Evidence of meeting #42 for Public Safety and National Security in the 45th Parliament, 1st session. (The original version is on Parliament’s site.) The winning word was information.
A video is available from Parliament.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
I have doubts about the effectiveness of the legislation as written.
I have two more questions.
In the case of a company that might be operating internationally, if there's a conflict of jurisdiction between countries and the company is bound by another jurisdiction not to release that kind of information, what will happen?
Acting General Counsel, Policy Sector, Department of Justice
It's the same response as when they have a conflict of laws for contractual reasons. If they have a jurisdictional conflict of laws, they could also object because they're not allowed to release the information for those purposes. It's the same process. The clock would stop, and a judge would hear whether the objection and the conflict of laws were reasonable.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
The last question I have I raised last time.
There's temptation when you're given power: You have the tendency to use it more and more. What measures in the legislation or through other channels would forbid law enforcers from the overuse or abuse of that kind of authority?
Acting General Counsel, Policy Sector, Department of Justice
On the confirmation of service demand, I'm not sure of the exact figures. There is a large segment of the telecom sector that provides this information without any piece of paper, because they don't see it as being privacy-invasive and want to give assistance to police. The portion of the industry that requires a piece of paper instead of a production order—and the only one available for this type of information currently is a general production order, which is quite difficult to obtain—would be subject to this new confirmation of service demand. It's a new tool. We don't know how often it's going to be used. I think there are other amendments later on that are asking for some sort of review, so if those pass, the proof will be in the pudding, so to speak.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
You reminded me of another question. Are you saying that you have no estimate for how many times this legislative power will be used? You have no idea how many times in the future this authority will be used.
Acting General Counsel, Policy Sector, Department of Justice
I don't, but perhaps the law enforcement officials here might have some idea.
Conservative
Director General, Technical Investigation Services, Royal Canadian Mounted Police
It's pretty hard to look into the future to see how much it would be used, but this investigative technique is already used in every investigation across the country as we speak. The added piece to this particular confirmation of service demand that's different is that it documents our request and then that goes on the investigative file, which is disclosed in court. There will be more scrutiny to these requests than there currently is.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
Based on your previous experience in law enforcement, what would be your estimate? Can you say, “From my experience, I can say that perhaps five times in the past, I could have applied these new measures in order to facilitate my investigation”? Just give me some general idea; that's good enough. I'm not asking for statistics per se.
Director General, Technical Investigation Services, Royal Canadian Mounted Police
I think it would be problematic to try to make a guess like that. I couldn't even come to a number for you that would be in the realm of reality at this point. That's trying to look into the future to say how often we would do a confirmation of service demand and document that for the file.
I wouldn't be able to respond to that for you today.
Acting Senior Assistant Deputy Minister, Department of Public Safety and Emergency Preparedness
It's also hard for them to answer for all the different policing jurisdictions across the country. They wouldn't necessarily have line of sight on that.
Director General, Policy, Planning and Accountability, Canadian Security Intelligence Service
I was going to add a little point there, but my hand up to my colleagues didn't really work.
Maybe I'll give you, MP Au, a bit of colour from our perspective.
The intent is to continue to try to go voluntarily in this space, especially after the 2014 Spencer decision we talked about. I can speak for us in saying that the stickiness, so to speak, to use Norm's example of those who need a piece of paper, has largely been in the telecom sphere. What this does for us is give us a backstop so that if we can't get it voluntarily, we have the authority. It's hard to say the number because it would depend on whether that stickiness persists or whether, because it's legislated, we get less of that. It is the response that would dictate that.
Liberal
The Chair Liberal Jean-Yves Duclos
Thank you.
MP Caputo is next.
There's no pressure, MP Caputo, but when you're done, we'll stop and suspend for a few minutes for dinner.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
I was actually going to suggest that we suspend now.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Oh, okay. Well, there's no pressure, then, at all.
May I ask, Mr. Chair, before I start, whether we have a cut-off time of 7:30?
Liberal
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
It would be helpful if we knew. I know the meeting started late. I think it would be helpful for all of us. I don't mind working, but I think it would be helpful for all of us to know when the meeting is expected to end.
I'm going to come back to what I was saying earlier.
I pulled out the provision I noted when I was speaking with Mr. Wong. The point I was trying to make is that right now proposed subsection 487.0121(2) says:
The peace officer or public officer may make the demand only if they have reasonable grounds to suspect that
(a) an offence has been or will be committed under this Act or any other Act of Parliament;
Ms. Kwan's NDP-2 would change it to “reasonable grounds to believe”.
If we look at the Criminal Code, under section 495—this is the point I was trying to make—we see that it says:
A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
There's the parallel I'm trying to draw. Section 495 talks about arresting on reasonable grounds to believe. Ms. Kwan's amendment talks about making a demand on reasonable grounds to believe. I hope the parallel there is fairly clear. I'm drawing that parallel because “reasonable grounds to believe” has been defined in the case law—for arrest, anyway—as being below a prima facie case. It's been a few years, but my recollection is that a prima facie case is a fairly low threshold in law, certainly below a 50% threshold.
The point I'm trying to get to is this. Given all of that, is the “reasonable grounds to believe” threshold all that high? I get that it's higher than “reasonable grounds to suspect”, but if in the context of arrest it's below a prima facie case, could it be said that in this context, given Ms. Kwan's amendment, it's actually not that high of a threshold?
Am I making any sense here?
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
Mr. Caputo, if I can answer the question, you're making complete sense. What I would say is that the standard to ask somebody if they have provided services to Kim Gibner, yes or no, should be a different standard than for somebody who's being arrested.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
I understand that's different, but if we adopt Ms. Kwan's amendment, the threshold under, say, section 495 is “reasonable grounds to believe”. The threshold under proposed section 487.0121 would also be “reasonable grounds to believe”. Do you get what I'm saying here?
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
“Reasonable grounds to believe” is everywhere in the Criminal Code, if that's what you're—
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Okay. Therein is my point. “Reasonable grounds to believe” in the context of section 495 is below a prima facie case. That's a fairly low threshold, in my view. It's above a hunch and above “reasonable grounds to suspect”, but if we're articulating it as below a prima facie case under section 495, would it not be below a prima facie case under proposed section 487.0121?
I hope I'm not getting too technical, but that's my point. I'm trying to deduce exactly what the threshold of “reasonable grounds to believe” actually means.
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
Mr. Caputo, I apologize. I don't understand your question.
Is “reasonable grounds to believe” a high threshold? It is the Criminal Code threshold used for many things—as you pointed out, to arrest someone and to search your house. The standard has been described in many different ways. We can go over some of the language that describes what are reasonable grounds.
“Reasonable grounds to suspect” is a standard that is also above a hunch and has discernible facts that an officer would have to set out. “Reasonable grounds to suspect” is a standard that has been approved by the Supreme Court of Canada. It is in the Criminal Code. For the confirmation of service demand—“Do you provide services to Kim Gibner, yes or no?”—“reasonable and probable grounds” was determined to be too high. It's not the same thing as searching your home. It is less intrusive information, so “reasonable grounds to suspect” was put before you to be the right standard.