Information & Ethics Committee on Feb. 20th, 2007

[A/Commr Bruce Rogerson]

I can speak on that for a second.

On a day-to-day basis, dealing with the registry of motor vehicles and stuff like that, you get that on an immediate basis. The reality is that there's no other act other than—We use it in order to give us the empowerment to conduct the review or the investigation. It doesn't say anywhere in the act that people must comply.

In other enforcement areas, the Canada border security agencies, for for example, they have much stronger powers if they stop you at the border, but if we're acting in that capacity, at a border crossing or points of entry, then yes, it's compulsory to provide certain information.

[Bruce Stanton, Conservative, Simcoe North, ON]

On that note, in the course of those types of investigations, presumably there are safeguards and practices for the use of that information, if it comes under the laws of evidence, or anything of that nature, that prevent it from becoming problematic vis-à-vis personal information becoming public knowledge. Correct?

[A/Commr Bruce Rogerson]

Yes, you're correct. Under the access to information, if people access stuff, it's vetted to make sure third parties are protected. No names are disclosed, it deals with the specific question of an individual without jeopardizing the rights and freedoms and privacies of other people. That stuff is vetted by several people within the RCMP. So in terms of that information, if any member of the general public wanted to access certain files, obviously it's vetted.

[Bruce Stanton, Conservative, Simcoe North, ON]

Very good.

[Supt Earla-Kim McColl]

I would just add that certainly our authority's under the Criminal Code. We gather information about individuals under the provincial statutes, under municipal bylaws.

It's the nature of the work we do. We gather information about people and determine whether or not an investigation is warranted.

[A/Commr Bruce Rogerson]

And there's the proceeds of crime legislation, when they move forward to do a net worth or analyze the assets of an individual.

[Supt Art Crockett]

In addition, the national sex offender registry lays out specific points within there, that sex offenders are to provide specific information to police. And it governs, as well, how that information is to be collected, protected, and—

[Bruce Stanton, Conservative, Simcoe North, ON]

I guess the point there is that there are numerous examples where laws and legislation exist that permit the use of personal information. In our case, this is what we're dealing with here under PIPEDA, for the purposes of investigating breaches of the laws of Canada.

My next question is in regard to section 7. We start in the preamble, really at the opening of section 7, specifically talking about the fact that an organization under subsection 7(3)—we discussed this a couple of times in various testimony and questions we've had at committee—“may” disclose personal information without knowledge or consent, etc., and then it cites the various conditions.

The debate has been on the question of the word “may”, and the fact that nothing really obligates the organization. The question can be put but they really aren't obliged to provide under PIPEDA. It's their choice. In other words, the discretion is left with the organization.

Has that condition in PIPEDA been problematic for your investigations? Have you run up against organizations who recognize, for example, that you're a lawful authority, but they say the legislation only says they “may” disclose, so it's their choice if they wish to disclose or not?

[Supt Earla-Kim McColl]

That has been a great obstacle for us in investigating Internet-facilitated child exploitation. This is the number one issue for us, that interpretation of “lawful authority” and the interpretation of “may”. It is being interpreted by service providers as permissive rather than optional. “May” was written to allow or encourage cooperation, but in fact it's being interpreted as though refusing to help is a viable option.

In our line of work, 35% to 40% of the requests that we make to Internet service providers are refused on the basis of PIPEDA. So we have some cases.... We have four recent cases in this country where getting us to the door, starting with a little bit of information from an Internet service provider, building upon it with a search warrant later on to get into the residence, has rescued four children. If we can't get this little bit of information we can't start an investigation and it leaves children at risk, and I think we're failing in our obligation to investigate these cases and try to rescue these children.

So it has had a huge impact for us. After consulting with the other OICs of vice units, I can say that this is the single largest impediment to our efforts today, this current legislation.

[Bruce Stanton, Conservative, Simcoe North, ON]

Am I okay for time, Mr. Chairman?

[The Chair, Liberal, Tom Wappel]

You have one minute.

[Bruce Stanton, Conservative, Simcoe North, ON]

Thank you.

