Technical Assistance for Law Enforcement in the 21st Century Act

An Act regulating telecommunications facilities to support investigations

This bill was last introduced in the 40th Parliament, 2nd Session, which ended in December 2009.

Sponsor

Peter Van Loan  Conservative

Status

In committee (House), as of Oct. 29, 2009
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment requires telecommunications service providers to put in place and maintain certain capabilities that facilitate the lawful interception of information transmitted by telecommunications and to provide basic information about their subscribers to the Royal Canadian Mounted Police, the Canadian Security Intelligence Service, the Commissioner of Competition and any police service constituted under the laws of a province.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 10:15 a.m.
See context

Bloc

Guy André Berthier—Maskinongé, QC

Mr. Speaker, I rise in the House this morning to talk about Bill C-47, a bill that deals with very specific aspects of the rules governing lawful access. As some of my colleagues have already mentioned, the Bloc Québécois supports Bill C-47 in principle, but we do have reservations and would like to see an amendment to guarantee the protection of people's privacy.

Bill C-47 seeks to enable the police to adapt their investigative techniques to contemporary technological realities, such as the widespread use of cellphones and the Internet. Facilitating police work, where it does not unduly interfere with fundamental rights, is an avenue the Bloc Québécois has always advocated for fighting crime. Our party feels that increasing the likelihood of getting caught is a much greater deterrent than increasing punishments, which often seem remote and abstract.

However, this bill raises a number of concerns about respect for privacy because the reasons for invading privacy are not necessarily defined. The Bloc Québécois supports this bill in principle because it is important to strengthen police powers to deal with the most complex forms of organized crime. Nonetheless, it will work in committee to ensure that invasions of privacy occur as rarely as possible, only when necessary, and always according to strict guidelines.

I hope that the Conservative Party will welcome the Bloc Québécois' amendments to Bill C-47 to protect individual privacy rights and ensure that this bill is implemented as quickly as possible. It is important, critical even, to take action against crimes committed using the Internet. I hope that the Conservative Party will not use this bill merely to spread political and partisan propaganda about how tough it is on crime. As we all know, the Bloc Québécois usually supports initiatives to curb criminal activity, as long as they are sensible, which we do not always find to be the case.

Somewhat similar to Bill C-46, Bill C-47 would allow police forces to adapt their investigative techniques to modern technologies. Of course I am talking about the increasingly widespread use of the Internet and cellphones. Indeed, Bill C-47 and Bill C-46 complement each other. We believe that they could have been combined into one bill. They both have many of the same objectives. They could have very easily been presented in another way. However, based on how they have been presented, we would of course like to debate them.

Basically, these bills seek to give the appropriate authorities additional tools that are adapted to modern technologies in order to prevent crimes before they are committed, by gathering information on the Internet and through other means of communication. This bill is crucial, considering the new types of organized crime that are carried out over the Internet.

For instance, in my riding recently—just two weeks ago—a man of Moroccan origin was arrested and convicted. He was found guilty of a series of terrorism-related charges.

This bill also aims to address cyber-terrorism, to control it and prevent such crimes from being committed.

In the case I mentioned, the evidence was based primarily on the contents of the defendant's computer, in Maskinongé, and on the violent content he created and transmitted over the Internet.

The purpose of Bill C-47 is to improve investigative techniques. It responds to concerns expressed by law enforcement agencies regarding the fact that new technologies, particularly Internet communications, often represent obstacles that are very difficult to overcome.

Thus, Bill C-47 seeks to facilitate police investigations by compelling telecommunications service providers to acquire technology that would allow them to intercept electronic data and, more importantly, allows police forces to access that data. We are talking about data that could indicate, for example, the origin, destination, date, time, duration, type and volume of a telecommunication.

The Bloc Québécois is in favour of effective and smart ways to fight crime, but as we have said many times in this House, we do not always share the Conservative government's vision regarding certain bills, especially when it comes to incarceration measures. Incarceration and minimum sentences have been tried, most notably in the United States, with disastrous results. Yes, incarceration is valid for serious crimes, but it should not always be used automatically and especially not with the principle of minimum sentences.

The United States has the highest incarceration rate in the world, but that has not necessarily led to a reduction in crime. We have to be very careful about the sort of measures we introduce to fight crime. They must always be aimed at reducing the crime rate. I do not believe that we should be adopting the American model in this area. We still feel that the Conservative Party looks to the Americans for inspiration when it introduces bills that, often, do not reduce crime.

