—and I can say that with my last name. I know what it's like to litigate these issues constitutionally.
So speaking on behalf of KINSA, I bring that practical perspective of a front-line criminal lawyer and ask the question, how does this stuff work? For me, looking at it from both sides, here's the key. I think Greg has really hit the nail on the head that you're going to have the tension between privacy and effective law enforcement. There are three ways to respond, and two of them are wrong and one of them is right—and I say, you have the third way, which is right, in this bill.
The first way that's wrong is to not give police powers because you're afraid to give them powers. That would be wrong because I think the Canadian community rightly expects that police will be able to conduct sophisticated and effective investigations in a digital world. I think that's a baseline expectation.
The other thing to do wrong is to ignore privacy. I think that Canadians expect that while police are conducting effective digital investigations they will be according appropriate respect to privacy. So another wrong way is to just ignore the privacy piece.
The right way is to ask the this question: let's have vibrant police powers to investigate digitally, coupled with significant judicial oversight to control those police powers independently. That's the sweet spot that I say this bill hits. That's my measure of success in a bill: does it enable the police to act effectively, but does it also give another branch of government, the judiciary, the appropriate tools to oversee? If you've got both of those, you've got the right mix, and I say you've got the right mix here.
Let me just talk to a couple of specific things people have mentioned this morning that I take a different view on, because of that basic view I take of the bill.
First, in regard to the recklessness standard, appellate courts have written pages and pages on the definition of recklessness. At the risk of oversimplifying this, it is not carelessness. Carelessness is inadvertent conduct. You don't even turn your mind to the risk. Recklessness is you turn your mind to the risk and you go ahead anyway. How can it be wrong to say to even a teenager, you turned your mind to the risk that you were distributing somebody's inappropriate intimate images, and you went ahead anyway. That's a standard I hold my 10-year-old to. If they never thought of it, fair enough. That's why I agree, we can't have a carelessness standard. But a recklessness standard, you turned your mind to the possibility and you went ahead anyway. Recklessness, in my view, in the context of the distribution of these intimate images, is an appropriate standard.
Second, in regard to reasonable suspicion, our Supreme Court of Canada said in 2004 that the police can exercise powers based on reasonable suspicion. So let's not have any misconception that reasonable suspicion is somehow constitutionally problematic. Police officers, as found in cases like R. v. Mann, can detain people based on a reasonable suspicion.
So, if I as a uniformed officer can grab you and hold you based on a reasonable suspicion, why can't I ask a judge to approve the seizure of minimal data that will simply give you enough to get a proper warrant to do the investigation? It's not carrying the whole investigation; it's only getting you in the door so that you can then get a warrant. So I say reasonable suspicion is appropriate in these circumstances, and it's limited to certain things.
As for anything that goes to the content of the conversation, as I read this bill, you have to get a full-on warrant with reasonable grounds. If transmission data, as I read it in this bill, is simply stuff that will allow you to identify where you need to go to get a warrant, I say that's fine. And if the experts on transmission data say that's a broader problem, I defer to the experts
The other thing is that those who have objected to transmission data and to reasonable suspicion, I say, haven't taken into account the protections that you have wisely built in. For example, if I get a reasonable suspicion-based production order as a company, I don't have to comply. I can go to a judge and I say, “This is way too broad. I'm not going to comply.” The judge can hear and can weigh it. There's no downside other than emasculating the police getting the data they need. So that's a crucial aspect that will address any concerns about over-breadth.
As for the immunity provision, it says that you're okay if you turn over stuff you are already able to turn over. As Greg so rightly said, “Why do we even need it?” It's a reminder to foster industry cooperation. Who is going to decide what is okay to turn over? It's not up to the police. It's not up to the companies. Guess what? It's up to the courts. They're the protectors of the Constitution. They're the ones who say what you can lawfully turn over.
There's a very interesting point that I think hasn't yet come into the conversation: what do the courts say? Based on a case called Ward, out of Ontario, and the Spencer case that was heard in December in the Supreme Court, which is probably coming out soon, the courts say right now that all you can ask for is basic subscriber name and address information. It has to be in the context of a specific investigation, narrowly tailored. It cannot be a fishing expedition. And it has to take into account what the acceptable-use policies of the provider of that information are. Most responsible corporate citizens have acceptable-use policies that say, “We're not going to let you use our service to hide from criminal activity.”
So the courts look at all of those things, and what you can ask for lawfully in a criminal context is very narrow. So on that provision that says you're okay giving up what's already lawful to give up, I would point out the following, first, it's redundant; second, it sends a great message of cooperation; and third, the courts have already defined it narrowly, because what may lawfully be given up is up to the courts. For all those reasons, I say, you're on the right track.
Thanks.