Information & Ethics Committee on Aug. 8th, 2022

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you very much, Mr. Chair.

Mr. Minister, thank you very much for being with us today.

We're talking about a matter of trust. I'm wondering what we are to think about the revelations made by La Presse and web‑based media Politico.

What effect do these revelations have on people's trust in the department or the RCMP?

You tell us that the RCMP is fully committed to the Privacy Commissioner, but this morning, the Privacy Commissioner seemed to be telling us that this agency was not that committed.

What is the cumulative effect of this on the public?

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

Thank you for the question.

I completely agree with you that trust is one of the keys to openness and transparency.

I thank the committee for undertaking this study. It will give us the opportunity to study the technologies and techniques used by police forces, including the RCMP.

As I mentioned earlier, Mr. Villemure, there are a lot of challenges on the ground right now, in a geopolitical context where criminal organizations are using encryption to thwart police efforts.

So this study is an important opportunity to increase transparency and determine how the RCMP uses these techniques. It will help build trust.

[René Villemure, Bloc, Trois-Rivières, QC]

It's a fact that technology is changing rapidly. We have to try to set limits on something that is not.

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

You're absolutely right.

[René Villemure, Bloc, Trois-Rivières, QC]

During your opening remarks, you mentioned that the RCMP was doing an assessment to see if the tool was too intrusive.

You were careful not to name the tool. However, this self‑evaluation of relevance is not very transparent. I get the impression that the RCMP is assessing itself. I come back to the issue of trust, because I doubt the transparency of this assessment.

What is your observation on this?

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

That's a good question.

The Criminal Code process for obtaining a wiretap authorization includes criteria that must be met. You have to demonstrate very rigorously to a superior court judge that the criteria are met. One of the obligations of the police and the RCMP is to show the judge that there is no other option and that all options to move the investigation forward have been exhausted. This is an example of a safeguard that is in place.

In addition, there are mechanisms in place, including the annual report to Parliament. This report refers to the date on which the authorization was granted by the superior court.

I invite all members of this committee to offer further suggestions for strengthening transparency mechanisms, because this will help build trust. We need to maintain trust everywhere so that we can use this tool in a way that respects the charter and all the rights it provides.

[René Villemure, Bloc, Trois-Rivières, QC]

Would it be appropriate to bring in a third party to help the process to ensure that there is a healthy distance and to prevent the RCMP from assessing itself?

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

I think so, yes.

There are already third parties, including the Privacy Commissioner, the National Security and Intelligence Review Agency, and the National Security and Intelligence Committee of Parliamentarians.

Many agencies have the power and authority to review information, which is traditionally protected by national security legislation and other privileges. It allows us to further increase trust. Third parties are already there to help us do this work.

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you very much.

Do you believe that judges who issue warrants as requested by the police have the technical ability to assess all of these tools?

These are still complicated things.

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

That's an excellent question.

The answer is yes, judges are absolutely competent.

Judges have a good understanding of the statutory criteria. They know how to balance the government's duty to protect everyone with respect for all charter rights.

Judges have the expertise, experience and competence to do this, to seek balance. That's why I have confidence in this process. Institutions exist to protect all the rights of Canadians.

[René Villemure, Bloc, Trois-Rivières, QC]

Even though it is done carefully, third parties are there to monitor the process, and there is some accountability, we can still conclude that the RCMP is spying on Canadian citizens.

Is this correct?

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

Yes, this is precisely the RCMP's job. Officials and those responsible are there to answer technical and operational questions, to tell you how these techniques are used in the field in the context of investigations.

However, that doesn't mean that there's no room for improvement. That's why I encourage the work that this committee is doing. I invite committee members to offer suggestions and recommendations to strengthen how these tools are used by police forces, including the RCMP.

[René Villemure, Bloc, Trois-Rivières, QC]

Rest assured, that's our goal as well.

Thank you.

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

Okay.

Thank you.

[The Chair, Conservative, Pat Kelly]

Thank you.

