Evidence of meeting #41 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 information.
A video is available from Parliament.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
In these current circumstances, a judge still has discretion to put parameters on the type of data. It's not the de facto way. Do I have that right?
I'm just trying to get that through my head. I'm sorry.
Acting General Counsel, Policy Sector, Department of Justice
The judge has full discretion to impose any conditions he deems appropriate in the circumstances.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Would this amendment then narrow the judge's ability to impose those conditions, or would it fetter judicial discretion in any way?
Acting General Counsel, Policy Sector, Department of Justice
I think part of the issue with the amendment is that it really does not have any legal effect. Because of the way it's articulated in the motion, it's including these conditions, so it's non-exhaustive. These are just examples of conditions that a judge might be able to impose. I don't think it narrows it. It does nothing exactly to the scope of the conditions that might be able to be applied.
There is a risk that these conditions become commonplace because they're articulated and in the law itself.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Oh, I see. If a provision says that you need to look at X, Y and Z, then the industry practice becomes to include X, Y and Z because, as you said, it's non-exhaustive. If it's non-exhaustive, that means you can, as you said, include anything.
From what I'm seeing, there is limited practical benefit that may come, in your point of view, Mr. Wong, but it could add a layer of complexity down the road. I don't want to put words in your mouth. That's just what I'm taking from you.
Acting General Counsel, Policy Sector, Department of Justice
I think that's what we've heard from the stakeholders. They're afraid that these conditions may be imposed in circumstances when it's not appropriate just because they're articulated in the provision itself.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Thank you.
Those are my questions on that provision.
Liberal
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
Actually, I was curious about something. Certainly, in my opinion, the Barreau du Québec is a good reference. After all, they're respected lawyers, particularly those who draft briefs.
What I find unfortunate is that we heard from the Canadian Bar Association, but we did not receive its brief or its proposed amendments. That's because there seem to be translation problems.
Therefore, I'm not sure what's going on. Was the Canadian Bar Association included in your consultations? I understand that you did not consult the Barreau du Québec, but was the Canadian Bar Association included in your consultations? I'm a bit surprised by what you're telling me.
What I understand is that the amendment would not change much. The parliamentary secretary said that the process should be able to be carried out in real time and that adopting my amendment would be very serious, yet you downplayed that. I believe you said that the amendment would not change much. That is my understanding.
Acting General Counsel, Policy Sector, Department of Justice
Yes. Thank you for the question.
Two weeks ago, when we spoke to the Canadian Bar Association, Bill C‑22 was on the agenda, but they didn't give any—
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
They didn't elaborate on that, at least not on part 1.
Acting General Counsel, Policy Sector, Department of Justice
No, they didn't provide details on part 1.
Bloc
Liberal
The Chair Liberal Jean-Yves Duclos
Thank you, Mrs. DeBellefeuille.
Shall BQ-1 carry?
(Amendment negatived [See Minutes of Proceedings])
(Clause 3 agreed to)
(On clause 4)
Liberal
The Chair Liberal Jean-Yves Duclos
We're moving on to clause 4.
Shall amendment BQ‑2 be moved?
Mrs. DeBellefeuille, you have the floor.
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
Indeed, this amendment reflects the aim of the Privacy Commissioner to restrict information that could be confirmed without a warrant. He shared this intent with us. It's a way to restrict clients to telecommunications service providers. We therefore gave a voice to the Privacy Commissioner, for whom we have the utmost respect. He recommended that this information be restricted.
Liberal
Conservative
Dane Lloyd Conservative Parkland, AB
Thank you.
I thank my colleague for bringing forward this motion.
Conservatives also respect the work of the Privacy Commissioner. He's been here at this committee on a number of legislative studies, and we always appreciate getting his recommendations.
I want to ask this of the appropriate witnesses here today. What would be the impact of this amendment that would restrict seeking subscriber information from any “person” who provides a service to a “telecommunications service provider”?
Acting General Counsel, Policy Sector, Department of Justice
Thank you for the question. I'm trying to pull up.... Do we have the motion?
I'm trying to match the notes that I have in front of me with clause 4, which I think is the definition provision in 487.011. The definition here will apply to all of part XV. It has that knock-on effect of narrowing the scope of the production orders that mention telecommunication service providers. The confirmation of service demand will be focused on just them, but any other place where “telecommunication service providers” is mentioned will also be narrowed.
