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
Rhonda Kirkland Conservative Oshawa, ON
We're not allowed to.
Are you, Chair, allowed to invite the Privacy Commissioner to attend the remainder of the meetings?
Liberal
The Chair Liberal Jean-Yves Duclos
No. I don't decide things on my own, and we currently have a motion, which is the amendment under consideration.
Do you want to continue, MP Kirkland? Otherwise, we have MP Au and MP Mantle.
Conservative
Jacob Mantle Conservative York—Durham, ON
I have a point of order, Mr. Chair.
I'm sorry, but I'm confused by your advice here. My understanding is that the committee is master of its own process in all things. Does the committee have a routine motion that would prevent it from doing UC right now? If not, then the committee is free to consider that. I'm confused.
Liberal
The Chair Liberal Jean-Yves Duclos
No, it's part of the procedures of the House and that we adopted earlier, in June last year.
If you want to conclude, go ahead, Ms. Kirkland, or I'll turn to MP Au.
Conservative
Jacob Mantle Conservative York—Durham, ON
I'm sorry, but I'm not finished on that point of order, Mr. Chair. You said there was a routine motion adopted by this committee earlier on this. What motion would prevent the committee from considering UC right now?
Liberal
The Chair Liberal Jean-Yves Duclos
The committee business decisions that we made last June state explicitly that we move motion after motion. We have a motion now, so you may want to continue—
Conservative
Liberal
The Chair Liberal Jean-Yves Duclos
We have a motion now. The next motion will be another amendment, and then there will be a clause, a motion and so on, until we finish—
Conservative
Rhonda Kirkland Conservative Oshawa, ON
Yes, so we put motion after motion. Could I insert a motion between two motions?
Liberal
The Chair Liberal Jean-Yves Duclos
We have a set of motions ongoing. We discussed that earlier in the consideration of the previous bill.
Conservative
Conservative
Rhonda Kirkland Conservative Oshawa, ON
I have some real questions about that, and I may bring a point of order up later regarding this.
Thank you.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
Thank you.
Originally, I had questions that I wanted to ask later, but since some of my concerns have already been raised and discussed here, I have decided to ask some of these questions.
One thing that I've been struggling with so far is how we delineate grounds to believe and grounds to suspect. How do we distinguish where it would begin and where it would stop? That has been my struggle all this time.
Sergeant Gilkes, I'm grateful that you used concrete examples. That is what I need because I'm a concrete sequential learner. I need stories, facts and examples to help me understand.
Early on you gave a very good example about somebody discovering that his bicycle had been stolen. You said all the descriptions were pointing to one person, and there were reasonable grounds to suspect and have the guy investigated.
Let me give you one real case in Richmond, which happened many years ago, to see how the core suspect would fit into your description or classification.
There is a resident in my riding, in my neighbourhood, actually. He was a gardener. He spent lots of time gardening. He had a beautiful garden. One day, he discovered that his garden had been destroyed, so he made a report to the police. He said, “It is likely to be my neighbour, for the reason that he said he didn't like my garden. He hates me for gardening. I know this because each time I'm gardening, he comes to the fence and yells at me.”
He said that he didn't understand what the neighbour was talking about, but when he stopped, rose and went back to his house, the neighbour would be quiet. Not only that, he said that he received phone calls in the middle of the night. When he would pick up, somebody would yell in a very loud voice, in a different language that he didn't understand. Then he would hang up.
In that kind of situation, how would you classify the neighbour living next door? Is there reasonable grounds to suspect or reasonable grounds to believe?
Acting Officer-in-Charge, RCMP Lawful Access, Royal Canadian Mounted Police
Thank you for your question, Mr. Chair.
It's a very specific question. That would depend on my frame of mind at that time. The thing is, it becomes almost moot because it's going to be up to the judge or justice to decide at that point whether that's a grounds to suspect—I mean, if we were going for subscriber information.
In terms of whether that would be grounds for confirmation, do we believe that there is an offence that has been committed? Based on what you've described, there is a possibility that a crime has been committed. If that is the case, then information that I obtain based on questioning....
To be honest, I'm not sure who I would put that question to if it were for a confirmation of service. In that case, if I believed the information that was provided to me could further my investigation, that would be a good example of something that would be at a threshold of potential.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
I'm asking a simple question. In a case like that, from the perspective of the police or investigator, are there grounds to believe or grounds to suspect?
