Justice Committee on June 3rd, 2014

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

Mr. Anderson, I was interested in a couple of comments you made in your testimony. We've had several witnesses say, without a basis for it, that you're lowering the standard in order to obtain transmission data. I don't know where this lowering of a standard comes from, because right now under the Criminal Code, subsection 492.2(1), you can obtain a number recorder. You obtain a number recorder on reasonable suspicion.

Now, what you get with transmission data, in my view, is very analogous to what you get on a number recorder. You will get the origin of the e-mail, who sent it, where it came from, who it went to, when it was sent, and the size of the e-mail. You do not obtain information such as the subject line, content of that e-mail, or information as to a person's location. This is not tracking data.

So I don't understand how you suggest that it's a lowering of the standard, first of all. Where do you suggest it's a lowering of a standard that currently exists in the Criminal Code, and which section of the Criminal Code are you suggesting it relates to for lowering the standard?

[Stephen Anderson]

I also am not a lawyer, but the legal consensus that I've heard is that it changes the standard from a reason to believe to a reason to suspect.

[Kyle Seeback, Conservative, Brampton West, ON]

So, you've repeated that without any information as to whether or not it's accurate. You've heard that's what's been said.

[Stephen Anderson]

I've heard it from legal scholars whom I trust, including Michael Geist, the Canada research chair, so I think that's a legitimate source. Do you not?

[The Chair, Conservative, Mike Wallace]

You don't ask them questions. They ask you questions.

[Voices]

Oh, oh!

[Kyle Seeback, Conservative, Brampton West, ON]

No, I disagree with him and I pointed out the section to him, as well.

Where this goes from my perspective on people saying this is such an egregious abuse of people's privacy is the following. You'll have a police officer who will have to get internal approval to go to a court to say to a judge that he or she has reasonable suspicion that a crime has occurred or may occur. They go through their internal chain of command to get approval to go to court. They then go to court before a judge and convince the judge of their reasonable suspicion that a crime has occurred or is likely to have occurred, which is, of course, reasonable. The judge then allows them to obtain transmission data. Somehow that internal approval plus judicial approval equals abuse. I'm not good at math, but to me that seems to be an equation that does not add up, because there are enormous safeguards in that process.

[Stephen Anderson]

Well, you should check it again, because they're changing the standard from a reason to believe to a reason to suspect.

[Kyle Seeback, Conservative, Brampton West, ON]

They aren't.

[Stephen Anderson]

I think they are, and again, many scholars have come before you to say that. I think that change does weaken the threshold, and I think that right now, Canadians, including in your riding for sure, are looking for more safeguards, not fewer.

[The Chair, Conservative, Mike Wallace]

You have two minutes.

[Kyle Seeback, Conservative, Brampton West, ON]

I think we're going to go back and forth and disagree on that.

I don't think that a police officer is going to go on a fishing expedition to the extent of going through their chain of command to convince their superior that they need to take their limited resources to go to court and take the time to convince a judge just to randomly obtain the data of Canadian citizens because they feel like it. That seems to be what's being suggested by people who oppose this section. And for the life of me I can't understand why busy police officers are going to go on those kinds of expeditions.

[Stephen Anderson]

You're putting up a straw man there, because I didn't say that. I don't know of many people who did say that. What I said is that it weakens the standard at a time when people are looking for increased standards.

And why are we doing that in this digital age when this information is actually increasingly more powerful? You can connect to profiles more easily than you could a generation ago. So we should be adding more safeguards, more accountability, and more oversight, which I don't see you adding.

[Kyle Seeback, Conservative, Brampton West, ON]

But they're getting this because they think a crime has occurred or is likely to occur.

[Stephen Anderson]

Yes, they suspect it. I get that. I understand.

[Kyle Seeback, Conservative, Brampton West, ON]

And they have to convince a judge that they suspect a crime has occurred or is likely to occur, and to you—

[Stephen Anderson]

Yes, so why weaken that?

[Kyle Seeback, Conservative, Brampton West, ON]

—that leads to potential for abuse, a violation of people's privacy.

[The Chair, Conservative, Mike Wallace]

You have 15 seconds if you'd like to answer.

[Stephen Anderson]

I do. I think that weakening the standard is taking us in the wrong direction when this information has become more and more powerful in terms of what it reveals about our private lives. And not notifying people who are innocent in these cases seems to be really irresponsible.

[The Chair, Conservative, Mike Wallace]

Thank you very much. Thank you for those questions and answers.

Our next questioner is Madam Borg, from the New Democratic Party.

The floor is yours.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you very much, Mr. Chair.

I would like to answer Mr. Seeback’s question.

This bill proposes two systems. On the one hand, we have the warrant system, but on the other hand, we are opening the door to a multitude of requests that government agencies could make. We are also allowing public intervenors, distributing the list of people, to have access to the information. Basically, we are creating another system where there is no warrant, no judicial oversight, no obligation to be accountable and no transparency at all.

Mr. Anderson, what do you think about this second system that the bill seeks to create and that clearly requires no transparency? What do you think about the fact that it would be allowing more people to have access to that personal information with no warrant and no transparency?

[Stephen Anderson]

I think it's hugely problematic that we're giving more powers, we're extending access to people's private information, to CSIS and CSEC, for example. Right now those agencies have a bit of a crisis of legitimacy; they're in a PR overdrive because of the Snowden revelations. And I think it's appalling that we would actually increase their power at all, especially without accountability and oversight, at this time. We should actually be reviewing what they're doing. That's what we should be doing right now.

So again, it's taking this government backwards.

I would just like to quickly address an earlier point. Someone said that the immunity issue hadn't changed. What has changed, what will be removed, is the obligation to act reasonably and in good faith. I just want to set the record straight on that point, because the fact is that this does weaken Canadians' privacy rights. I've heard from the people in the ridings of all of the Conservatives on this committee, and they're very upset about that. To not pay attention to that, you do at your own peril.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you.

My second question goes to you as well, Mr. Anderson.

Your organization advocates for a free and open Internet. I have looked at a number of your communications in which you make the case strongly that the Internet should remain a free and democratic forum.

Do you have any concerns about the impact that the provisions in Bill C-13 can have on the Internet as a democratic forum?

[Stephen Anderson]

Yes, absolutely.

I think that when Canadians are seeing the Snowden revelations and at the same time hearing--not only through this legislation but also Bill S-4--the revelations about CSEC and CSIS.... I think when people hear those stories over and over again, it does limit the discourse and free expression online, and I think that's a problem. I also think it limits our digital economy, because in our digital economy online services are based on trust, and I think Canadians are increasingly losing trust in online services. I would say that in a kind of extra-judicial underhanded way, they're finding out that their data is being handed over to a range of authorities without a warrant. That doesn't make people want to participate in the digital economy. That doesn't make people want to invest in the digital economy. The North American tech sector has been losing billions of dollars since the Snowden revelations, and I think that's an important thing for us to consider here as well.