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.
Liberal
The Chair Liberal Jean-Yves Duclos
I'm happy to repeat the question.
Is it the will of the committee to adopt amendment NDP‑2?
(Amendment negatived: nays 7; yeas 4)
(Clause 5 agreed to: yeas 10; nays 1)
(On clause 6)
Liberal
The Chair Liberal Jean-Yves Duclos
We'll now move on to clause 6 and amendment NDP‑3, which is deemed to have been moved.
Please note that, if amendment NDP‑3 is adopted, amendment BQ‑4 can't be moved owing to a line conflict.
Ms. Kwan, do you want to present your amendment?
NDP
Jenny Kwan NDP Vancouver East, BC
Thank you very much, Mr. Chair.
This is NDP-3. With respect to this amendment, the NDP has received comments from prominent lawyers, legal professors and so on who are concerned about the impact of this bill on privacy and constitutional rights in Canada. They say:
As affirmed by the Supreme Court of Canada's decision in R v Spencer, Canadians have had a strong privacy interest in anonymity online. The existing general production order—available since 2004 and readily obtained by telewarrant—already gives police an effective tool to link an IP address or phone number to a named subscriber, and requires them to establish reasonable grounds to believe that an offence has been committed. Bill C-22 creates a new, dedicated subscriber information order that reduces that standard to reasonable grounds to suspect. The courts have held that this distinction is not semantic: in R v West, the Ontario Court of Appeal excluded evidence obtained through a production order precisely because the officer had established only grounds to suspect rather than grounds to believe.
The scope of disclosure under the new order is a further concern. Although the definition of subscriber information has been narrowed compared to Bill C-2, the order still allows for production of a broad scope of information, including the types of services provided—
Liberal
The Chair Liberal Jean-Yves Duclos
Sorry to interrupt you, Ms. Kwan, but Mrs. DeBellefeuille would like to say something. I assume that it concerns how fast you're speaking.
Mrs. DeBellefeuille, you have the floor.
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
That's right. Since Ms. Kwan is reading quickly, we were wondering whether the text was available to give to the interpreters. The interpreter is saying that she doesn't have the text. It's difficult to interpret a text read so quickly.
Liberal
The Chair Liberal Jean-Yves Duclos
The question is whether the text was shared with the interpreters. If not, it may be a good idea to slow down the pace a bit so the interpreters can follow you, Ms. Kwan.
Jenny Kwan NDP Vancouver East, BC
Sure. My apologies. I will slow it down. I think my staff have gone home for the day, so I won't be able to get them to send it to the interpreters. I will start at the beginning of the first sentence and go more slowly.
The scope of disclosure under the new order is a further concern. Although the definition of subscriber information has been narrowed compared to Bill C-2, the order still allows for production of a broad scope of information, including the types of services provided and the identifiers of every device associated with the account. This goes well beyond what is needed to connect a name to an IP address. It can be directed to a physician, a cable company, or a platform like iCloud, requiring disclosure of what cable packages a person subscribes to, what medical services they receive, or what devices they use. Much of this information carries a high privacy interest and calls for a higher legal standard. If Parliament seeks to create a subscriber information order that can withstand scrutiny under section 8 of the Charter, it should narrow the scope to basic identifying information—name, address, and the specific account identifier in question—and raise the threshold to reasonable grounds to believe.
To that end, they also note:
Including analogous powers in the Canadian Security Intelligence Service Act (CSIS Act) raises even greater issues. Unlike criminal defendants, “persons of interest” to CSIS are never given an opportunity in court to challenge the intrusion of state power into their private lives. The Charter concerns are more acute with CSIS, and the Service should have to satisfy a “reasonable grounds to believe” threshold for all of these authorities.
This amendment would narrow the scope to basic identifying information—name, address and the specific account identifier in question—and would raise the threshold to “reasonable grounds to believe” to withstand scrutiny under section 8 of the charter.
