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.
Acting Officer-in-Charge, RCMP Lawful Access, Royal Canadian Mounted Police
Particularly in cybercrime, it does occur often, because you're dealing with an anonymous space. For example, you'd be dealing on the darknet. The whole purpose of dealing on the darknet is to avoid detection and remain anonymous.
That helps, in terms of a lead, when you're operating in this type of space, to potentially target an area where you can accumulate additional information or additional evidence to help prove your case.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
That doesn't mean that you couldn't go and get a production order at the higher standard of reasonable grounds to believe for the pseudonym, does it? You're not precluded from doing that. Is that correct?
Acting Officer-in-Charge, RCMP Lawful Access, Royal Canadian Mounted Police
You're not precluded from doing that, but the issue is at what stage of the investigation you can go ahead and obtain that information.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
You're saying that because at one point in the investigation, you may not be at reasonable grounds to believe. You may still be at the lower threshold. Is that accurate?
Acting Officer-in-Charge, RCMP Lawful Access, Royal Canadian Mounted Police
That's correct. One of the obligations that we would have, if we were going to obtain a general production order, would be to establish and show to the judge or justice, whoever is approving, that the person or the entity that you're requesting the information from is actually in possession of that information, which you need to confirm before you can go ahead and obtain your production order.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
This is all about grounds and the difficulty with grounds—or much of this is, really.
Acting Officer-in-Charge, RCMP Lawful Access, Royal Canadian Mounted Police
For us, yes, it's expediting the beginning of the investigation, because that's where an investigation is more crucial to get off the ground.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
It's interesting because the reasonable grounds to suspect, which Mr. Wong told us about earlier, and the reasonable grounds to believe are common law doctrines. Forgive me and tell me if I'm wrong, but none of that.... Is that anywhere in the legislation? When I gave that definition of reasonable grounds to believe, that was my recollection from a case called Storrey, which is from the mid-1990s about whether you have grounds to arrest. Is that enumerated anywhere in law?
I'm not going to look at you, Sergeant Gilkes.
Maybe that's something we as Parliament should actually be addressing. If we're talking about grounds to suspect and grounds to believe, the common law can change. Maybe this is something—I'm just thinking out loud—that we as parliamentarians should be considering: whether we need to codify what these grounds actually mean.
That may be neither here nor there. I'm sure Mr. Mantle has far more interesting things to say than I do, so I'll pass the floor to him.
Liberal
The Chair Liberal Jean-Yves Duclos
Before we do that, I will list the names of those who I have already. We have Mr. Mantle, Mr. Ramsay, Madame DeBellefeuille, Mr. Housefather and Ms. Kirkland.
Given that we're at more than half time, I will suspend for five minutes so we can stretch a little bit. Don't go too far. We'll start again in about five minutes.
Liberal
Conservative
Jacob Mantle Conservative York—Durham, ON
All right. Thank you, Mr. Chair.
I wanted to return to the idea of basic information that Ms. Gibner brought up. We're dealing with a list of identifiers, if I can use that word, for what constitutes subscriber information. In your mind, are there any categories or classes of subscriber information not currently listed here?
I guess that's an open question for either yourself, Ms. Gibner or any of the law enforcement witnesses or officials. We were talking about pseudonyms and other things.
Are there other classes that you've dealt with here that are not listed?
Acting General Counsel, Policy Sector, Department of Justice
Thank you for the question.
The subscriber information definition is based on international standards and all the work that has gone on in the international community to describe these things. Proposed paragraphs (a), (b) and (c) are supposed to cover the types of information that will be of use to police. That's why they are described the way they are with the examples after. It's to try to make them future-proof in terms of what other types of information.... For example, there's information that may be used to identify the subject and then it gives a list of examples, identifiers assigned by the service provider with a list of examples, etc. The idea is to try to be as comprehensive as possible.
Conservative
Jacob Mantle Conservative York—Durham, ON
Good. I was thinking that it would be the case that this list is comprehensive.
I understand that we're dealing with the BQ amendment, which came from a recommendation from the Privacy Commissioner. If this list is comprehensive, as you say, what would be the effect of defining it as such—just defining the list?
Acting General Counsel, Policy Sector, Department of Justice
The list sort of works both ways. The chapeau says “means”, which is usually a defined list. The first part of proposed paragraphs (a), (b), and (c) is supposed to be what subscriber information means. If you read each paragraph without the “including”, that would be your defined list. It's any of the information that does these things. That's how it should be read.
If you're talking about naming specific identifiers, like a closed list of specific identifiers, I think it wouldn't be future-proofed, and we may be back here in five years to amend this section again.
Conservative
Jacob Mantle Conservative York—Durham, ON
Okay. I assume you're implying that it's a less desirable outcome to come back to Parliament if there are changes that need to be made after this is passed or not passed. Let's assume for argument's sake that it is passed as a finite list, and then, through experience, new categories emerge or new technology emerges and you have to come back to revise it. Are you suggesting that's a less desirable outcome?
Acting General Counsel, Policy Sector, Department of Justice
Whether or not it's a desirable outcome, that's the drafting tradition that we use in the Criminal Code—to try to be neutral in language and explain what we want from a provision without being technology-specific. That way, the code doesn't have to be changed every so often.
Conservative
Jacob Mantle Conservative York—Durham, ON
Okay.
To the law enforcement colleagues, on my original question, from your experience or your collective experience, are there things that are categories or classes of identifying information that you may have dealt with or may need in the course of your duties that you don't see reflected here?
Acting Officer-in-Charge, RCMP Lawful Access, Royal Canadian Mounted Police
In a short answer, I think that the categories cover most of the identifiers that I would look for. Once again, that's with minimal revision in a few seconds here.
Conservative
Jacob Mantle Conservative York—Durham, ON
That's helpful.
I hope it's not minimal review. You've been looking at Bill C-22 for a while now.
Acting Officer-in-Charge, RCMP Lawful Access, Royal Canadian Mounted Police
Yes. I just haven't considered it in that light, where there might be something that hasn't been listed.
Conservative
Jacob Mantle Conservative York—Durham, ON
That's fair enough. It's always harder to show or prove the negative. I take that as well.
One of the supporting factors that the Privacy Commissioner made in suggesting this is that—to take your point about previous drafting or the tradition of drafting, Mr. Wong—the narrowing of “subscriber information” in the manner suggested by the Privacy Commissioner was actually similar to a previous proposal in Bill C-30 in the 41st Parliament.
Why, in your view, was it...? Maybe it's an unfair question. I don't know if you were there in 2012.
Conservative
Jacob Mantle Conservative York—Durham, ON
All right. It is a fair question. Excellent. I gave you an off-ramp and you didn't take it. This is on you then.
Why was that approach the right one? It was proposed but now it's not, and you're going with something different
Acting General Counsel, Policy Sector, Department of Justice
Thanks for the question. I have a good answer. That's why I didn't take the off-ramp.
Bill C-30 proposed an administrative scheme for subscriber information. There was no requirement for judicial oversight. It was scaled back for that reason. There were other checks and balances that were built into that legislation. It was not enacted.
Since we have to go before a judge now with a production order and the judge has the discretion for granting the order or not for the subscriber information, the decision was made that this was the check and balance against that. That's why it was expanded.
Conservative
Jacob Mantle Conservative York—Durham, ON
Okay. Perfect.
Maybe this is an unfair question, then.
That's a reasonable response. If you have an administrative scheme, then it can be modified more easily than having to change the law. I think that's what you're saying.