Thank you very much, Mr. Chair.
It's a pleasure to be here.
Thank you for inviting me to testify as part of the important study you are conducting further to the June 22 publication of the government's response to a question that MP Tako Van Popta asked regarding mobile device surveillance.
In that response, the Royal Canadian Mounted Police, the RCMP, revealed that it had secretly used device investigation tools to collect data from mobile and other electronic devices of Canadians, always with judicial authorization pursuant to the Criminal Code.
I have no knowledge of facts beyond what was reported by the RCMP in response to Mr. Van Popta. My remarks, therefore, will focus on the content of the applicable law. I know that the RCMP reiterated yesterday that it does not use what it calls ODITs without judicial authorization as this would be an offence under the Criminal Code.
There is no doubt that the covert collection by the state of personal and other information residing on the digital devices of Canadians is an extremely intrusive practice. However, such level of intrusiveness can still be lawful and consistent with privacy principles if the collection of information is authorized by law and is necessary and proportional to the achievement of compelling government objectives.
The RCMP says that its use of on-device investigative tools always follows judicial authorization, pursuant to the Criminal Code. These provisions include several privacy safeguards. They can be invoked only for serious crimes. They require judicial authorization, often on a high standard of reasonable grounds to believe that a crime has been or will be committed and that evidence related to the crime will be found on the device to be searched. Judges can subject the collection of information to terms and conditions, including conditions designed to limit the invasion of privacy.
I believe that these provisions are reasonable or, at least, that they constitute a good starting point for protecting privacy in the context of criminal investigations in which the state has compelling grounds to act and in which its actions are governed by judicial authorization.
Can those provisions be improved? Possibly, and the government seems receptive to the idea. However, to conclude that statutory changes are necessary, I think it would be important to determine how the current provisions have been applied and, where possible, to identify grounds for concern. You questioned the RCMP about this, particularly regarding the content of warrants obtained.
Your study ultimately concerns the fundamental conditions that must exist so that Canadians can be confident that their rights are protected when law enforcement agencies employ intrusive methods. And central to that issue of confidence is the existence of a sound legal framework and independent oversight. The balance between the transparency and protection of police methods is also an issue. I will be pleased to address those themes at greater length in response to your questions.
Lastly, the RCMP supports the use of device investigation tools and other intrusive methods in addressing the issues raised by data encryption, for example. I think that's acceptable provided the use of those methods is subject to judicial authorization on a case‑by‑case basis and the protection that encryption affords the general public is not otherwise compromised. On that point, I refer you to the brief published by the Office of the Privacy Commissioner on December 5, 2016, as part of a government consultation on Canada's national security framework.
I will be pleased to answer your questions.