To come back to Bill C-47, no federal law currently requires or compels all telecommunications companies to use equipment that allows communications to be intercepted. The bill seeks to make up for the fact that there is no standard covering the interception capabilities of telecommunications companies.

As I said earlier, Bill C-47 seeks to clarify certain aspects of the lawful access regime. Currently, the police need a warrant in order to compel telecommunications companies to provide them with personal information about their clients. With this bill, certain designated people within law enforcement agencies could, without a warrant or court order, compel a company to provide them with basic information about one of their subscribers.

Obviously, protection measures governing this request for information have been provided in the legislation. Only a very limited type of information is covered by this new system. The bill clearly indicates that the information could be obtained without a warrant. Only designated persons could request information under this bill.

The police can obtain this information without a warrant, but the bill nonetheless puts in place certain extrajudicial protection measures such as the creation of records to trace every request for information.

It is also important to add that although the legislation will apply to businesses that operate a telecommunications facility in Canada, private networks, services for the sale or purchase of goods, and certain specified institutions are exempt from the legislation. I am talking here about registered charities, hospitals and retirement homes. All the exceptions are in the bill.

What concerns me about Bill C-46 is the privacy and freedom of people who use the Internet or other forms of communication.

This bill must not lead to an intrusion into people's private lives or the exchanges between individuals. Honest people have to be able to surf the Internet in a safe and private manner. They must be able to have conversations and conduct financial transactions safely. Honest people must not be taken hostage by criminals in this society, and hence, we need to protect privacy. We have to approach this bill carefully.

In a democratic society, the government's actions have to be transparent and citizens need to know that their privacy is protected. Children need to be protected from pedophile rings and all the other sex offenders on the Internet. We have to protect our economic assets so that we can conduct our transactions and deal with the financial aspects of organized crime. We have to protect our societies from cyber-terrorism, as I mentioned in my speech. This is a situation that people in my riding experienced not so long ago.

Organizations that defend human rights, in this case the right to privacy and confidentiality of communications, have raised a number of points that must be examined when we study this bill in committee. They are definitely important witnesses and should be invited to appear before the committee. The work must be done and it will naturally take time.

The bill introduced today has many complex provisions. Moreover, the impact of certain provisions on other laws is also very difficult to gauge.

We want to take the time to study the bill thoroughly, but we must also act quickly, examine all aspects and especially hear from police organizations and human rights organizations as they have also undertaken the arduous task of studying this bill.

These people must be heard in committee. You can rest assured that the Bloc Québécois will recommend many witnesses.

They must be given, as must we, the time to reflect and to ensure that this legislation strikes a true balance between the need of police to investigate—which is important because we are all familiar with today's growing cybercrime and they have to be able to do their job—and protecting privacy rights. We cannot choose between the two. this bill must clearly respect both issues.

I would also like to touch on the aspect of prevention in an effective strategy to fight cybercrime. This strategy must, of necessity, be based on a multi-pronged approach, whether implemented by the public or the private sector.

It is important to give the public, and especially younger people, the tools and the means to protect themselves against this new type of cybercrime which, unfortunately, is becoming increasingly prevalent.

Therefore, we have to encourage individuals and business people to adopt safe computer practices. At present, Internet users are often careless. Many people start up their computers and store important information in them without giving any thought to the potential, unfortunate consequences.

We need to change how people think, and in order to do so, we need make them more aware. We need to educate and inform the public, and give them the tools they need to protect themselves against cybercrime. This is important. We must invest money into educating the public.

In order to continue our fight against cybercrime and to defend the right to digital privacy, our primary goal, as I mentioned, must be to protect individuals, organizations and governments while taking fundamental democratic principles into account. Obviously, the tools to fight computer crime could potentially violate human rights and compromise the confidentiality of personal information. Securing information requires surveillance, controls and filters. Safeguards must be put in place to avoid allowing people to abuse their power or to dominate, and to avoid Big Brother type situations. We must ensure that fundamental rights are respected—I cannot stress that enough in this speech. In particular, we must ensure that the digital privacy and the confidential personal information of people who use these telecommunications networks are protected.

National legislation regarding the protection of personal information has been around for a long time. We also know that security is the result of a compromise.

