Information & Ethics Committee on Aug. 8th, 2022

[A/Commr Mark Flynn]

If possible, could you just repeat the key point of the question? I just want to make sure—

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

Earlier, I heard Mr. Larkin mention foreign partners. I'm wondering if there are any foreign partners—it could be countries—that are currently surveilling Canadians.

[A/Commr Mark Flynn]

The key distinction I needed to get there was “foreign partners”.

As you'll know, there are agreements internationally with certain partners that there will not be surveillance—amongst, particularly, the Five Eyes—on our citizens.

However, I would say from my position in national security that you must be concerned, that you should be aware that foreign states that are not partners would absolutely be utilizing these types of tools and techniques. I see around this room many electronic devices. All of you are using them as much as anyone in society today, and you must be concerned and must be aware that you are being targeted. I have very little doubt about that.

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

Thank you very much.

That's a clear answer.

[The Chair, Conservative, Pat Kelly]

Thank you for that candid answer. We went over time on that round, but that was important information.

Now we go to Mr. Green.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you.

Who is the ranking officer amongst the three of you?

[D/Commr Bryan Larkin]

Mr. Green, that would be me as the deputy commissioner of specialized policing. I recently transitioned from a municipal police force as a chief of police—

[Matthew Green, NDP, Hamilton Centre, ON]

I'm well aware that in the Waterloo region, you've done a lot of work there.

[D/Commr Bryan Larkin]

—to the deputy commissioner of specialized policing. One of my mandates has been to ensure the work is—

[Matthew Green, NDP, Hamilton Centre, ON]

I just need the confirmation on that . I do appreciate it. You'll also appreciate that in our timed rounds we have to be expeditious.

You've probably heard me, then, request from the minister responsible that the RCMP provide this committee with the privacy impact assessment that is being prepared right now for the Privacy Commissioner. Being the ranking officer, would you commit to doing that, to hand that over to this committee at the appropriate time when it's prepared?

[D/Commr Bryan Larkin]

Again, Mr. Green, we're very much open to advancing transparency within the RCMP. We look forward to our meeting on August 23. It's something that we would certainly consider sharing with this committee as we move forward to build transparency and to enhance trust amongst Canadians, so yes.

[Matthew Green, NDP, Hamilton Centre, ON]

Just so that we're clear, we do have the ability to send for documents unfettered. I'd rather not have to move a motion that would request that document. If I could just get your commitment here on the record today, in the committee evidence, that we can do that.... If there are things within the privacy impact assessment that...I'll have you note that this committee has the ability to go in camera, like NSICOP, like others.

That said, I did hear some referencing, Mr. Chair, to some discomfort with having discussions about the partners and the places of origin for this.

Given that we have your commitment, Mr. Larkin, that you will provide the privacy impact assessment to this committee at the appropriate time when it's prepared, would you be willing to go in camera with this committee to perhaps expand on the use of this technology so that we have access to the same information the government has?

[D/Commr Bryan Larkin]

Mr. Chair, just to clarify one caveat, Mr. Green, it would be yes on the privacy impact assessment, but also recognizing that there may be sensitive information that would be best shared in camera.

[Matthew Green, NDP, Hamilton Centre, ON]

Right.

[D/Commr Bryan Larkin]

Again, we welcome any opportunity, as we're doing with the Office of the Privacy Commissioner and NSICOP, to go in camera to share further details. We're certainly willing to do that. We welcome that opportunity.

[Matthew Green, NDP, Hamilton Centre, ON]

Okay.

As I'm sure you're well aware, one of Peel's principles is that the ability of the police to perform their duties is dependent on the public's approval of police actions. I think you've been present at the previous interventions indicating that we're having some trust issues.

We had members of your service refuse to provide basic information to this committee, which in my opinion is in contradiction to your duty of candour. I'm hoping that, at the appropriate time, we would get a chance, perhaps, to invite you back in camera to expand on our learning as a committee. Again, we have four meetings. I think there's probably going to be an opportunity to revisit some of this stuff once the privacy impact assessment is completed.

We've heard time and time again, Mr. Chair, from the minister responsible that he is keenly looking forward to our recommendations and, despite some of the protestations of the government members of this committee, is actually excited that we're having this discussion.

If there's a question that I have looming from today, it is about processes of oversight. I reference it in a sample letter. Have you been privy to the sample letter that was provided by the RCMP? It was on a warrant. I referenced it in the morning. It talked about interceptions of on-device investigative tools. It's on page 6:

d. When oral communications have been intercepted using an ODIT, the monitor who subsequently reviews the communication must cease reviewing the communication as soon as the monitor determines that no person in paragraph 3a is a party to the communication

Would you be willing to go on the record right now and say that this is a standard practice within these warrants, that parameter?

[Sgt Dave Cobey]

Yes.

[Matthew Green, NDP, Hamilton Centre, ON]

Okay, I'm seeing the nod. It's on the record, yes.

Who would be responsible for providing oversight that it actually happens?

[Sgt Dave Cobey]

I see that you have a sample. The warrants are issued by a judge. The technical investigative services would have a role to play in ensuring technically that the warrant is implemented in keeping with the terms and conditions. Then, in terms of the information collected—as you say, actually reviewing it—that would be within the purview of the investigative team. A small number of people—you mentioned the monitors—monitors and analysts assigned to do the first review would be responsible to make sure that the condition is followed.

Then, of course, the—

[Matthew Green, NDP, Hamilton Centre, ON]

Just for my understanding, again, as we're trying to collect information for our own evidentiary process and the ability to send for papers and so on and so forth, on these 32 warrants, would there then be an audit or a report generated that would substantiate that that type of legal protection against the encroachment on the privacy of private citizens unrelated to the investigation would be protected?

[Sgt Dave Cobey]

I'm not aware of a report being produced for each case, but the ultimate accountability would come when the practices, the evidence collection practices, are challenged in court when these accused—

[Matthew Green, NDP, Hamilton Centre, ON]

That's not proactive. Surely, that's not the best-case scenario in internal policy to protect the privacy of Canadian citizens. Have you contemplated with this emergent technology proactive ways in which you can have your own internal checks and balances? Quite frankly, what we continue to hear from the government and from law enforcement agencies is to “take our word for it”. I'm now asking you, given that you're responsible for reviewing the legality and the charter protections, and quite frankly, as I understand, the only party who has access to whether or not you're actually doing what is presented in the warrants, are there any reporting mechanisms that happen within your departments that would reflect the ongoing adherence to the warrants as they're being produced?

[Sgt Dave Cobey]

I'm not sure if you would be interested in hearing these steps, but I will say that we've implemented several proactive steps to make sure the warrants or ODITs are implemented effectively. Earlier in the process, we haven't specifically contemplated that report.

[Matthew Green, NDP, Hamilton Centre, ON]

Okay, thank you.

[The Chair, Conservative, Pat Kelly]

All right, thank you.

With that, we will go to the second round.

First up is Mr. Kurek.

Go ahead.