Information & Ethics Committee on Aug. 8th, 2022

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

I would just again point out that when this technique is used, it's done in a manner that is compliant with the law and the charter. For any additional details, I would invite you to put those questions directly to the officials who are there to provide those answers.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

With respect, Minister, you are the elected official, the cabinet minister, who provides that oversight that Canadians expect. The fact that there have been less than direct answers I think is very, very telling of that culture of secrecy that seems to be involving.... Certainly, I hear often from constituents who are frustrated with the actions of this government when it comes to its unwillingness to be forthcoming with what I think are very, very simple questions.

Minister, we see specifically some of what the Privacy Commissioner spoke of this morning, that it's only been after the media reported on this ODIT technologies being used that the RCMP...that now the Privacy Commissioner is engaged with the RCMP. Does it concern you that this confirms a trend, which we've seen from your government, where only after public scrutiny, and in many cases parliamentary and media criticism, is action taken to, in your words, “build trust and confidence” of Canadians?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

As I have previously expressed, I think it's unfortunate that the Privacy Commissioner found out through the media. That's why I'm inviting the work that is being done today. As I've said before, we should always look at ways in which we can raise the bar on transparency, particularly as we're using new technologies to protect Canadians.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

There's a lot that's unfortunate. Certainly, I do look forward to tomorrow morning with the previous Privacy Commissioner, who has had—I would note for the record, Mr. Chair—very, very public disagreements with the RCMP among other instances.

Minister, I hope you can appreciate that Canadians are not comfortable with the simple comments that this government seems to say—we're building trust, so just trust us—and I hope we can certainly get to some answers in this regard.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Well, I would just say to you that there are many mechanisms of transparency to ensure that there is openness, including NSIRA and NSICOP and the very rigorous tests under the Criminal Code. That's how we'll continue to build transparency in addition to the good work of this committee.

[The Chair, Conservative, Pat Kelly]

Thank you.

The final member in this round will be Mr. Bains.

You have five minutes. Go ahead.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Thank you, Mr. Chair.

Thank you, Minister, for joining us today. Thank you for being very forthcoming and telling us about the various transparencies that are available.

In my first question, I would like to ask you about facial recognition. We've heard from experts that facial recognition technologies inherently further racial biases, misidentifying racialized individuals at a much higher rate. If the RCMP is making use of such technologies, how are they accounting for these discrepancies and addressing these systemic inequalities?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you very much, Mr. Bains, for the question. As part of my mandate, I'm working very closely with the RCMP, and indeed all branches within Public Safety, to address systemic racism and other institutional barriers that for far too long have led to disproportionate outcomes particularly involving racialized Canadians and indigenous peoples.

I would invite the members of this committee to take a look at the most recent and updated mandate letters that I have issued to all branches within my portfolio, including the RCMP who are here before you, because we have to tackle this work together. I want to commend the commissioner and all of the members of the executive team for understanding and appreciating that it is a top priority for our government to do just that. We obviously have a long way to go. I don't want to give this short shrift. I know that the committee is looking at a very specific issue, but I completely take your point that the institutional barriers to systemic racism have been a real problem and have plagued all of our institutions, including law enforcement, for far too long. We're looking to right the ship.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Thank you for that.

You mentioned the national technologies onboarding program. Can you provide this committee with an understanding of how this program will provide greater oversight on the use of technologies and investigative tools used by the RCMP?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you for the question, Mr. Bains. I think in some ways I discussed this previously with the question from Ms. Valdez.

In essence, what the RCMP have done is they have created this branch or this particular office, if you will, to centralize our efforts in the use of this technology. By doing so, we can be sure that there are very clear and high expectations set with regard to professional standards; that there is training provided to those members who have been designated to apply for the use of this technology; and that, as part of that training, they are kept abreast of any developments in jurisprudence in the law so that where there needs to be improvement, where there needs to be course correction, and where there needs to be greater sensitivity to ensure that we're protecting privacy, we are adhering to those values.

As I think we've heard throughout today's conversation, one of the running themes is that we all want to build trust and confidence, but in order to do that, there needs to be transparency, openness and accountability. I think the creation of this office is designed to do just that.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

As a follow-up to that, what involvement, if any, do you have with the RCMP decision-making process as it relates to the decision to use ODITs in a particular case?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

None—these are operational techniques. We don't want elected members of the government, or any elected politician, for that matter, directing or trying to steer investigations, which by extension would include investigative techniques or judicial authorizations. There are safeguards, including constitutional principles, which have been established by the Supreme Court to safeguard operational independence. That is something that I believe, and I hope it's something that all of the members of this committee believe. You don't want me or any other elected member directing the use of this technique.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Thank you.

