Justice Committee on May 15th, 2014

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Will that change under the new legislation?

[Chief Jim Chu]

Often when we just want the tracking information, it's easier for us to write a production order when we only have to articulate grounds to suspect, and quite often that's going to be a dead end. If it's a Wi-Fi café, that's good, because we don't then waste three days writing the full production order when we didn't even need the other data.

Then we also have the ability to tell the telecom companeyt that we want them to preserve that evidence. That's a very powerful tool now. Then if we are required to go back with a full production order, the evidence is still there; it hasn't disappeared. These warrants take several days now. That's one of the concerns we have with a general production order, but that's the way it is.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

You mentioned that things can move very quickly over the Internet. Do you believe—and I'll ask this of any other officer who wants to respond—that people have a right to be anonymous on the Internet if they're sending messages to other people?

[Chief Jim Chu]

I don't believe people have the right to be criminals on the Internet, and if they engage in crime, then we need the means to identify them and stop them, arrest them.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay, if the young person who is the victim in the scenario I proposed comes to you and says they're worried that this other person whom they don't know might do something with that image and cause great damage to their reputation, do you feel that person at that point has a right to maintain his anonymity—not the victim, the other person?

[Chief Jim Chu]

No, not at all, because once somebody crosses the line from collegial banter back and forth to they've broken a law by trying to extort or defraud, we need to identify that suspect.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

So if you ask an ISP provider for that information today, and they give that information to you, and then you contact that person and say, “Stop using that image; don't do anything criminal with that image,” should that ISP provider bear any liability if it turns out that the victim was wrong about the criminal intention of the other person?

[Chief Jim Chu]

When we go to an ISP provider, we outline why we're asking for the information. There's a form we fill out, it's a legitimate law-enforcement purpose. Many Canadians want to help the police; there are many situations where citizens will tell us who rented the apartment last week, or who rented that car yesterday, and some of these telecommunication providers will help us, because they don't want their networks to be used for crime.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Sure, it's kind of like, as I think Officer Pardy said, if you see a car driving down the street and you suspect that the driver is impaired, you can copy down the licence number and provide that to police. I assume the police can also ask you for it. If I see, today, somebody harassing one of my neighbours on their front porch, and there's a car in the driveway, I assume I can note down that licence number and provide it to police, and by the same token the police can come to my door and say, “Did you see somebody harassing your neighbour; do you have any information that would lead us to that person's identity?” That's true? Okay.

[Chief Jim Chu]

A better example is, you have a basement suite, and we come to you and say, “This person committed a crime last month; what's the name of the person who rented your basement suite?” If you said, “I need a production order,” that would take a lot of police time over the years.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Should it be any different with respect to information sent over the Internet?

[Chief Jim Chu]

The telcos do tell their customers when you sign up for the service not to use their communication channels for crime.”

[The Chair, Conservative, Mike Wallace]

Thank you.

Great questions, good answers....

Thank you very much.

Next from the New Democratic Party, Mr. Garrison is here with us today.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you very much.

Thanks to the witnesses for being here today. I know many of you from the public safety committee, where we're used to seeing men and women in uniform.

I know we have broad consensus in Parliament that there's a necessity to act against the non-consensual distribution of images, but there's a lot more in Bill C-13than just that, so I'm going to focus on some other aspects in my questions.

We certainly heard from the witnesses today your case for updating the Criminal Code and having new tools to respond so you can get timely access to information for investigations of cybercrime. But we've also heard concerns from other witnesses and other members of the public that in providing those tools, Bill C-13 is sometimes overly broad. So I want to focus on the question of lawful access.

Bill C-13 creates the new tool of a preservation demand or a preservation order for data, and I'm probably prepared to concede that may be something that you need to have, but why does the standard of proof change? Why shift from reason to believe to the lesser standard of reason to suspect? Wouldn't this tool still operate at the higher level? Wouldn't it still be a good tool if it was reason to believe?

I guess I'll ask Mr. Chu, as the president of the Canadian chiefs association.

[Chief Jim Chu]

A warrant or production order that has to satisfy reasonable grounds to believe is a very onerous standard to meet, and rightly so. That's a level of an order that we would need to see the private information. If we simply say, “Look, please hold it and let us go away and do some work,” we may find out that we don't need to come back and access all of that information. That actually then helps us move forward with our investigation quicker.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

If you can't meet that higher standard wouldn't that, I guess, do the same thing? In other words, you may be pursuing a case that won't have any future if it can't meet that higher standard.

[Chief Jim Chu]

Once we preserve the data, then we're doing more investigation. We're talking to more witnesses. We're examining other aspects of the case, and if we find that we don't have enough information to go get the full production order, then that data is deleted and there's no intrusion into that person's private data. But if we do fortunately come up with the necessary evidence to satisfy the judge, then the evidence hasn't disappeared, which is our concern.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

But doesn't the same thing happen in all kinds of other police investigations, I mean you have that higher burden of proof before you can do things everywhere else? Isn't that a common problem, or is this something you would say is specific to cybercrime?

I don't know if Commissioner Oliver wants to jump in on that.

[A/Commr Joe Oliver]

I would just add that the threshold of reasonable grounds to suspect is not unfamiliar to the Criminal Code. In fact existing provisions in the Criminal Code already have that threshold. But other provisions, because they're more intrusive, have “reasonable grounds to believe” threshold.

I think the important aspects in these cases are when it comes to preservation. We're not acquiring any information at the time. What we're asking is: hold that, we're coming back. We think a crime has been committed, but let us go away and gather more evidence so that we can come back with the proper production order, so that the evidence is preserved and is available for us to see at a future point.

But other provisions, such as going to a financial institution to obtain the name and account information of a person, exist at the “reasonable grounds to suspect” threshold. A tracking device today is at a “reasonable grounds to suspect” threshold, as is dial number recorder, which is consistent with the new tools that are being offered here, with the exception.... Actually, in one provision the threshold is actually increasing when it is a device that I would normally carry on myself. Recognizing that potential intrusiveness of that, I think the drafters increased the level to reasonable grounds to believe.

[Chief Jim Chu]

I have a better analogy for your question.

If we were in a position where we had to search a house and we had to get a search warrant, we could guard the house physically, and then go get the search warrant, and then come back with the warrant and search the house. Cyber-information could disappear.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Okay.

It seems that Bill C-13 expands access to some of these tools beyond peace officers. Chief Chu raised the example of mayors, but there's something actually more specific in the act. In its definition of who might access some these tools, it mentions public officials who administer and enforce any act of Parliament.. It says that in a couple of places. I guess I'm asking you the obvious. You don't really need that, do you? “Peace officers” would cover anybody that you need, so I'm not sure why the bill expands it to any other administrator of a federal act. It wouldn't affect your work. “Peace officers” certainly covers everyone you've got.

[Chief Jim Chu]

We can only speak for law enforcement here.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Well, I'm asking you a kind of obvious question, that “peace officers” covers—and, in fact, quite broadly—anybody who would be in a position to make use of these powers....

[Chief Jim Chu]

That would cover CACP members, yes.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Okay.

The last one, and you may give me the same answer, but in this act it appears to expand some of the immunity for service providers for some of their voluntary actions. I have a question about why that happens, and you may not be able to answer this. If the police already get a tool where you can get preservation of data, at request, really, then why is there is a broad immunity to the service providers being provided for voluntarily doing so? You may have needed it before, when you didn't have the power to ask for it, but why now would that immunity be necessary?