Information & Ethics Committee on Aug. 8th, 2022

[Rechie Valdez, Liberal, Mississauga—Streetsville, ON]

Thank you to the RCMP for joining us for this study.

Mr. Chair, through you I'll be directing my questions to Sergeant Cobey. Anyone else can jump in to add additional comments if needed.

Sergeant Cobey, can you give us some detail on what criteria are used by the RCMP to determine whether these on-device investigative tools are used?

[Sgt Dave Cobey]

I can.

The most helpful way for me to explain those criteria that are used is to take you briefly through our process.

Initially we have a consultation with investigators who are considering these tools. During that consultation we explain to them—we demystify these tools and explain—just how complicated they are and the fact that they aren't necessarily going to be able to deliver the evidence they want, and we really encourage them to consider other, less invasive tools if possible.

Step one, we make sure they really understand what they're getting themselves into and have the resources to do it. Following that consultation, they have to submit an official request from their chain of command to our technical investigative services so there is executive awareness and oversight of their request to make sure it's been properly monitored.

After that request, and if it's approved on our side, then we have a second consultation involving their Crown prosecutor. Or, if they don't have a Crown prosecutor, we insist that a Crown be assigned so that a Crown understands the risks and the potential rewards of using these tools.

One thing we make clear during that consultation is that these are new technologies and we fully expect they will be litigated. We make sure they understand the litigation risk and the types of sensitive information that we're not able to share and would seek to protect under section 37 or section 38 of the Canada Evidence Act.

That whole process to date is really intended to make sure they understand that if there's another tool that works, they should use it, because these tools are complicated. Again, there's no guarantee they're going to work.

After all of those consultations, we do an engagement memo between our unit and the requesting unit to memorialize all the conversations, to set out the need to protect the tools. Only after that engagement memo is acknowledged by the commissioned officer overseeing that investigation would the assistance be provided. Of course, all that doesn't matter a whit unless judicial authorization has been granted through the process that we've described earlier in terms of a Crown agent, a proper authorization with all the terms and conditions we've included.

I hope that answers your question.

[Rechie Valdez, Liberal, Mississauga—Streetsville, ON]

It does.

What kind of information can be obtained through ODIT searches that can't be obtained through a simple search warrant?

[Sgt Dave Cobey]

Well, typically ODITs are being sought during the investigation, so the objective of the ODIT, of course, is to collect the information while the target is still using it. Conducting a search warrant on a device necessitates taking the device away from the person, so obviously there will be an end to that person's use of the device. The information that can be collected is information that the suspect is still using or saving on that device before we've seized it, or before they know that they're the target of a police investigation.

[Rechie Valdez, Liberal, Mississauga—Streetsville, ON]

Thank you.

Former prime minister Stephen Harper has been deeply involved with the Israeli start-up company Corsight AI, whose technology helps to identify facial recognition features in situations where they are difficult to identify.

Are you aware of the RCMP using any of this software technology?

[Sgt Dave Cobey]

I personally am not aware of that particular tool.

[Rechie Valdez, Liberal, Mississauga—Streetsville, ON]

My understanding is that members of the opposition have indicated that the RCMP conducted mass surveillance of the population and, actually, members of Parliament. Do you have any comments on that?

[Sgt Dave Cobey]

I would go back to the earlier comment that these tools are never used to conduct mass surveillance. Again, judicial authorization is only granted by a judge if it's necessary and if the judge is satisfied that a particular offence involving a particular person and particular devices, and the way those devices are going to be intercepted, have been set out. It is very targeted. It is never mass surveillance.

[Rechie Valdez, Liberal, Mississauga—Streetsville, ON]

Can you describe the challenge that you face in conducting search warrants and how this technology can better assist the RCMP in collecting key evidence?

[Sgt Dave Cobey]

I'll start with the second part of the question first.

I think this technology can assist in collecting valuable evidence because like every one of us in the room, criminal suspects carry devices. I suspect every one of us in this room uses a device in a way that is more complex for law enforcement, with the apps we use and the way we use our devices. None of that is conducive to the old-fashioned wiretap activities that enabled us to simply send our order to a telco and have them send us the communications.

Given all of the devices and the fact that users have complete choice over what device they buy, what apps they use and how they use those apps, ODITs are essential because they help us manage all that complexity.

[The Chair, Conservative, Pat Kelly]

All right. Thank you.

[Rechie Valdez, Liberal, Mississauga—Streetsville, ON]

Thank you.

[The Chair, Conservative, Pat Kelly]

That takes us through the first two complete rounds, per the motion adopted by committee. I am going to deviate from that just because time is becoming a factor.

