Evidence of meeting #42 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
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Perhaps I'm not articulating myself here correctly, Ms. Gibner, because what I'm getting at is what is in Ms. Kwan's amendment. Ms. Kwan's amendment was moved, and that is NDP-2.
Are we not on NDP-2 right now?
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Okay. That's where I think we're getting our wires crossed. I worry, because Ms. Kwan's amendment says—I have it right here—“demand only if they have reasonable grounds to believe”. The parallel I am drawing is that “reasonable grounds to believe” is used throughout the code.
If we accept this amendment, “reasonable grounds to believe” will be in the subscriber demand section. “Reasonable grounds to believe” under the arrest provision has been interpreted to be below a prima facie case.
Are you with me so far here?
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
Yes.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Okay. If “reasonable grounds to believe” has been articulated as below a prima facie case when it comes to arrest, would it not be similarly interpreted to be below a prima facie case on “reasonable grounds to believe” when it comes to Ms. Kwan's amendment?
Do you get what I'm saying?
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
Yes.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Is there an analogy to be drawn in the interpretation?
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
I'm not answering your question. I'm not being of assistance to you. Maybe Mr. Wong will take a run at that.
Acting General Counsel, Policy Sector, Department of Justice
I think I understand your question now.
The contexts are completely different. One deals with section 8 of the charter: invasions of privacy and whether or not they're reasonable. The standard used there is “reasonable grounds to believe” or “reasonable grounds to suspect”. When you're talking about section 495—and forgive me, but I'm not an expert in arrest powers—to me, it's not about section 8. It's about section 7 and other issues. It's about your freedom. It's about public safety and risk.
There are other factors to consider in those cases, and prima facie is not a standard that we use in terms of investigative tools. Maybe that's why we were a little confused on that. The “reasonable grounds to believe” in section 495 would have to be read with the law around habeas corpus in section 7 and not with respect to section 8 and invasions of privacy.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
That's a fair comment. You're right. Section 495 engages section 9, which is the right to be free from arbitrary detention.
The reason I'm going there is that I'm trying to determine what this threshold actually means. What does “reasonable grounds to suspect” mean versus “reasonable grounds to believe”? That's what I'm getting at.
In the arrest context, it is a personal subjective belief that is below a prima facie case that is objectively reasonable. That's my reading of what the Supreme Court of Canada has said.
Where does that leave us, then? What is “reasonable grounds to believe” in this context, in your view, versus “reasonable grounds to suspect”?
Acting General Counsel, Policy Sector, Department of Justice
This isn't necessarily my view, but there's lots of legal literature out there on this.
In earlier hearings, when we appeared here after the bill was introduced, I believe you mentioned that “reasonable grounds to believe” is below “a balance of probabilities”. There are a lot of legal scholars who talk about that threshold. The top of the pyramid would be “beyond a reasonable doubt”. The civil standard “balance of probabilities” is somewhere in the middle, and the highest standard in the Criminal Code, for investigative purposes, is “reasonable grounds to believe”. It's somewhere below “a balance of probabilities”, but it's above “reasonable suspicion”.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
I see. That's helpful, because I took earlier comments to state that “reasonable grounds to believe” was above “a balance of probabilities”. I think that's very important. I know this sounds very nuanced and like we're just hammering at something, but the degree to which somebody must believe is very important for the purposes of this amendment; it really is. We're talking about “I suspect an offence might have happened” versus “I believe it has”. If it goes from a hunch to “reasonable grounds to suspect”, “reasonable grounds to believe” and “a balance of probabilities”, to me, that's a very important point.
When I consider that, and especially when I consider the higher threshold and the issue that was brought up by professors Geist and Diab, for instance, about being worried about section 8 being engaged here—especially if you're looking at a section 1 analysis and thinking about whether we have crafted this as narrowly as possible on the proportionality test—I'm not as uncomfortable with a “reasonable grounds to believe” threshold. It's not that much higher than “reasonable grounds to suspect”. It's higher, but still below “a balance of probabilities”. To me, that's very important.
Do either of you want to comment on that? Feel free. I hope I'm not talking you or myself into circles.
Is dinner ready yet?