I see that I have only two minutes remaining. We must ensure that cyberspace does not become a virtual smorgasbord for cybercriminals, or a dangerous place, or a place with an excessive police presence, or a place controlled by an ultra-powerful entity. We must bring democratic values and the human aspect back into the debate on new technologies. We must find ways to become informed Internet users and not vulnerable and dependent consumers.

In conclusion, I would like to thank the House for allowing me to speak. I want to say that we will support this bill with some reservations. We will examine it in committee.

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 10:35 a.m.
See context

NDP

Jim Maloway Elmwood—Transcona, MB

Mr. Speaker, as the member knows there is a provision in Bill C-47 for a five year review, whereas there is no provision for a five year review in Bill C-46, which is a very similar and connected bill.

What form does the member think this five year review should take or if in fact the government should be looking at a sunset clause, given that technology changes radically even over a year, let alone a five year period. Perhaps a sunset clause would be more appropriate.

I would ask the member to comment on those particular areas.

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 10:35 a.m.
See context

Bloc

Guy André Berthier—Maskinongé, QC

Mr. Speaker, I have not delved into that issue. However, I think that if we bring in legislation like this, we will have to reassess the measures used in police investigations and determine whether they have infringed on individual privacy rights. Have the new powers helped fight cybercrime? Have law enforcement agencies actually reduced the number of pedophile and cyberbullying rings now targeting young people? Are the measures doing enough to facilitate police investigation while respecting the rights of individuals?

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 10:35 a.m.
See context

NDP

Jim Maloway Elmwood—Transcona, MB

Mr. Speaker, I have a follow up question for the member.

The Privacy Commissioner suggested that there be a review of the regulations flowing from both of the bills. She suggested that given the important administrative procedural and technical details involved, Parliament should conduct a full committee review and hear from all interested stakeholders on both the legislation and the regulations, and that the review take place before either bill comes into force.

Does the member have any comments about that, including her observation about yearly statistics? She would like to see an annual reporting to the public on the statistics of the use, the results and effectiveness of these new powers. It seems to me that was very good advice on her part, so I would ask the member for his comments.

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 10:35 a.m.
See context

Bloc

Guy André Berthier—Maskinongé, QC

Mr. Speaker, elsewhere in the world, these tools have certainly not curbed crime, online or otherwise, but they have ensured that law enforcement agencies are better equipped to track down offenders.

That should be our goal going forward with this bill, but we must also ensure that we are adequately protecting citizens' privacy while giving the police as many tools as possible so they can take action and crack down on cybercrime.

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 10:35 a.m.
See context

Conservative

Gord Brown Leeds—Grenville, ON

Mr. Speaker, I am pleased to rise this morning in this House to speak to Bill C-47.

This is a bill that addresses an issue that is very important to the people in my riding of Leeds—Grenville and to the many policing agencies that operate inside of my riding. On their behalf, I am pleased to offer my support for this very much-needed legislation which will give enforcement agencies the tools they need to fight modern day sophisticated criminals and terrorists who can be operating anywhere in the world while at the same time reaching into areas like mine.

Let me first offer a little background on my riding. Leeds—Grenville is a very expansive riding that stretches from the outskirts of Kingston in the west to just past the south of Highway 416 in the east near Cardinal. Kingston and area, I would like to point out, as I have in the past, is home to a number of federal prisons and provincial jails.

My riding stretches north along Highway 15 from Kingston to Smiths Falls, and east again to North Grenville along the Rideau. North Grenville lies just 20 minutes outside of our capital city, Ottawa. I have two major highways in the riding, Highway 401 and Highway 416.

The riding includes two border crossings, something that is very important as we have the southern boundary of our riding running along the Canada-U.S. border. We are within minutes of a third at Kingston, and a half hour away from us, up in Cornwall, where there is another border crossing

We also have several small airports in our area and more nearby. As I said, the southern boundary of my riding runs along the Canada-U.S. border, with the United States right on our doorstep. In some cases, it is very easy to move across the narrow area that reaches from one country to another. Of course, one cannot do this legally but it has happened in the past.

The Thousand Islands area of the St. Lawrence River is really one of the busiest recreational waterways in the world, and one of the many complicated border crossing areas with tour boats that go around our area. There are many pleasure craft, commercial boats and others that are crossing from shore to shore and from island to island at all times of the year.