For the third round, we'll go to four minutes each for Mr. Bezan and Mr. Bains, two minutes each for Mr. Villemure and Mr. Green and then four minutes each for Mr. Kurek and Ms. Khalid. That will get us just about jammed into ending on time, or maybe a minute or two over.

With that, go ahead, Mr. Bezan, for four minutes.

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

Thank you. It's been an interesting discussion.

When you go for a warrant, does the RCMP need to notify the service carrier that somebody who has one of their devices—Rogers, Telus, Bell—has a system being hacked with RCMP spyware? Is there any duty to disclose?

[Sgt Dave Cobey]

I wouldn't characterize our activities the way you have, but I would say the service providers are not involved when we use ODITs.

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

Okay, so again, when you're monitoring conversations, using the microphone and hacking in to look at chats and emails, what about the other parties, the third parties who are innocent bystanders, such as friends, relatives and spouses, for example? How do you protect their privacy?

[Sgt Dave Cobey]

It's a great question. Protecting innocent third persons' privacy and non-pertinent communications has been an issue ever since wiretapping began. If you look at the sample order that we provided, there are terms and conditions in there. Setting aside the ODIT for a moment, there are terms and conditions for regular wiretapping. Again, we'll go back to privileged communications. Privileged communications between a solicitor and their client have to be protected and treated in a very special way. The same applies to ODIT collections, and some of the terms and conditions in that sample order, which is representative of the orders that we seek, include the fact that non-pertinent information related to third parties and others has to be set aside, protected and only dealt with as guided by the court.

Another specific example, which is also included in that order, is the requirement that the hot mike feature described in the technical document can only be activated if there are grounds to believe that one of the principal known persons, as we call them, the—

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

In a case where you have solicitor-client privilege and you're monitoring an individual, and they're meeting with their lawyer, and they say, “By the way, not only are we laundering money, but we also have a drug shipment coming in through the port”, you wouldn't act upon that information?

[Sgt Dave Cobey]

If a person is involved in a communication with their solicitor, the terms and conditions are clear. They have to be sealed, and we can't look at those without a further order of the court.

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

Mr. Flynn, just quickly, you were talking about how you've been around for a long time on this file. Can you talk to the memorandum of understanding that the RCMP has with CSIS and with CSE in particular? As the Communications Security Establishment, they have a lot of spyware that they have been using internationally on non-Canadians. What type of relationship does RCMP have with CSE?

[A/Commr Mark Flynn]

Speaking broadly, as the question was, the RCMP, from a national security perspective, works in partnership with all of the national security agencies, which obviously include CSIS, CSE and CBSA. I could go on with a long list of national security partners.

Specifically, with respect to our relationship with CSE, CSE does have a mandate C provision for providing us technical assistance through technical operations where tech ops manages that relationship with CSE, but I can say that, in that relationship, it does not expand the authorities of the RCMP.

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

Thank you.

Mr. Chair, because we requested information and never got it, I'd like to move the following motion:

That, pursuant to the motion adopted by the committee on July 26, 2022, the committee re-affirm its request for all the documents outlined in its original motion. That any documents received from the RCMP that include warrants, lists of warrants, the scope of warrants and the affidavits submitted in support of the warrant applications be considered by the committee in camera only, and following the parameters outlined below: That all documents issued pursuant to this motion be provided to the Office of the Law Clerk and Parliamentary Counsel within 15 days of the adoption of this order, That all relevant documents be vetted for matters of personal privacy information, ongoing police operations, and national security by the Law Clerk and Parliamentary Counsel within seven days of the receipt of the documents, That all documents be circulated to committee members, at the earliest opportunity, once vetted.

I'll speak to that motion, Mr. Chair, because I want to assure committee members and the RCMP that we don't want to undermine any investigations they have right now that are looking at criminality or national security.

What we do want to see is just the broad scope of what those warrants look like and the documents that are associated with them. Through the vetting process that we've used in the past at a number of parliamentary committees, the Law Clerk and Parliamentary Counsel would ensure that the documents are redacted and that the information that's withheld from us as committee members falls in line with protecting those investigations, national security and the privacy of those individuals who are subjects of interest.

I've forwarded this to the clerk, and I've asked that it be circulated. All committee members should have the motion before them now. I just received it myself. It's in both official languages.

[The Chair, Conservative, Pat Kelly]

It is in order.

Before we do anything else or return, with the limited time we have left, to rounds of questions, we go to debate.

I have Ms. Khalid.

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

Thanks, Chair.

I would respectfully submit to members.... Obviously, I haven't had the chance to review it, but we do have the RCMP here for another 11 minutes. I suggest that perhaps we go to our witnesses and then, having reviewed this motion, deal with it as the first order of business at tomorrow's meeting.

[The Chair, Conservative, Pat Kelly]

I guess that's a suggestion. I can canvass the room.

Is there interest in—