Acting Officer-in-Charge, RCMP Lawful Access, Royal Canadian Mounted Police
It's entirely up to the investigators themselves. They have to take whatever circumstances they have and come to their own determination on whether this is something that they believe has been an offence or not. That could be from visiting the property and from seeing the type of damage that has been done.
The intention is always to corroborate. Police cannot necessarily advance an investigation without trying to corroborate whatever information has already been received, or whatever information they are receiving. It would be up to that investigator to take the steps necessary to try to corroborate whatever statement they're receiving from a victim or a potential victim.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
Well, it's more confusing now. You seem to imply that this is subjective, depending on the interpretation of the investigator.
Acting Officer-in-Charge, RCMP Lawful Access, Royal Canadian Mounted Police
This is accurate. It is subjective, and it depends on, I guess, the vehicle that is being adopted. It's subjective for the police officer to decide.
If it's a confirmation of service, it's up to them to decide whether they have reasonable grounds to suspect. If they're going for a subscriber information production order, in that case, it'll be up to a member of the judiciary to decide whether they've reached the threshold that would be necessary. It's the same thing for reasonable grounds to believe. It depends on....
It really is subjective, because these are the people who are making a decision on whether something has reached that threshold or not.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
Again, I find this very interesting.
When we are going to create a law or legislation, is it not our goal or our objective to try to eliminate the subjectivity of interpretation?
Acting Officer-in-Charge, RCMP Lawful Access, Royal Canadian Mounted Police
I won't speak to the objective of the laws themselves, but these are concepts that are already well ingrained in the Criminal Code that police work off and have worked off for many years.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
You just said that it is quite subjective.
Now let me tell you what exactly happened and why I'm so worried that if we are not clear about the distinctions or the definitions, we can create problems. What actually happened was that this person's neighbour is a chiropractor, so when he saw his neighbour kneeling down to work on the ground, he was concerned. That's why he came to the fence and yelled at the person and said, “Come on, get up. You know it hurts your back”, and things like that.
When that person went back to the house, he was so happy, and later it was discovered that the phone call that this person received at night was an overseas call, an international call from another country, and because of a difference in the time zones, he received a call at night from a person who was mistaken and made a phone call to a wrong number from a time zone where it was daytime. All of these things could be reasonable. All these things could be misunderstood. That's why I'm so concerned about the—for lack of a better word—failure to make a clear definition.
Now let me ask you about another concrete example. Again you receive a call or a complaint saying that something has happened, and the person gives you a description of five features of the suspect—five things. Then the police are able to locate a person that fits all five features. Are there grounds to believe or grounds to suspect that this person is involved?
Director General, Technical Investigation Services, Royal Canadian Mounted Police
On that question, what I would say, not to oversimplify the process, is that the investigator—and I think this is what Sergeant Gilkes was getting at—has to do a lot of work in getting to his determination where he feels he's met reasonable grounds to suspect and is at the point where he can draft an affidavit and go before a judge.
On the face of it, it's a subjective decision to say that this is your suspect. What he'll be saying is, “I've interviewed people in the neighbourhood and I've done all my follow-up. I've done a whole bunch of investigational work to get to a point where I feel there's potential that this crime occurred, and I need more information. That's the suspect.” However, the investigator doesn't decide if that's the case. The judge decides whether the constellation of facts that have been presented in the affidavit meets what he or she feels are reasonable grounds to suspect and to grant the production order for a specific kind of information.
Just to clarify the subjectivity of it, any investigator in any police force, not just in Canada, has to get to a point where they've done enough work to determine that they suspect or believe that they have something to go to court with.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
In this case, what the government is trying to seek is the power to not involve the judge. You want the power to get information on that person faster and more easily and without any kind of check. Is that not the case? The judge is not involved in the example that I gave.
Director General, Technical Investigation Services, Royal Canadian Mounted Police
No, that's not the case.
For a production order for subscriber information, there needs to be an affidavit. You have to go before a justice or a judge for them to determine whether you've provided enough facts to get that production order. At the beginning of an investigation, you're trying to determine.... You've figured out that there's a crime, and now you're trying to link that crime to someone. It's not subjective and it's not without process.