Information & Ethics Committee on Feb. 20th, 2007

[The Chair, Liberal, Tom Wappel]

Good morning, everyone.

We have today only one set of witnesses, the Royal Canadian Mounted Police, in the persons of Bruce Rogerson, assistant commissioner; Art Crockett, officer in charge of strategic services branch, technical operations; and Earla-Kim McColl, officer in charge, national child exploitation coordination centre.

Welcome to you all. You will have approximately ten minutes for opening remarks, and then we'll go right into questions. Thank you for requesting to appear. We're looking forward to your evidence.

[A/Commr Bruce Rogerson, Assistant Commissioner, Royal Canadian Mounted Police]

Good morning. Thank you.

It's a pleasure to be here this morning to at least clarify what we feel is a correction that needs to be made in the PIPEDA legislation, which will allow the RCMP to collect informal information in a more congenial fashion and allow us to do our day-to-day job.

Obviously the RCMP is one of your national police forces, but it's also the uniform police service across Canada. We service eight provinces, three territories, we're in over 200 municipalities, and we're throughout Canada in over 700 locations.

However, having said that, through the feedback we're getting through our membership, the RCMP has increasingly encountered challenges with respect to the changes invoked under PIPEDA five years ago, especially when it comes to collecting information from the private sector and private organizations. which, prior to the revisions of five years ago—was freely permitted to receive, and very seldom met with any rebuttal from our colleagues.

I can tell you that in my interactions with the communities and civic duty throughout Canada over the last 33 years, I have found that we have an excellent relationship in general in a majority of cases with the communities we serve, and also with the organizations and public institutions that we request information from. That has been proven in many surveys, where our client satisfaction, which includes the business community, rates well above or close to 92% on an annual basis. So there is an element of trust between us and our service delivery.

However, there is confusion now amongst the organizations when we deal with them and ask them for information that in reality is just information at the beginning of any review or any instance whereby we receive information. It's like gathering a 1,000-piece puzzle. We really don't know what we have when we seek such information. In gathering those pieces of the puzzle they add up to a point where we feel it's either criminal or non-criminal, and then we move in to the criminal side, where search warrants and that are required. However, under PIPEDA in recent years we have found that the changes to sections 7 and 9 have made it a little more confusing for the partners we're dealing with on a day-to-day basis to ensure we prevent crime and provide safe homes and safe communities throughout Canada.

I would say that it's well publicized because of the wording in section 7 that deals with lawful authority. Many people have defined that to mean court-ordered, or court documents, and therefore they have refused to provide simple customer name and address and simple information that was obviously provided before. So there's real confusion around that terminology under section 7. We can talk about the well-publicized case in St. Thomas, Ontario, whereby a suspect was identified and an Internet service provider did provide the information without a warrant, which was under his discretion and his definition of lawful access. Therefore the police were able to glean enough information in the early stages to get a search warrant and therefore apprehend the individual, who was assaulting a very young lady.

In a recent case in British Columbia, a person with Alzheimer's disease walked off, he had a medical alert bracelet, and the people we called to glean information on that individual told us that they weren't allowed to give us the information without a court authorization. So even in a medical alert, where we deal with people who may have epilepsy and stuff like that, you need to know whom you're dealing with, even at the very front line. So it deals with members at the front line, serious crimes, child exploitation, and also the protection of other individuals.

With respect to the warrant aspects, we have had some case law whereby the information that we seek under PIPEDA really is not described as information that warrants a search warrant. It has been ruled on in three different cases in the early nineties and just before that, whereby the customer name and address are not really considered a violation of one's rights under the Charter of Rights and Freedoms.

What we're trying to do under section 7 is readjust the yardsticks, back to where they were prior to the present legislation, to get back to where the interpretation under section 7 is really about giving organizations the permission to provide us that information in the performance of our duties and at the same time transfer the risk back to us.

Obviously, a lot of organizations feel that if they provide that simple information they're putting themselves at civil risk. What we're trying to do is say, no, for them as corporate citizens—it's almost like the good Samaritan situation under first aid—it's permissible to give us that information, and we take on the risk if we misuse it and abuse it.