With this broad picture in mind, we can imagine that the law enforcement agencies that are engaged in protecting the good citizens of the riding do have many challenges. Border guards, RCMP, the Ontario Provincial Police and local police departments along with prison guards and private security personnel are all actively engaged in and around the riding.

It is with this background that I am pleased to add my voice to those who support the provisions in Bill C-47. It has been stated before that Canada's current intercept laws are many decades out of date. Technology-savvy criminals can go about their business, often reaching across borders and around the world, without being detected, apprehended or even prosecuted. This poses a very real threat to Canadians.

I am pleased, and I know the residents of Leeds—Grenville are very pleased, that our government intends to put a stop to this. Bill C-47 will take away the advantages that criminals currently have under our laws. They will no longer be able to exploit new communications technologies to remain undetected.

This bill will give those who protect us the ability to intercept unlawful activity. Police and national security officials will be able to shut down so-called safe havens and bring criminals to account for their acts.

In our lifetime we have seen a revolution in communication technology and we can only guess at its pace in the future. From typewriters and dial telephones hooked up with wires, we have reached a point where ordinary citizens use satellites and complex devices to communicate.

Legislation that was written to combat crime on the typewriter and dial telephone days just does not measure up any more. This new bill would help bring our crime-fighting capabilities up to at least today's communication standards. We would be able to protect our modern society with modern methods.

As we move forward with modern, up to date legislation, we are also telling those who would harm others that we will not allow them to work smarter than us. The bill would remove the communications shields that gang members, child predators, identity thieves and terrorists can currently hide behind.

The bill approaches the complex problem of communication in a number of ways. First, it would require communication providers to install interception capability. Second, it would permit enforcement agencies under certain circumstances to acquire intercepted communications.

I am aware that some people are concerned that individual privacy rights could be violated. It is important to understand that since 1995 the government has engaged in consultation on this issue. Written into the bill are extensive oversight regulations and a recording regime to ensure the new law is not abused.

I want to speak a bit about the intercept component.

The interception of communications really is essential for investigation and prosecuting of serious crime and combatting terrorism. Back in the 39th Parliament, I happened to chair a committee that reviewed the Anti-terrorism Act. We spent a great deal of time talking about terrorists and would-be terrorists who were preparing to commit terrorism acts in Canada and around the world and the impact that had on our citizens, especially after the horrible acts of September 11, 2001, and the further bombings in Madrid and London. We even saw the arrest of would-be terrorists here in Canada just a few short years ago.

These tools could be used by our law enforcement to help combat such things. They could also be used in investigations into child sexual abuse, organized crime, drug trafficking and, as I said, terrorism.

The technical assistance for law enforcement in the 21st century act, Bill C-47, would not provide law enforcement or CSIS with any new interception powers, nor would it change or expand existing interception authorities in any way. Rather, it addresses the challenges posed by modern technologies that did not exist when the legal framework for interception was designed nearly 40 years ago.

Police forces and CSIS will continue to require warrants for interception. This legislation would simply ensure that when warrants are issued, a technical solution is available so that police forces and CSIS can actually intercept the communications that they do want to get at.

Canada currently has no legal requirement for companies to build interception capability into telecommunication networks and, as a result, we now have some situations where judicial authorization is granted where a warrant is issued but cannot be effective because the service providers network is not intercept capable.

Criminals and terrorists are aware of interception safe havens and exploit them to continue their criminal activities undetected.

As new telecommunication services and products are being rolled out, basically on a daily basis, police forces and CSIS continue to fall behind increasing sophisticated criminal and terrorist groups. There are far too many instances where police forces and CSIS cannot execute judicially authorized interception to protect Canadians' safety simply because of a lack of intercept capability on telecommunication networks. A technical solution would now be available for police forces and CSIS to execute judicially authorized warrants.

The proposal would require companies to pay for intercept capability and certain new equipment and software, while the government would provide reasonable compensation when retrofits to existing networks are needed. This is a shared response to a problem that directly affects the safety of Canadians.

We are looking to get intercept capability with the bill, which would go a long way toward supporting our law enforcement agencies. As I said, that is very important in a riding like mine. It is a very diverse riding with many different components, from the border crossings to our prisons located just outside of the riding.

The bill does contain a number of exemptions. Telecommunications service providers who act as intermediaries, meaning those that transmit communications on behalf of other telecommunications service providers without modifying the communications or authenticating the users, would not be subject to the obligations regarding interception capability when they upgrade their systems or to the obligations in respect of subscriber information. However, they may be made subject to those that are made by order of the minister.