Do I have any more time, Mr. Chair?

[The Chair, Conservative, Pat Kelly]

You have almost a minute. If you'd like to ask another question, go ahead.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Okay.

Minister, in your view, what advances in encryption technology convinced the RCMP that traditional means to monitor the communications of possible criminals were no longer sufficient?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

The emergence of countersurveillance technology, like encryption, is being used by criminal actors and bad actors who are trying to undermine public safety and national security. It is through the detection of those countersurveillance techniques and technologies that law enforcement and RCMP have had to help and utilize other techniques to make sure that we can bring to justice those who are trying to do harm to Canadians.

It's very difficult. It's complex work. But there are protections that are built into place, including tests under the law and other transparency mechanisms, so that we can accomplish that balance.

[The Chair, Conservative, Pat Kelly]

All right. Just before I suspend the meeting to transition to the next panel, I would like to thank the minister for his time and his willingness to appear at committee.

With that, the meeting is suspended.

[The Chair, Conservative, Pat Kelly]

Welcome back. I'm going to convene the second panel of today's meeting.

With us for the second panel, from the RCMP, we have Mark Flynn, assistant commissioner of federal policing, national security and protective policing; Bryan Larkin, deputy commissioner of specialized policing services; and Sergeant Dave Cobey, technical case management program, technical investigation services.

We will begin our second panel with opening statements from the RCMP.

Go ahead, for up to five minutes.

[Deputy Commissioner Bryan Larkin, Deputy Commissioner, Specialized Policing Services, Royal Canadian Mounted Police]

Thank you.

Good afternoon, Mr. Chair and honourable members of the committee. The RCMP is grateful for the opportunity to speak with you today about this important matter. We hope that our comments will inform your study into the RCMP's use of on-device investigative tools, commonly known as ODITs.

Encryption is essential in our modern world. It protects financial and other sensitive information and helps ensure that Canadians' online activities remain safe and private. Unfortunately, encryption and the devices that help protect Canadians' privacy also help criminals conduct illegal activities and avoid police detection. Although police are sometimes able to collect data stored on those devices, encryption often renders the data unintelligible.

Before I go into detail on what ODITs are, I would like to be clear that the RCMP has never procured or used the Pegasus software, or any other NSO product.

ODITs are used extremely rarely and in limited cases. Their use is always targeted. It's always time-limited, and it's never to conduct unwarranted and/or mass surveillance. These tools are not used in secret. ODITs require judicial authorization prior to deployment, and the evidence collected, including how it was collected, is subject to disclosure and court scrutiny.

Given the RCMP's mandate, we are not able in this setting to discuss specific operational requirements, and the RCMP is not able to disclose sensitive details related to the tools and techniques used in the course of its investigations. Any public disclosure beyond the technical documentation that we provided to the committee that describes the general capabilities of an ODIT has the potential to adversely impact our investigations.

Our use of ODITs is in full compliance with Canadian legislation, including the Charter of Rights and Freedoms, the Criminal Code of Canada and established jurisprudence.

ODIT technology may be used to assist in high-priority investigations relating to national security, serious and organized crime, and other Criminal Code offences that impact the safety and security of all Canadians. It will only be deployed after judicial authorization has been obtained.

As for what an ODIT is, an ODIT is a computer program that's installed covertly on the cellphone and/or computer of a suspect.

ODITs assist investigations by maintaining law enforcement's ability to covertly collect private communications and other data that can no longer be acquired using traditional wiretaps and/or less intrusive investigative techniques. The amount and type of data collected is determined on a case-by-case basis in accordance with strict terms and conditions imposed by the judge who authorized the use of the ODIT.

The RCMP's cautious and measured approach is evidenced by the fact that since 2017, ODITs have only been used in support of 32 investigations, in which a combined total of 49 devices were targeted. Again, I emphasize that in the past five and a half years, we've targeted 49 devices for ODIT deployment.