I think in terms of providing police with a useful tool, this will, again, narrow the utility of that tool.
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
Mr. Chair, if I may, I would like a clarification.
I think that, based on what the Privacy Commissioner told us, the amendment relates to the order that requires a judge's consent.
Mr. Wong, I'm having a bit of trouble understanding the answer you gave to Mr. Lloyd.
Acting General Counsel, Policy Sector, Department of Justice
I apologize. I'm going to ask my colleague to send me the full text of the amendment, since I only have part of it in front of me.
As I mentioned to Mr. Lloyd, the narrowing of this—the addition of this inclusion—would also narrow the scope of the subscriber information production order. It has that knock-on effect. Currently, the subscriber information production order is servable on any person who provides a service to the public.
It's designed that way to ensure that police can obtain customer or subscriber information from any entity that might have relevant information for the investigation of a crime. The inclusion of this would also narrow the subscriber information production order. Because this comes up in the context of what I understand the amendment to be, how it works with the bill is that it goes into the definition section, so it has that knock-on effect.
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
In the Privacy Commissioner's speech, one of his arguments involved excluding certain sectors, like telemedicine, as well as information related to health and solicitor-client privilege. In his testimony, he referred to that.
I know that, further on in the bill, there are clauses dealing with that. However, if the definitions don't include restrictions, is it possible that confidential health or solicitor-client information could be accessed inappropriately, for example?
Acting General Counsel, Policy Sector, Department of Justice
Thank you for the question.
When Bill C-2 came out and there was concern around the scope of the information demand, which is now the confirmation of service demand, those concerns articulated by the critics were mainly related to the fact that it was a demand that police could issue on their own without any judicial oversight. This would form part of a Criminal Code production order, which is issued by a judge. The judge has discretion as to what is appropriate or not in the circumstances. Police, for a variety of reasons, may require information from all sorts of service providers, including hotels, car rental agencies, medical clinics and things like that, but in order to get that information they have to go before a judge and justify why they need it.
I understand what the Privacy Commissioner is trying to do because if you limit the class of people who can be served with this, you will restrict the amount of information.
The corollary to that is that there ends up being a differential privacy treatment of information in other service providers' hands. They either get more privacy or you'd have to use a tool like the general production order, so the people who have their data with those other service providers that are not covered...because this would narrow it. If it wasn't with the TSP, it would be under a general production order. The general production order allows police to access any and all information the service provider has on hand. It would almost have a negative effect, because the privacy would be more at risk. Police might just want to identify victims or people who are actually not persons of interest, but because they'd have to use that tool, they'd also be able to obtain all the information on them. The amendment is problematic from a number of perspectives.
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
To wrap up, I would like to thank you for speaking slowly, Mr. Wong. That way, the interpreter could keep up. You're a model witness. It's true. We're talking about highly technical matters, and often in English. I'm extremely grateful to you for speaking at a proper pace. I'm sure that we'll be hearing from you often. Perhaps your colleagues can learn from you. The pace was perfect. The interpreters could do their job and I could keep up with the discussion and, most importantly, understand you.
I'll tell you how I feel. Obviously, you didn't come here to tell us that our amendments that impose restrictions or that protect privacy are good. After all, you have the mandate to advocate for Bill C‑22. Of course, as we study the bill, I don't expect you to say that our amendments do indeed protect privacy and should be adopted. I think that your goal is instead to give law enforcement more access. That's more or less the order that the minister gave you.
However, our job is to strike a balance. It may be restrictive, but we must ask ourselves whether these restrictions would be that serious. When we risk a failure to protect privacy, that too comes at a cost. Your responses show that you're a strong advocate for the need to give police forces access, but perhaps less so for the need to protect privacy. Throughout our study of the bill, if we're told that the proposed amendments wouldn't be that bad, but that they would prevent the police from doing their job, then this will be a fairly common response.
That's how I feel. I don't want to put words in your mouth, Mr. Wong. I'm telling you how I feel.
I gather that the amendment was proposed by the commissioner. His job is to protect personal information and privacy, so he'll obviously want to restrict lawful access.
I'm not sure that my amendment would have a major impact on police forces. I understand your explanation. I would still like to say that I get the impression that you're biased in favour of law enforcement, not privacy. I wanted to tell you that.
Thank you.