Conservative
Liberal
The Chair Liberal Jean-Yves Duclos
I call the meeting back to order. Welcome back.
We'll continue the debate.
Mr. Caputo, you had more to say. You have the floor.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
This is very interesting stuff. I find this stuff absolutely fascinating.
The one thing that was raised with me in the break, in fairness to the officials, is these are not easy questions. I'm not pretending they are easy, because they are tough, and that's why I'm asking them. We're establishing the threshold of grounds to believe something that you suspect versus something that is probable, as in it's more probable than not in your eyes that something happened or you believe that it happened, as opposed to you think it could have happened, which I think is above the 50% when it's framed that way.
One of the questions raised to me in the break that I hadn't considered is this: Is this analysis of “reasonable grounds to suspect” versus “reasonable grounds to believe” animated or informed by the stage at which you—“you” being a peace officer in law enforcement—are in your investigation? In other words, the service demand threshold happens right at the outset. How does that impact “grounds to believe” versus “grounds to suspect”? Does that make sense? Does it being at the outset of the investigation have any impact?
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
MP Caputo, thank you very much for the question. You've absolutely hit the nail on the head.
We've talked about the calibration between privacy interests and law enforcement, as well as the nature of the tool and when the tool is going to be used. Absolutely, both of these tools, the confirmation of service especially, are used at the very beginning of the investigation, when they have very little information. They can get over the “reasonable grounds to suspect”—they have enough information to get there—but what you've heard them say is that right now they're using a general production order to get that kind of information and the subscriber information, and “reasonable and probable grounds” is just too hard to meet at the very beginning of an investigation.
As you were deliberating it, I was looking at the March 10, 2026, Juristat statistics on crime. The report notes that in 2024, 16,905 incidents of online child sexual exploitation were reported by police, and that was 110% higher than in 2018. Of those, 94% of online child sexual exploitation cases were “not cleared by police”, meaning that an accused had not been identified in connection to the incidents or there was insufficient evidence to get a tool.
That's exactly what you've highlighted, MP Caputo: What we've been calling one of the least-intrusive tools out there is calibrated for the very beginning of an investigation.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Could you see a scenario, hypothetically, in which the committee says, “Okay, this is a lower threshold”? I'm speaking hypothetically here; I'm not signalling which way I would vote on an amendment.
Could it be that simply identifying a subscriber is a much lower threshold of intrusion, as you had put it, and that's why you could justify “reasonable grounds to suspect”, as in a crime has possibly been committed and we just want to know whether this person is a subscriber? Then once you get to an authorization to get more data about them—that is in the production order, which is judicially authorized—could you not say, “Well, now you're getting a lot more information and therefore it could be justified that it goes to a higher threshold?”
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
I think what I said stands for the subscriber information as well. Again, we know which service provider provides the service, so now I can go to court and ask a judge or JP to authorize the warrant. Then I'm going to set out the grounds that I have to get very minimal information—name, address—to conduct the very start of an investigation, and I'm going to be able to collect some basic information.
What I said—I'm trying to be helpful to you—is how I would think through that problem.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
That's fair enough. I'm trying to work this through, and I get that once you have the subscriber demand and the subscriber information, you're only theoretically one step further ahead once you get that authorization for the subscriber information. If I'm taking your point correctly, we're actually not that much further ahead in terms of determining whether there are now “reasonable grounds to believe” versus “reasonable grounds to suspect”.
Could you settle a debate between me and my colleague? I won't say who's on what side, but let's say proposed section 487.0121 is the section we're looking at. Let's say that a court says this offends section 8 of the charter—not the way it was carried out, but the legislation itself offends section 8. Would there then be a section 1 analysis of whether or not that is a reasonable limitation on the section 8 charter right to be free from unreasonable search and seizure? In other words, do you perform the Oakes test on the legislation if it's found to infringe section 8?
Acting General Counsel, Policy Sector, Department of Justice
I think we've stated this before. Every piece of legislation that is introduced by the Minister of Justice has to be charter-compliant. That's part of his mandate. We are not the charter experts where we work. There is a unit at the Department of Justice that examines all legislation and would do the analysis that's required to make sure it's charter-compliant.