Justice Committee on June 12th, 2014

[The Chair, Conservative, Mike Wallace]

We'll call this meeting to order.

This is meeting 31 of the Standing Committee on Justice and Human Rights. We are dealing with clause-by-clause consideration of Bill C-13.

(On clause 20)

We've finished with NDP-5. We're now moving on to NDP-6, still on clause 20.

This is the first motion in a set of amendments that remove the reference to "public officer" from the bill. The following amendments are consequential to this change and the vote on NDP-6 will be applied to them as well in order to remain consistent: NDP-7, NDP-8, NDP-10, NDP-11, NDP-13, NDP-15, NDP-17, NDP-21, NDP-22, NDP-23 and NDP-24. If NDP-6 fails, NDP-7, NDP-8, NDP-10, NDP-11, NDP-13, NDP-15, NDP-17, NDP-21, NDP-22, NDP-23, and NDP-24 will all be removed.

As well, there are amendments that have line conflicts with this change. If NDP-6 is adopted, then we'll worry about that at the time. Okay?

Madam Péclet, would you like to move NDP-6 and introduce it?

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

Thank you very much, Mr. Chair.

This amendment is somewhat in the same vein as our amendment NDP-5. It is consistent with the experts' testimony on the definitions of "peace officer" and "public officer". According to the witnesses, the use of the words "public officer" in clause 20 of the bill is clearly a problem and should perhaps be reviewed.

We introduced our amendment NDP-5 precisely for the purpose of replacing the term "public officer" with "peace officer".

Mr. Chair, I think it is important to mention that all the experts who testified during the study of Bill C-13, particularly the Privacy Commissioner, noted the problem caused by the use of the term "public officer". I think it would be logical for the committee to take the experts' testimony into account and to adopt our amendment NDP-6, which would delete the words "public officer" used in lines 6 to 10 on page 14.

That is the end of my presentation on that subject.

[The Chair, Conservative, Mike Wallace]

Thank you, madam.

Mr. Dechert.

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

Mr. Chair, there has been, I think, some fairly considerable discussion about the definition of “public officer” and why there are a number of appropriate officials within that definition to whom these investigative powers would legitimately be available. I don't think we need to go into much more detail on that. The arguments have been made already.

On that basis, we will be opposing this amendment.

[The Chair, Conservative, Mike Wallace]

I will call the question on NDP-6.

(Amendment negatived [See Minutes of Proceedings])

NDP-7 is removed, but we have NDP-7.1.

This is the first motion in a set of amendments that seek to change the wording of "reasonable grounds to suspect" to "reasonable grounds to believe". The following amendments are consequential to this change and the result of the vote on NDP-7.1 should be applied in order to remain consistent: NDP-12, NDP-14. PV-13, NDP-16, PV-14, NDP-18, NDP-27, NDP-29, PV-16, and NDP-31.

Madam Péclet, would you like to move it?

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

Thank you, Chair.

I think it's reasonable. We all agree that most witnesses who testified in front of the committee also raised concerns that the threshold for making a demand was unfortunately reviewed at the lowest threshold.

In listening to the Canadian Bar Association, but also other numerous witnesses, including Michael Geist to name one, they were particularly concerned that the government would want to lower the threshold for obtaining lawful access to information.

I would expect the government to understand that the wording “reasonable grounds to believe” would be more appropriate in the kind of situation where very personal information would be obtained by law officers. As the government just refused our amendment regarding public officers, if they want to make it available for any public officer to have access to the personal information of Canadians, then I think the threshold should be reasonable grounds to believe and not reasonable grounds to suspect. Most of the witnesses have testified that this should be the threshold in the law.

I want to hear what the government has to say.

I would like to hear what the government representatives have to say about this kind of intrusion into Canadians' privacy and personal information.

I would like to hear a representative of the government party speak to this amendment.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Mr. Dechert, I'm sure you'd like to respond.

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

Mr. Chair, the government will be opposing this amendment.

As Madam Péclet knows since it was discussed by many witnesses, including the victims and organizations representing victims and all of the law enforcement witnesses we heard, reasonable grounds to suspect is a common standard. It is used in many similar provisions in the Criminal Code, including with respect to telephone data. Therefore, we think it's completely appropriate that it be the standard in this case. On that basis, we will be opposing this amendment.

[The Chair, Conservative, Mike Wallace]

Madam Péclet.

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

I understand the government's point of view. This is a criterion pertaining to the burden of proof that is used in certain instances in the Criminal Code. It is something that is widely recognized by authorities.

With all due respect to the witnesses who think the contrary, I will say there is a consensus on the idea that telephone data are not the same as data that can be intercepted on the Internet. Data gathered from the Internet is much more sensitive. I want to note that several witnesses said that data gathered from the Internet is much more sensitive and much more personal.

I understand that the government could consider this for data preservation purposes. To obtain a warrant we must continue to use the traditional legal principle of "having reasonable and probable grounds to believe", not "to suspect".

I would ask the government to consider the fact that the majority of witnesses said this might cause problems. I understand that the government wants to go in a particular direction, but why not give us more time and split the bill so that we can study this provision in depth?

[The Chair, Conservative, Mike Wallace]

Thank you, Ms. Péclet.

We'll vote on amendment NDP-7.1.

(Amendment negatived [See Minutes of Proceedings])

We've come to amendment PV-10, which is still in order.