Apart from the obligations to provide information to law enforcement agencies regarding their telecommunications facilities and services, the bill would not apply to telecommunications service providers whose principal operation is a post-secondary education institution, a library, a community centre, a restaurant, a hotel or an apartment building.

There are some temporary exemptions, such as when the minister may, by order made on the application of a telecommunications service provider, suspend, for up to three years, in whole or in part, any obligation relating to interception capability when the systems are upgraded. The minister may, of course, include any conditions that he or she considers appropriate.

We must provide law enforcement agencies with the tools they need to keep our communities safe. High tech criminals will be met by high tech police. What the people of Canada are looking for us to ensure is that law enforcement agencies have those tools.

It is a great day for victims and their families who have been, for a very long time, calling for these legislative changes so that those who work tirelessly every day to ensure that when there is a threat to safety, they can intervene quickly. The proposed legislation strikes an appropriate balance between the investigative powers used to protect public safety and the necessity to safeguard privacy and the rights and freedoms of Canadians.

Bill C-47 would ensure that law enforcement can keep up with these new telecommunications techniques. As I said before, the legislation would provide no new powers to intercept communications. There must continue to be warrants for these intercepts.

Under the bill, accessing subscriber information, such as an IP address, would not require a warrant. The problem is that while some service providers give subscriber information to law enforcement upon request, others fail to provide it in a timely fashion or decline to provide it voluntarily and insist on a warrant. However, in many situations, obtaining a warrant for this basic information is neither practical nor possible. The proposed legislation would help to ensure there are no more dead-end investigations.

I encourage all members of the House to support the legislation and get it off to committee for review so it can come back to the House and we can move it forward. I was happy to speak on this bill as I know it is very important to the people of my riding of Leeds—Grenville. I encourage all members to get behind it.

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 10:50 a.m.
See context

NDP

Joe Comartin Windsor—Tecumseh, ON

Mr. Speaker, I want to acknowledge the work of the previous speaker in his chairmanship of the public safety and national security committee. I will not overly extoll his virtues because I do not want it show up in a political leaflet sometime in the future, but all parties worked very well in that committee, and part of that was because of his good chairmanship.

However, during that period of time, and I am sure he was paying close attention to this because of his responsibilities in the area of public safety and national security, the current Minister of International Trade, the then minister in that period of time for public safety and national security, who would have been responsible for this bill had he remained in that position, came out very publicly, as had, to a lesser degree, the former minister in the Liberal government, when this type of legislation was being debated and discussed in more general terms rather than a specific bill.

However, in the course of that debate in the country and in, I will say, the high tech community in this country, there was great concern expressed about privacy rights and about the role the state should play in getting access to private communication and private data. I think there was a general consensus in the country, and in those communities that were particularly interested in this area, that that should never be done without a warrant.

The then minister for public safety and national security, the now Minister of International Trade, came out and very clearly and unequivocally made the statement, and repeated it on more than one occasion, that his government would never allow access to that type of data without a judicial warrant, without judicial oversight. I think the actual terminology he used was, “without judicial oversight”.

I am now asking my colleague why the government would, in this bill, allow for the state to demand this information, compel this information, without judicial oversight.

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 10:55 a.m.
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Conservative

Gord Brown Leeds—Grenville, ON

Mr. Speaker, I, too, congratulate the member for Windsor—Tecumseh for his work on the public safety committee and on the committee that reviewed the Anti-terrorism Act.

As he knows, we wrestled with the whole issue of human rights and security. There is a fine balance that we need to find. I believe the bill finds that balance and still would require a warrant to get at those telecommunications companies, but it would allow access to some IP addresses. I believe the bill finds that balance, which is so important to Canadians.

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 10:55 a.m.
See context

NDP

Joe Comartin Windsor—Tecumseh, ON

Mr. Speaker, I thank my colleague for his kind comments. I promise not to use them in any political leaflet and I expect the same back from him.

However, he did not answer the question and perhaps I will put it this way. Has the member spoken with the current Minister of International Trade and asked him why he took that position back then and why his government has reversed positions on this issue now?

He obviously felt at that time, although I suppose the other possibility is that he did not know what he was talking about, so I do not want to attribute that to him, but I think he did, and recognized that, in terms of that balance between state interference and public safety, we were clearly better to stay on the side of judicial oversight in terms of protecting privacy rights and still allowing for the use of this legislation but only with judicial oversight.

