Good morning, Mr. Chair, and thank you.
I have some prepared remarks I would like to put on the record, if you will permit me. There will be some overlap I think with my friends from the Canadian Resource Centre for Victims of Crime, but if you bear with me, I'll go through them.
As stated, my name is Clayton Pecknold. I'm a deputy chief constable with the Central Saanich Police Service in British Columbia. I'm the co-chair of the Law Amendments Committee of the Canadian Association of Chiefs of Police.
First let me thank you for granting the CACP the opportunity on such short notice to appear before you today. I understand you are coming to the latter stages of your work and no doubt have had much material placed before you. I will endeavour to keep my remarks focused and brief with that in mind. I also wish to convey to you, Mr. Chair and members of the committee, the compliments of our president, Mr. Jack Ewatski, who's the chief of the Winnipeg Police Service, and our executive director, Mr. Peter Cuthbert.
The Canadian Association of Chiefs of Police represents the leadership of policing in Canada. Our membership spans all levels of policing, from municipal to federal agencies, and includes approximately 90% of the chiefs, deputy chiefs, and other senior executives from our nation's policing community. The CACP is committed to promoting effective law enforcement in Canada to the benefit and safety and security of all Canadians. As part of this mandate, and to enhance the effectiveness of policing, the CACP is committed to legislative reform such as that which is before you today. We appear often on bills and participate with enthusiasm and at every opportunity to consult with government on matters pertaining to the law and policy having an impact on public safety.
As I have stated, I'll endeavour to limit my remarks and therefore will focus primarily on two sections of the act. Before moving to specifics, permit me some general comments both to provide illumination of the guiding principles under which the CACP carries out its mandate, but further to provide some comment about the general policing environment in Canada, so that this honourable committee may have some context in which to view our specific comments.
The overall goal of the CACP is to lead progressive change in policing through, among other things, the advocacy for legislative reform, the advancing of innovative solutions to crime and public order issues, and the promotion of the highest professional and ethical standards for its member agencies. Simply put, the CACP believes that preserving and respecting the rule of law and the Charter of Rights and Freedoms guarantees that we will maintain the continuing consent of the citizens we police.
With the foregoing in mind, allow me to state clearly that the Canadian police community is very mindful of the concerns of Canadians for their privacy. We, like all Canadians, understand that while the digital age has brought forth much benefit, the ease with which personal information flows across boundaries brings with it many challenges for law enforcement. My committee and other CACP committees, such as the electronic crime committee and the organized crime committee, are actively pursuing legislative and policy initiatives to combat privacy-related criminal activity such as identity theft and telemarketing fraud, to name but two.
As well, as police services have modernized our own electronic data collection and information-sharing practices, we have worked hard to place the appropriate safeguards in place to ensure we comply with both the spirit and intent of our various governing privacy acts and the fair information practices they enshrine. We are also mindful that Canadians have a growing awareness of the very real dangers posed to our society by organized crime, global terrorism, and, perhaps most alarming, the exploitation of our children by Internet predators and purveyors of child pornography.
To that end, the CACP continues to advocate for changes to our laws to provide a balanced and effective set of investigative tools to deal with the new challenges faced by law enforcement in the information age. While Canadians expect balance and restraint from their police, they also expect that we will have the tools available to us to keep them safe and serve the public interest.
Another point I would make is that policing is not strictly the enforcing of laws. While the investigation of crime and the apprehension of criminals is a key aspect of what we do, provincial police statutes in the common law recognize that the primary duty of a police officer is the protection of the public and the preservation of the peace. In pursuit of this we are often called upon to perform tasks that are of a social benefit. These include such tasks as notification of the next of kin, checks on the welfare of the elderly and infirm, assistance to child protection authorities, or working in collaboration with mental health professionals to assist in protecting vulnerable persons within our society. In any or all of these cases, police may need timely access to accurate information about an individual for the benefit of that individual or for some other public good.
Therefore, here are some key points I would ask that you draw from my opening comments.
First, the digital age and the new realities of the Internet and the free flow of personal information in electronic form pose many of the same challenges to effective policing as they do for other sectors of society and, we suggest, have brought with them new public safety challenges.
Second, police operate under the considerable scrutiny of the public, the courts, and other regulatory bodies. Every police agency in this country is governed by privacy legislation. We understand our responsibilities with respect to the protection of the privacy of Canadians.