Liberal
Liberal
Jacques Ramsay Liberal La Prairie—Atateken, QC
I would like to thank my colleague for moving her amendments.
However, we intend to vote against this amendment, simply because the production order requires judicial authorization. We believe that the judge is the most appropriate person to determine what information should be released, in this instance, according to the specifics of the case in question.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Thank you.
Could I hear from the officials on this one? In your eyes, what is the practical implication or impact of this amendment, please?
Acting General Counsel, Policy Sector, Department of Justice
The practical implication of this amendment is that it would create a conflict between the definition that was just passed in the definition section in clause 2 or 3 and this provision. The production order for subscriber information as drafted in the NDP motion would disregard the subscriber information definition.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
I'm sorry. I have to look at the bill to get that.
When you say that it creates a discrepancy, what precisely is the discrepancy? We may wish to move a subamendment to ameliorate that discrepancy. Is that possible?
Acting General Counsel, Policy Sector, Department of Justice
I don't know if it's possible for me. I don't know if I have the technology. I'm looking at the same thing you are, which is the motion. You have to look at the motion in concert with the bill to see how it works.
Another thing the motion does is that it includes transmission data, which is not supposed to be included in the subscriber information production order. It removes the give-and-take. It's supposed to relate to information that's been provided by the police or that's been stipulated in the affidavit that will form part of the order to be served on the service provider.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Okay. I missed that. Can you take me through that a bit more, Mr. Wong? You said there's a give-and-take and that it has something in here that shouldn't be in here. When you say that it shouldn't be in here, do you mean that it's introducing a novel concept or novel wording? If there's something that inadvertently isn't in here, the committee can amend it in order to make it appropriate. I guess the question is whether it is a drafting error.
Acting General Counsel, Policy Sector, Department of Justice
If we look at the original wording of the provision where this is supposed to take place, we see that it says, “produce a document containing all the subscriber information that relates to any information”. What's been removed is “that relates to any information”. This is what the police have provided in their affidavit that will be spelled out in the order. That omission means that the service provider isn't responding to specific information that's been provided through the affidavit. It's dismantling how the production order works.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Is it workable? I get that it's dismantling and changing how it's drafted, but is it not still workable in the way that Ms. Kwan's amendment—and, frankly, CPC-3 is the same amendment—is drafted?
Acting General Counsel, Policy Sector, Department of Justice
CPC-3 varies slightly because it refers to subscriber information, whereas NDP-3 does not refer to subscriber information. It says, “that relates to a subscriber”. NDP-3 completely avoids the definition of “subscriber information”, whereas CPC-3 and BQ-4 refer to subscriber information. It's the tail end, and from a practical perspective, arguments can be made that it would still work out in the way it was designed to work out, but it is less clear.
The way it's spelled out in the bill is that it does provide the service provider with something to respond to, and that is the information that has been provided in the affidavit.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Okay. In your view, CPC-3 and BQ-4 are actually workable, but NDP-3 at this point is not workable. Is that accurate?
Acting General Counsel, Policy Sector, Department of Justice
I don't know how to respond to that. I would say that both have issues, but from a practical perspective, as you said, CPC-3 and BQ-4 might still work, just perhaps not in the way that is intended, because there's a lack of clarity there now.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
The appropriate thing, then, would be to move on to BQ-4 and let us ask our questions on BQ-4, if that's the case.
I don't have any further interventions, but my colleagues may.
Conservative
Jacob Mantle Conservative York—Durham, ON
This is just to say that I note how BQ-4 and CPC-3 differ from NDP-3, and I see what you're saying. I would agree that maybe BQ-4 or our amendment is a better place to have this discussion.
Liberal
The Chair Liberal Jean-Yves Duclos
Thank you.
Is it the will of the committee to adopt amendment NDP‑3?
(Amendment negatived [See Minutes of Proceedings])
Liberal
The Chair Liberal Jean-Yves Duclos
We'll move on to amendment BQ‑4.
Would you like to move amendment BQ‑4, Mrs. DeBellefeuille?