So one of the things we're looking at is clarity under section 7. We'd like “lawful authority” to be redefined to say that it is permissible to provide information to those acting in accordance with the performance of their duties without a court order or without any authorization from the judiciary.

As I move on to section 9, I guess the same thing could be said with respect to some of the changes whereby a person can call to find out whether information has been released. In that regard, sometimes early on in our investigations we're not sure what we're looking at.

If we're in a major city and somebody is buying two tonnes of fertilizer and we would like to know their name, I could say, for example, that if we accessed their name, we would prefer that the supplier not call the individuals to let them know we had accessed their name, because we're analyzing the information to determine where we're going with it. Also we would like the privilege of being able to instruct the organizations not to release the information until they hear from us any further on that particular issue.

Sections 7 and 9 provide basically our reason for being here today; it's to clarify and to allow us to perform our duties on a daily basis in a more informal and collaborative manner with the citizens we serve, and with the citizens by reflection—the organizations—that we seek personal information from.

I won't go through all of my speaking notes. They're in front of you today, but that is the key message I'd like to give.

I would say that there are issues around regulations about how we act. We have a lot. We have the RCMP Act, as you know; there's a code of conduct in there. If members access information for personal use, and not in line with the duties they perform on a daily basis, they can be reprimanded, they can be fined, they can be dismissed, depending on the degree to which they use the information.

That goes right down to accessing CPIC to find out whether your neighbour has an outstanding warrant or a criminal charge against them, or whether they have a criminal record. If we find out, members are reprimanded, and as to the degree of severity, we deal with our members internally.

So we have the internal one, we have the Criminal Code for abuse of process and breach of trust, we have the PIPEDA legislation, we have our Sources of Federal Government Information, which also directs us not to misuse information. We have our secret offences act; as an officer today and long after we retire, up until our death, we're not allowed to disclose information.

You also have the Public Complaints Commission. If there's an issue wherein we've abused our authorities, the public has the access to go to the Public Complaints Commission, which has full access to our files and records, to see whether we were derelict or overly aggressive or abused someone's rights under the Charter of Rights and Freedoms.

Along with my colleagues Superintendent Earla-Kim McColl and Superintendent Art Crockett, I hope today to address specific questions and give examples to heighten your awareness as to the impediments the present wording has imposed upon us, from those of a serious nature right down to those of a local nature with respect to the day-to-day operations of our law enforcement service.

[The Chair, Liberal, Tom Wappel]

Thank you, Assistant Commissioner.

We heard about this issue, specifically the definition or lack of definition of law enforcement, last week. Committee members were interested in specific examples, and we very much appreciate the fact that you were able to give specific examples of what you perceive to be the problem with the lack of definition of “lawful authority” and some of the interpretation of section 9.

The usual situation will apply. We have a first round of seven minutes per member—that includes the questions and answers. Then we have a second and third round of five minutes each.

We'll begin with Mr. Dhaliwal, for seven minutes.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Thank you, Mr. Chair, and thank you, officers, for giving us your presentation.

I went through this presentation and deliberations you made to us, and looked at the two perspectives you are coming from. I certainly agree with you on those. With regard to ISP providers, if you don't get that information, child abuse can be on there. On the other hand, you say if the general public had access to the information on the investigation you are undertaking, there might be circumstances where it might also benefit the public.

Can you draw a line where they have access to the information you are investigating? Air India, for example, is a perfect case scenario. PIPEDA wasn't even in effect at the time.

The grave perception in the community right now is that the RCMP and CSIS...you know, you did not have the collaboration, or there wasn't enough public access to those investigations, and we would have avoided that big incident at that time. And there might be some other cases where the public might have some access to the investigation you are undertaking.

What is your opinion on those circumstances?

[A/Commr Bruce Rogerson]

If you are talking about open source information on the ISPs, which is available to the public, yes, you are right. It's where our tech crime people use information and analyze it to determine whether there is any criminality, whether there's a financial institution at risk, to alert them that we have seen this open source information on the Internet.

With respect to child exploitation—I'm sure the superintendent will talk about that in a minute—even as speak here at this committee, it's going on right now.

