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.
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
I missed the first part of your sentence. I'm sorry.
Conservative
Jacob Mantle Conservative York—Durham, ON
I was just saying that I think we have a significant difference of opinion of what the drafting means, then, because the use of the word “including” has been litigated and is clearly understood to mean a non-exhaustive list. It's not just a list of examples.
I don't think that anything in (a), (b) or (c) is limited at all.
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
I agree with your general proposition about what the word “including” can mean, including how you described it with my colleague, but you have to....
You don't have to do anything—
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
How I read the section starts with reading the chapeau too. It's pretty clear. It says it means this.
That's just my interpretation.
Conservative
Jacob Mantle Conservative York—Durham, ON
Okay. That's fair. I guess we can have different interpretations, but this is why we're going through this, because, as I said, each word in a statute is important. There's nothing superfluous in law—that's another maxim. We'll see how many we can get in today.
I wanted to pick up on something you said, Mr. Wong, about this amendment. I think you said that regardless of what happens to this amendment, whether it's narrowed or not, there's still a general production order that can be sought.
Is that right?
Acting General Counsel, Policy Sector, Department of Justice
Yes, that's correct. The general production order is available.
Conservative
Jacob Mantle Conservative York—Durham, ON
All right. I think you made the comment that these BQ amendments would weaken privacy. Am I capturing your thought accurately?
Acting General Counsel, Policy Sector, Department of Justice
Yes. I think the current scenario that we now live under, because there is no specific production order for subscriber information, means that any time police need subscriber information, the only tool they can use is a general production order, which gives police access to any and all information.
Conservative
Jacob Mantle Conservative York—Durham, ON
When you go and get a production order, it's subject to the conditions that are attached to that production order by the court. Is that correct?
Conservative
Jacob Mantle Conservative York—Durham, ON
Is it fair to say that, in each case, those production orders can be limited as the court might determine on a case-by-case basis?
Acting General Counsel, Policy Sector, Department of Justice
They can be, but you're asking the police to jump through the hoops of getting a “reasonable grounds to believe” production order, which has a higher evidentiary threshold.
Conservative
Jacob Mantle Conservative York—Durham, ON
I'm not arguing the threshold. I'm just arguing your characterization that these amendments weaken privacy because police would then have to go and get a general production order, and those can be for anything.
My point to you and my proposition is that it's not accurate because each production order, in fact, will be tailored to the request of the police. In each circumstance, it may not be just a blank cheque. In some circumstances it may be, but in many it won't be.
I can't speak from experience on that. Maybe the police can offer their views, but I think as a proposition, that's not accurate.
How do you respond?
Acting General Counsel, Policy Sector, Department of Justice
I respectfully disagree.
These tools have been designed.... You can think of the general production order as a fishing net. The fishing net grabs anything and all that's in the sea. The specific production orders are like jiggers or fishing rods; they're designed to catch specific fish. If the only tool you have is a fishing net, then you catch whatever. To ask police to jump through the evidentiary burdens of meeting these things.... They'll ask for everything, just in case they need the information later, just in case that person ends up becoming a prime suspect in the investigation.
Conservative
Jacob Mantle Conservative York—Durham, ON
Okay. Thank you.
I think, in fact, you're actually making the point that the Privacy Commissioner made, which is that the broadness of the definition, the broadness of whom these apply to, is the problem. To me, you're just confirming that problem.
These amendments are trying to narrow that and maybe make it—to use your analogy—a smaller net.
Liberal
The Chair Liberal Jean-Yves Duclos
Thank you very much.
Before we proceed to a vote on amendment BQ‑2, let me inform you that, since amendment BQ‑2 has been moved, amendment CPC‑1 can't be moved given that the two amendments are identical. Furthermore, if amendment BQ‑2 is carried, amendments BQ‑3 and CPC‑2 can't be moved because of a line conflict.
I'll remind you of the definition of a line conflict. Once a line of a clause has been amended by the committee, it can't be further amended by a subsequent amendment. In other words, a line may be amended only once.
So, now that I've given you this information, shall amendment BQ‑2 carry?
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
I would like a recorded vote, please.
(Amendment negatived: nays 6; yeas 5 [See Minutes of Proceedings])
Liberal
The Chair Liberal Jean-Yves Duclos
Since amendment CPC‑1 is identical to amendment BQ‑2, we'll move on to amendment BQ‑3.
Is amendement BQ‑3 so moved?
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
Yes, Mr. Chair.
Again, this amendment is based on a recommendation from the Privacy Commissioner. I gather that his intention in this case is to slightly restrict subscriber information.
Mr. Wong, I'm not familiar with all the English phrases used earlier. Please understand that it's important to us that this bill doesn't give police forces a large fishing net. There must also be certain restrictions, so that the police forces don't have total freedom to breach privacy.
That's my proposed amendment. The amendment isn't that restrictive. The French version includes the word “notamment”, which means that the judge still has discretionary power. It's nonetheless important to point out that we don't want these measures applied in a broad and unrestricted manner. Instead, we want the subscriber information restricted.
I hope that my colleagues will support my amendment.
Liberal
The Chair Liberal Jean-Yves Duclos
Thank you, Mrs. DeBellefeuille.
I would like to inform you right away that, given that amendment BQ‑3 has been moved, amendment CPC‑2 can neither be moved nor considered, since it's identical to amendment BQ‑3.
Ms. Kirkland and Mr. Caputo would like to speak.
Ms. Kirkland, you have the floor.
Conservative
Rhonda Kirkland Conservative Oshawa, ON
Thank you. I appreciate this.
Madame DeBellefeuille said something very important as we were listening to the department officials. I appreciate that you're answering a lot of very technical questions, and you're doing the best that you can, but she was right when she said that your job is to give more access to law enforcement. I mean, the purpose of this bill is to give more access to law enforcement, but our job is to balance it, truthfully, with Canada's charter and rights to privacy. We really have to do that. I would hope that you consider those things as well, as we ask those questions, and not just the one side of things. I guess that's all I'll say on that.
Anyone can answer—whoever. Is it fair to say this amendment improves...? I mean, I think it improves legal precision. Is that not right? It ensures that only clearly identifiable information is captured rather than broad or potentially ambiguous data types. Would you say that's fair, or do you have anything to add?
Acting General Counsel, Policy Sector, Department of Justice
Thank you for the question.
Keeping with my previous intervention, I think, in a non-exhaustive list, this has limited legal effect. Removing it doesn't mean that someone might consider the pseudonym as part of the subscriber information they might be able to provide. I don't think it does much one way or another, legally.
Conservative
Rhonda Kirkland Conservative Oshawa, ON
I'm sorry, but could you clarify that very last thing you said—that it doesn't do anything much one way or the other?
Acting General Counsel, Policy Sector, Department of Justice
Yes, it's because this is a non-exhaustive list of potential identifiers that can be ordered. The way that it's drafted now, removing “pseudonym” from there would be less instructive, but that doesn't mean that a judge could actually order pseudonyms to be produced if the service provider had them on hand.