward with a bill and asking pertinent questions. I watched Mr. Mantle last meeting spend an hour on a very simple amendment, asking exactly the same question over and over to the point that it was repetitive to the nth degree. It seems clear to me that we could have, starting at 3:30, gone through 20 amendments by now. We haven't—and that would have been at a slow pace. Certainly, some are going to be more complex than others, but there is not actually any effort to make it through clause-by-clause in good faith.
Thank you, Mr. Chair.
[English]
[Translation]
[English]
[Translation]
A recorded vote has been requested, Mr. Clerk.
(Clause 6 as amended agreed to: yeas 7; nays 4)
(On clause 7)
Yes, Mr. Chair.
BQ‑7 was recommended by the Barreau du Québec, which, once again, finds that the threshold for obtaining subscriber information is too low. The amendment seeks to raise the threshold by using the legal standard of “reasonable grounds to believe” rather than “reasonable grounds to suspect”.
Obviously, I would like an explanation. At this point, is it the beginning or the middle of the investigation?
Could you help me improve my knowledge and give me an example of why you are opposed to the amendment? I imagine you're opposed to it.
Before I turn it over to the officials for questions, I will note that NDP‑5 and CPC‑5 cannot be moved, as they are identical to BQ‑7.
The floor is yours.
Thank you for your question.
The police don't make much of a distinction between the services offered by companies established in Canada and those outside Canada. The services provided, particularly chat apps from the United States or even other countries, are very popular among people in Canada. They are often used for communication between people linked to crime or to commit Criminal Code offences. We don't see a difference between using a Canadian‑based app and using an American‑based one.
If we receive a complaint about a communication method that uses an app provided by a company based outside Canada, we're still at the beginning of the investigation, and we still have to go and get the same information to try to establish links between the crime and a particular person or device.
At that point, do you know the name of the person and the type of device? Is that one more step?
Can you clarify that for me? Earlier, you told me, and I quite agree with you, that you can know if, for example, Ms. May has an account with a service provider and if the transactions are in order or suspicious.
Explain to me how far along you are at this stage. You know the name and the device.
Sometimes we still don't know the name or the device. For example, this is the case if the person was contacted on some platform and we only see the number associated with that service, such as a phone number or an account number.
All we have at that point is a number associated with the account that was used to communicate with the victim—whether by sending images or messages, making calls, or something like that. Afterward, since we don't know who sent the information, we have to find out who is associated with that account, where that person is located, and what other services may be provided to that person.
If the person sent, for example, a pornographic image or an image that is indecent or prohibited from being sent, it seems obvious to me. You've moved on to the next step if you find a phone number associated with an image of a pornographic scene. You truly have reasonable grounds to believe that an offence has been committed. With this kind of photo, we can all agree that you're no longer just suspecting. It's clear that there is trafficking in or use of pornographic or child pornography images.
When you have this image, it seems to me that you've reached your threshold—that you have reasonable grounds to believe.
Isn't that right?
It all depends on what kind of statement we receive. Given this image, it may be clear that this is a violation.
You have reasonable grounds to believe that a crime has been committed and will continue to be committed because images are being exchanged, based on the example you gave.
In my opinion, this may not be the best example, because if you have a compromising image, then that constitutes reasonable grounds to believe, not just reasonable grounds to suspect.
It depends on the type of image you receive. As you mentioned, it might have been an image of child pornography. In that case, it's clear. However, it could be another type of image in a situation where the victim might face a form of extortion. The image may seem harmless to most people, but for that person, it has an impact.
Again, we have to ask ourselves whether this is really a crime. The sender sent an image, but there may not be any message attached to it. Furthermore, we do not know the purpose behind sending this image. We must determine whether, legally, there is an intent to commit a crime behind this action.
If we raise the threshold for obtaining information, you're telling us that we're depriving you of the ability to continue the investigation to be certain, because you can never really be certain. Even when you invoke reasonable grounds to believe, we agree that you're not completely sure.
On the other hand, if you use the lowest threshold, what does that allow you to do that you couldn't otherwise?
My other question concerns the potential for abuse of this standard—this lower threshold. There may be risks involved in misusing it to obtain additional information. I have concerns about this.
The information we can request is already quite limited compared to a general disclosure order, where we could even request the content of communications and so on.
As your colleague mentioned earlier, there has been an increase in the complexity and volume of crimes associated with online tools, devices and Internet use. So, given this volume and complexity, we need a tool to help sort through the crimes that occur—whether to identify suspects as quickly as possible, to rule out certain individuals from the list of suspects, or to make connections with other crimes committed in the surrounding area and elsewhere in Canada.
Thank you very much for these clarifications.
I don't want to take up any more of your time, Mr. Chair, but I just want to share my thoughts with you.
In fact, when the minister told us he was open to our proposing amendments to Bill C‑22 , I realized that, from the very beginning—and it's true that we're only on amendment BQ-7—no amendments from the opposition have been adopted. On the other hand, we voted in favour of a subamendment proposed by the Liberals, which almost completely distorts the bill.
As a member of an opposition party, I find it hard to be accused of systematic obstruction, because it affects me personally. I tell myself that my job is to ask questions. So when I'm told that our committee has almost become a farce, I feel insulted. I just want to tell you—and remind those who do not serve as standing members—that our committee has been nearly exemplary.
Right now, Mr. Housefather and Mr. Ramsay can complain all they want; they can invoke the Standing Orders as they please—but I still feel that whether the opposition parties are present or absent makes no difference. They already know they're going to vote against the amendments, and it bothers them to have to work until midnight. I understand that, but I'm here to try to understand the explanations—and to gain a better understanding of Bill C‑22.
So I don't think that, at this stage, asking questions and sitting until midnight is a joke or that I'm doing it on purpose to slow down the proceedings. In fact, what bothers me is the feeling that, no matter what I say and no matter what the answers are, the Liberals have already made up their minds and that on Friday, the bill will ultimately be passed.
As for me, I don't call that collaboration. I'm disappointed that, as we speak, I no longer sense the open-mindedness the minister showed at the beginning. I understand that my colleagues are impatient, but, really, they just have to wait until Friday at 2:30 p.m. Bill C‑22 will then be passed, and they will have gotten what they wanted. However, in the meantime, we shouldn't be criticized for asking questions, because that is our right. That's all we have left.
I just want to set the record straight regarding what I've been hearing for a while now. I know it would be easier for us to sit here tonight until midnight to fast-track the bill, but the Liberals will get their fast-track treatment on Thursday. So I'm asking them for patience and tolerance, because if they were in the opposition's shoes, they wouldn't find it funny to be treated the way they're treating us. No matter what we contribute, it's not taken into account at all.
Personally, I'm disappointed, and I want to say so publicly. I had confidence in the openness shown by the minister, but that is no longer the case. That being said, thank you very much. I think you've explained things to me clearly. Of course, I'm struggling with this. I'm torn, because I also trust the Barreau du Québec.
I'm wondering. Where do we draw the line? Would it be so bad to raise the threshold? Would it be so bad if you didn't have everything, so that we could reassure certain witnesses—who, in my opinion, are credible—that the government is also making an effort? Would it be so bad if we didn't give you everything you need—since doubts still remain—but if you accepted that we may not have done the work as thoroughly as we should have, given that we did receive 100 briefs and 70 letters? I've read many of them; some are very credible.
I would have liked to ask questions of software architects and computer scientists, but there weren't any. I don't know if Mr. Bilodeau is a computer scientist, but I still have questions. In fact, as a member of the opposition, I'm willing not to obstruct for the sake of it, because I tell myself that, in any case, the die is cast. The government has made its bed.
Dear witnesses, you have been very patient. You listened to us, and you answered our questions. Honestly, I think it's extraordinary that you've been so patient. I think you should serve as a model for the government members sitting on the other side. After all, this is your job, and you're doing it with diligence and professionalism. I want to thank you. If we ask questions, it's because we're genuinely interested. When asking questions is all the power we have left, you'll understand that we'll use it to the fullest. We'll use it until midnight, because on Thursday, all we'll be able to do is say “yes” or “no”. For us, it's as if we couldn't contribute at the outset because the majority government is preventing us from doing so, and it won't compromise or negotiate. It's a flat refusal.
I wanted to deliver my message at least once. I won't talk about this again for the rest of the meeting to avoid any accusations of filibustering or being off topic. I feel strongly about this, and I feel that it's important to share this with you. This isn't how we work on a bill that changes a culture and that changes a privacy principle. This isn't how we work. I find that there has been abuse, and I wanted to say so. Now that this is out of the way, I would like to inform you that I've finished speaking on amendment BQ‑7.
If we were to adopt amendment BQ‑7, it would put us in a rather strange situation. The threshold for requesting information from a foreign entity would be higher than what we ask of our own national entities, the companies in Canada. This seems a bit absurd.
If Canadian companies are asked to do something, I think that the same should apply to the United States. The threshold shouldn't be any different.
Am I wrong?
Thank you for the question. I'll respond in English.
[English]
You are correct. The way the tool is designed—this is the international production request—it is a non-compellable, judicially authorized request. It's not an order, but it's based on the underlying information that police can obtain in Canada, which is the subscriber information that we just finished talking about and the existing transmission data production order.
If police can meet the threshold for those tools, they can also ask a judge to issue a request that can be served on a foreign entity to provide that information. You are correct that if this amendment, this motion, were allowed to pass, it would make it more difficult for police to get information from foreign service providers than it would for domestic ones, and it would arguably make their current situation worse.
[Translation]
Mr. Chair, based on this confirmation from Mr. Wong, we'll be voting against this amendment.
I would just like to address some of the comments made. I take exception to what has been said. I don't think that any party around this table has collaborated more on this bill than the Liberal Party. Mrs. DeBellefeuille is free to think what she wants. Mr. Lawton is also free to think what he wants. I'm proud to say—and I stand by this—that our party has fully co‑operated in the study of this bill. If the circumstances lead us to act differently, I don't think that the finger will be pointed at us. That's all that I'll say about this.
[English]
Thank you very much, Mr. Chair.
Before I get into the substantive points and questions for officials on the amendment, I have to respond to the rather bizarre strawman argument we just heard from Mr. Ramsay. He said that because the Liberals voted against a previous amendment that would have made the bill better, they can't support this amendment, as it would lead to an inconsistency between the two. The problem there, which is glaring to people certainly on this side of the table—and potentially that side, given that Ms. May has the fortune of sitting on the government bench right now—is that the Liberals are basically saying that because they made a bad decision earlier, in the interest of consistency, they now need to stick to that. I think it's a bad decision, but they obviously disagree with that point.
The standard of proof that we're seeking here in part 1 of the bill is incredibly germane. It is actually one of the areas where I had hoped at the outset of this we would have collaboration across the aisle. There has been no collaboration from the Liberals on Bill C-22 in general. We've seen minimal, if any, collaboration on part 1, where I think there's actually significantly less daylight between us. I would note that we have repeatedly made the offer to pass part 1, which is consistent with the authorities and powers that the police I've been speaking to in St. Thomas and London and the police chiefs in other parts of the country are actually asking for.
This idea that part 1 cannot exist without part 2 is entirely false—and, if so, that actually means that perhaps there are more problems with part 1 than people have realized. I think part 1 stands on its own and deals with the need to have expeditious production orders. I think confirmation of service is incredibly reasonable, when I hear the time delays that police on the ground often encounter trying to find information to seek what would go into a production order. We already have, from our officials here, a pretty important recognition that this is fundamentally a different mechanism from the one that exists for domestic service providers. This is a request and not an order.
I don't know if this next question would go to our law enforcement officials. I think it probably should, to start, but anyone should feel free to add to it.
We have to situate this amendment into the broader context of the clause itself. What is the current process for accessing this information from a foreign telecom provider, and what would it be if clause 7, unamended, were adopted?
It really depends on which province you happen to be in. There are some providers, extra-jurisdictional or providers from outside of Canada, that will accept a production order from Canada. That being said, depending on the province you're in, a justice or a judge may not actually sign your production order, because they do not believe they have the jurisdiction to order a company outside of Canada to action whatever the order is.
Short of that, the alternative would be the mutual legal assistance process. It takes a considerable amount of time and resources to actually get that completed. Then you're looking at maybe six months, a year or something like that for the response time, depending.
Let's pause for a moment, please, Sergeant, just to understand what we're talking about here. Is this an American Verizon customer who is in Canada, and an investigation leads you to this person who is physically in Canada or was physically in Canada, and you're trying to get the information from Verizon; or is this where, in the course of your investigation, you find that someone in Canada was in communication with someone in another country and you're going to get information from that person? Do both situations fall into this?
