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.
Acting General Counsel, Policy Sector, Department of Justice
I'm not going to disagree with that articulation except to say that there's no judge involved. It's in the mind of the police officer. He has to have reasonable grounds to suspect before he can ask this of a service provider.
Conservative
Acting General Counsel, Policy Sector, Department of Justice
No, but all of these non-warranted tools, like the exercise of an unwarranted power in the Criminal Code, always receive extra scrutiny when it comes to the prosecution. Any time a police officer acts without judicial authority or exercises powers that usually come with judicial authority, there will be a heightened level of scrutiny in terms of bringing the evidence forward. As Chief Superintendent Burchill said last week, the last thing the police want to do is jeopardize a case. They make sure they have those grounds before they act.
Conservative
Dane Lloyd Conservative Parkland, AB
Thank you. I'm actually a bit more concerned now than I was when I began my line of questioning.
Conservative
Dane Lloyd Conservative Parkland, AB
What accountability mechanisms are in place? You're saying that law enforcement doesn't need to require any judicial authorization when they have a reason to suspect. What's stopping law enforcement from just spamming every ESP to ask whether this IP address or this person is a customer of theirs? What accountability mechanisms are in place for that?
Acting General Counsel, Policy Sector, Department of Justice
The framework for the confirmation of service demand is built as a back-and-forth between the service provider and the police officer in order to get the information the police need. The service provider has the ability to respond or say they're not going to respond, or change the timelines because they might not be reasonable, depending on what type of service is being asked to confirm. The scheme is built with that co-operative approach, as are all the production orders in the Criminal Code. They're meant to be served on co-operative third parties.
Conservative
Dane Lloyd Conservative Parkland, AB
Something that was said earlier, by either you or one of the other witnesses, was that the reason you needed to bring this forward was that there are stakeholders out there who require a court order in order to respond, but you've said that “reason to suspect” doesn't require a court order. To me, that sounds like it's conflicting.
Acting General Counsel, Policy Sector, Department of Justice
There are reasonable suspicion production orders that require court supervision. There's an existing preservation demand that uses reasonable suspicion in the Criminal Code that police officers use as well. That's been there for many years.
The preservation demand itself, or the confirmation of service demand, will not require a court order, so it doesn't have judicial oversight. As I was explaining before, in terms of the paper they want, it's basically for indemnity from liability. The service providers want to be compelled to do something. They don't want to be seen as being complicit with the state.
Conservative
Dane Lloyd Conservative Parkland, AB
Perhaps this will be my final question.
You said that as part of this back-and-forth, a company may decide not to respond to a request for confirmation of service. What would happen in that case? What would be the next step in that process?
Acting General Counsel, Policy Sector, Department of Justice
There is a scheme that allows them to either respond or object. If they simply do not respond, there is a penalty scheme built in as well.
Acting General Counsel, Policy Sector, Department of Justice
If they object, the clock stops. Until the matter is resolved, they don't need to confirm or deny whether they provide the service.
Liberal
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
Thank you.
My colleague asked my first question regarding whether or not there's a channel for service providers to dispute or to not provide. You answered the question.
Again, we are talking about keeping a balance here. I understand that law enforcers want more power and more convenience, but on the other hand, other groups, like civil liberty associations and service providers, have other concerns.
I want to ask a question about the duty to inform. If a service provider provides the information requested and, after the investigation, law enforcement feels the guy is not a suspect, is there a duty for the service provider to inform the person involved, or a duty for the police to inform?
Acting General Counsel, Policy Sector, Department of Justice
There is no positive duty for the police to inform, but there is an ability within the scheme to order non-disclosure if disclosure would impact the investigation.
Because they're under privacy legislation, there is a positive duty to inform a customer if anyone has asked for their information. To counter this, there is the ability to impose a disclosure restriction within the confirmation-of-service demand. This is valid for a year. If it needs to be extended, it would have to be extended by a court.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
Are you saying that if a person is not informed, he could be kept in the dark forever?
Acting General Counsel, Policy Sector, Department of Justice
Yes, I think that may be a possibility. As we talked about, a lot of these tools are used to figure out who the suspects are, who the innocent people are and who the victims are. If someone is an uninterested person, the police would not follow up, and the person would probably not follow up on whether the police inquired.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
When a company enters into a service agreement with a customer, what if there's a provision that says there's a duty to inform or get consent to release personal information as required? If there is such a service agreement between the company and the customer, it would put the company in a conflict, because you're compelling them to provide that information. Is that not the case?
Acting General Counsel, Policy Sector, Department of Justice
That is the case, but, again, the framework allows objection based on certain grounds. One of them is “otherwise not”—if you're prohibited from disclosing for some other reason, including by law. I'm not sure contract law would override the Criminal Code in this case, but they would have the ability to object on that basis.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
If I understand you correctly, you seem to be implying that a company has the right to object to or withhold information, and there is no consequence for that company.
Acting General Counsel, Policy Sector, Department of Justice
If the company does not provide the information or respond to the demand, there are consequences. However, there are off-ramps for that company if they don't think the disclosure is consistent with their legal obligations, so they could object. That's when the scheme kicks in and the clock stops, and then a judge will hear whether or not their objection is reasonable.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
In that case, would it not make your legislation useless? You keep telling us that it's because of urgency, the time and the need for a fast response that you need the information right now, immediately, before the guy is gone. Hypothetically, if a company chooses to delay by not responding, there may not be a consequence. What is the use of the legislation if you cannot compel? You want to ask for fast information, but if there's such leeway, if I can call it that, for a company to delay, what's the use?
Acting General Counsel, Policy Sector, Department of Justice
Going back to one of my previous responses, these schemes—the confirmation of service demand and the production orders—are to be used with co-operative third parties that police have long-standing relationships with. If a service provider is not co-operative, police have other tools they can get. They could get a production order that compels, or they can get a warrant that authorizes them to do the work themselves. There are other means of doing this.
Again, this is a tool to be used with co-operative third parties. It provides those third parties with a piece of paper that indemnifies them because they're responding to a state request. It satisfies their needs and hopefully satisfies the police's needs as well.