We now have Mr. Green for up to six minutes.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you very much.

In your opening remarks I noted that you stated that you wanted to highlight that the RCMP is fully engaged with the Privacy Commissioner's office to ensure that privacy impacts are assessed for all new uses of facial recognition being considered. That's not what we're here for today.

What we're here for today—and perhaps you misspoke in your opening remarks—are on-device interception tools. We heard in the first segment this morning that the Privacy Commissioner was not, in fact, informed on the subject matter of this meeting.

Would you care to comment on the clear and obvious contradiction that you've presented in your opening statement with the testimony as provided by the Privacy Commissioner in regard to what it is we're here for today, which is the on-device interception tools?

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

First, I want to thank you for the question, Mr. Green.

I want to acknowledge that it is unfortunate that the Privacy Commissioner has reported that he learned about the use of this particular investigative technique in the media. That is something that I have discussed with the RCMP, and I am pleased to report to you and all members of the committee that they are now actively engaged with the Privacy Commissioner to ensure that the use of this technique—which, again, is used quite sparingly and only after great rigour with the approval of a superior court judge—is done in a manner that is consistent with the charter.

[Matthew Green, NDP, Hamilton Centre, ON]

As I'm sure you heard in the Privacy Commissioner's opening statements—or your staff would have briefed you on the testimony—that he suggested as a recommendation that the submission of privacy impact assessments to his office be a legal requirement. Would you support and agree with that?

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

Mr. Green, I invite and support the work of this committee to offer any recommendations it thinks will augment transparency. I would say to you, as I have said in prior answers, that there are already a number of mechanisms that assure transparency, but I think, given the sensitivity of this technology, given how sparingly it is intended to be used, and again, only with the approval of a superior court judge on the strength of an affidavit that is put forward by a designated agent, we should always be open to having a conversation on how we can raise the bar.

[Matthew Green, NDP, Hamilton Centre, ON]

Well, we're talking about it now, so I'm going to put the question to you directly. Would you, as the minister responsible, support having it included as a legal requirement, given that we're going to be contemplating a new and revised Privacy Act?

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

Mr. Green, I'm happy to say to you that I will be pleased to consider all of the committee's recommendations. I think it's important that we look with great scrutiny and with great merit on the suggestions that you will provide. I also want to make sure, Mr. Green, that as we take your recommendations, we are weaving them into the overall landscape and architecture that is designed to ensure that there is transparency within NSIRA, within—

[Matthew Green, NDP, Hamilton Centre, ON]

We noted that the Treasury Board has within its policies an open-by-default mandate, one that would have departments proactively engaging with the Privacy Commissioner on issues such as this, and yet, when you look at study of the Health Canada's use of mobile device data that we had to conduct, when you look at Clearview AI, when you look at what's before us here today, what you'll note is a habit of constantly playing catch-up with what these departments are doing.

There doesn't seem to be a culture of transparency and openness by default in this government, and it doesn't seem that these departments are willing to, in a proactive way, engage with the Privacy Commissioner. This is now the third situation that I think could have been avoided at committee, quite frankly, if these agencies had gone on record and pursued privacy impact assessments with full engagement and full co-operation. Would you not agree?

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

I think what you'll hear from RCMP officials who are there and what I will transmit to you personally, Mr. Green, is that we always have to be prepared to up our game on transparency. There is the annual report on the use of electronic surveillance, which I think we should look at as one of a series of tools so that we can shine a light on how we use these investigative techniques to protect Canadians. I look forward to the suggestions that you and other members may have, Mr. Green, because I think to build trust and confidence, we need to be transparent.

[Matthew Green, NDP, Hamilton Centre, ON]

I appreciate that.

I'd like to know specifically what laws and policies are in place to ensure that the tools and new technologies used by the RCMP meet privacy standards under your purview as the minister responsible.

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

Well, first and foremost, there are the provisions under the Criminal Code, which, again, contain great rigour and require great transparency and full, frank and fair candour to the court. Second, there's the Privacy Act. Third, I would point out—