I suppose both situations could fall into it if the provider holding that data were situated outside of Canada. Now, regardless of how they....
Well, it depends on how they actually perceive themselves and whether they do have some sort of presence in Canada and they're willing to accept a Canadian judicial authorization. They may say that they are exclusively outside of Canada and you have to go the route of a mutual legal assistance treaty.
Building on that point, if we are talking about—I don't want to single out Verizon for no reason—someone who uses T-Mobile and is in Canada, then when they're in Canada, they're actually on a Canadian network: Rogers, Telus or Bell. In situations like those, are we talking about domestic capabilities or foreign service capabilities for how your investigation would have to go after the information?
Sir, that's an excellent question.
That's one of the challenges we face as police. Depending on the type of crime that has happened, we have to establish what type of evidence exists, where it might exist and then find out what type of judicial authorization is required to collect it.
There are a lot of challenges based on the type of technology being used—how that communication may be routed from one point to the next—which may affect where that information we require is being held. In this particular case, when we're talking about something like subscriber information, this is generally only held by the company offering those services directly to the client and not by another company where traffic may be routed through, for example.
That's very helpful.
When you're getting this information now, under the current system, is it completely ad hoc? You could have success on one day with one company in one country and not on another day. Are there existing channels through Interpol, through agreements between Canada and other countries, or between police agencies in Canada and police agencies in other countries?
It really depends on the entities themselves. It also depends on the nature of the investigation. There are different types of parallel investigations, joint investigations, which can be conducted with police agencies from outside of Canada, and that might change the dynamics on how that information is recovered. Unfortunately, it depends.
I understand. I'm trying to come up with all the different scenarios that we need to envision.
When you run up against roadblocks when you're trying to get access to information that is in the possession of a foreign country, are you generally getting hung up on the company's policy or hung up on the laws of the country in which that company is located? What is the hammer that comes down and says, “This information can't be turned over to you”?
That's an excellent question.
I'm not sure we always have the details as to why the production order is refused, and honestly, they don't really need to provide us with an answer. It could simply be, “No. We are not a Canadian-based company; therefore, we do not honour this production order.”
Thank you.
The reason I ask is that I do think there would be an argument. I'm talking specifically about common law countries, developed democratic countries with robust rule-of-law systems. If they look at our laws and see that we have a lower standard of proof than they would have in similar circumstances, that would be a pretty significant reason they would say that Canada has such a low standard to qualify for a production order, it doesn't meet their needs.
Again, I haven't done a comparative analysis on similar systems. We often hear from the Liberal government that Canada is supposedly a late adopter to lawful access, so I think this would be an important discussion in terms of harmonizing the standard that we have in our laws versus others'.
Does anyone have a comparative analysis on how other countries around the world—Five Eyes or similar nations—treat the evidentiary standard, looking at common law countries?
Thank you for the question.
We do have a comparative standard, and Canada, by far, has the most robust privacy protections. The type of information we're talking about—transmission data and subscriber information—is obtained without any judicial oversight. In many countries, police are authorized to ask for this information directly. In other countries, there is a prosecutorial magistrate, which is like a DA. In the United States, it's an administrative subpoena issued by a DA. If you want a comparator, the fact that we need judicial authorization is something that other countries don't require.
It's been pointed out by a number of privacy experts that some of what's in this bill is more expansive than even the USA PATRIOT Act. I get the sense that you would disagree with that point.
I'm not just looking at robust privacy protections, because other countries have very strong privacy protections in their constitutions and other laws. I'm talking purely about that evidentiary standard. Have you done a comparison on the standard of proof in other countries for their production orders?
Would you be able to provide...? Well, I guess it's a little late to provide it in writing, but what are the comparison points among Five Eyes countries?
As I mentioned, because some of it's statutory, it could just be relevant to the investigation. It's a subjective test done by the DA or the police officer as to whether or not they need it for their investigation.
This is, I think, why we had to question so much the earlier amendment from Madame DeBellefeuille. Again, I think it's regrettable that the Liberals did not pass it, because now we have the Liberals saying that because we didn't vote for that, we shouldn't vote for this. I'd say, as I was told growing up, that it's never too late to correct a mistake.
I think one of the reasons it's so important is that there is some disagreement among legal scholars in Canada. If you look at case law, there's some disagreement among judges on what the evidentiary standards actually mean.
There was an essay to this effect. I forget where it was published, but it was by Terry Skolnik, who's quite renowned. I think it was in the Ottawa Law Review. He talked about what he feels are some of the shortcomings of the existing system and the distinction between “reasonable suspicion” and “reasonable grounds to believe”. What the author put forward as a novel way to reconsider or reimagine this I thought was quite interesting.
I won't get too much into the academics of it, but there was a crucial point that's germane to the amendment put forward by Madame DeBellefeuille here, which is that “in identifying new police powers”—this is quoting directly from the law review article and this is what Bill C-22 does—“courts should avoid imposing the standard of reasonable grounds to believe where the police power is minimally intrusive, briefly executed, highly accurate, and undertaken for sufficiently important law enforcement objectives.”
The inverse is then true that when a situation is not like that, when we have police powers that are not minimally intrusive, that are not briefly executed and that are not highly accurate, then we should not allow that different evidentiary standard to hold. I think that's important because one of the things we've been seeing in all of this is that this is not limited, this is not minimally impairing and it's not minimally intrusive.
The powers in here are incredibly broad, so we have to err on the side of privacy. We have to err on the side of protecting the fundamental rights of Canadians: the right to be free from search and seizure, especially keeping in mind the nature that these applications are all done ex parte. These are all done without the opportunity for the person who's being targeted by one of these orders to make submissions to defend their case.
To go to the previous amendment, to assert that maybe they have solicitor-client privilege that would be at issue, all of this is being done after the fact, after a potential breach has already taken place and after someone's rights have already been violated.
These are incredibly reasonable common-sense proposals. I say this having had some spirited discussions with my colleagues from the Bloc Québécois. We disagree on a range of issues, but when we are in alignment and we have our colleague from the Green Party and our colleague from the NDP, when members representing all the parties in the House but one—from all sides of the political spectrum and no sides of the conventional political spectrum—are all saying the same thing, I think it would be incumbent on the Liberal government to listen to this incredibly reasonable approach.
I have yet to hear from one single member of the government what would necessitate having the lower standard. What is the one case that they fear would not be captured by the lower standard that would be captured by the higher standard? So far, they've not been able to do that. I don't see any hands shooting up, but I welcome any hands shooting up here. I think the government is defaulting to its standard position of wanting maximum authority and maximum latitude and to heck with the consequences.
Thank you, Mr. Chair.
Before I go on, I want to applaud Madame DeBellefeuille for her remarks. I think she is right that as representatives of the people, it's our duty to ask questions to make sure that we understand 100% what the bill before us would imply and to defend the constitutional right of Canadians to privacy.
I also applaud her for pointing out that the Quebec Bar Association has made a very strong case opposing the changes. I would argue that.... It's something I don't understand. Why would the government dismiss those professional bodies' opinions and recommendations? Basically, that tells me the government does not take those comments seriously. The government feels that it knows best. The government feels that it can do whatever it can, and it is trying to get the most power it can have.
My colleague Mr. Lawton has asked some of my questions about international comparison. In particular, I want to ask a question...because we're not talking about general thresholds. We're talking about lowering the thresholds from “reasonable grounds to believe” to “reasonable grounds to suspect” in ordinary criminal investigations in order to obtain subscriber information or comparable digital personal information.
My question is this: Can the government identify the specific countries that you have studied, the comparisons that you have made and the conclusions that you have brought forward? You generally said that we have to do a comparison, but I hope that I can get more concrete information. In particular, I want you to address one question. I suppose that in those countries, as you mentioned—
MP Au, I'm sorry to interrupt. It's very rude of me, but I see the bells are ringing. I would like you to continue, but for that to happen, we need unanimous consent.
Is there unanimous consent?
Some hon. members: No.
The Chair: We'll have to suspend and interrupt abruptly.
Mr. Au, I'm sorry about that.
[Translation]
I call the meeting back to order.
Once again, welcome to our meeting.
We're still on amendment BQ‑7.
[English]
MP Au, you have the floor.
Thank you, Mr. Chair.
I want to pick up from where I stopped.
As I mentioned, I'm continuing the line of questions as posed by MP Lawton. There was talk about international comparisons and whether or not there are similar approaches to the threshold of obtaining permission.
I said before the break that I would like to have more concrete examples instead of a general description saying that they were similar jurisdictions using similar thresholds and that, generally speaking, they're worse than us.
Can I have more concrete examples of the countries and the kinds of regulations they may have? In particular, I want to ask this question: How have they dealt with privacy challenges in court? I suppose that in those countries, if there are similar thresholds to what we are proposing, there could have been constitutional challenges or court challenges. How have they dealt with those challenges?
I'll start the answer to that question, if it assists the committee, with a reminder that I think one of our undertakings was to provide a comparison chart. I don't know whether you have that, sir, but it looked at some of the Five Eyes to try to set out for you a comparison of both the confirmation of service demand and the subscriber production order.
You might recall that the other countries do not have judicial authorization, so there's no judicial oversight, generally speaking. There's no comparator. They don't need to set out that standard to a judge or a justice. It would simply be either the agency itself or the police officer themselves making those demands.
Again, as a reminder, if we take a step further back in time, pre Spencer, that was the world we lived in. Officers would go to service providers and ask for and receive that information. That's what's happening with the Five Eyes. Now, post Spencer, police have been asking for that authority.
What we've put before you is that new tool to make sure that there is judicial oversight for those sorts of orders. That's why we're talking about standards, but it doesn't exist; there's no real comparator internationally, because it's not required by the Five Eyes countries.
To Kimberly's point, the debate about whether basic subscriber information needs to go to court for a determination about whether it should or shouldn't be granted isn't a thing. In terms of the level of robustness, we are at a starting point significantly higher, which.... Again, for law enforcement, this specific amendment doesn't touch on CSIS equities, but generally speaking, we are on a different playing field.
From an investigative perspective, the case we're making here is that we need to have a tool that's agile and usable and stacks up well to those of partners. It would be our supposition that what we've put in front of you does those things.
In other words, we're breaking into new ground. We are doing the experiment, and we do not know what the end result is yet. Is it fair to say that?
Canada is breaking new ground, but it's actually ground that's been well trodden, I would say, by countries similar to ours. All of them are doing this at a lower threshold than we are talking about here, and significantly so.
Thank you very much.
Now I want to turn from international to domestic. Spencer was just mentioned. I'm not a lawyer. I'm trying to educate myself by studying some of the cases. In my research, of course, the Spencer case came up, but I tend to feel that you and I may have come to different conclusions.
In the Spencer case, as I found out, the police were investigating the sharing of child pornography over the Internet. The police obtained an IP address and then asked the service provider for the subscriber's name and address without a warrant. I think that was the case, right?
Yes.
I think, also, at the hearing, a key question was asked, which was this: Should a person have a reasonable expectation of privacy regarding subscriber information linking an IP address to their identity? I think the Supreme Court's ruling was yes, right? The Supreme Court felt there should be a reasonable expectation of privacy for subscriber information.
Again, you have that right, sir, because before that, there was case law that said basic subscriber information did not even engage section 8. There was no reasonable expectation of privacy. This was quite new, and you're right: That's what the court held. Also, they required a judicial authorization, which is what's before you now.
Exactly.
As you said, the court went on to say that the subscriber information is not really a person's name and address. When linked to an IP address, it views who was using the Internet connections and, therefore, provides the key to uncovering a person's online activities and so on.
I think the court's ruling said that, instead of lowering the threshold, perhaps it's just the opposite: It should be better protected. The case established subscriber information and just the conditions of privacy protection. I think that's the first case.
Then, of course, I found another case from 2024. I'm not sure if I'm pronouncing it correctly, but it's the Bykovets case. I think, again, you know about that case, and I think the court, 10 years after the Spencer case, went on to ask another question related to the new technology. The question asked was this: Is there a reasonable expectation of privacy in an IP address itself? Again, the Supreme Court's ruling was yes.
The court also went on to say that modern Internet use leaves detailed digital traces. Once an IP address is linked to other information, it can reveal a lengthy, detailed picture of any individual's activities. Accordingly, the court mentioned that technological developments have greatly increased the amount of personal information that can be inferred from digital identifiers. Then, rather than reducing privacy protection because technology makes surveillance easier, the court held that constitutional protections must adapt to preserve meaningful privacy in the digital age.
