Justice Committee on June 10th, 2014

[Kyle Seeback, Conservative, Brampton West, ON]

Reasonable and probable grounds....

Now, we had the RCMP and various other police officers here at committee. In their testimony they said:

The transmission data is very precise. It contains no content on transmissions. It does not reveal substance, the meaning, or the purpose of the communication. It more or less identifies a type direction data—the date, duration, and so forth.

So transmission data is actually a very narrow snippet of metadata. Would you not agree with that, or do you disagree with the police?

[Daniel Therrien]

I would say that transmission data goes beyond information that was found in the old phone books. It has that, but it has more than that. It may not have the content of conversations, which is a good thing, but it has information about the location of individuals, sites being consulted, several types of information, which are way beyond what was found in phone books, that I do think is personal data and deserves higher protection than suspicion.

[Kyle Seeback, Conservative, Brampton West, ON]

You don't agree with the police, though, when they say it's very precise. You disagree with that. I'm summarizing. You think it's much more than that.

[Daniel Therrien]

It's more than phone book data, for sure, and it contains important sensitive personal information.

[Kyle Seeback, Conservative, Brampton West, ON]

But you would be okay if it was at a different threshold, right, which was reasonable and probable grounds?

[Daniel Therrien]

Yes.

[Kyle Seeback, Conservative, Brampton West, ON]

Then you're okay with that.

[Daniel Therrien]

Yes.

[Kyle Seeback, Conservative, Brampton West, ON]

You're clear on that. But then you also said in your statement that this should be the standard unless a case has been made to, as in your words, lower the standard. So if you think a compelling case was made, then reasonable suspicion is an okay standard.

[Daniel Therrien]

Mr. Chair, that goes back to the suggestion that I'm making for further review of the specific details of what this bill entails from a practical perspective.

You're referring, sir, to testimony by the police, which tends to understand the definition of transmission data in a very narrow way. I don't doubt that this is their perception, but we think that transmission data does include, again, some elements of sensitive information, and it is exactly that point I think that deserves further examination.

[Kyle Seeback, Conservative, Brampton West, ON]

I understand that.

So we heard from all kinds of people. We heard from the RCMP. We heard from the OPP. We heard from the Canadian Association of Chiefs of Police. We heard from the Halifax police chief. We heard from victims who are also lawyers. They all said clearly and unequivocally that the appropriate standard for obtaining transmission data is reasonable grounds to suspect.

So I take it what you're suggesting is that all of those people who have come to this committee have not made a compelling case that we need this information. Despite victims' groups, police officers, all these people saying we need this, you're saying that's not a compelling case.

[Daniel Therrien]

I have not, I must admit, read their testimony, being new to the position. I do think that there are issues that still require some examination. Perhaps Madame Kosseim would like to elaborate here.

[Patricia Kosseim]

Thank you for the question.

Yes, there were many witnesses, as has been pointed out, who have testified before the committee. Quite a number of them as well have advocated in favour of the higher threshold. So in fairness, there are competing views here.

One area that I think would benefit from greater light is the viewpoint of expert technologists. Even internally, in our office, we were having discussions right up until this morning about the technological implications of transmission data and how to contain it in the way that is attempted in these amendments, but it is very difficult to contain that in real, concrete terms.

I think this is the kind of study that was being suggested—a more practical, concrete examination of the data. Elements put together in the aggregate over the long term and amassed over aggregate periods of time and volume can reveal much more personal information.

[Kyle Seeback, Conservative, Brampton West, ON]

But to go back, you're saying you disagree with the police that they need these powers. They haven't made, in your mind, a compelling case to have these powers. Is that correct?

That's what you're basically saying; this is a sort of yes or no.

[Daniel Therrien]

If you don't mind, it will be just a little more than yes or no.

We agree that the legislation on techniques needs to be modernized. We think, though, that there is a need for further study of the practical consequences of what is before you. That is our position.

In the meantime, until such time as this further study is completed, we err on the side of reasonable grounds to believe. It is possible that a case can be made for some transmission data to be accessed on a lower threshold, but absent that demonstration, we err on the side of reasonable grounds to believe.

[Kyle Seeback, Conservative, Brampton West, ON]

[Inaudible—Editor]...a police officer or a crown attorney to investigate and prosecute these types of cases?

[Daniel Therrien]

I have not.

[The Chair, Conservative, Mike Wallace]

That is Mr. Seeback's time.

Thank you, Mr. Seeback. Thank you for those questions and answers.

Our next questioner, from the New Democratic Party, is Madame Péclet.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you very much, Mr. Chair. I also want to thank the commissioner for joining us today.

I just wanted to echo what my colleague said.

It's great that we have had several hours of debate in the House of Commons and in committee. However, I think it's important to mention that most of the experts agreed on one matter. They felt that the study of the bill should have been carried out in a more comprehensive manner when it comes to the provisions on access to information. Unfortunately, we could not examine the provisions of other bills, especially Bill S-4.

Although we have carried out a good study, we could have considered the issue in more depth. We could have taken into account other bills that could have an impact on the application of Bill C-13.

My first question is about your presentation. You talked about a lack of accountability mechanisms. In fact, Bill C-13 contains no oversight mechanisms or provisions for notifying individuals whose data has been shared.

For instance, section 184.4 of the Criminal Code was struck down by the Supreme Court, not because those mechanisms made it possible to share information obtained without a warrant through wiretapping, but rather because that section did not provide for any oversight or notification mechanisms. The people who were tapped by police officers were never notified of that fact.

I will make a comparison with section 188, which allows for a quick examination by a judge owing to the urgency of the situation. So the Supreme Court ruled that section 188 was valid, since it included an oversight mechanism.

Could you expand on the requirement, in Bill C-13, to comply with, on the one hand, section 8 of the Canadian Charter or Rights and Freedoms and, on the other hand, the ruling of the Supreme Court that calls for such a mechanism?

[Daniel Therrien]

We are clearly in favour of such mechanisms.

As for your legal question, I will ask Ms. Brady or Ms. Kosseim to answer.

[Patricia Kosseim]

I will begin.

I just want to say that the amendments that have been made to increase accountability and transparency, under the provisions you mentioned, are indeed good news. That's a nice example of amendments that have been made to increase transparency, while recognizing that the objective was worthy.

So we feel that this is a good model. It could be reused in this case to increase transparency and accountability, while making it possible to pursue the bill's important objective.

I don't know whether Ms. Brady would like to add anything.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Do you have any examples of oversight mechanisms that, in your opinion, could be useful in this case?

[Patricia Kosseim]

The court's permission is clearly very important. What we are discussing today is the threshold, which has to be assessed and examined very thoroughly. However, the court's participation is already a major factor.

The kind of report we talked about is also an important transparency and accountability factor that could enlighten Parliament and Canadians on the practices and their magnitude on a daily basis.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Commissioner, in your presentation, you mentioned the threshold for obtaining a warrant. You said that the criteria police forces should meet to obtain personal data could be, for instance, reasonable and probable suspicions or grounds to believe an offence would be committed.

Do you think we should use the bill currently before us to make the criteria for obtaining warrants more exacting, or should we simply increase the criteria for data preservation? Do you think the same criterion should apply to everything?

[Daniel Therrien]

As I explained in my opening remarks, when it comes to the preservation of certain data, we feel that reasonable grounds to suspect are sufficient. The idea is to preserve potential evidence that could be useful in investigations.

We feel that the problem has to do with access to information owing to the sensitive nature of certain information items that could be disclosed. We think that reasonable grounds to believe should apply instead of reasonable suspicion when access requests are made.