Evidence of meeting #31 for Access to Information, Privacy and Ethics in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was rcmp.
A video is available from Parliament.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
Thank you.
Does CBSA, CSIS or other federal agencies that fall under your jurisdiction and authority use this technology, aside from the RCMP?
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Again, just to clarify, it's not Pegasus but we do use this technique.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
How long has this technique been employed by Public Safety through its various agencies?
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
To the best that I have been informed, the use of the technique commenced in or about 2017, but I would defer to the RCMP officials who are on the line if they wish to provide any additional details.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
They're here in person and we'll get that from them later on in the committee hearing.
I know from my time in National Defence that the Minister of National Defence maintains the power to provide ministerial directive and authority in the event that warrants are not possible because of time of day or because it's the weekend or the middle of the night. Do you have the same authority and power, as public safety minister, to provide a ministerial directive to the RCMP to conduct surveillance on Canadians?
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
I want to thank you for the question. It allows me to reiterate the importance of operational independence.
Elected officials do not conduct criminal investigations, nor are they are responsible for dispatching [Inaudible--Editor] the investigative techniques that are being—
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
As minister in charge of the direction of the agency, do you have the power to give ministerial authority when there is not the capability or opportunity—say, to prevent a national security threat that's imminent—to provide surveillance with a judicial warrant?
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Mr. Bezan, as you will know, it is the RCMP that applies for those powers, and they are authorized by the court, after a rigorous application, on the strength of a designated agent who submits an affidavit.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
Minister, was this on-device investigative tool used while the Emergencies Act was invoked?
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
To my knowledge it was not. Again, for further operational details, I would invite you to put those questions to law enforcement.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
We'll raise that later.
As you know, National Defence was on training exercises on a King Air aircraft that was circling downtown Ottawa during protests. Were RCMP or CSIS officers on those planes when they were surveilling people who were on the ground for those so-called training exercises?
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Mr. Bezan, I would invite you to put any operational questions directly to law enforcement.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
Have you been briefed on the RCMP's use of the remote activation of microphones and cameras on our mobile devices?
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
I've had discussions with the RCMP and my officials. I've also had the chance to canvass the most recent annual report on the use of electronic surveillance, which was tabled for 2020. There's another report that is forthcoming for 2021. It is one of several mechanisms that we use to be open and transparent with the public about the use of this particular investigative technique.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
As we know, Pegasus—although you're saying we don't use it here in Canada—has been deployed by state actors against politicians in other countries as well as journalists and human rights activists. We know that the U.S. has banned the use of Pegasus in the United States through the White House and actions by Congress.
How can you assure us that the software, the spyware that the RCMP and other government agencies are using, is not available to malign state actors here in Canada?
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Again, Mr. Bezan, I want to thank you for the question, and I can assure you that the question was put to our officials. The answer that I was given from them was that the branches within this portfolio do not use that technology. I would add in conclusion that there are rigorous protections that are put in place prior to the authorization of this particular technique, including applications that must go to a superior court judge on the strength of a designated agent who puts forth a thorough recitation of the facts on which the authorization is being sought.
Conservative
The Chair Conservative Pat Kelly
Thank you, Minister, and thank you, Mr. Bezan.
Now we'll go to Ms. Hepfner for up to six minutes.
Liberal
Lisa Hepfner Liberal Hamilton Mountain, ON
Thank you, Chair. Through you, I'd like to thank the minister for being here with us this afternoon.
Minister, in my former life as a journalist, I covered some terrorism trials. I could be wrong, but I understand that in your former life as a prosecutor you were involved in some terrorism cases, and based on the information provided to this committee by the RCMP, it looks like terrorism was one of the few crimes that the RCMP would use this technology to address.
I'm wondering if you can talk from your experience about why police might need to use this technology in the right circumstances with the right protocols and checks and balances in place.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Thank you for the question, Ms. Hepfner. It's not often that I get to compare notes on prior professions in the kind of alignment in which you just posed it, your being a former journalist and I being a former federal prosecutor.
Yes, I am familiar with the rigorous steps that have to be followed in order to deploy this kind of electronic surveillance technique. It is not an easy thing to obtain. There are numerous steps that have to be followed, as I pointed out in my prior answers to Mr. Bezan.
First and foremost, there needs to be an application submitted to a superior court judge. That judge then has to take a look at the facts in very meticulous detail, which will offer some evidence or information of a very specific offence that is being breached. I would point out that, as I think is implied in your question, you can't apply for this type of investigative tool or indeed wiretaps generally for any old criminal offence. There are a limited number of very serious offences that are listed under part VI of the Criminal Code for which this technique would be eligible.
After that, the judge has to engage in a balancing exercise to determine, among other things, whether the interception, the technique, is necessary and whether it's pressing and urgent enough that it requires the technique to be afforded to the state for the purposes of acquiring information that could then be potentially used as evidence in a subsequent criminal proceeding.
Again, there is a lot of attention to detail. It is not uncommon for the courts to put questions back to designated agents before approving these judicial authorizations, precisely because we place paramount value on the protection of people's privacy, individual privacy rights and other protections under the charter.
There is a lot of protection built in to the Criminal Code, precisely to strike the balance of ensuring that the state has the tools that are necessary to protect the security and safety of all Canadians while at the same time upholding people's charter rights.
Liberal
Lisa Hepfner Liberal Hamilton Mountain, ON
I think you mentioned that a judge would not approve these warrants if there were another way for police to collect this information. It's only a last resort.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
That's correct. It's typically referred to as investigative necessity. What the state has to demonstrate—what law enforcement has to demonstrate—is that there were efforts to exhaust other techniques prior to coming to court with a request for a judicial authorization under part VI, including some of the techniques that are the subject of the study before this committee. It really is seen as not a first resort, nor a tool of convenience. Rather, it's a tool of investigative necessity to demonstrate restraint, because it is important that we protect people's privacy.
Liberal
Lisa Hepfner Liberal Hamilton Mountain, ON
There seems to be a lot of concern about mass surveillance. How do we know whether or not this occurred? How can we ensure that mass surveillance, which is not allowed, as you mentioned, is [Technical difficulty—Editor]?
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
I think that's a very important question. Certainly, my hope is that through your study and through the contributions of all members of this committee, we can enhance openness and transparency about how law enforcement deploys these techniques.
I would say the central challenge right now for all state actors who are in the business of protecting Canadians is that they are confronted increasingly with complex encryption, which is intended to subvert law enforcement and subvert detection. The risks and consequences that flow from highly sophisticated encryption technology are that people can get away with crime and can undermine the health and safety of all Canadians.
Again, some of the techniques being deployed are intended to really frustrate the efforts of sophisticated criminal organizations and other bad actors, whether they be state or non-state, for the purpose of protecting Canadians. That's really going to be advanced by the work you are doing in studying and shining a light on these techniques, as well as by the annual reports that are filed on the use of electronic surveillance. Again, I invite the committee to look at that report and make suggestions on how we can continue to improve it if necessary. There is also the ongoing work that law enforcement does with NSICOP and NSIRA. All of these branches together cumulatively contribute to transparency and openness about how we are using these techniques—again, quite sparingly and as a last resort—to protect the health and safety of Canadians.
Liberal
Conservative
The Chair Conservative Pat Kelly
Yes, that's about right, so thank you.
Mr. Villemure, you have the floor for six minutes.