Putting all this together, my question is this: Now that the Supreme Court has made it clear that subscribers' information and IP addresses reveal far more than technical data.... It's not just phone-book information anymore—they can expose a detailed portrayal of a person's private life. If the court has recognized increasing privacy interests in digital information, what evidence do you have to conclude that reducing the legal threshold from “reasonable grounds to believe” to “reasonable grounds to suspect” is consistent with section 8 of the charter?
I'm going to start by just situating you with section 8 of the charter. It permits reasonable searches and seizures, in recognition of the fact that the state's legitimate interest in advancing enforcement goals remain consistent with privacy. It's a balancing exercise.
It's a two-part test.
The first one is whether there is a search at all. Was there a reasonable expectation of privacy? It's not complete privacy. It has to be a reasonable expectation of privacy.
The Spencer and Bykovets cases were on the first part. Was there a search at all? Before that, the case law was that there wasn't even a search. On the minimal intrusion, there was no reasonable expectation of privacy. The court is saying that now there is, folks.
You need to go to the next stage, which is, is it authorized by law? Is the law itself reasonable, and was the search conducted? Now we're in a new world, where we need the tool to be authorized by law.
In constructing this piece of legislation for your consideration, that's what we did. We said it has to be judicially authorized, and we're looking for a tool that's useful to officers. We already have all sorts of hammers, as it were, in the search world, but we need something tailored for officers to use at the beginning of an investigation, where we're not looking for evidence of an offence. We're actually just looking for information. It has to be tailored. It has to be narrow. It's going to be judicially authorized.
It's in that balancing, in that weighing of the reasonable grounds to suspect, which is used in all sorts of situations where things are tailored and the intrusion is minimal. That is the standard that's used in criminal law.
That's why that is put before you.
There is no lowering. Nothing's been lowered, because this is a new tool.
I hope that answers your question. I wanted to situate you in terms of section 8 more generally.
Not quite. Even though you said that it's not lowering the threshold, in fact it is. You're making a distinction between reasonable grounds to suspect and reasonable grounds to believe. You have made that distinction. At the end, you're choosing the lower threshold, which is to suspect rather than to believe. Actually, you do lower the threshold.
Are you saying that you don't expect there will be some constitutional challenge if this threshold is adopted?
Again, I want to make sure that we're on the same page.
Before Spencer in 2014, officers routinely received this information voluntarily. Spencer changed the world. The Supreme Court of Canada said that you needed lawful authority. They didn't say that you needed to get a warrant that's at the reasonable grounds standard. They said that you needed to create a law that allows officers to have this power.
In crafting the legislation that's before you, we looked at criminal law more generally in the Criminal Code and the nature of the intrusion itself, the tool itself. It is tailored. It is limited in scope and nature to such an extent that the reasonable grounds to suspect standard was chosen for that new tool. It is consistent with the Criminal Code and other provisions like it. It is consistent. That is what I'm trying to say.
What I can say is that the Minister of Justice is required to review all legislation before he submits it here. He has done that. He's fulfilled his obligations under the Department of Justice Act. It's before you to make that decision.
I can't anticipate what courts or counsel may or may not do in terms of challenging the legislation.
Assuming that in the future, this legislation is challenged in court, what will be the line of defence?
If there was a court case, we would be making the same sorts of arguments that we are raising with you folks here to consider whether it's the right tool. We would go through the nature of the tool, and the consistency with the Criminal Code and case law. Those would be the arguments that we would make.
Thank you so much, Mr. Chair.
As we try to come to a consensus on the amendment proposed by my Bloc colleague, I think it's really important to understand the problem the government says it's trying to solve with this clause, and to stand that solution up against the Bloc amendment. It is similar to amendments proposed by both the Conservatives and the NDP, and it relates to a concern expressed to me by Ms. May. It is really important, at the outset, to recognize that all the opposition parties have taken issue with the way the bill is drafted around this standard.
I'm going to have some questions for the witnesses and will try to get to the bottom of this in a way Canadians can understand, because privacy is so important to Canadians. I know there are some people at home who are following this issue closely.
Before I get to those questions, though, there's something I would like to say, through the chair, specifically to my colleagues on the other side of the table, because they're the ones supporting the bill the way it's currently drafted, with respect to this standard.
When I initially spoke to Bill C-22 in the chamber, the issues around the government choosing the standard of “reasonable grounds to suspect” instead of “reasonable grounds to believe” attracted a lot of attention. One of our members, who practises criminal law, practically grabbed me by the lapels as I was coming out of the chamber after my speech, to talk about it. Ms. May also pulled me aside to have a conversation about it. The specific reason it's such a big deal to lawyers and lawmakers—it's important that people watching this at home understand—is that these questions.... “Reasonable grounds to believe” and “reasonable grounds to suspect” are not just technical legal terms. They determine how much evidence and how much work the state needs to do before it can intrude into someone's privacy.
I thought Ms. Gibner did an excellent job of explaining the basics of privacy law and the kinds of tests the court uses. I'm not going to reiterate the earlier conversation the committee had with respect to using the lower standard for production orders in general. I think the committee got that vote wrong, and I would have supported the Bloc amendment. The fact that the committee has already made a decision to use that lower standard for domestic subscriber production orders does not automatically mean the same standard has to apply in the international context.
That's the context in which we're discussing the standard here.
I thought Ms. Gibner did a really nice job of describing Spencer, because that case changed the frame. We no longer look at it and say, “This is just basic subscriber information or basic customer information.” Spencer made it clear, from a judicial perspective and a charter perspective, that we're dealing with what can be highly revealing information that attracts a reasonable expectation of privacy under the Constitution. It is useful to think about the ethos of Spencer being here with us in this room, because the way it situates this debate we're having reminds us that subscriber information is not considered to be neutral under Canadian law. It is often a key that connects a person to their digital life. Once that identity is disclosed, that privacy interest is gone forever. Once you know who it is, you know who it is. It's one of those things that are hard to reverse. That's why this standard matters, and it's why the choice of standard in legislation matters.
If Parliament chooses the threshold of “reasonable grounds to suspect” instead of “reasonable grounds to believe”, it's lowering the bar for the state.
When I say “the state”, I don't mean it in the sense of the United States, for people who are watching from home. I mean it in the sense of “the state”: the entity of government that in some ways takes care of us and in some ways has the power to show up at our house and drag us out at four o'clock in the morning, because that is part of the social contract. The social contract that we make is with the state. The charter relates to the things and the role that the state plays in our lives, when we have individual autonomy and when we are part of that collective. It really matters.
I sat and listened to my colleague, Madame DeBellefeuille, talk about how the conversation we are having here is not a filibuster. It is not something where we are holding up the work that the government wants to do. It is an inherent part of the work that we do in this chamber.
I understand that tempers have gotten high over the last few days and that there is an agenda that the government would like to push through, that there are things they want to do, but we have stood in the chamber over and over again and said that the government's failure to plan a legislative agenda with enough sitting days and enough time to get the work that they want done through Parliament is not something that should become our problem. We should not be rushing through important conversations about things as basic as privacy, especially when these are ongoing conversations that are happening in the courts and that are happening in our communities.
I'm not going to reiterate what Madame DeBellefeuille said, but I think it's really important that no one in this room feels that they are being pushed hard—I'm not going to use the word “bullied”—into skipping over understanding what these really important standards do, because we're no longer talking about the standard for a regular production order. What we're talking about when we get to this amendment is the same standard as it applies to something called a “mutual legal assistance treaty”. That is something that serves a slightly different purpose than the production order.
My understanding is that a production order, as we think about it, is a tool that's used by Canadian authorities to obtain information directly from companies and enterprises over which Canada has jurisdiction. When we get into mutual legal assistance treaties—or MLATs, as we call them, because who doesn't love a four-letter acronym—what we're doing is we're asking.... I want to make sure I'm correct on this, so please, someone, correct me if I'm wrong. An MLAT actually involves asking another country to use its legal processes to obtain information on Canada's behalf from a company or an enterprise in that country.
Have I got that correct? Okay. That's good, because that's where we are in this debate. We are debating the legal standard that should be used when we are asking another country to go and get information from one of its corporate persons, I guess. In Canada, it would be a person, but it would be more of a corporate person or an enterprise. We are asking it to go into its database, into its information, and give law enforcement in Canada information that Canadian authorities can then use.
That puts us into a different realm. It puts us over borders and it engages questions around international comity, around foreign sovereignty and around cross-border co-operation, and not just with the United States or even with countries that are democratic. The IP addresses could really be from anywhere. We'll talk about that a bit, I hope, but it's cross-border co-operation that simply does not arise in a domestic co-operation order.
I think, as Ms. Gibner pointed out, that what we have in Canada when it comes to our privacy landscape is something to which there is no comparator. There isn't really a Spencer in any of the countries that we're dealing with. It's a way in which Canadian rights and Canadian privacy rights are...“unique” is a bit of an overused word, but they're certainly not common, and it requires thinking. That means that we think about these problems in a different way.
There's been some conversation around the table. However, I hope the way I've explained this helps make it clear to everybody sitting around the table why it is possible to have one standard for a domestic production order and a different standard for an international production order.
Is that a fair summary of where we are, Ms. Gibner? Do you have anything you'd like to add to that?
In response to your last statement, I will say that it would seem more important to me and to Canadians that Canadians protect Canadians' privacy. I'm unclear on why we would have protections for other countries more so than for Canadians. That doesn't really make sense to me, personally.
Given that I think we have this wrong—and I think we got it wrong on the first question—I'm actually hoping I'll be able to convince my colleagues through this round of questioning and through our conversation.
Remember how we started earlier. The standards of the Five Eyes and G7 partners are already lower than ours. We're actually giving those partners our higher standards, if you know what I mean.
Do we do that in the realm of forced labour? There are countries that have lower labour standards than ours. We have rules that say we shouldn't be importing goods made under conditions of slavery in other countries. Accepting that other countries' legal standards are lower than ours and that, therefore, we shouldn't use a higher standard—
I'm saying the exact opposite, which is that our standards are already higher. By working with our international partners, we are imposing on ourselves...or at least this legislation suggests to you that the right approach is that, yes, we apply Canadian standards, higher standards, on our partners, not lower, for example. We're not having it voluntarily provided to us. We are requiring this lawful authorization at the higher standard that those countries don't impose on themselves.
I wish I had been here for the conversation about the other clause. I would submit to you that we made the wrong decision on that.
I could make an argument, based on Spencer and other legal cases, that there is a material difference between suspecting and believing. Since I don't have the opportunity to make that argument on that clause, I will make it here instead.
You may believe that, if we did it differently, you would have the lower standard on this and the higher standard on the other one. I would like you to confirm that the standards don't have to be the same.
Moving on to the clause, I just want to have the conversation about this clause. I want to make it clear that I'm having the conversation about this clause independent of the other clause that the committee already made a decision on.
I can understand why the government would want to make it easier and faster for Canadian police to get digital records, especially when the records are held by foreign service providers. That's the goal here. Is that correct?
The goal is to provide officers with timely access to information, particularly at the beginning of investigations.
What I'd like to understand....
I'll go to Sergeant Gilkes or perhaps Chief Superintendent Burchill—whoever wants to answer this question.
The nub originates with law enforcement. When we talked last week about a different amendment, the Liberal.... It was a Liberal subamendment to a Bloc amendment. When we talked about that situation, we were talking about a fairly straightforward fraud situation, where you go to get information under a production order.
How do we get to an MLAT? What changes in that fact scenario we talked about that gets us into an MLAT?
Thank you for the question.
I may ask my colleague to expand on the investigational level, but foundationally, we're starting from a criminal complaint. There's an alleged crime. There's a victim. We're at the very outset of an investigation with these tools.
What kind of complaint? Let's work with a live example.
We were talking last week about a situation where someone realizes that funds have been withdrawn from their bank account. How do we get to an MLAT from there?
Your investigation would be built up very much the same way it is in a domestic investigation. Actually, not much changes at all. It's simply that you've identified that the evidence you require lies outside your particular jurisdiction. You still have to build your grounds as though you were going to submit judicial authorization to a Canadian justice or judge. You then have to go through the process of contacting legal services for Canada—in this case, PPSC—which brings you through to Justice Canada and so on. It's just a considerably longer process.
Do you mean how it would change the MLAT process, or how it would change the process for obtaining information?
