Evidence of meeting #26 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was privacy.
A recording is available from Parliament.
Conservative
The Chair Conservative Mike Wallace
Thanks very much.
Thank you for those questions and answers.
Our next questioner is Mr. Wilks from the Conservative Party.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Thank you very much, Mr. Chair.
Thank you to the witnesses for being here today.
I feel a little out of place. I'm the only policeman here, and there are ten lawyers.
I want to get right to the crux of it, Mr. Spratt. You said in part of your submission that in some cases police go on fishing expeditions. I take huge exception to that. I think it's completely wrong. I don't think there's a policeman out there that intentionally says, “I think I'm going to intentionally hurt someone for the sake of hurting them and grab some information that I know will compromise case law in the future and could potentially have a ripple effect for every policeman across Canada, just because I think I can.”
Member and Criminal Defence Counsel, Criminal Lawyers' Association
That happens.
Conservative
Member and Criminal Defence Counsel, Criminal Lawyers' Association
The courts have found as such. I think with the definition of fishing expedition, you might be a bit wrong on that.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Let's just keep going because I think that using the word “fishing expedition” is a real insult to a lot of policemen who do their jobs and follow the rules very, very well every day.
Member and Criminal Defence Counsel, Criminal Lawyers' Association
I'm sure that a lot of police officers do.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
From the perspective of a demand to retain information in respect to limited transmission data.... So under 162.1, as proposed, right now there's nothing there. Right now a police officer goes to a telco company and says, “Listen, we need you to hold on to something because we think there's something there, but we need you to hold on to it so that we can gather more information.”
In that respect alone, do you believe this is good legislation to ensure that the police have to complete a document before a justice to ensure that they, within 21 days, come back with a warrant to get the necessary information, and/or the telco., or whatever company, says, “Have a good day. We've complied to the 21 days. We don't have to comply to this any longer.”
Member and Criminal Defence Counsel, Criminal Lawyers' Association
That's a perfect example of a provision that's necessary and effective because it would allow the police to not....
Look, when we say “fishing expedition”, we don't mean that the police are randomly going and seeking information.
Member and Criminal Defence Counsel, Criminal Lawyers' Association
No. That's not what I mean, and that's not what the courts have said when they speak about police fishing expeditions. What we want to avoid is the police obtaining personal and private information based on their spidey senses, which happens all the time, and the courts have a dim view of that.
What provision orders allow you to do is provide the—
Conservative
David Wilks Conservative Kootenay—Columbia, BC
If I may interject on that for a second, as a police officer, my spidey senses, as you show them, are the one and only thing that will allow me to sometimes move forward in an investigation that will potentially bring forward more information. My spidey senses don't tell me that I can do something illegal.
Member and Criminal Defence Counsel, Criminal Lawyers' Association
Well, unfortunately, spidey senses don't amount to reasonable and probable grounds, and the courts have found that acting on spidey senses or mere suspicion is what leads to evidence being excluded.
When police act on their spidey senses and don't have the requisite reasonable and probable grounds to do an act and yet they do it anyway, I respectfully disagree. In that case, the police have acted illegally.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Would you agree that if a police officer has reasonable and probable grounds and applies for a warrant, through the Criminal Code or any other act of Parliament, that it has had judicial review?
Member and Criminal Defence Counsel, Criminal Lawyers' Association
Yes. That's what I'm imploring you to do in this bill, to change that and add that.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
That's what we do in all of it, with the exception of the demand order. It's reasonable and probable grounds. All of those things with regard to the wiretap are still there. In fact, we still have to notify within 60 days.
I think it's too short, personally. I think it should be longer. I can tell you from personal information that I lost a case in the Supreme Court of British Columbia in which we were not able to notify within 60 days everyone who was wiretapped. I think it was a miscarriage of justice when that happened, but unfortunately that's the law as it is right now.
To say that people are not notified is utterly wrong; they are notified within 60 days.
Member and Criminal Defence Counsel, Criminal Lawyers' Association
Show me the notification in this bill. It's not there.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
I'm telling you that it is there.
That's fine. You don't have to agree with me, but I'm telling you from a police perspective that this bill does a lot more than what we have now.
Member and Criminal Defence Counsel, Criminal Lawyers' Association
You know that notification under wiretap provisions and the sections in here are completely different; there is no notification provision in here.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
I'll show it to you afterwards.
My other question would be for the Canadian Bar Association. With regard to the preservation demand under this act, do you believe—as I've asked Mr. Spratt—that it furthers the protection of both the victim and the police in doing their job?
Executive Member, Criminal Justice Section, Canadian Bar Association
Yes, but we have proposed a number of refinements, the first being that it should be used only in exigent circumstances. We accept that when data is to be deleted, automatically or otherwise, that it may be in exigent circumstances.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Could you give a definition of exigent circumstances?
Executive Member, Criminal Justice Section, Canadian Bar Association
In this context, we've made a specific recommendation that it would be in circumstances where the data would otherwise be deleted in the time required to obtain a judicial authorization.