The RCMP carefully considers the advantages and disadvantages, including the impact on privacy and third parties, before seeking judicial authority to use ODITs in support of a criminal investigation. That assessment is conducted in close collaboration with investigators, technical specialists and federal and provincial Crown prosecutors. It is overseen by our technical case management program within RCMP headquarters. Again, we stress that ODITs are only used for serious criminal offences, and only as approved by a judge who explicitly authorizes the use of ODIT on a specific suspect's device. Judges receive and continue to receive supporting material explaining what the ODIT is and its capabilities.

Although we are not able today to disclose the name of organizations with whom we work in a public setting, we would like to again confirm that the RCMP has never procured or used Pegasus or any other NSO product. Sharing details publicly exposes sensitive information that could negatively impact the RCMP and our public safety partners' ability to effectively use ODITs in the future. Criminal elements also use this sensitive information in order to render the tools ineffective. Further, in addition to negatively impacting the RCMP's investigations, the exposure may jeopardize the investigations of foreign partners and our relations with those countries.

In April of this year, we provided a detailed briefing on the RCMP's use of ODITs to Canada's National Security and Intelligence Review Agency. On August 23, representatives of the Office of the Privacy Commissioner of Canada will also receive a similar briefing.

I would like to bring to the committee's attention that on July 4, 2022, the National Security and Intelligence Committee of Parliamentarians—NSICOP—notified the Minister of Public Safety of its decision to conduct a review of the lawful interception of communications by security and intelligence organizations, which we will fully participate in. The objectives of the review include examining the current state of lawful access, concerns raised by civil society and privacy experts, technological challenges, as well as the gaps. On the basis of its review findings, NSICOP may make recommendations pertaining to various aspects of lawful intercept activities and frameworks.

[The Chair, Conservative, Pat Kelly]

I'm so sorry, Mr. Larkin, but I've let you go significantly over the time allotted for opening statements. Your testimony is important, but we're going to have to get to questions from members.

Even before we do that, I will say on behalf of the committee that voted for some very specific information from the RCMP that it was quite disappointing, in fact, troubling, to receive in Commissioner Lucki's letter what amounts to just a point-blank refusal of information.

As Canada's grand inquisitor, a committee of Parliament has unfettered power to request documents. We can have a discussion about the appropriateness, and you touched on that in your remarks. I look forward to the discussions that we'll have from the parties about that, but a blanket refusal to a committee is troubling. We'll get to that, I'm sure, with questions from committee.

With that, I will go to the first round that will begin with Mr. Bezan.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Thank you, Mr. Chair.

I want to thank our witnesses for being here.

I thank the RCMP for their work.

We on the Conservative side here do believe that we want to make sure you guys have the tools to do the job so that you can keep Canadians safe and deal with issues of national security and public safety at all times, but there's also the need to protect the rights of Canadians, the privacy of Canadians and their charter rights. There are concerns about the unintended consequences of deploying ODITs and the potential that those who aren't necessarily being targeted are also being spied on using the technology that you have.

There has also been confusion here, because when we had the response to the Order Paper question tabled by the RCMP via the parliamentary secretary to the Minister of Public Safety in the House back in June, it talked about 10 or 12 cases where ODIT was used. Then, in the rather disappointing letter that came from Commissioner Lucki, it talks about 32 investigations. Now you're saying that there were 49 individuals who were spied on. The number continues to move, Mr. Larkin, and we're all very concerned about where the truth lies. I think that's why we need to have better clarity on the information we have.

We already know that you're not using Pegasus, but you do have a technology. Is it made in Canada? What's the country of origin of this technology that you're using in your investigations?

[D/Commr Bryan Larkin]

Thank you so much, Mr. Bezan.

I would just like to clarify that we have deployed 32 applications targeting 49 devices, not 49 individuals. That's just a point of clarification.

I will defer to Assistant Commissioner Mark Flynn to discuss the technology and the procurement of such.

[Assistant Commissioner Mark Flynn, Federal Policing, National Security and Protective Policing, Royal Canadian Mounted Police]

Within the RCMP's technical investigative services, there is a process under which they procure all technology. There's an approval process where there's director general level approval for both the procurement of the tools and techniques, as well as approval of which particular tools and techniques can be utilized by the RCMP and our covert electronic surveillance.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

You cannot disclose whether it's Canadian technology or the country of origin of the technology? If it's not Pegasus, then where does it come from?

[A/Commr Mark Flynn]

From my perspective in federal policing, I'm not aware of where all the technology comes from that's utilized here, but I can say that I have a long-standing history in this, and back in the days from 2002 to 2015, it was all Canadian technology that we were utilizing, but—