Finally, while one may tend to think of policing in terms of enforcement of the criminal law, there are many everyday functions performed by the police that do not invoke the criminal law powers or the associated investigative authorities, yet are equally of service to the public good.
Now turning to the act specifically, I would like to comment on two areas: the disclosure by police of personal information without consent, and secondly, the disclosure of information police themselves request to the individual about whom the information was requested. Specifically, I'm talking of sections 7 and 9.
As you know, paragraph 7(3)(c) permits organizations to disclose personal information without the knowledge or consent of the individual, where a court order exists. Police do frequently seek information with prior judicial authorization under search warrant or production order when the information is of a nature that attracts section 8 of the charter protection and of course where they can meet the legal threshold for obtaining such an order. But as noted, there are occasions in which information sought does not attract section 8 protection. One example of this is hydro power usage, which may indicate the theft of electricity or operation of a marijuana grow-op. There is some good authority from the courts that a warrant is not required for this information.
In another example, a police officer may be in the early stages of a missing person investigation, in which he or she is trying to determine if in fact a crime has occurred. Perhaps we may have to solicit the assistance of a financial institution because we need to know if that person bought gas at a particular gas station or if the person used a credit card, or perhaps we need to find out if a person has a cell phone registered to him with a particular company. For this information we rely on paragraph 7(3)(c.1), which permits disclosure upon lawful authority, as my friend has already noticed. However, we are increasingly seeing some companies interpreting lawful authority to mean that a warrant or court order is required before they comply. This is an interpretation that is not, in our respectful view, consistent with the intent of the drafting of the act. Such an interpretation by companies, while no doubt grounded in a legitimate desire to protect their customers' privacy, is overly restrictive and defeats, in our view, the intent of paragraph 7(3)(c.1). That section is intended to be permissive and give guidance to the holder of the information to ensure that there is some legal basis upon which the police are requesting the information. That legal basis may be a criminal investigation and may involve the service of a court order, in which case paragraph 7(3)(c) would apply, or it may be pursuant to our many other duties, in which case we suggest that paragraph 7(3)(c.1) contemplates a situation in which a warrant is not required or indeed available. It does so by using the term “lawful authority” and differentiating between the enforcement of a law and the carrying out of an investigation relating to the enforcement of the law.
It is important to note at this juncture that the police are always restrained by the rules of evidence, and wherever there is an expectation that information is to be used for criminal prosecution, we are careful to ensure we do not jeopardize the subsequent prosecution by obtaining evidence in a manner that would otherwise require a warrant.
The second section concerned is section 9, which provides that a person may have access to his information possessed by the company, including whether the company has disclosed that information to another party, including the police. There is, of course, a provision that permits the objection by law enforcement to disclosure of the fact that a request had been made for the information, but as we understand it, the prevailing view of that section and the cumulative effect of that section are that protection is triggered only when the individual actually makes a request. In our view, there is nothing preventing a company from adopting a policy of voluntary notice to customers that the police had requested and received information. This is, as you can no doubt appreciate, of concern for us, most especially when there's an ongoing and sensitive investigation or the information was requested for intelligence purposes.
For purposes of the end result, we are requesting that the committee consider clarifying the ambiguity in sections 7 and 9. First, we respectfully suggest you consider clarifying the term “lawful authority”, either within the definitions section of the act or by employing some other wording, which would clearly demonstrate that a warrant is not required. This is recognizing, of course, that section 7 is permissive and that companies are not compelled to provide the information. Such clarification would serve primarily to give them some comfort in their efforts to be good corporate citizens and, where appropriate, assist in matters of public safety.
With respect to section 9, one possible suggestion is that an amendment be made to generally prohibit the disclosure to an individual that the police have requested or received information, regardless of whether the request is made by the individual. Provision could be made for the police to consent and not unreasonably withhold that consent. Such an amendment would also help clarify the obligations of companies, of course.
In closing, it is important to notice that the vast majority of organizations covered by the act strive to be good corporate citizens. Police across this country work closely with all members of their respective communities, corporate or otherwise, to maintain professional and cooperative relationships. This is a key component of good police work.
In keeping with this, it is important that all parties have a clear understanding of their duties and obligations with respect to protecting Canadians' privacy. Clarity of language in the act will go far in ensuring the appropriate balance between the protection of that privacy and the needs of public safety, by making sure the right information goes to the right people at the right time and according to the law.
Once again, on behalf of the Canadian Association of Chiefs of Police, thank you for the opportunity to comment.