Evidence of meeting #40 for Public Safety and National Security in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-22.
A video is available from Parliament.
Liberal
The Chair Liberal Jean-Yves Duclos
There are possibly more, MP Caputo, but unfortunately at some point we have to stop hearing witnesses and considering additional briefs. Otherwise, this process is never going to end.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
With the greatest respect, Mr. Chair, I would agree with you that if the brief came in yesterday, the day before or even Friday.... These are briefs that came in two weeks ago. Yes, we do have to draw a line. The question is, when should that line be drawn? If a brief is submitted well in advance of the period in which we are considering amendments, I think we are bordering on a privilege issue.
I would shudder to think that anybody around this table thinks that.... This is Parliament, for goodness' sake. We shouldn't be waiting two weeks without even knowing if something is there. It doesn't feel right, to be very candid, that briefs are sitting in the queue, we don't know they're sitting in the queue and we're putting forward amendments. The only alternative is then to table-drop amendments after the fact.
Perhaps I'll have something more official to say. I'm just thinking out loud here. The fact that I'm not getting point of ordered speaks volumes, although I might get one now.
Liberal
The Chair Liberal Jean-Yves Duclos
The House of Commons, like any other organization, has limited resources. All committees face the same circumstances and constraints. Our committee is no exception.
We work with the resources allocated to us, and that's why, since time is also a scarce resource, you have about one minute remaining in your speaking time, if you want to continue speaking.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
With that one minute, let's talk about what we do know.
Ms. Saad, I'm a law nerd—full disclosure. You spoke about section 8 of the charter being engaged. My reading of the bill is that the requirement for data retention is on the third party, those who are covered by the bill, and a warrant is then required to access the data.
Can you connect the dots for me, please? I'll ask your colleague to do this as well, in terms of whether a warrant is required. I believe, prima facie, that the search is legal if a warrant is required. Can you help us out there on a charter breach? Am I making any sense here?
Chair, Privacy and Access Law Section, Canadian Bar Associaton
Our analysis for the charter part is that by retaining all this data, and eventually the metadata, for such a long time, we have so much information retained on people. The fact that we are requiring so much subscriber information—and not just who is the subscriber—may include this breach of the charter because it's way beyond the reasonable suspicion that usually is required.
Conservative
Chair, Privacy and Access Law Section, Canadian Bar Associaton
It's the volume of the data and the type of data as well.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
—and it's the fact that the government is compelling that data to be kept. I don't want to put words in your mouth; I just want to make sure—
Chair, Privacy and Access Law Section, Canadian Bar Associaton
Yes. Also, the type of data is problematic in this case as well.
Conservative
Liberal
The Chair Liberal Jean-Yves Duclos
Unfortunately, MP Caputo, that's all the time we have for now, but there might be an opportunity to get back to you shortly.
Ms. Dandurand, you have the floor for six minutes.
Liberal
Marianne Dandurand Liberal Compton—Stanstead, QC
Thank you very much, Mr. Chair.
I would like to reinforce the point you made a little earlier. Our colleague across the way talked a lot about the lack of time. I would like to remind him that we have adopted motions in recent meetings to proceed to clause-by-clause consideration. We have added an extra day to hear from more witnesses. We have had enough time to propose amendments. I think it's important to respect the committee's desire to continue the study as agreed so that, following this testimony, we can finally move on to the clause-by-clause consideration of the bill.
So thank you, Mr. Chair, for making that point. I wanted to reinforce that position. We have other business to attend to in committee, and we must continue our work.
Now I'd like to turn to the witnesses, whom I thank for joining us.
My question is for both the Canadian Constitution Foundation and OpenMedia. We've heard a great deal about their concerns regarding this bill, but I'd really like to go back to the very beginning, to this bill's actual purpose.
I would like to ask these two witnesses if we can at least agree on one thing—that police forces today are facing real challenges related to encryption and digital communications when investigating child sexual exploitation, organized crime and terrorism, among other issues.
As a starting point, can we agree on that?
Counsel, Canadian Constitution Foundation
Thank you, Madame Dandurand.
I lament having discontinued my French after high school, although it was my best subject. I'm certainly very rusty now.
I don't think anybody would deny there are very serious complications in an ever-connected world. That goes without saying. Again, I think I do bring a unique perspective, having actually represented individuals charged with those very crimes.
I'm not celebrating the fact those crimes occurred, of course not. What I am hoping to point out, as my colleague Ms. Saad alluded to, is that adequate means already exist to investigate crime. I've seen it. I've reviewed the disclosures in court. I've run trials and lost trials because the evidence was robust enough and the police were clearly able to do what they needed to do. Granted, lamentably, there are more cases out there, and they need to be investigated.
The concern, of course, is really with the scope and the breadth of the search. No one present here today would ever suggest that we need to curtail what already exists. It's more a question of limiting the half-conscious expansion of power and inflation of authority where I think there hasn't been compelling evidence to suggest this is imminently and eminently required at this time.
I hope I've answered your question in a not-too-roundabout away.
Liberal
Marianne Dandurand Liberal Compton—Stanstead, QC
That's fine.
I'd like to ask Mr. Hatfield the same question.
Executive Director, OpenMedia
We do not put cameras and microphones in the home of every Canadian, even though that would be useful for investigating many serious crimes. This bill is doing a version of that—certainly on the metadata, and arguably on other data as well—to every online service. Yes, there are serious crimes that you're mentioning. A version of part 1 could be useful to the police in investigating them, but part 2 is well beyond that and way out of line.