With respect to the exchange of information between CSIS and the RCMP, CSIS gathers intelligence in a less informal way, and not with respect to criminal issues within Canada. They look at national security issues when they gather information. When it becomes criminal, they will share that information, because now it moves into our mandate. Vice-versa, if we have intelligence that should be shared with them with respect to national security issues, then we have mechanisms by which we share with CSIS.

I'm in technical operations. A lot of the technical tools we develop are shared with CSIS with respect to how we use technology and surveillance and whatever. We have an excellent relationship with CSIS with respect to the MOUs in place for exchanging technical tools that allow them to do their jobs as well. It depends on the level, because each of us has a different mandate. We are law enforcement, and they are intelligence gathering for national security, whereby they brief the PCO and allow them to know of an impeding threat or a possible threat to Canadians as a whole. The RCMP, on the other hand, are guided by the various statutes and regulations along with the Criminal Code, as far as law enforcement is concerned.

I would say the collaboration in the recent arrest in Toronto would heighten the fact of how integration.... We worked well with not only CSIS but also multiple police agencies.

I hope I answered your question.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

The particular example you took with CSIS, how would the investigation—? You were saying the section 9—you know, when you disclose the information, or the client's information is disclosed, when you are investigating on something. I'm talking about generally, the investigations that the RCMP are doing. Do you think it's in the best interest of the public to know those under access to information?

[A/Commr Bruce Rogerson]

The reality is that we are the public. The public entrusts us to gather that information on their behalf in the execution of our duties.

I don't believe all information should be accessed, no, by the public in general. Obviously some tightening up needs to be done with respect to privacy, now that we are getting into identity thefts and other areas. What the general public has access to as opposed to what we have access to—those are two different scenarios.

We are accessing the information under lawful authority, based on the Criminal Code and the other acts that guide us and our oath of office as well. The general public is not held up to the same level of scrutiny or same level of accountability as we are on a day-to-day basis.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Do you see any breaches in duty when you have access to public information? There are some cases when the police might have breached their duty, from the Canadian public's perspective.

[A/Commr Bruce Rogerson]

I've not really seen breaches. We're very cognizant of the fact that the justice system determines what evidence comes in and what evidence gets thrown out. If they feel that information we gleaned required a judicial order, they will dismiss that evidence. We have a watchdog called the justice system when we glean information or gather that open source information and informal information.

That's why I say that there comes a point in time when, all of a sudden, we've gleaned enough information to establish that there is a criminal act or a possible criminal act. Then we use that information, in reality, to write the search warrant. In other words, we can't go with the cart before the horse. What we do is we gather that information. The information we gather informally allows us to develop what we need in order to get a search warrant.

In a lot of cases, as you know, we don't know if a search warrant or a criminal act is in place. It could be just a simple issue. It could be a missing child. It could be a missing person. Or it could be under the national sex offender registry—we want to know if a certain person stayed at a hotel that day, because they shouldn't be travelling outside their jurisdiction without notifying the local authorities, because they need permission to do so. So we need to know if a pedophile stayed in a local hotel that evening, and if we don't have access to that information, or if the hotel interprets PIPEDA, under its present standing, to say that, no, we need a search warrant, well, we have no grounds for a search warrant, because we're fishing. We don't even know if the person stayed there.

I know, being before a justice of the peace.... I mean, search warrants now run eight or nine pages. A part VI could run you 1,000 pages if you want to get a wiretap.

Right now, all we're looking for is that the industry be allowed—and have a little more clarity in the wording—to say that it is permissible to provide us that information. Superintendent Crockett was one of the builders of the national sex offender registry legislation, and of course, Superintendent McColl is doing the missing children and the child exploitation. But I have proceeds-of-crime people here with me as well.

[The Chair, Liberal, Tom Wappel]

Thank you.

Monsieur Vincent, sept minutes.

[Robert Vincent, Bloc, Shefford, QC]

Thank you, Mr. Chair.

Thank you for being here this morning. I found the way you presented this to us interesting. It was clear and precise, and you cited women and children as examples. But you'll have to go further because what you're requesting in sections 9 and 7 goes much further than that.