Madam May is here. You have one minute, Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

My amendment falls within clause 20, of course. It's attempting to enact a number of the recommendations that were made to the committee by the Canadian Bar Association in terms of the powers of preservation of information and records. It would restrict the power of officers to make such preservation demands to exigent circumstances, so where there's reason to believe that if you don't have a preservation order right away and take some shortcuts, that material might be destroyed. Otherwise, there's no reason not to have a judicial authorization, so it should be restricted to exigent circumstances.

The other recommendation is in relation to laws of a foreign state. Those laws of foreign states should relate to matters that would also be criminal in Canada before a preservation order could be issued under clause 20.

I won't read through the amendment because it's fairly complex, but I think it's clear and committee members will have already reviewed it. We want to make sure that the exigent circumstances and the rationale around them must at least be reasonable that any offence committed in a foreign state must also be an offence in Canada, and the reason these rather shortcut measures are being taken is that if they don't, there's a significant risk that material will be destroyed.

[The Chair, Conservative, Mike Wallace]

Thank you.

Mr. Dechert, on amendment PV-10.

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

Mr. Chair, the government does not support this amendment.

Under section 487.11, as Madam May will know, police may already act without a warrant in exigent circumstances. In our view, making exigent circumstances a requirement in the context of a preservation demand is illogical and would render the tool useless.

Canada's telecommunications industry is largely unregulated and has thousands of providers with a variety of business practices. The creation of the preservation tools reflect that diversity and the fact that the industry is not required to retain data. A preservation order does not give foreign authorities access to any data whatsoever, as the order is only meant to ensure that the computer data still exists until the appropriate judicial order is issued in order to obtain that computer data. Cooperation with our international partners is essential to ensure that critical data is not lost during often time-consuming traditional mutual legal assistance procedures that enable the requested party to actually obtain the data and disclose it to the requesting party.

On that basis, we will not be supporting this amendment.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

We'll vote on amendment PV-10.

(Amendment negatived [See Minutes of Proceedings])

Now we will move on to amendment PV-11.

Ms. May, you have the floor.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Chairman, this also deals with the matter of preservation demands. It is also related to advice that was presented to this committee by the national association of the lawyers who practise in this country, the Canadian Bar Association. The recommendation from the Canadian Bar Association to remove subsection 487.012(5) is in order to restrict what is now under the act an unlimited power on the part of officers to place conditions on preservation demands. Based on the recommendation from the CBA, the Green Party amendment would remove that unlimited power.

[The Chair, Conservative, Mike Wallace]

Thank you, Madam May.

Mr. Dechert.

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

Mr. Chair, the government does not support this amendment.

It is necessary that the peace officer or public officer be in a position to impose specific conditions when he or she demands the preservation of computer data, as this may assist in protecting the integrity of investigations. Police do not have trusted relationships with every holder of information in Canada. This provision allows police to place conditions on preservation demands which, as Madam May will know, only have effect for 21 days. The most likely condition is to prohibit the subject of the demand from disclosing that they received the demand. This is to ensure that a suspect in an offence does not become aware of the criminal investigation while it's ongoing.

On that basis, Mr. Chair, we will be opposing this amendment.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

We'll vote on the amendment.

(Amendment negatived [See Minutes of Proceedings])

Amendment NDP-8 is next on our list, but it has been removed due to the lack of support for amendment NDP-6. That applies also to amendment NDP-9.

Now we will move on to amendment PV-12.

Ms. May, you have the floor.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Chair, again, this is related to the general category of extremely broad provisions within Bill C-13 that relate to preservation orders. In this case the recommendation is based on one from the Canadian Bar Association that the judicial preservation orders should be restricted to circumstances when the judge is satisfied there are reasonable grounds to suspect a criminal offence under an act of Parliament or a criminal offence under the law of a foreign state has been committed. It would also be a crime in Canada.

In taking that step, amendment PV-12 replaces line 7 on page 16 in clause 20 with the clarification that it must also be an offence in Canada. That same general concept is again put forward in line 17 on page 16. I won't read the whole amendment.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Mr. Dechert.

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

Mr. Chair, the government does not support this amendment for largely the same reasons that I mooted on PV-11. The preservation order does not give foreign authorities access to any data whatsoever. The order is only meant to ensure that the computer data still exists until the appropriate judicial order is issued to obtain that computer data. As previously stated, cooperation with our international partners is essential to ensure that critical data is not lost in often time-consuming mutual legal assistance procedures between states that enable the requested party to obtain the data and disclose it to the requesting parties. On that basis, we will not be supporting this amendment.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, Mike Wallace]

Amendment NDP-10 is consequential to NDP-6, which was negatived, so now we're on to NDP-10.1 This is the first set of amendments with the wording “assist in the investigation” as a qualifier, so if this fails, this will also affect NDP-32.

Madam Péclet, the floor is yours.

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

Thank you, Mr. Chair.

Our amendments reflect the testimony of many witnesses we heard. I think it would be interesting for the government to consider the following.

At line 5 on page 17, clause 20 reads as follows:

(b) the document or data is in the person's possession or control and will afford evidence respecting the commission of the offence.

The idea is simply to amend the wording to include the words "and will assist in the investigation of the offence."

We agree that we are not changing the nature of the paragraph here. This also reflects the testimony of certain individuals who appeared before us.

I therefore ask the government to support this amendment.

[The Chair, Conservative, Mike Wallace]

Merci.

Mr. Dechert.