It would no longer be necessary, because, in this case, we're not getting the content of whatever that service provider is holding. We're receiving only a very scoped amount of information, such as the existence of the records or the nature of the records, not what is contained in the records.
I'm not sure if you know what I mean.
Under MLAT, essentially, we were doing that to obtain the contents, including the contents of the records. As I mentioned, it's a rather long and drawn-out process. If you're going to make all that effort, whatever you're receiving back should be, hopefully, more complete, with as much information as you can receive from that particular service provider.
It doesn't allow for content, to my understanding. It's subscriber information and transmission data.
Is it now a two-stage process? In stage one, you would still go through an MLAT. Is that correct?
I'm seeing a lot of head-shaking, which is great. This is what we need to get to the point where we might end up being able to support these kinds of clauses. It makes a huge difference, when we initially heard a standard that's not the normal one we expect to get in criminal law. It is through these kinds of questions that we get to understand what the difference is.
You're no longer using an MLAT. This is a different process.
An hon. member: I have a point of order.
Tamara Kronis: Instead of using an MLAT, would you go to a judge in Canada, the United States or whatever country? Would you go to a judge in China?
Maybe it's the Justice people who need to answer this.
In our old scenario, you've identified that someone came into the bank and money is missing from their account. You realize that some IP addresses have accessed this account repeatedly. You realize that they are not in Canada. Where do you go from there? Who gets asked for what, if it's not through an MLAT?
[Translation]
Mr. Chair, just before Mr. Wong answers the question, I would like to clarify one thing.
What does MLAT mean? The same word seems to be used in both English and French. The interpreter is saying the same word.
[English]
Maybe I can help, if the interpreters can help too.
In English, it is “mutual legal assistance treaty”. It's the tool the Bloc member is amending.
[Translation]
The interpreter was saying the same word in English and French. It's basically an abbreviation.
Is that right?
Excuse me, Mr. Wong.
My colleague is making some important points, but she's talking quite fast. For the interpreter's sake, she would be well advised to slow down a bit.
You would also be a good interpreter, Mr. Lawton. Congratulations. The more we hear you speak in French, the more we're impressed by your skills.
[English]
Madam Kronis, I believe you are doing your best in terms of delivering the flow of information that you would like the witnesses to hear at the speed at which the interpreters can translate that into French.
Okay. Getting back to this, in this situation, where the IP address is outside of the country, you're no longer going to go through the mutual legal assistance treaty. You're no longer going to go through the MLAT. What do you do instead, if this passes?
Thank you for the question.
[Translation]
First, I'll respond to Mrs. DeBellefeuille. I think that this concerns the Mutual Legal Assistance in Criminal Matters Act.
[English]
In relation to the scheme of clause 7, as Sergeant Gilkes tried to explain, in the current environment there's some inconsistent treatment of this issue across Canada. In some jurisdictions—namely B.C. and Ontario, I think—the judges are comfortable with issuing production orders against foreign entities. This is a mechanism that works because of U.S. law. It's not a mutual legal assistance process.
Under title 18 of the U.S. Code, these are amendments that came as part of the Electronic Communications Protection Act. They allow for service providers under that act, as defined by that act, to provide subscriber information and transmission data to foreign authorities when they show their lawful authority to obtain that. This provision takes advantage of the law of other jurisdictions, which can provide this information without having to go through the MLAT process.
The way the process is designed for Canada, if Canadian authorities can meet the threshold to obtain that information domestically—the subscriber information and transmission data—they can, before a judge or a JP, also ask for an international production request, which will permit the transmittal of those orders to a foreign entity to hopefully be acted upon. In my earlier intervention, I don't think you were here, but I was saying that these are not compellable; they rely on the voluntary provision of this information from those entities.
Then, if I understand it correctly, what this new tool does is give you a way to try to get some of the basic subscriber information, the kind that you would get in a production order, without having to go through the entire MLAT process, without having to go through the mutual treaty process. If, for whatever reason, the country that you're dealing with either doesn't allow it or doesn't accept whatever it is that our court produces, then you would still be able to go back and go at it through the MLAT process. There's no—
That's exactly right. There's no double jeopardy aspect of it. If you're early in the investigation, as opposed to much further down the line when you're actually looking for more than the content, then you want to be able to use this tool instead of having to wait and try to find a bunch of other information. Basically, when you run out of other roads, you'll then go into the MLAT process, and it's a much bigger production. Is that a fair way to describe it?
I can understand why the desire is there.
Before I ask my next question, I want to go back to understanding why it's so important for Canadians to understand the trade-offs that we're making in this process. The exchange that we just had was so helpful. I hope it's been helpful to some of my colleagues who've been interested in this issue and have been chatting about it. We've been chatting about it a lot in the lobbies, behind the curtains and in the hallways. You've helped me understand that it's a much more limited tool, even though it's couched in the international process. It's not even a mini-MLAT. It's kind of apples and oranges.
The reason it's so important for Canadians to understand the trade-offs being made is.... As you know, it's very rare that the debate is really about whether law enforcement should be able to investigate a crime. I think everybody wants law enforcement to be able to investigate crimes, and everyone agrees that they should. Where we need to figure out how to draw the line is between public safety and privacy. How much evidence should you have in your possession? How much evidence should be required before the state gains access to increasingly revealing digital information? The fact that digital information is so revealing is what sits behind Spencer.
When the legislators choose this threshold, do you think you're expanding through this? What would the standard be? I'm trying to get at whether we're actually expanding the investigative power here. Is the standard for this non-MLAT process different from the standard that would exist if you were going through a full-blown application under an MLAT?
The standard is different. As I was explaining before, this is designed to take advantage of the laws of a foreign country, if they provide this information.
As Sergeant Gilkes explained, in order to get content—the highly private information—most foreign entities require a full-blown MLAT. I can speak only to how our incoming MLAT process works. As you explained earlier, it generally requires a request with enough information that we can receive a domestic order to obtain it ourselves. Then there's a second hearing. All of this is before a superior court judge. The second hearing is the sending hearing. Once the evidence has been collected, it gets sent back to the foreign entity.
Here is the question I'm getting at. You've made the case for why you believe it should be reasonable grounds to suspect instead of reasonable grounds to believe for the MLAT process, because all you're asking for—I'm putting “all” in air quotes for that—is the basic subscriber information—not the content of the message. You would ask for the content under the full-blown MLAT process.
When you do the full-blown MLAT process, is the standard currently, before this law comes into place, reasonable grounds to believe, reasonable grounds to suspect or something totally different?
It's both. It's reasonable grounds to believe for the higher-privacy interest stuff.
We made changes to the Mutual Legal Assistance in Criminal Matters Act back in Bill C-13, when we brought in the new production orders for transmission data and tracking data. The lower-threshold information under reasonable suspicion is also available under the MLAT process for incoming, for that type of data.
That helps to explain things for me. This has been a really clarifying conversation so far for me.
What you're saying, I think, is that when it comes to this new process that didn't exist before this bill was drafted, the reason you picked the reasonable suspicion standard as opposed to the reasonable belief standard is that the type of information that you are trying to get through this is the kind of information that would have qualified under the reasonable belief standard as opposed to the reasonable suspicion standard in an MLAT process. Is that what you're trying to explain?
Yes, it's consistent in both, both the incoming and the outgoing requests.
As Ms. Gibner said, we're basically exporting our constitutional standards to the U.S. when we're asking for information, because we're forcing law enforcement to jump through the hoops for the Canadian standards before they can ask this of a foreign entity.
I want to make sure I have it 100% right, because it is so important in this context.
If the request is for basic subscriber information, the test we currently apply under that MLAT process is reasonable grounds. What the superior court judge would want is the reasonable grounds to suspect test. If we were asking for content, it would attract a higher degree of privacy, and they would want the reasonable grounds to believe test. Is that what you're trying to say, or does it all get rolled up into one? How does it work?
What I'm trying to figure out is whether the standard you're using for this is the current standard if that piece was taken out or not.
I would say no, because the current process exists only in the United States right now. They would apply the U.S. standard. As we explained, law enforcement and district attorneys can get this without any judicial oversight. That's the standard that would be applied currently.
We're creating a process in Canada so that the section 8 rights of Canadian suspects can be respected and to make sure that police follow all the constitutional safeguards that are required in Canadian law.
You're describing an outgoing request. If the Americans have lower standards, we can take advantage of that.
When it's an incoming request for an MLAT, and another country is asking for our basic subscriber information now, before this tool exists, do you use the reasonable grounds to suspect test or the reasonable grounds to believe test? Is it different when they ask for content? What are the standards that are currently being used?
For incoming requests, you are correct. We would have to use the reasonable grounds to believe test because the only tool available is the general production order.
Right. What you're proposing is a different process where we do, in fact, use a lower standard than the one that is currently being used.
That's correct, because that is in the subscriber information production order, the last clause that we dealt with.
No, the last clause is not law, but it is the wording of the legislation. I think it's still correct. If it were passed the way it's currently written, that is the standard that would be used. That helps lay bare....
To my colleagues, Ms. May and Ms. DeBellefeuille, I hope this has been helpful. I hope that we now understand what we are dealing with. It's that, under the existing tool, the standard that is currently used, no matter what kind of information it is, for Canadians' private information is, in fact, the reasonable grounds to believe test. What's being created here is a new tool that extracts part of that process and applies a different standard that is more permissive.
Without putting words in my colleagues' mouths, the reason all three of the opposition parties have put forward amendments to raise that standard in this context and the reason.... I don't believe that Ms. May and the Green Party have an amendment, but certainly I think....
Do you have an amendment on this? No.
Then, three parties have made an amendment to go to the standard that would normally be used for this information in the current court system, and Ms. May has also expressed concerns to me that....
Yes, I'm seeing thumbs-up from Ms. May.
I now want to explain why I think...and I really hope that Canadians watching this at home now understand what was actually a very complicated clause.
I see my colleague from the Bloc, Madame DeBellefeuille, nodding at this, because I think we're now actually on the same page, and it is that there has been a new tool created, and it uses a different standard from what would be used today for the same information.
I certainly understand why law enforcement wants to lower the standard. I really do. At the same time, though, I think it's important to remember the reason privacy rights are so...interesting isn't even the right word. The reason they resonate so much with Canadians is that privacy rights are one of those types of rights that are often lost quietly and incrementally.
When I gave my speech on this in the House, my initial speech on Bill C-22, I talked about a fable. I'm not going to repeat that fable now, because I know that my colleagues across the way are looking for clips. However, I would urge people to look at my speech on Bill C-22 and look at the analogy that was made. It includes a story that talks about how privacy rights are lost incrementally. Privacy rights are often lost quietly.
Many people don't know when their information has been sought or disclosed. It is one of the features of this digital age where we have to give up so much of our information if we want to use tools that are available to us.
Unlike many other government decisions, the people affected by changes to privacy rights often never have the opportunity to challenge the decision or even to learn that it has occurred. We learn about so many breaches of our information through an email some number of months later. This is something that the Privacy Commissioner has really grappled with over the years.
This places a special responsibility on Parliament and on parliamentarians to scrutinize these powers carefully before they're granted, because privacy is not just an individual concern; it is a democratic one. The countries that do not have privacy rights are often countries for which we worry about the state of their democracy. The ability to communicate, to read, to research, to associate with others and to participate in public debate without undue surveillance is part of what allows a free society to function.
In every generation, at every stage of our being, we face new technologies and new investigative tools. The challenge for us in this committee is not whether we should adapt to those changes but how to do that while we preserve the freedoms and expectations of privacy that Canadians rightly value.
That's why debates over clauses like this matter. They're not merely technical amendments to a statute. The choice between “believe” and “suspect” may seem mundane to our colleagues across the table, but when all four opposition parties and so many experts have come to committee to highlight the difference between those words, I think it is really important, and it deserves careful scrutiny and understanding.
With that, I really want to thank the witnesses again for helping us understand what the difference...what it is that matters here. While I would submit to you that the conversation we've had over the last few minutes has been illuminating with respect to this clause, I think—I hope—it has also explained and validated the reason that the opposition members of this committee, from all parties, voted against this standard in respect of the production orders.
I agree with Ms. Gibner. The standard that we apply.... The standard that we give citizens from other countries should not be higher than the standard that we give to our own citizens, but this conversation has revealed that we do have a change.
It is a new tool, but it is a tool that allows information that would normally have to go through another process, that would normally attract a higher standard of scrutiny, to be received using a lower standard. What we haven't talked about, and what I suspect one of my colleagues will cover through some of the case law he's brought with him, is why it matters.