You've presented the good side to make us aware of the issue. Ultimately, in the case of pedophiles, we could give you freedom to investigate in order to obtain information. However, that would open the door to all other investigations. However, public trust in your service has crumbled in recent years. Having read the O'Connor report, I can tell you that you're loosening the reins a little too much. Information is being shared left and right. In that sense, your service has some deficiencies.

I know your book contains disciplinary measures. However, are you going to tighten up your watch over the information given to you so that it remains in your service and can't be used or shared and that what has happened does not reoccur?

This is not the first time this kind of thing has happened. I read the document that is distributed to all members every year on complaints concerning the RCMP. It's quite thick. So there's a lot of work to do. I'd like to know what you intend to do to better protect the personal information that you're going to gather from any agency and anyone.

[A/Commr Bruce Rogerson]

We started by giving a course to certain investigators who have the power to obtain this information in order to determine whether a crime or terrorist act has been committed. I recently wrote a memo to officers in Ottawa to ensure that each one thoroughly knew his citizenship protection role. That memo was also distributed to all officers and managers across Canada. This week, senior managers and the commissioners intend to establish the steps for controlling information, particularly information concerning terrorism, organized crime and other similar types of organizations.

In Montreal, street gangs are our primary concern. We work with the Montreal police every day. Our goal is to reduce and destroy street gangs in order to protect not only young people, but also older people and all other citizens. Even though we have regulations governing the use of personal information, some individuals use that information as they wish. We usually conduct an investigation the moment we realize that someone has used personal information.

[Robert Vincent, Bloc, Shefford, QC]

By giving that power to police officers, don't you think they'll freely use all the information they can obtain? Any police officer could then request personal information from anyone on this or that person, and they'd be required to give it to them. When they request information, do your police officers talk to the person about the crime that another person might have committed?

A police officer can't communicate information on the investigation he is conducting to the person from whom he requests information. Is that correct? If you don't talk about the investigation, do you simply tell the person that you're requesting information because a crime has been committed or something else? You tell that person that you're a police officer and you ask him to provide you with information on another person. Is that your way of proceeding? Do you provide any details on the investigation, or do you limit yourself to the specific information you want to obtain?

[A/Commr Bruce Rogerson]

At first, it's really difficult to determine whether there has been a crime.

[Robert Vincent, Bloc, Shefford, QC]

You have a specific reason for requesting personal information from a third party. I suppose you don't simply want to know that person's address and social insurance number.

[Supt Art Crockett, Officer in Charge, Strategic Services Branch,Technical Operations, Royal Canadian Mounted Police]

Much of the information we seek is information that is very basic, and it's on general inquiries. It's not that we seek the core personal information of individuals. The information we are discussing in relation to PIPEDA is more basic information.

By way of an example, if there was a serious crime that happened in a hotel and when we arrived there was a dead body in the hotel, if it was on a street, we would go to the neighbours and see if they'd heard anything. So in that inquiry we would go to the hotel management and ask, can you tell me who was in each room, and did you hear anything? That information would not be considered by us, or generally by Canadians at large, as being protected under our charter, protected core information.

So it is that type of information we are discussing, as opposed to the information that is personal that we might need for an investigation. For information that is more personal, we utilize other mechanisms and tools to do that.

It has been my experience across Canada that the public and private sectors want to help; they want to get involved. All they are looking for is a mechanism that will allow them to provide us that very basic information. I can say who was in that room or I can not. What we're seeking is just some clarity so that they know they can be protected. We will be accountable for what we do with that information. It's just the information to protect those people.

Does that help?

[The Chair, Liberal, Tom Wappel]

Merci, Monsieur Vincent.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chair.

Thank you, witnesses.

Building on what my colleague from the Bloc was asking, my understanding was that PIPEDA under section 7 already allowed or permitted organizations to use personal information without knowledge or consent.

The change made when the Public Safety Act amended PIPEDA was that they could not only use existing information that they held in order to share it, but they could collect further information at the behest of CSIS or the RCMP. They could seek out and gather it. They could be deputized, as it were, to go out to get more information, acting as agents for the RCMP.