Liberal
Marianne Dandurand Liberal Compton—Stanstead, QC
My next question is for both of you.
Do you think it's possible to have a modern lawful access regime while maintaining privacy protections, or do you think these objectives are absolutely incompatible?
Executive Director, OpenMedia
Again, a version of part 1, with appropriate amendments, could accomplish some of that, but part 2 is not necessary, and goes well beyond what is helpful.
Counsel, Canadian Constitution Foundation
Yes, I'm just thinking about that. I'm no parliamentarian, so the actual process here is somewhat foreign to me, notwithstanding the fact that I, too, am a lawyer like many present.
I would just say that what struck me—and I think I share a similar perspective as Mr. Hatfield—is the imbalance between the first part of the bill and the second. In fact, I remember communicating with colleagues who are eminently more qualified than I—and yet here I am—who helped shed some light on the fact that the first part of the bill is what I would expect and want to see in a proposed bill. That is to say, it's a thoughtful and progressive evolution of what we're seeking to achieve here, which is supporting law enforcement and bolstering the tools that police have.
However, I would say there is a way to do that which doesn't require such a leap forward. I think there's a kind of internal coherence—or at least there should be—in the process both in making law and in investigating crime, where one must lead to two, two must lead to three, and so forth. I'm not particularly convinced that we live in a moment that is any more challenging than any other moment that came before it. I think if you were to rewind the clock to any particular time, the difficulties people faced were the difficulties they faced, and the tools—
Liberal
The Chair Liberal Jean-Yves Duclos
I'm sorry to interrupt, Mr. Surgenor, and as always it's with great regret that I do that, but we now need to turn to Madame de Bellefeuille for six minutes, please.
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
Thank you, Mr. Chair.
First of all, I just want to echo Mr. Caputo's remarks. I think everyone around this table will agree that all parties have decided to work together to conduct a rigorous study without filibustering, as this is truly a bill that deserves the committee's full attention.
However, when a schedule was proposed to us, we were never told that we would not have access to translation services to enable us to read the briefs. It seems a bit odd to tell the whole world that Canada can't afford to translate briefs—like the one from the Canadian Bar Association, for example—within two weeks. In my opinion, this is unacceptable. I understand that resources are limited, but when we want to speed things up to study an important bill like Bill C‑22, we need to make the necessary arrangements. It's a matter of prioritization. Not every committee is studying at an important bill like Bill C‑22.
In any case, I find what's happening now unacceptable and quite embarrassing. You will understand that I am a Quebecker and that I want Quebec to become a country, but if I were a Canadian, I would be very embarrassed to tell the entire world that we do not have the capacity to translate documents for the study of a bill that police officers have been waiting for for 30 years.
Ms. Saad, I'm not sure if I understood something you said correctly. I'd like to clarify this with you. You implied that the bill could be split. We could pass the first part of Bill C‑22, then discuss and debate part 2 in greater depth—the part that seems less viable or that appears to have less support from the public, civil society and even a professional association like yours. Did I understand correctly that you encouraged us to consider this approach, which could rally more support for part 1, since part 2 seems to pose more problems?
Chair, Privacy and Access Law Section, Canadian Bar Associaton
This is precisely one of the Canadian Bar Association's recommendations, given that the objectives of the two parts are complementary but truly distinct. So, yes, that is really an approach we recommend.
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
It's true that we are under a lot of pressure. All the police associations are writing to us. The only witnesses who support Bill C‑22 in its current form are the police forces. Obviously, they need a tool. As Ms. Dandurand said, I think we need to modernize the lawful access regime and provide police officers with better tools.
However, it seems like a monumental task, because all the other witnesses oppose it. Some people are almost totally opposed to this bill and are at one end of the spectrum, much like OpenMedia, while police officers support this bill and are at the other end of the spectrum. For our part, we are trying to figure out how to make the bill acceptable. I understand that splitting the bill would be one way to speed up the process, and I feel that, this way, part 1 would be passed quickly.
Personally, I don't have much technical or IT knowledge. Ms. Saad, you are a lawyer and you rely on statutory provisions, the Canadian Charter of Rights and Freedoms, court rulings and so on, and you are concerned about privacy protection. There's one thing I often say: We like to compare ourselves to other countries and tell ourselves we are lagging, but, in my opinion, the countries we are comparing ourselves to aren't good examples. For example, if we compare ourselves to the United States, we need to realize that there's no oversight there and it's a bit like the wild west. The United Kingdom allows for a significant invasion of privacy. So, I dislike it when people compare Canada to countries that do not necessarily have good privacy practices.
My question is for you, Mr. Hatfield.
Could you tell us what scares you the most, from a technical standpoint?
The bill could include a ban on circumventing encryption and a ban on breaching end-to-end encryption. It could be written in black and white. Would that be enough for you, or would there still be ways to circumvent the intent even if it were written in black and white?
If there were an amendment proposing this ban, would that reassure you?
Executive Director, OpenMedia
It's not strictly necessary to break encryption. That was a point I was trying to make in my remarks.
The concern is that by having the power to install devices into systems, there are many ways you can get around encryption without breaking the technical standard. Adjusting the order-making power so it could never have the effect of circumventing encryption, that would do some work on that front.
Also, we're extremely concerned about this metadata retention requirement. There's just nothing like this in any other comparable democracy. It needs to go entirely.
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
The bill proposes a metadata retention period of up to one year. If a 90-day period were proposed, would that be more reassuring to you? Would you be comfortable with a 90-day period?