An hon. member: It's for later.
Tamara Kronis: Is it for later? All right. Well, it's going to come up in this.
I think we now understand the difference and what we're doing here, but the issue is that the standard of reasonable grounds to suspect as opposed to believe—suspicion as opposed to the higher standard—usually applies in situations where there is exigency. It usually applies in situations where there are special concerns. I would note that this is not a tool that can only be used under exigent circumstances. It's a tool that has been created to be used by law enforcement wherever it sees fit. That is why the standard and the difference in the standard matter.
I'll stop there, Mr. Chair, because I think I've done a piece of the work that we need to do in this committee.
An hon. member: Encore, encore.
Voices: Oh, oh!
Tamara Kronis: It's to get us all on the same page on what we're talking about here, what the difference is between the existing standard and the new tool that's being created, and why it matters in the context of privacy law. I hope this conversation will allow us to really be able to make a good decision about which standard we should choose—the standard that already exists or the lower standard that the government would like to use in this bill. It's up to them to justify why using a lower standard is necessary. While the witnesses have been wonderful in explaining how they would use this and what it is, I haven't actually heard the case for why it's necessary.
I'll stop there, Mr. Chair. Thank you very much.
Thank you, Madam Kronis. You have raised the excitement bar quite high.
Voices: Oh, oh!
The Chair: Now we will turn to MP Caputo, who will certainly meet that standard.
Voices: Oh, oh!
The MPs are smiling, but I do want to take a moment to thank the officials. I know it can be difficult. We have moments of levity among members, probably because it is now June, and this is the silly season, when it can be very difficult. A lot of people are working 15-hour days, yourselves included. We do thank you for putting on a brave face. I know you're not allowed to show the levity that sometimes we are. We really do appreciate you for being here.
I'm not going to take a super long time here—famous last words—because I am going to ask for a washroom break when I'm done—full disclosure. This is something that was actually brought up by professors Geist and Diab. I'm not sure in your preparation.... I know that you all do robust preparation. Professors Geist and Diab appeared on the same panel. Can I ask, did anybody review their testimony on the panel? They both talked about the grounds to suspect versus the grounds to believe. Is this triggering for anybody? One of the things that both of them said, as I recall—I'm pretty sure it was Professor Diab who definitely said it—was that a lower threshold of reasonable grounds to suspect generally would invite scrutiny under section 8. There's always scrutiny under section 8. What I mean by scrutiny under section 8 is perhaps a declaration of unconstitutionality.
We can sit here all day and all night, but if a law is declared unconstitutional at the end of the day as having breached section 8 and not having been saved by section 1, all this time we spend is in vain, really. One piece of litigation works its way up to the Supreme Court of Canada, which invariably these types of cases do, and then there's an issue there. I want to ask about this. I would like to ask about the officials' point of view. My recollection is that the professor said that a lower threshold of reasonable grounds to suspect would breach section 8 of the charter.
The government doesn't believe so. I've looked at the charter statement, and I don't think that the charter statement really tells you a lot. It says this right is engaged, but we're kind of doing this. It doesn't say, a reasonable ground to suspect will not invite the court to strike this down, because this case and this case established this, and based on that we come to this conclusion. That's what I'm looking for from a legal statement. I think we would all want that from a legal statement. I would like for somebody to address this question. The professor said the reasonable grounds to suspect threshold offends section 8. What do you all say to that?
I'll start that question. I think you're asking everybody, so I'll start the conversation and let others chime in. Obviously you know that we're here to assist the committee and answer questions. We are dedicated public servants who work on these issues day in and day out. Some of us have been accused of being advocates for the bill, because I think we are passionate about serving you.
We definitely do not think that it offends section 8. It's going to be up to this committee to make that decision about the standard. We're here to make sure that you have the information you need. We've tried really hard to set out the thinking. That's what we're here to do, to make sure that you have the answers to your questions.
Without repeating myself I always want to start with first principles, which is, what is the purpose of section 8? It is the balance of the state interest of law enforcement and privacy interests. Spencer was about whether we were even in the realm of section 8, whether there was a privacy interest at all. The court confirmed that we are, and that the world of policing had changed. For this type of information, they needed lawful authority. When we're drafting a bill for your consideration, we are looking at the state of the law. There are all sorts of reasonable grounds to suspect. Somebody pointed out to me earlier today one of the provisions you probably dealt with more in your career than I did, which is the reasonable grounds to suspect for a roadside breathalyzer.
It's reasonable grounds to suspect. There are all sorts of provisions in the code. There are all sorts of law enforcement tools, like the use of sniffer dogs—that is reasonable grounds to suspect. The courts are consistent that “reasonable grounds to suspect” is a criminal standard that has been around forever. It is lawful authority, and it is in those situations that the search is.... In comparison to your general production order or your search warrant to your home, which requires “reasonable probable grounds”, “reasonable grounds to suspect” is for more narrow, targeted searches.
You'll remember that “reasonable grounds to suspect” is also built into the tool itself. This means that, in reasonable probable grounds, there will be evidence of a commission of offence, so you are looking at building a case with an evidentiary perspective; however, in reasonable grounds to suspect, it is at the beginning of an investigation in which, in this case, for these tools, it's about obtaining information, not evidence at all. Again, they are tailored, narrow, small, judicially authorized safeguards of judicial review.
The “reasonable grounds to suspect” standard was chosen, and we do not think that it violates the charter, or we wouldn't have put it forward.
I'm just going to think about this, because you used the breathalyzer example—and I appreciate your bringing that example. The law did change in British Columbia a number of years ago, which basically meant that we didn't really prosecute a lot of impaired driving charges. However, I do recall there were reasonable grounds to suspect that a person had alcohol in their body.
Now, as I recall—and I can't remember whether it was an arbitrary detention issue or not—it did have to go through a section 1 analysis. I can't recall whether it was section 8, the search, in terms of providing a breath sample, or section 9, the roadside detention.
I always really appreciate, Ms. Gibner, how you engage with the law in discussing this. I think you articulated that quite well. I don't think anybody at the table there would say something along the lines of, “Look, we really want to put law forward that's unconstitutional.” Now, we still have to scrutinize that. Of course you're not going to put forward unconstitutional law. I don't think you would have your jobs.
With that being said, I think Bill C-2 had blatantly unconstitutional provisions in it. I'm not going to bust out parts 15 and 16 in it. With the greatest of respect to officials, I think that the legislative drafters were told what to put in, and that there was probably language in Bill C-2 that caused nine out of 10 constitutional lawyers to say, “Yeah, this probably offends the charter.”
The mere fact that something has been drafted, I don't think, is persuasive enough. I take it on its face: “Look, we're not going to put something in that we know is unconstitutional.” What we worry about is the grey area.
I guess what I'm asking you.... Tell me if this is an unfair question. I asked professors Diab and Geist about this, as I recall. They articulated their rationale as to why this offended section 8. I don't recall exactly how they connected the dots, but I guess what I'm looking for is this: Quite simply, do you disagree? Where do you depart from their analysis? Do you recall their analysis? This was a couple of months ago now, so help me out there, please. If you can't recall, I'm not going to be offended or anything....
I'm going to let my colleague answer that. I don't recall what their arguments were, so I can't respond. However, I think my colleague can.
Thank you. I'll try. I don't want to comment directly on the testimony or the evidence that they produced. They're lawyers, we're lawyers: We have opinions.
Our reading of the Spencer decision, as Ms. Gibner has said, leaves space to develop lawful authority by other means. We've talked previously about administrative schemes they could have stood up as lawful authority to access subscriber information. This government decided to go for a more robust judicial oversight. The court didn't stipulate that it must be judicial oversight, but that is what the government decided to put in the bill.
The “reasonable suspicion” standard was chosen because of the type of information it is. As we've explained before, the “reasonable grounds to believe” standard is usually reserved for gross invasions of privacy, like the police coming into your house or looking at the contents of your banking records or everything else.
When you're constructing these tools, you have to put them on a privacy spectrum. This information, in the vast majority of circumstances, will identify only the person involved in criminal activity, or exculpate them, as Sergeant Gilkes said, when we find out that the person is just the pizza delivery boy. This is the reason that this was chosen.
In terms of working on the policy for these things, challenges to their constitutionality are commonplace. It happens all the time. As Ms. Gibner said, it isn't our business to introduce or put together policy that would be unconstitutional on its face. There's a requirement, actually, in the Department of Justice Act, for the Minister of Justice to inform Parliament if that's what he's going to do.
You raised an interesting point.
You have both been very articulate in how you have addressed this.
Here is one of my questions and, potentially, a concern. You talked about spectrums of privacy. Obviously, one's body probably attracts the greatest privacy interest. However, with these things here, there's a lot of privacy, because they have all of your details. They're essentially walking biographies of who we are, which, in some cases, people might not want other people to know about. It's things like that. They contain substantial information, so they do attract a high degree of privacy. Even the modules in your car.... There's a B.C. Court of Appeal case about the module that records information for the last three seconds before an accident. These are the types of things for which there is still an expectation of privacy.
On the spectrum of the expectation of privacy that you've just outlined, Mr. Wong, is there agreement, either academic or jurisprudential, on where these issues here, which are covered in this clause and this amendment, stand?
One aspect of this clause is the request for transmission data. This production order has existed at the “reasonable suspicion” standard since 2014-15. Its complementary transmission data recorder warrant has existed since 1993, all at the reasonable suspicion standard, so it certainly has existed.
As we know, there's no specific tool for subscriber information, but the type of information available in the subscriber information production order is largely already available under the financial information production order.
I don't think we want to have that, given that we have had three series of 50-minute breaks up until now.
I'm being tough, but I think—
Thank you very much.
I particularly enjoyed Ms. Kronis's 56 minutes, although she, somehow, has not stayed for the vote on this, which is shocking.
First, I just want to understand this. Would you say that consistency is important when you're using standards related to whether you're going to use reasonable grounds to suspect or reasonable grounds to believe, if it's for exactly the same thing, such as seeking a production order?
I think you've heard from both Mr. Wong and me that a key we're looking for, when we're proposing legislation for your consideration, is consistency.
Let's say, for example, that you had the question of deciding whether or not a breathalyzer test were something to be sought, and there were a separate provision in the code that said, “If you smelled alcohol on somebody's breath, they had bloodshot eyes,” or other observational signals for how the signs of a driver look.... If you were to say that, you would use “reasonable grounds to suspect” to enable the officer to order a breathalyzer test at that point.
Then, if there were another, separate provision in the code, which talked about observational driving, and if you saw the car swerving from side to side, it would be important to use the same “reasonable grounds to suspect” in both cases, and not have one be “reasonable grounds to suspect” and the other one “reasonable grounds to believe” in order to order the breathalyzer test.
That may be a bit convoluted, but, essentially, you're coming to the same point. You have reason to suspect that the driver might be impaired, and you have different ways of assessing that. One would be, for example, the physical signs—such as they're slurring; their eyes are glassy, etc.—and one would be how you observe their driving. It would make no sense, in that case, for you to have determined that one would be “reasonable grounds to suspect” and one would be “reasonable grounds to believe”. Would you agree with me in that case?
You would never recommend to the Minister of Justice to put two different standards in the bill for essentially the same type of activity that causes an officer to want to order a breathalyzer test.
In this case, we have already determined—whether the committee agreed with it by majority or didn't agree with it by majority—what standard we were going with to ask for a production order to be, at least within the domestic scope. Is that not correct? The committee voted by majority to go with “reasonable grounds to suspect”. You were there when that happened.
Yes. I echoed something similar earlier, which is that it would be pretty nonsensical to me that we would have a production order for Canadians and then do something different—
Then you'd need a higher standard to have a production order in a foreign country, which makes no logical sense to me either. Regardless of whether people agreed or didn't agree with the original decision, you can't have inconsistencies across the law.
I'm sorry, MP Housefather. Your interventions are somewhat dense and fast. Given that the interpreters have had a long night up until now, you may want to just go slightly slower.
[Translation]
Okay. I'll slow down.
[English]
Basically, given that we've already made a decision on the domestic “reason to suspect”, it would seem strange to use a higher standard for an order that we're seeking in a foreign country. It would create a very, I think, unusual law in which we're imposing a higher standard in a foreign country than in our own country.
I think you've echoed that already.
Essentially, Mr. Chair, my point to colleagues is that, whether they agreed with the original decision or not, the decision is there. The law is written that way already. We don't go back in committee; we only go forward.