Has the member spoken with that particular minister and asked him why he took the position at that time?

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 10:55 a.m.
See context

NDP

Jim Maloway Elmwood—Transcona, MB

Mr. Speaker, I want to follow my colleague's line of questioning. Is the member aware that Canada's Privacy Commissioner has sent a six page letter? On page two she says, “I have concluded that elements of the proposed legislation raise significant privacy concerns”. She goes on to say that she has consulted with a number of authorities, including Justice Canada, Public Safety Canada, provincial privacy commissioners, the telecommunications industry, manufacturers, service providers and associations, law enforcement, the RCMP, the Canadian Association of Chiefs of Police, civil society groups, academic specialists, and other experts in different fields and they certainly do have many concerns of this type.

Has the member received a copy of the letter from the Privacy Commissioner and does he agree with it?

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 11 a.m.
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Conservative

Gord Brown Leeds—Grenville, ON

Mr. Speaker, once again I go back to the fact that we need to find that balance between human rights and security. What I would recommend to the hon. member is that we send this bill to committee. That would be an opportunity to get this issue in front of the Standing Committee on Public Safety and National Security where we could hear from these witnesses. I believe the bill does find that balance and will give those in law enforcement the tools they need to help protect us while at the same time not trampling on human rights and still ensuring privacy where it should be.

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 11 a.m.
See context

NDP

Joe Comartin Windsor—Tecumseh, ON

Mr. Speaker, I rise to speak to Bill C-47 with a bit of trepidation because my colleague from Vancouver Kingsway did such an excellent job in his analysis of the bill on Tuesday. My colleague from Elmwood—Transcona said that he will probably use that in his political leaflet. I give him permission to do that, because he did an excellent job.

I have watched and listened to the speeches from the various parties. The need for this bill is very clear in terms of providing some tools for our police officers, in particular, and our prosecutors and our judiciary to bring them into the 21st century to combat a number of different areas of direct cybercrime. It would assist them in a number of areas by giving them the ability to get at other information and evidence which they cannot access now because of the gaps in the Criminal Code, our evidence act and other pieces of legislation.

All parties agree that this legislation is necessary. Being completely honest, I think that all parties would also say that it is way overdue. I have been our party's justice critic for going on five years. This has been discussed throughout that entire period of time. We have seen some other drafts of this legislation. There has been a lot of discussion in the public arena. In fact, that discussion probably started back in the late 1990s.

We identified a number of the problem areas in the Criminal Code, the evidence act and other legislation that were, in effect, acting as barriers to effective policing of a number of crime areas, including organized crime. The more sophisticated organized crime groups are way ahead of our police forces and criminal justice system in their use of new technology. We are very much playing catch-up. That has been identified for at least a decade. Unfortunately, neither the current government administration nor the prior one moved rapidly on it.

There is strong support for the bill, with one glaring exception. As I said earlier in my comment and question to my colleague from the Conservatives, Anne McLellan, who was the minister at one point and introduced the first bill regarding these types of amendments, as a typical Liberal, flip-flopped on this. Ultimately, she came out on the side that the state would not invade people's privacy and privacy rights without judicial oversight. The state would not intervene without judicial oversight. I think she ultimately took that position after initially being on the other side. In fact, she introduced a bill that was very similar in this regard to the bill that is now Bill C-47.

Before any bill was introduced in the House, the then minister of public safety and national security took the position publicly that there would be no state intervention in those privacy areas. We are talking here about basic information contained in computers, in current technology and in other technology that we think may be coming. The minister took the position that we would not intervene in that as we have not in any other area of law, technology or private property. Historically, we have just not done that without judicial oversight. We can argue whether that is appropriate, but I believe that argument is long behind us.

We can go back hundreds of years and the intervention of the state in people's private lives has generally been seen as a negative without judicial oversight. We need that independence and knowledge our judiciary brings to the issues of the day, to the issues of civil liberties, human rights, et cetera, to balance that against the need for the state to intervene in certain cases. That decision needs to be made by the judiciary, not by an individual police officer, the argument being that the judiciary is in a much more independent and qualified position to make that decision of where that balance occurs.

