Information & Ethics Committee on Aug. 8th, 2022

[Sgt Dave Cobey]

I'm not sure, in specific terms, about the ODIT in particular, but I can tell you that following the OPC investigation and since NTOP has been established, we're working to redouble our efforts to identify these technologies as early as possible and, if personal information is implicated, begin the process of engaging the OPC as soon as possible.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

In terms of the scope of ODITs within the investigations, is there a big capacity for people who are not the subject or target of an investigation to be captured within ODITs, for example? Are there any mitigation factors that the RCMP uses to make sure that they're very limited in scope?

[Sgt Dave Cobey]

One of the attachments you would have received was the sample judicial authorization that we shared with NSIRA for the purpose of their demo. The short answer to your question is that the authorization that gets prepared in relation to an ODIT deployment includes several terms and conditions imposed by the judge, which require us to.... If information unrelated to the investigation or not pertinent to the offences being investigated is captured, then yes, that has to be set aside and dealt with in a protected manner, as well as other information, such as, for example, information related to solicitor-client privilege and things like that.

Many of the terms and conditions included in a regular part VI or wiretap warrant are included and read into our ODIT warrants. As we've used these new tools over the years, we've tried to really take a cautious approach to implementing them to make sure those terms and conditions are followed.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

I'll also ask a question that came up earlier with the minister. It's with respect to racial discrimination. As we've learned through the facial recognition technology, race is a huge component in how surveillance happens. The RCMP is working on this, but it does not have a good track record.

I'm wondering if you have anything to say to that and what measures you're taking as you use technologies like this, within their limited scope, to ensure that there's no racial profiling.

[Sgt Dave Cobey]

I can tell you, in relation to ODITs in particular, that our technical investigative services unit is a technical support unit that provides assistance to investigations. Our involvement is at the level of assessing the technologies that are implicated in the investigations, as opposed to particular targets. Really, that's not something our unit is in a position to have an impact on, because we're looking at the devices and technical challenges in the collection or interception the investigators are trying to achieve.

[The Chair, Conservative, Pat Kelly]

All right.

Go ahead, Mr. Villemure. You now have the floor.

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

Thank you very much, Mr. Chair.

I'd also like to thank the witnesses for appearing before us today.

Without compromising national security, but so that the people in the riding of Trois‑Rivières can clearly understand some elements, I have a series of questions for you.

My questions are very simple and can be answered with yes or no.

Is the RCMP able to install spyware on a cellphone without the user's knowledge?

[Sgt Dave Cobey]

Yes.

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

Is the RCMP able to capture or listen in on a cellphone conversation?

[Sgt Dave Cobey]

With judicial authorization, yes.

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

I agree, obviously.

Is the RCMP able to capture or view what can be seen through the cellphone camera?

[Sgt Dave Cobey]

Depending on the device and our capabilities at the time, the answer can be yes.

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

Is the RCMP able to consult the information, calendar, photos or text messages, in other words, what's on the cellphone?

[Sgt Dave Cobey]

With the same caveat, yes.

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

Great.

Thank you very much.

We heard testimony from the Privacy Commissioner this morning. Earlier, the minister said that you were fully committed to the commissioner.

Before using this software for the first time, did you consult with the Privacy Commissioner, yes or no?

[A/Commr Mark Flynn]

No.

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

Okay.

Thank you very much.

I'll continue on another subject.

I was also disappointed with the letter we received the other day from Commissioner Lucki. We had asked a fairly clear question, and we got a very clear response. We had asked if parliamentarians had been wiretapped, and we were told that this information would not be provided by the RCMP.

Do you have anything to add to that?

[A/Commr Mark Flynn]

I would just add that when we're speaking about any individual in particular, to be asking a question about parliamentarians specifically is a challenging question because it's actually putting the authority of the individuals asking in a position to speak to something that they care about.

We take the privacy of all Canadians, regardless of the positions they hold, to be very important, which is why we put all the protections in place. However, I would add that there are certain sectors—which include parliamentarians, journalists, religious institutions, educational institutions—where we have additional safeguards within our policies and procedures to ensure that a higher level of authority is required if a request is being made or an operational requirement is in place due to the criminal behaviour of the individuals involved that fall within those sectors. It requires a higher level of approval. For national security matters, that is my position as the assistant commissioner in charge of national security.

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

Thank you very much.

Have any political parties ever been under surveillance?

[A/Commr Mark Flynn]

Again, that goes back to speaking about particular targets of investigations. I can say that parties themselves.... I have great confidence, without having reviewed—I put a strong caveat on this here—all judicial authorizations, that the RCMP does not target political parties.

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

Thank you very much. I'm very happy to hear that.

Considering the fact that technologies are evolving rapidly, do you think there should be some kind of moratorium on their use so that people understand what's at stake?

We have to admit that it's complex. Do you think a moratorium is a good idea to allow more people to express themselves and understand what is going on?

[A/Commr Mark Flynn]

I do not believe a moratorium is necessary.

Again, going back to the point I raised earlier that led to the evolution of the use of this technology, we are talking about the most invasive techniques that we can have when we are speaking about interception of communication, whether that be an analog telephone conversation or an encrypted conversation. The privacy, not the difficulty or the level of complexity in the technology utilized, is what needs to be protected. The RCMP has protected that technology. The laws of Canada have protected that right to privacy, and it does not speak to the level of sophistication required. I think those protections are valid today, as they were back in the 1960s.

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

Thank you very much.

Mr. Larkin, you mentioned foreign partners earlier. You said that you didn't want to jeopardize outside investigations.

Can you tell us if Canadians may be subject to surveillance by foreign entities?

[D/Commr Bryan Larkin]

Thank you very much, Mr. Villemure.

I'm going to turn it over to Assistant Commissioner Mark Flynn, who looks after our national security and protective services.

However, with regard to your previous point, I'd like to re-emphasize that the RCMP recognizes that there are gaps in current legislation. We think that the work of this committee is very important to enhancing and mitigating those risks, mitigating those gaps, and we're very open to working in that process about transparency. I think it's very important for us to recognize that as evolution of technology is outpacing our ability to keep up, necessarily there is a required need for enhanced legislation mitigating those risks to allow us to ensure accessibility and accountability, but also ensuring the privacy of Canadians.

I'll turn over your specific question, Mr. Villemure, to Mark Flynn.

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

Thank you.