Now we have spent about two hours, so far, on this one amendment, to somehow argue that we should have an anomalous higher standard for a production request in a foreign country than we should have domestically. To me, that makes no sense whatsoever. This has been two hours of an absolute waste of time on this debate, because, essentially, the decision was made.
There were ample hours of discussion a couple of days ago about what standard to use, when we decided what standard would be used domestically. Nobody, no good lawyer, would advise that you'd create different standards for the same thing in the same law.
Thank you for allowing me to carry on and not fall into this very strange type of situation where we're pretending that it's okay to disregard what the committee decided a few days ago with respect to the standard to seek a production order.
Mr. Chair—
No one is disregarding what was said. I think we were very clear that we think the committee got it wrong.
Not only is that not a point of order, but you also specifically said in your own remarks that you were disregarding the previous decision, assuming that this was in isolation and going forward with your arguments.
Again, I would have wrapped this up in three if I hadn't been interrupted.
In any case, Mr. Chair, at this point, I believe this is a pointless debate. We have an amendment again. There are dozens of amendments, and we got through one today. I think this makes the point that some people are taking this discussion with a complete lack of seriousness.
Thank you.
Thank you, Mr. Chair. I have a short intervention in response.
As Mr. Housefather will know, there are several different powers in the act. The government is choosing to change the standard in each of them. Several of them are different, actually. The confirmation of service, for example, is one. The production order is another. The third one that comes to mind is the requirement for tracking information, which will come up in an amendment shortly.
Those are three different powers under the act, and each can demand its own discussion of what standard should be applicable.
Thank you.
[English]
[Translation]
Since amendment NDP‑5 is identical, we won't vote on it. The same applies to amendment CPC‑5.
Is it the will of the committee to adopt clause 7?
(Clause 7 agreed to on division)
(On clause 8)
[English]
One moment, please, Chair.
I'm sorry, Mr. Chair. Go ahead. I wanted to make sure I'm following you.
We have no amendments to clause 8. Is that correct?
Okay. It's on division.
[Translation]
[English]
[Translation]
[English]
Thank you very much.
My understanding is that the current framework deliberately leaves timelines to judicial discretion—correct me if I'm wrong—so that production orders can be tailored to the facts of a particular investigation. Can you walk me through why that flexibility was built into the regime? Could there be any operational challenges if Parliament were to prescribe a more rigid approach, as is recommended in this amendment?
The original production order framework left it to the judge to have the discretion to decide the time and place and format for the production of the data. This is primarily because police might ask for different types of information that may be easier to compile in some instances and harder to compile in other instances. Depending on the scope and range of the production requested by the police, it may entail a lengthy process, so leaving it up to the judge is appropriate for the circumstances.
What has happened since the introduction of the production orders is that there's a provision in here that allows for the entity to object to a production order. They have a certain amount of time in which to object. That time is any time before the production order is due. By 30 days, at the very most, they have to inform the peace officer. The reason 30 days was chosen was that we didn't want the entity holding the information to wait until the clock ran out. Let's say it was a lengthy production and the judge granted 90 days for the production. We didn't want them to wait 90 days to tell the police that they weren't going to produce. We wanted to be able to inform the police at an earlier date, so that the police could decide whether or not they would wait for the eventual production or pivot and try a new investigative technique.
The motion as presented here would standardize a 30-day return. That is basically what police already have, which has been highly problematic, especially since Spencer. This provision applies to all production orders. Even where return dates are shorter currently for the other types of production orders, the other lower-threshold specific information, this would standardize the time of a minimum of 30 days. As I said, the way it's written here, “30 days”, doesn't give the judge discretion to order a longer time if the production is more lengthy.
[Translation]
I would also like to point out that, since this amendment was moved, the following amendment—amendment CPC‑6—can't be moved because it's identical.
Mr. Mantle, you have the floor.
[English]
Thank you, Mr. Chair.
I want to ask the police to tell me a bit about...because we had a conversation on Tuesday—I think it was Tuesday—in which we went through some of the problems you have when you write a production order. You're trying to get it perfect, and the back-and-forth happens. How long does it usually take to get a response from one of these production orders? Are there maybe categories, depending...?
A voice: [Inaudible—Editor]
Jacob Mantle: It was about something different. I know you weren't here—
[Translation]
Mr. Chair, this isn't a conversation. Would you like to call the new committee member to order? My patience is rather limited this evening.
[English]
I hate to answer questions like this, but it does depend. It depends on the service provider. There are some that are somewhat slower than others in terms of response time. It also depends on the type of request that's going through. For example, if there's a request for subscriber information, it would typically go faster than, let's say, a request for something like a tower dump where they have to produce many lines of information that typically have to be manually extracted. This is something that generally can be part of the back-and-forth with the police officer and the service provider that's actually providing the information.
It can take a considerable amount of time with some providers. Please keep in mind that these are cascading timelines. If your first return of information is within 30 days, and then you write a new production order based on the information that you receive and there are another 30 days, you're at 60 days within your investigation. You have a lot of down time while waiting for what might actually come next before you move on.
That's fair enough. I would say “it depends” is probably my favourite phrase ever, as a lawyer. That's the best answer to give a client: “It depends.” That doesn't bother me in the slightest.
We just heard from Mr. Wong. Some of them were up to 90 days. I assume that could be a situation of a cascading return as well. If you're not getting the first one for 90 days, then you're not getting the next one for...etc. It seems as though that problem exists now, does it not?
Would it not be helpful, then, to have some standard baseline? At some point, picking a number becomes somewhat of an arbitrary exercise, and you do it based on the best information you have and your experience in dealing with this, but would it not be helpful to set up a baseline to start? Thirty days is certainly faster than 90 days.
This is an accurate statement. If I had to provide an opinion on this, in that case, based on the restrictive information that's to be provided—which would be, for example, something like subscriber information, which generally should be quicker to secure and produce—then a reduced turnaround time would be beneficial to police.
That's helpful. Thank you.
One of the other problems that appear to me, at least in this situation, and that I've been gathering throughout these exchanges is that there seems to be what I'll call a lack of respect from the companies when they do get one of these orders issued to them. My understanding is that—and Ms. Gibner can correct me—in the case of a production order, this is a judicial authorization. If a company doesn't respond to that per the terms of their order, that's contempt of court.
Is that right, Ms. Gibner?
Thanks for the question. I'll answer it.
The production orders have their own penalty scheme. When we originally did the production orders back in 2004, contempt of court was seen as perhaps too draconian or too severe for production orders. Since many of these production orders would be served on corporations, it also poses some prosecution issues, so there is a fine scheme that comes with not obeying a production order.
I think our law enforcement colleagues have talked about this before, and I certainly have. Production orders are to be served on co-operative third parties, and that relationship is very important. I think Sergeant Gilkes was getting to the point of the back-and-forth between him and a service provider. Sometimes there might be a little slack in terms of the production, because the service provider is having problems. It wouldn't benefit Sergeant Gilkes to report this service provider and ruin the relationship.
The whole scheme was designed to be used with co-operative third parties. There are other tools in the Criminal Code for when they're not co-operative.
Thank you.
I take your point about co-operation. My point would be that sometimes priorities are differently organized, depending on the recipient. In my experience, sometimes responding to a request may not be at the top of their priority list, especially if a penalty scheme is not a sufficiently motivating factor.
What is the penalty, Mr. Wong, for failing to comply with a production order?
It's found at section 487.0198 of the Criminal Code. There's a possibility of fines or an offence on summary conviction as well. It's no more than two years less a day.
In your experience, Mr. Gilkes, or yours, Mr. Wong, is that operating as an effective motivating provision? It seems, from the discussion previously, that it wasn't.
As I mentioned, there are other tools in the Criminal Code that police can use, including a warrant power. That's when police will go in themselves and get the information. To my knowledge, that has generally worked to get compliance with production orders, because it's less disruptive to the service provider to get the information. I think the production orders have largely been a success.
Perhaps my colleagues from the RCMP have a different opinion, but I think they've become the most used tools in the Criminal Code since they were introduced.
I don't know if you have anything you want to add. That's fine.
It seems as though ultimately, from what I've heard, you do end up getting information, but it sometimes is either this ping-pong game or an iterative process, or you don't get what you need in the first one, so you have to go back and do another one. That goes to the problem of time, which I'm sympathetic to, in these investigations.
That's why this amendment was interesting. It provides at least some baseline for the police to know that they have a deadline. Maybe for a simple one it's, in your opinion, too long. They should be able to do it more quickly, but for longer ones on the company side, maybe a 30-day deadline is a motivating factor. At least that gives you something to shoot for, because it seems like, right now, when we're leaving it up to the judge or the justice, we're still having the same problem, where deadlines come and go and information is not provided, or you have to go back and ask again for something else. It seems to me that having at least some starting point would be beneficial.
I think you said as much, Sergeant Gilkes, that having something would help.
At the same time, I'm sympathetic to the fact that maybe, in some cases, you need something more quickly. In going through the code, especially, coincidentally, on some of these standard issues for certain offences or defences, you often see reference to exigent circumstances. I was doing some review on that.
Mr. Wong, normally, to enter a dwelling place, you need to have a higher threshold, but if—and I'm just paraphrasing here—you think somebody is committing a crime and could injure someone grievously or kill them, then there may be exigent circumstances, and you can enter that dwelling place on a lower standard.
Can you give me more colour on that idea of exigent circumstances? I'm going to use that in a second, I think.
There is a provision in Bill C-22. I think it's clause 14. I won't be able to read you the provision, because I forgot my glasses today, but that is an amendment to the exigent circumstances codification. That allows police to act without a warrant under both the reasonable grounds to believe or reasonable grounds to suspect thresholds when exigent circumstances exist and it would be impracticable to go to a court to receive an order.
This is the codification of the common law. Whether we made the amendments here or not, they would still exist. Generally, as I've mentioned before, when police act under exigent circumstances, it comes with a great deal of judicial scrutiny, and they have to demonstrate that they acted reasonably in those circumstances. The ability to act in exigent circumstances lasts only as long as the exigent circumstances exist, so they can exist at one moment, but a couple of hours later, if they don't exist, they can't continue to act. It's very onerous in terms of the proof that they have to show that they acted reasonably.
Thanks.
You said it emerged from the common law. Is that a fairly well understood concept in the code?
I think it's fairly well understood.
The Supreme Court in Spencer talked about the ability to act in exigent circumstances, and the recent Supreme Court decision in Campbell also talked about acting in exigent circumstances.
Would there be a way to use either that concept or another to say, “Let's start with a baseline of 30 days”—I'm open to another suggestion on what that might be—“but if necessary, or if we have exigent circumstances, you know what? It's not going to be 30 days; the judge could vary it and say that you need it in seven days”? Could we do something like that?
You could do something like that, but I don't think it would be consistent with the scheme here. There are amendments other than the one we're talking about right now at section 487.0193. I think it's clause 10. There are no motions for that, but that spells out a new timing regime for the ability to object to a production order, and the connection is not really clear about the return date and the objection date.
What's happened, because this provision applies to all production orders.... The objection date was actually interpreted to be the return date. Almost by default, a lot of production orders are issued with the 30-day return date right now. You have to remember—and Ms. Gibner talked about this—that prior to Spencer, there used to be a database that police were able to pull from in real time to get customer name and address information in relation to a phone number. It was in real time.
Most of our Five Eyes partner countries can get this information within hours or days. To have a 30-day timeline, I think, would perpetuate the issue that police are having currently, which is a delay in getting very basic information at the beginning of an investigation.
Also, as Sergeant Gilkes said, it has a cascading effect, because this is just basically the start of an investigation, and if there's a 30-day delay and on the next there's a 30-day delay, before you know it, you're a few months old. In terms of investigations of cybercrime and crimes that happen online, it may not be the subscriber information that's at risk of being lost, because service providers need that to bill you, but it's all the other information that will actually lead you or connect the crime that might be at risk, because there's no standard for how that information is kept.
Yes, that's fair enough, and I would just reiterate that I'm sympathetic to that argument. It's been disappointing in this process to hear a sort of lack of respect for priority issues, or whatever the case may be: lack of resources for certain smaller companies that are responding to this. When I dealt with this, I always would say to clients, “I know it's not your day job to be filling out information for me as your counsel to be giving it to whatever government entity we're working on.” Sometimes it's just an issue of resources, and there are two sides to that coin: what you need and what they can provide in a reasonable time.
I'm going to propose a subamendment to this that I'll provide orally and can then email to the clerk for translation. I hope we'll try to set this stage for 30 days, but then also provide an opportunity....