It would appear that even in the case of paragraph 7(3)(c), where you provide a warrant or a subpoena, the override still says “may”. How do you get around that? Subsection 7(3) says, “ an organization may disclose”, and then paragraph 7(3)(c) says when it is “required to comply with a subpoena or warrant issued or an order made by a court”, etc.

So that seems to be contradictory. Does that still work? If you produce a warrant, they still have—

[A/Commr Bruce Rogerson]

If we have a production order, or a warrant, or any other judicial authorization, then if they refuse we move through the judicial process.

[Bruce Stanton, Conservative, Simcoe North, ON]

So the warrant will take out the questions around the word “may”. Okay.

[Supt Earla-Kim McColl]

That section is not problematic. What we're talking about is information that is pre-warrant. We don't have enough to get a warrant, and that's why we use this section. But the “may” is problematic.

[Bruce Stanton, Conservative, Simcoe North, ON]

Thank you for that clarification.

Thank you, Mr. Chair.

[The Chair, Liberal, Tom Wappel]

Thank you, sir.

Mr. Dhaliwal again?

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

Oh, sure. Thanks. If nobody else wants to ask anything, I will certainly.

Thank you, Mr. Chair, again. My question is to our assistant commissioner, Mr. Rogerson.

You said to our chair that when the RCMP is investigating a person's bank account, the bank should be precluded from disclosing the investigation to this person. Should the RCMP also be precluded from disclosing this investigation to the public?

[A/Commr Bruce Rogerson]

We need to be consulted before they release the information to the individual on whom we're seeking information, because of the severity or level. And sometimes it heightens one's anxiety. Oftentimes we're working on just a tip, or there's a malicious person trying to implicate somebody in something that they're not doing.

We would like the people who are providing us with the information to consult with us before they release it so they understand the severity of it. It could be life threatening, in some cases, if they call somebody and say that we're looking, because the person would know that we received the name through somebody else. We may have somebody providing information who's embedded in an organized crime group, and if we call to validate, and a person finds out that we called to seek certain information, then that person will know that somebody gave us that name, and then you have an internal issue.

So yes, we would like to be consulted before one lets a member of the general public or an organization know that we're looking into personal information. Again, it's not that we have a criminal investigation going on. We're trying to gather information. It's just the beginning. We don't even know what we're growing and what we're looking into.

You must understand that as law enforcement officers, we set off trying to prove a person's innocence. Through that gamut, at the end of the day, we determine whether they're innocent or not. We don't go to work every day thinking we're going to put people in jail. We come to work not knowing what to expect. We receive information and we act on it, and we try to gather that information informally to determine whether there is an action, or in fact whether you even have to create an investigation.

With respect to what you're saying, I just go back. If we let people release information without consulting us, it could cause serious harm to individuals, and it also could cause serious harm to, let's say, an organized crime or terrorism file that we may be just starting to ramp up.

We use a certain methodology in the RCMP called a Sleipner model to determine whether it is an organized crime group or a terrorist group. That's information that is analyzed to determine whether it's good intelligence and whether there's sufficient grounds there to warrant a search warrant and move forward with a criminal offence or a criminal charge or a criminal investigation.

What we're really talking about here is just the first seed in the ground. We don't even know what the seed is. We don't know whether it's a flower or vegetable. When we do that, oftentimes we do it for the benefit of the public, and oftentimes they call us and ask if we've done anything with that.

The information we're talking about, remember, is the very basic information. It's at a very low level, but it could spur on, within a month, a very violent scenario.

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

That still didn't answer the second part of the question. So basically, you're telling me that you should also be precluded from getting that information out, then. That's the sense we got. On one hand, you are saying that banks should not disclose to this client that you are investigating and that you are asking questions. On the other hand, from the RCMP perspective, you should also not be disclosing that there is an investigation of this client going on.

Just a yes or no is fine.

[A/Commr Bruce Rogerson]

We shouldn't be disclosing it to anybody else.

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

It shouldn't be disclosed to the public.

[A/Commr Bruce Rogerson]

No. That's correct.

[The Chair, Liberal, Tom Wappel]

You have five seconds.

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

Then, Mr. Chair, I'll go next time around.