That is the situation we are in at the present time. That is the society we have built. That is the criminal law and criminal evidence structure we have built and which has generally worked well. Nobody argues with the needs in our society which this bill reflects, but we do argue with the government because we believe that in this bill, it has clearly crossed the line.

I want to draw to the House's attention the specific section regarding what a designated person can demand from service providers. It is quite lengthy:

Every telecommunications service provider shall provide a person designated under subsection (3), on his or her written request, with any information in the service provider’s possession or control respecting the name, address, telephone number and electronic mail address of any subscriber to any of the service provider’s telecommunications services and the Internet protocol address, mobile identification number, electronic serial number, local service provider identifier, international mobile equipment identity number, international mobile subscriber identity number and subscriber identity module card number that are associated with the subscriber’s service and equipment.

That is a lot of information that has to be turned over on a simple demand. There are no provisions in the bill for any refusal for that information to be turned over. The subscriber has absolutely no rights but to turn that information over.

There is a secondary problem where, because of the amount of information that could be asked for, as we see from that list, if it is one particular provider that is being targeted, it could bankrupt the person because of the amount of time it would take to provide that information. It is open to that kind of abuse.

It is not open to that kind of abuse if the police force is required to appear in front of a judge and explain why this information is needed, what the nature is of the investigation, the need for that information to assist in that investigation, and we could go down the list. That approach by the police force is no different from any number of other areas where the police now have to go before a judge. There is nothing special about the need for this information.

It is clear that the information in a lot of cases will be needed, but it is also clear that it is the kind of information we get now but is always subject to first getting a warrant. Whether it is getting a warrant to wiretap a conventional land line, whether it is a warrant to install listening devices in a private residence or a commercial establishment, all of those are subject to judicial warrant and judicial oversight. That should be the same here.

It is so fundamental that I do not understand why we are doing this. It is one of the reasons I have raised the point repeatedly as to why we are doing this. Why is the government doing this? I have never had a satisfactory answer.

My colleague from Vancouver Kingsway was very clear in his address to the House on Tuesday. He has canvassed a number of the experts in this area. What came out of the work he did in that regard was that the experts, academics and people who work in the field, investigators, et cetera, have not been able to identify one case in which police have been able to come forward and say that they need to be able to do this.

We will hear the argument from some police agencies or forces that they need this because of timing. That is not a credible argument. It is the same kind of argument we can hear being made with regard to setting up wiretaps, planting listening devices, or getting a search warrant to search residences and commercial establishments.

We have provisions within our law such that if a crime is about to be committed or the police have reasonable probable grounds to believe that a crime is about to be committed, they can do that on their own. We have exemptions within the code that allow them to do that, and those exemptions would apply to these circumstances. I repeat that they have not been able to come up with one instance in which they needed access to that information on demand, where they could not have taken the time to get the warrant.

This may be a point I have to make. I do not want to assume ignorance on the part of government, but I do not have any other explanation as to why it would move in this regard. Our judges who grant these warrants are available in every community in this country on a 24-hour basis. It is a matter of a phone call. Judges in regions are designated for periods of time as having this responsibility, and they make themselves available. I have been involved in cases in which I know the police went to the judge's home and got the warrant, because there was a timing issue. So the judges are available. The need for the protection of privacy is there. It is guaranteed in that regard, and it does not, in any significant way and maybe not at all, hinder the role the police have to play in doing timely investigations.

Neither the timeliness argument nor the argument of the need to prevent a crime from happening stands up to any type of vigorous analysis. There is just no evidence that is the case. Gathering this information, described in section 16 of Bill C-47, which I just read out, is really no different from gathering it in the other areas, for which we regularly attend before judges or judicial authorities to get the warrants before we proceed.

If I had heard any valid explanation from the government, we would not be opposing Bill C-47, and that would be true of my colleague from Vancouver Kingsway. He is responsible for this legislation, because it is going to Public Safety, not Justice. However, both of us would have been in a position to say yes, there is no question this bill is absolutely needed and has been needed for the better part of a decade in this country.

I should say in that regard, we are not only behind the criminal element in this country and organized crime in particular, we are well behind a number of other countries that have moved much more prudently in this regard and have legislation similar to this on their books and have had it for the better part of a decade. We are that far behind other countries as well.

We would have been quite happy, in fact enthusiastic, to support the bill, get it through committee as quickly as we could and back to the House and on to the other chamber for quick passage, but we cannot do that when this fundamental right is being abrogated in the legislation.