Mr. Chair, the current wording of the motion in CPC-6—it's the same in NDP-6—says:
named in the order within 30 days after the service of the order and at the place and in
It continues: “the form specified in the order.”
Here's the proposed subamendment. After “the service of the order”, we would add the following:
, or within such shorter period as is specified in the order where the justice or judge is satisfied that the circumstances make a shorter period necessary,
Then the amendment would continue.
We'll have to see whether that subamendment is admissible in relationship to the amendment itself. Obviously, we'll have to see this subamendment in writing. Otherwise, there is no way we can make any useful progress.
You'll have to do that; otherwise, we will not be able to proceed at any speed. For that to happen, it will also need to be translated and checked by the clerk. There are lots of steps in the process.
I'll have to suspend for the time it takes to consider the subamendment.
[Translation]
I call the meeting back to order. Thank you for returning.
Before the meeting was suspended, we received a subamendment to amendment NDP‑6. This subamendment was moved by Mr. Mantle, the member for York—Durham. The English and French versions of this subamendment have been emailed to you. You should have received them a few moments ago, at 11:18 p.m.
Mr. Mantle, would you like to continue?
[English]
I have a point of order.
I have not received the subamendment.
A voice: That's because you're not a regular member.
Andrew Lawton: I'm subbed in for Mr. Lloyd, so I hope I can receive it.
Yes, you will be sent that.
Is there anyone else who did not receive the subamendment? No, everyone else has it.
You'll receive that in a couple of seconds, MP Lawton.
MP Mantle.
Thank you, Mr. Chair.
The purpose of this subamendment to NDP-6....
I think Ms. Kwan has joined us, so I'm eager to hear her thoughts as well. Ultimately, it's her amendment, although it's similar to CPC-6.
What I have heard in the last meeting or so of testimony is that there is a problem with the police being able to get the information through the production order, at least as it's conceived currently, in a time that they would feel is reasonable.
Now, taking their view, I'm sympathetic to that, because there seems to be a bit of an iterative process that takes place. Partly, it seems to be just the nature of the investigation, but partly, it can be.... What frustrates me a bit is what seems to be a reluctance on the part of the recipient of a production order to prioritize that.
I have seen that in my own legal career. Companies often have limited resources, just like government or anyone else, so they may not perceive responding to regulators or, in this case, law enforcement to be at the top of their priority lists. However, in my view, it should be taken seriously when a production order is issued to an entity, whether it's a business or another type of legal person.
What I'm trying to achieve here is to take the spirit of Ms. Kwan's amendment, which is to set a baseline of 30 days to respond. That provides at least some target, both for the police to understand when they might receive information and for the recipient of the order to produce that information in response to the order.
Now, I accept that 30 days—from what I've heard from Mr. Wong—is a bit of a codification of what is already practised. The 30 days itself, in my view, is not arbitrary. It's a codification of existing practice, so that's a good starting point. However, I'm sympathetic to the idea that, in some circumstances, that's actually too long, especially in a case where the production order is more narrow, based on the investigation itself.
What I want to try to do with the subamendment is keep the spirit of the 30 days but then also keep what Mr. Wong said is important, which is the discretion of the judge to tailor that requirement to the situation. Thirty days would be the upper limit of the starting point. Then, if the circumstances were to demand it, the judge or the justice could decide on a shorter period. That seems to satisfy, at least in my view, both issues.
That is my intent in bringing this forward. I'll pause there and hear from, perhaps, Ms. Kwan—it was her amendment—and my other colleagues. Then maybe I'll have some other thoughts after hearing them.
Thank you.
I can't thank my colleague, Mr. Mantle, enough for this. This is a phenomenal subamendment. My colleagues agree. I see them smiling and lighting up at this late hour.
I think his subamendment actually speaks to the collaborative spirit that we've been striving for with this bill. We have a Conservative subamendment to an NDP amendment to try to improve a flawed Liberal bill. This is working across party lines to try to strike this balance that we've been talking about. I think it's very important. It also stresses our efforts from the get-go—not just in Bill C-22, Mr. Chair, but also in other laws, bills and acts.
I have the great pleasure of serving on the justice committee. One of the things that have been front and centre in a lot of the work our party did in the last campaign and that I've been tackling on the justice committee is trying to give law enforcement the tools they need to go after the “bad guys”, to use the colloquialism we've heard in this committee. It's to have the tools and resources they need to do so and to ensure that they have laws that are going to keep these people behind bars and not, as has been the norm after 10 years of Liberal reforms to criminal law, let them back out on the streets.
We agree wholeheartedly that there needs to be a modernization of our laws, which is why part 1 has been so uncontentious and why we were hoping that we would get support from the Liberals to work through these amendments and give police the tools that have been most often cited.
When Bill C-22 was first tabled, I canvassed the law enforcement in my riding, other stakeholders and people in the community. The number one issue they talked about was wanting to have a clearer path, a more streamlined process and, more importantly, a quicker response on getting production orders. We know that confirmation of subscription information was a key part of that, because oftentimes law enforcement had to have this two-part process. They'd have to spend time tracking down where an individual had an account before they knew what to fill out on the request for a production order. This was a very real issue and one that I think all of us would want to find an answer to.
Why that's relevant right now in Ms. Kwan's amendment and now Mr. Mantle's subamendment is that we want to make sure we are not creating a floor with the 30-day requirement. I think what Ms. Kwan has tried to do is actually very important here. I've oftentimes heard this legal precept quoted. I think Bruce Pardy at Queen's University often cites this. It is that a right without a remedy is not a right at all.
If we have this expectation that telcos and service providers have to turn over information, but we don't prescribe a window, we really haven't mandated what we're trying to mandate. I'll note that the Liberals, through Bill C-22, are also trying to force companies to conform their systems and their processes to the law. We don't want companies to create a process that basically turns back this information in 29 days where information could be and needs to be returned more quickly but can't be.
I think the 30-day limit is an important one. I also want to make sure we're not creating a floor there and we're actually acknowledging that there are exigent circumstances. There are situations in which members of law enforcement will need to move on things very quickly, but—and this is the crucial point—we still have to have judicial authorization for that. We still need to have a judge acknowledging the urgency of this. Look, we know there are times when our brave women and men in uniform are there in minutes when minutes count. This is something we need to be very mindful of.
I come from southwestern Ontario. Other colleagues may remember that about 11 or 12 years ago, there was a thwarted terrorist attack in Strathroy, Ontario. I was working in radio at the time. Strathroy is not the town you think of when you think of a terrorist attack, but someone had loaded up a homemade bomb in a backpack and called a taxi. There have been conflicting reports about where he was headed and how. We learned after the fact from reports that this was literally like a Hollywood script in terms of the timing of law enforcement intervening. They actually had to get information from the FBI because of gaps in the Canadian intelligence and investigative system.
I'm not denying that these things are real. While it is important that we work with other countries, that we get that intelligence, we also don't want to have to rely on other countries to do the intelligence and investigative work. We do have these situations where seconds and minutes count, and we need to be responsive to those. We know there are situations that are horrifying—children are being abused—and we need to be able to move quickly on this. This is so key: Having a framework built in directly to the law in this particular section that acknowledges the importance of exigency and the legitimacy of that, and the necessity of being able to respond quickly, I think, is very important here.
When we look at some of the case law that exists surrounding exigency, we know there has been a bit. I believe the Campbell decision, which, if I'm not mistaken, comes from 2024, was cited by at least one of our witnesses earlier. That's a very important one. When you look at how that decision was found...and actually I'll even share some of the facts of that case here, which are quite interesting, and speak to how law enforcement officials often have to make decisions very quickly. A big part of their job is to use that critical judgment.
In Campbell, it was actually just down the road from me in the other direction, in Guelph, Ontario, where police were conducting surveillance on a drug dealer nicknamed Gammie, I believe. They had information from an informant. They obviously had enough that they wanted to investigate this. They arrested the suspect after observing what they suspected was drug trafficking activity.
During the arrest, he threw two cellphones onto the passenger seat, which were seized as part of the arrest. It was a bit interesting reading the facts of this case, where law enforcement actually started to communicate with someone who thought they were communicating with the drug dealer. This went on for two hours. They knew that serious quantities of very dangerous drugs were in play, like heroin that was believed to contain fentanyl, which I think all of us have seen as just a scourge on our country. It's affected many of the communities we represent and some more than others. Police were going back and forth on this, and then what ended up happening was that they arranged for the person they were texting to deliver the drugs—this was Campbell—and they were able to make the arrest because the person they were communicating with arrived at the arranged meeting location, carrying the drugs, and was arrested.
This makes its way through the courts and goes all the way up to the Supreme Court. What the majority found was that, in the circumstances.... Again, this involved a phone. In this case, it was a physical phone. It wasn't an intercept, such as we're looking at with Bill C-22. The majority held that the officers had a narrow and rapidly closing opportunity to prevent what could have been a very dangerous transaction, and there was an immediate risk to public safety. Ultimately, the majority found that obtaining judicial authorization first, having to go through that process, might have actually caused police to lose the opportunity to stop the sale and make the arrest.
I don't want to pretend that this was a unanimous decision. There was a dissent, and that dissent found that you could actually get a warrant in two hours. I think some members of law enforcement would probably chuckle at that, because they've encountered bureaucracy. They've seen the overburdening of our justice system, which is largely a response to failures in Liberal policy that are outside the scope of the subamendment but, I think, still warrant very deliberate and diligent scrutiny. The dissent also found that there wasn't an identified member of the public who was in imminent danger, so there was the possibility that drugs would enter the community, but it was general enough that it couldn't be, in the dissent's view, exigent circumstances.
All of that is to say that there is dispute, even among our most senior judges, and this is a very recent case. This is from 2024. Ultimately, it was exactly what we're trying to deal with now, which is acknowledging that law enforcement have to make very significant snap judgments. Yes, it is hugely important that we have judicial scrutiny after the fact on these things. I do like that Mr. Mantle is trying to say, hang on, we have to look at judicial oversight on this. To read the subamendment precisely, it's that...originally Ms. Kwan had said:
named in the order within 30 days after the service of the order
What Mr. Mantle has added here is, “or within such shorter period as is specified in the order where the justice or judge is satisfied that the circumstances make a shorter period necessary”.
This is a very important point as well. Necessity is different from convenience. We're not talking about officers going through a routine motion on a long investigation and suggesting that, because they'd like to have the information turned back more quickly, they can short-circuit the process and expedite it. No. This is about necessity. I know that there have been other court decisions, not dealing with electronic communications but dealing in general with this idea of necessity, in which we've determined that convenience and what might make your life easier as an investigator is not sufficient to rise to that level of being a tremendous obligation that should force us to expedite these things.
All of that is why I am generally quite supportive. I'm supportive of Ms. Kwan's amendment, but I think Mr. Mantle has elevated it to a point where we were able to provide a valuable improvement on what the Liberals are doing in the bill and in clause 9 in particular. I think it's important to note, contrary to the rhetoric we've been hearing from the public safety minister, that we are trying to be very responsive and, I'd say, proactive. This is a great example of being proactive on the needs of law enforcement and recognizing the urgency that exists in some of the situations that they find themselves in.
I'll turn to the officials on this. We know that, in clause 14, there is an exigency component to this. We know this already exists at some point in the law. How broad is that? Is it valuable, even looking beyond this particular subamendment, to ensure that we have those protections spelled out and to ensure, any time there's a statutory time frame baked in—even if it is, to the earlier point, trying to codify something that exists in common law—that we don't just view that time frame as being a floor, that we always try to strive above it and move more quickly if we can?
I think I mentioned before that the provision in clause 14, the exigent circumstances provision, can be used only during the period in which the exigent circumstances exist. It's in relation to a subscriber information production order, although this provision is being amended for that type of information. The traditional process would be to go before a judge to make sure there's judicial scrutiny. The judge would have the discretion to issue the production order or not.
I'm not sure I've answered your question.
I'll be a bit more pointed with it. In the specific circumstances that we had prior to.... Let's take Ms. Kwan's amendment out of the picture.
Are you confident that, in exigent circumstances or where exigent circumstances exist, we would be able to expedite the mechanisms in this clause without specifying it? If so, where would you draw that authority from in the legislation, or in the common law if it's not in the legislation?
The bill makes clear that police can act in exigent circumstances under 487.11, and that's in clause 14. Their ability to act immediately would exist with the provisions of the bill.
