Thank you very much, and thanks for asking me those two particular questions.
In our Canadian criminal law, there are a number of circumstances where law enforcement agents can go to a justice of the peace or a judge and they have to satisfy whatever that burden of proof is in order to get some sort of compulsory instrument, which can be a wiretap order, or it could be a search warrant or a production order.
There are different thresholds for those. It generally depends upon the intrusiveness of the measure. Something like a search warrant to enter your house—for law enforcement agents to be authorized to, for example, break down your door—they have to have a very high standard of understanding. They're doing this on good information, very reliable information that they have reasonable grounds to believe—not just suspect, not just think—that a crime has been, is being, or will be committed and that the order is necessary in order to get that information.
In other sorts of compulsory processes, the standard is going to be lower on the understanding that the nature of the information being obtained is less intrusive. There's a difference between going into somebody's bedroom and going into their safety deposit box at a bank, for example. It recognizes that discretion.
What I was suggesting with respect to this transmission data recorder is to recognize that if it's fine, and the courts have upheld reasonable grounds to suspect, for telephony metadata, telephony signalling data, I don't think, because of the different nature of the information, that this reasonable grounds to suspect is appropriate.
As well, it might not actually survive court scrutiny because of the nature of the information that's being disclosed. It's never, in these sorts of circumstances, simply a matter of black and white. You end up in shades of grey.
The second question that you asked and I'm grateful for was the question related to immunity, and particularly you flagged the issue with respect to the charter. It takes two to tango in this sort of circumstance where the law enforcement officer would go to the telecommunications service provider and ask for the information. Under the Criminal Code, it's fine. Police can ask for anything; whether they're lawfully entitled to compel it, they can ask for anything from anybody. They're asking for the telecommunications service provider to voluntarily hand over that information.
The telecommunications service provider really doesn't care about the charter in terms of informing their decision-making. The charter applies to the police officers. It applies to whether or not the evidence that's gathered will be admissible in court, but the telecommunications company isn't involved.
So they're going to ask themselves a couple of questions. Am I legally able to hand this over? Am I legally prohibited from handing this over? And is there any civil liability that I could incur?
So one of the challenges we have is this. We don't have it in front of us, but Bill S-4 is going to amend PIPEDA, the Personal Information Protection and Electronic Documents Act, and in particular paragraph 7(3)(c.1), which is currently being reviewed by the Supreme Court of Canada with respect to whether or not, and under what circumstances, Internet service providers can hand over customer information on a non-warranted, non-judicially authorized request.
I understand that certain Canadian telecommunications companies do hand over that sort of information without a warrant. Their decision-making has been guided by the reading of an extremely ambiguous portion of that act, which allows a company—because we know the police can ask anything—to disclose information without consent to a law enforcement agency if they say—it's not under oath, it's not verified—that it relates to an investigation of a contravention of the laws of Canada or province, or a breach of an agreement, and they've identified their lawful authority to obtain the information.
So what the Supreme Court of Canada is considering is this question of lawful authority. Some telcos and police agencies take the view that simply policing duties is lawful authority to obtain the information. Others take the view that it's not sufficient. Lawful authority needs to be something else, something that is compulsory.
Some telcos err on the side of caution. Some err on the side of handing over information to the police agencies. But when they're asking themselves whether or not they should do that, in the background is also whether or not they could be sued for it. Handing over information where they're legally not compelled to, but there's a privacy law and a privacy interest at stake, could amount to something called an intrusion upon seclusion, which the Ontario Court of Appeal said you're entitled to damages for if that happens.
So I think what's happening here is that this provision has been put in here in order to make sure, in order to take that out of the equation—