If we had heard any kind of decent explanation from the government, we would not have taken that position, but we had no choice. This is so fundamental.

Again, we can go back into English law and into English common law during the hundreds and hundreds of years over which we have evolved these principles of the proper role for the state to play and the proper role within the state for the judiciary and police forces to play. This is undermining that in quite a significant fashion without any justification whatsoever.

We will be opposing the bill on second reading. I expect it is going to go to committee. In any event, hopefully at the committee one of two things will happen. We will convince the government that it has to put judicial oversight back into these sections so that it is covered or--I will say quite frankly that my colleague from Vancouver Kingsway and I are open-minded on this--if we can hear justification, valid argument as to why we should support this, we will in fact change our position for third reading.

However, we have had that opportunity, as far as I can see, from the government. We have not received that justification or any valid arguments to support it with regard to the judicial oversight issue. We are going to stay open-minded. Perhaps other witnesses will come forward who are more astute in their arguments in this regard, and we remain open-minded to see if there are reasons for it within the conditions that our police forces are facing now. I have to say I am skeptical, but I remain open-minded on it.

Having said that, I will conclude. The bill absolutely needs to get through. It needs only this one significant change. If we can get that, then hopefully we can get it through fairly quickly.

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 11:15 a.m.
See context

NDP

Jim Maloway Elmwood—Transcona, MB

Mr. Speaker, I want to thank the member for his reasoned and reasonable arguments, as usual, regarding the bill.

I would like to ask him if he could provide us with some examples of the type of abuses that could possibly occur under the bill as it is currently written and how he sees a way around them and how he would improve it to make certain these abuses could not happen.

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 11:15 a.m.
See context

NDP

Joe Comartin Windsor—Tecumseh, ON

Mr. Speaker, let me answer the second question first.

The amendments to this bill are really quite simple. We simply bring into line the responsibility that the demand for this information would have to be presented to a judicial authority. How that is done varies across the country. In some cases it is brought before a justice of the peace but it is usually a judge of the provincial superior courts in the respective provinces and territories. There are three basic points that a crown attorney or sometimes the police themselves place before a judge: the subject of the investigation; the stage it is at and what they have done up to that point, identifying the individuals or even a corporation against which they want the warrant; and the specific information they need, as described on an affidavit explaining why they need that information to deal with the investigation.

It is fairly straightforward. We have been doing these warrants for probably 100 years or more in Canada, which have evolved over time to be more sophisticated. There are standard forms that have to be filled out. All we need to do is plug this section into the same format.

In terms of the potential for abuse, I do not want this to sound as though we have police forces in this country that are running amok. I in fact believe just the opposite. I think our judiciary is one of the best in the world, and I think we can make the same argument for our police forces, whether we are talking about the RCMP, some of our major provincial police forces, or those forces at the municipal level.

Our police forces are quite sophisticated by international standards, generally well trained and generally knowledgeable of the law and the requirements of their role. However, like the judiciary and like politicians in this chamber, they are human. From time to time they make judgment errors. The judiciary is in a much better position to provide that protection than are individual police officers who can have--I do not want to call it a conflict of interest because that would be unfair to them--a real desire to catch criminals. At times they can be overenthusiastic, and that then leaves it wide open for these kinds of demands to be made in circumstances that cannot be justified and would not be permitted by a judge.

Technical Assistance for Law Enforcement in the 21st Century Act
Government Orders

October 29th, 2009 / 11:20 a.m.
See context

NDP

Jim Maloway Elmwood—Transcona, MB

Mr. Speaker, I think that was a well-answered question.

However, I do want to go a little further here, because the Privacy Commissioner of Canada did write a six-page letter dealing with both Bill C-47 and Bill C-46. She had even more wide-ranging concerns about the bill. Having done a lot of consulting with eminent people and organizations regarding the bill, she has come up with many suggestions as to things that should be changed here. Perhaps they can be changed at committee.

One of them involves the five-year review. While there is a five-year review for this bill, there is not one for Bill C-46. As we know, they are intertwined.

Also, I would like to ask the member what sort of form he thinks the review should take, and how we would mandate that to make certain it did not fall through the cracks. Perhaps a sunset clause should be looked at for this particular bill given that technology changes quite radically over even a year let alone a five-year period.

I would ask the member what he thinks of some of the Privacy Commissioner's observations about how this bill is deficient and how it needs to be improved.