I appreciate the subamendment in terms of the flexibility. There is some concern with the upper level, because there is a risk, if 30 days is insufficient time, that the service provider will object, and the process in the bill or in the law currently is that it stops the clock and no production needs to be done until the order is judicially reviewed.
I hope that the committee will indulge, because this gets to the amendment, but I think your perspective on the amendment is relevant to how we view the subamendment here.
You're of the view that, if we specify a 30-day limit or a 30-day deadline, for lack of a better term, and some service provider, for whatever reason, takes 31 days, your concern is that they may say, “We've already failed to meet this deadline; therefore, there's no point in following through.” Is that the concern?
No. There is a penalty for not complying with a production order, but if they find that the scope of the production is unreasonable for the time period, they have the ability to object: They won't be able to comply with it.
I think we've talked about this before. There is a bit of a back-and-forth dialogue. The flexibility that's currently built into the law for the judge to set the time is based on that flexibility. For instance, if the RCMP needed information from Rogers, they would talk to Rogers before they had the production order issued. They would come up with a time within which Rogers could provide that information. Depending on whether it's a simple production for subscriber information related to phone numbers, they might be able to do that in two or three days, and that's what they'd ask the judge for.
If I'm mixing up the numbers in the two processes, please correct me, Mr. Wong. In those 30 days, there's already baked in a period to challenge these. It's 10 days, I think, or is that a different section?
I believe you're right. It's in the amendments to clause 10. It is 10 business days. In those 10 business days they have to inform the peace officer that they will be objecting to the order and make an application to the court within that time. That is irrespective of the delay or the time set by the judge for the production of the information.
I realize that it's not your job to make amendments and to do our work for us, but just from what you've said, is there a way to add a time limit that the committee agrees to whereby, even if we don't prescribe it at 30 days, we could provide that mechanism whereby, in circumstances when it will take longer or a service provider thinks it will take longer, they have a way to work through that? My understanding is that they already have that, but if we're trying to codify for clarity, I'm certainly open to other subamendments that might be necessary.
I think any time there's a set period in legislation, it takes discretion away from the judge. My colleagues from the RCMP were talking about tower dumps. That could be a great deal of information. It could be that they need 10 cell sites, the tower dumps for all those, for a range of phone numbers. It could be arduous work to compile all that information. Perhaps 60 days would be reasonable, in that case, for production.
If the ceiling were set at 30 days, that would remove the discretion of the judge. The service provider, by default, might object to the production order as being unreasonable. That would stop the clock and frustrate the peace officers from being able to get their data. That lack of flexibility creates a risk.
Mr. Chair, I have a point of order.
I know that we've been a highly efficient machine today—
Voices: Oh, oh!
Marcus Powlowski: —moving through these motions. In the interest of maintaining that efficiency, do we have a hard stop at 12 o'clock? If so, Mr. Lawton may want to hurry up with this line of questioning, so that we can actually vote on this.
Oh. Okay. That's unfortunate, but I understand.
On the subamendment, Mr. Wong, in our previous exchange you talked about the exigency in clause 14. Perhaps you could point me to it. I'm not seeing where in clause 14 those exigency authorities, for lack of a better term, would apply to the process we're looking at in clause 9.
That's because in clause 14 it's the ability of law enforcement to act in exigent circumstances. Those circumstances are using their common law ancillary powers to do regular police work and act in emergency situations. There is no warrant or production order. All we did was spell out that police can obtain this information in those circumstances without having to go to court.
This brings us back to a discussion we had earlier, in another context, where we're talking about what looks like a deliberate reason to exclude information or exclude clarity in the actual legislation.
I'll turn to our colleagues in law enforcement. I described a situation in Strathroy, Ontario. I'm sure you're very familiar with the Aaron Driver case. In your careers, you've probably encountered numerous situations where you haven't had the time to go through this process. Do you view specific recognition in statute of those circumstances and giving a mechanism for that as being valuable?
I'll give a general response, and then perhaps my colleague can get more specific, if you want more of an operational example.
In our experience, if it's legislated at 30 days, then 30 days will become the standard. Traditionally, it removes the latitude for.... As Mr. Wong mentioned, banks and telcos are key partners in our investigations, particularly in major investigations. There is a back-and-forth, and depending on which region of the country it is, there are relationships established with these businesses. If we need subscriber information, the size of the telco or the company could be the difference in how quickly that happens. A larger one might say, we're going to need three days. We go to the judge and request. In the affidavit, in the court documents that we produce, we could even speak to that and say, we spoke to the provider and they think they can provide this in three days.
There's the opposite too, where a company or bank may not feel like that's a priority for them, as Mr. Mantle had alluded to. That's when the 30 days become the default, and if they're late, then they're late. Essentially, that becomes the default, a late, post-30-days production on some of those things.
If you're dealing with a major file with multiple targets and multiple devices, and you're trying to get through production orders, that all extrapolates into a very lengthy process. Some take you right to the 30-day point to say, we don't have it, and then you're starting again from that point.
If you add all that up on a major file—the types of crimes that cause the greatest harms to Canadians—there's jurisprudence in Canada, R v. Jordan, that starts to kick in with those large files.
All that is to say that I can't speak to the amendment or the proposed legislation. All I can speak to is the fact that experientially, the 30 days, once legislated, becomes the benchmark.
To your point, Superintendent, that's one thing we're trying to protect against.
We disagree on the value, potentially, of having a window there, but if there is a window, I guess that's where the subamendment kicks in. We want to make sure that window is not being treated as, to your point, a floor or as a baseline.
When you've had to get a warrant under extreme, pressing, time-sensitive circumstances, what is the standard and the quickest time frame that you can get something in those circumstances, where hours matter?
It really depends on what it is that you're actually looking for in terms of information. If you're simply trying to confirm a name associated with an IP address, with a phone number or something like that, and the exigency is very imminent, there are times when a service provider may actually just provide it to you over the telephone, because they know that something is going to happen within hours or minutes. That is a very quick turnaround, because they're sensitive to that.
To that point, do you find that smaller providers that don't necessarily have the bureaucracy and the processes that your large companies do are generally more flexible and more amenable to dealing with this? “We need this now, and we don't have time to go through a judge to go through that process, that voluntary turnover?” Do you find smaller companies are more flexible on that?
If I speak from personal experience, I've had very positive experiences with both smaller service providers and larger ones. There are some very dedicated individuals working in both spheres. They've been very co-operative from time to time. They do recognize that when we are asking for something like that, generally it's because we need it to prevent something horrible from happening.
It's very helpful, Sergeant.
Since you and your colleagues have those relationships, what would change, fundamentally, in the majority of circumstances if this bill were passed? You already have this voluntary process that seems to work in a lot of cases.
It's about exigency.
It depends on who we're dealing with. A lot of the time, service providers have their own criteria for exigency. In other words, it's about what they consider exigent versus what we consider exigent. If they determine that the exigency has already passed, as Mr. Wong cited earlier—if the exigency no longer exists—we're out of luck on whatever the request may be. It becomes a back-and-forth between the police officer and.... Police officers have varying degrees of experience with this type of request. They may be going up against a team of lawyers at a very large service provider, and there may be an argument back and forth about whether the exigency exists any longer. They may ask, “What is it? Does it meet our criteria?”, and if it's refused, the police officer is no further ahead in the situation.
In terms of what it provides, this would be outside the powers we normally exercise around exigency, because it is a warranted request. The response is coming back in response to a warrant, not an exigent situation.
One thing I'll point out here, and Mr. Caputo earlier indicated it, I think, quite effectively, is that it is parliamentarians' obligation. Certainly I take this seriously as someone who values civil liberties tremendously. My respect for those is one of the reasons I ran for office. It's one of the reasons I'm sitting in this chamber.
We have to pass laws that are constitutional. I'd say we have an obligation to go above and beyond. We shouldn't look at checking the box of the government charter statement as being our floor, to use the concept we've been discussing here. We should be looking at ensuring that we are a country that protects in a very robust way the rights, freedoms and privacy of Canadians while also that ensuring that law enforcement officials have the tools they need.
The reason I bring that up in the context of what we're discussing here is that I want to make sure we're passing a law, when we look at criminal justice reform, that focuses on safe streets but doesn't create a bigger problem. This is one of the things the Liberals pointed out a great deal in the discussions about Bill C-16. They used court rulings as justification to put bad policy through at other stages in the law. They said that the court ruled this about this; therefore, we have to do this other thing, which ended up being basically a get-out-of-jail-free card on mandatory minimum sentences.
What's interesting in the context we're looking at now is that Mr. Mantle's subamendment, I think, is quite shrewdly worded in that he says, “or within such shorter period as is specified in the order where the justice or judge is satisfied that the circumstances make a shorter period necessary”.
My read on that is that it necessitates a record that can be used to assess Bill C-22, assess the legacy of these measures if this bill becomes law. We have a very clear path where we can understand how judges are using this, how law enforcement members are seeking this, what sort of production orders they're seeking and what language they're using. I would love to see—and again, I believe we have later on some amendments or clauses that deal with the reporting requirements—a pretty detailed accounting of how these authorities are being used, especially when we get to part 2. I regret to have to say how they will be abused, which is going to be, quite unfortunately, inevitable, given what the Liberal government is trying to do in part 2 of this legislation.
I think having the judicial record, ensuring.... This is with no disrespect to law enforcement. My brother's a police officer, and I speak to law enforcement quite regularly in my community. I think it's important that we also understand that our system relies on and requires checks and balances. It sometimes requires judicial authorization after the fact, whenever possible, on these things. We would want that check and balance. We would want that safeguard beforehand. I think what we're trying to do here is come up with that delicate balance.
I think Ms. Kwan's amendment is quite reasonable. I want to insulate as much as possible this concern that the 30-day deadline will be treated as just a baseline. If we are going to force electronic service providers and other companies to rebuild their systems, rebuild their apparatus and rebuild their mechanisms for response to these requests, it is crucial that we don't just put in place a system where they take 30 days to do this.
We find that law enforcement are now slowing down something that they might have been able to do in two or three days before. That's certainly not what I believe Ms. Kwan was trying to achieve. I certainly think that Mr. Mantle has done yeoman's work here on this.
There are a couple more points that I would like to make, and I think Mr. Powlowski wanted to hear a bit more, but he'll have to wait for the next meeting, because I realize we're coming up against the end of the clock.
I thank you very much, Mr. Chair.
I thank the witnesses for their contributions on this.
Thank you, MP Lawton.
Ms. Kwan, there are two minutes left, and I cannot turn to you unless others are willing to let you speak first, because there are a couple of other MPs who were before you on the list. If everyone is fine, we will let you speak for two minutes in total.
Thank you.
Thank you very much, Mr. Chair.
It seems to me that everybody was nodding, so I take that as an affirmative. I want to thank committee members for allowing me to do that.
I apologize that I wasn't here when this amendment came up. I had run into the House to deal with yet another guillotine motion on Bill C-26. I wanted to get my comments on the record in the House with respect to that.
I'm back here now, and I think the guillotine is soon coming down on this one as well.
I should first say that the premise of this amendment is actually something the Canadian Chamber of Commerce brought to my attention. They raised this issue with regard to the timeline for responding to production orders. This amendment that I tabled would restore the 30-calendar-day default, as is generally the case with the Criminal Code standard.
I would welcome and support the amendment that has been brought forward by Mr. Mantle. By the way, the Chamber of Commerce itself also noted that it would welcome shorter periods. It would welcome them with written judicial reasons in exigent circumstances. That is the premise behind the amendment here. It's to allow for that flexibility in that way.
I heard officials comment that if they can't meet it in those 30 days, then the default would be that they just won't meet the order. I would hope that this is not the case. I would hope that people would work really hard to meet the order, because the Criminal Code standard is 30 days and people work toward achieving that. In this instance, bringing that forward is an important benchmark, if you will.
Part of the problem with this bill and the approach that's being taken is that there's not really good collaboration about what needs to be done and how to bring the best bill forward. These are substantive changes to Canadian culture that would impact privacy and civil liberties. I get the importance of doing it so that we can facilitate the work of law enforcement, CSIS and the people who keep us safe. I get all of that. As a target of foreign interference, I get it. Please, I get it. I want to make sure we get it right, but not at this sort of breakneck speed of trying to push it through.
When I say breakneck speed, I'm talking about not engaging in a process that would actually allow for fulsome engagement, input and meaningful consideration. I know that the government has gotten itself a majority, and it is going to ram it through. I don't think that's the best way to make law.
Thank you so much, Mr. Chair.
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