This is what really concerns me. When you use the word “collect”, you have the right to collect further information. The private sector organizations that would be doing it are not subject to the charter rights, wherein everyone has the right to be secure against unreasonable search and seizure. It doesn't apply to a private organization acting on the request of the RCMP.

The chilling reality, as it strikes me, is that the information collection is without knowledge and consent. The individual might never know the fundamental rights to privacy the Supreme Court has established in its interpretation of the charter could be violated by a private sector organization. You would then have absolutely no right to redress, as you would if it were a public sector institution doing an end run on rights.

I think section 7 as amended by the Public Safety Act gives an end run to charter rights. It gives the RCMP and CSIS a mechanism to take an end run. Do you not agree that this invites a tremendous abuse of individual charter and privacy rights if it's a private sector organization at the request of an enforcement agency for sketchy reasons?

It's not only to stop a pedophile or some of the issues you cited. The reasons cited are for national security, the defence of Canada, which I think we can all agree would be laudable or worthwhile initiatives, or the conduct of international affairs. The conduct of international affairs is so wide and so abstract that it could mean almost anything.

Has this come up in the context of the RCMP? Have you contemplated the impact of the word “collect” rather than the word “use”?

[Supt Earla-Kim McColl, Officer in Charge, National Child Exploitation Coordination Centre, Royal Canadian Mounted Police]

If I may speak to our purpose in appearing before this committee today, PIPEDA has had an impact on our ability to do what we normally do on a daily basis, which is to go out to talk to people and ask them for basic information. The type of information we're talking about obtaining is less than what we get from running a driver's licence. We're talking about what I might get out of the phone book.

The amendments we're requesting to PIPEDA don't change that. It doesn't give us any additional powers. We're only seeking clarification. What we used to routinely go about getting on a daily basis when we talked to people on the street is all of a sudden unavailable to us because it's on the Internet.

Anything that invokes a charter protection is governed by the courts. They will ensure there is judicial oversight on any information we may obtain that is personal in nature. The amendment we're seeking is only to clarify the confusion that surrounds corporations.

[Pat Martin, NDP, Winnipeg Centre, MB]

I understand that. I understand it, but I'm going beyond that. I have read your brief and I understand the amendments you're recommending here for those purposes, but it's the broader picture.

Currently, information can be shared under PIPEDA without the knowledge or consent of the individual in circumstances regarding a law being broken or those kinds of things. On this idea that the private organization will now not only be obligated to or will be allowed to share the information with the police, they could go out to gather and collect more.

Maybe you didn't realize that this extraordinary power seems to be vested now under the current PIPEDA.

[A/Commr Bruce Rogerson]

Under the present PIPEDA, the issue of lawful authority is the one that created confusion, by saying we needed search warrants or a court order in order to obtain information. It's one of our concerns.

We're not saying it's obligatory for anybody to give us information. It's clear and concise. When a police officer asks people for information—for industry, a certain customer's name and address information—we're not saying they're obligated. We'd like to think that as good corporate citizens, they would provide it. We're only saying it's permissible.

[Pat Martin, NDP, Winnipeg Centre, MB]

This is about going further, though, sir.

Say you had reason to believe somebody was involved with gang activity, and my company held some information that would help you. You could also say to me, “Not only give me what you've got, but call that gang member up and try to suck him into revealing more information”—stuff you wouldn't be able to do without a warrant, or a search of his house.

Or let's say you're an insurance company, and the police might have reason to believe there's stolen property inside that house, but you can't get a warrant. The insurance agent, acting on your behalf, could go in and gather that information and then share it with you. The private sector is being deputized to do police work: that's what we read PIPEDA to be saying here.

[A/Commr Bruce Rogerson]

I think if we cross the line and say that we've now moved into an active investigation, then we start moving towards search warrants.

[Pat Martin, NDP, Winnipeg Centre, MB]

Sometimes you say there's no time, in the case of a pedophile abusing a person online.

[A/Commr Bruce Rogerson]

But on a daily basis, I'll tell you that people give us information. You're right—we do seek more information from people on other issues, obviously, to get clarity and find out if in fact a certain activity is false or true before we move into the court-ordered stuff.