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
Jacob Mantle Conservative York—Durham, ON
That makes sense.
Is the CSIS process the same or different? Is there anything you want to add on that?
Director General, Policy, Planning and Accountability, Canadian Security Intelligence Service
We have nothing to add on that.
Conservative
Jacob Mantle Conservative York—Durham, ON
Does anyone from Public Safety want to add anything?
This again raises the standards issue. The example you've provided on the phone number and going from there—I'm only speaking for myself at this point—seems to make some sense.
The problem I see, especially with proposed paragraph 487.011(c) under the definition of “subscriber information”, is that it's contemplating a whole lot more stuff, including information that would go to the biographical core that the Supreme Court noted.
That's why I thought that clarifying the definition was important. We didn't do that, fine, but now we're on the standard. I want to get the standard correct, because if we're going to touch things more expansively than just looking at whose telephone number it is for the first confirmation of service—“Do you provide service to this telephone number?”—and then for the production order, both of which will have the same suspicion standard....
Do I have that right, Ms. Gibner?
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
Yes, that's correct.
Conservative
Jacob Mantle Conservative York—Durham, ON
In that case, I am a lot more concerned about having the higher threshold of grounds to believe.
Maybe this next question is more of a policy question for Public Safety.
Thank you, Mr. Gilkes, for outlining your process. That's helpful, because I wanted to compare, for my benefit, the current process versus how you see the proposed process.
Maybe I could put the question plainly to Public Safety. Why did you choose to select a lower standard? Was that a conscious choice? It's in black and white. I assume it was a choice.
Acting Senior Assistant Deputy Minister, Department of Public Safety and Emergency Preparedness
This would be a question for my colleagues from Justice, but it was a conscious choice.
Conservative
Jacob Mantle Conservative York—Durham, ON
This is, again, different from previous proposals for lawful access in the past, including in Bill C-13. That did not have the suspicion standard. It had the “grounds to believe” standard.
Am I incorrect there? Okay. I apologize.
Acting Senior Assistant Deputy Minister, Department of Public Safety and Emergency Preparedness
The Spencer decision came out in the middle of 2014. That's why. I think there's a different context today than there was in 2014.
Conservative
Jacob Mantle Conservative York—Durham, ON
Okay.
This raises another point I wanted to make in response to something Mr. Wong said. He made reference to the issue that in Canada, we don't have the same process other countries do. In fairness, I think you omitted mentioning the reason we have that difference, which is that we have the Constitution and the charter. These have been interpreted to establish privacy jurisprudence around section 8.
That's important context. I've heard again and again about Five Eyes, the G7 and the G20, but Australia doesn't have a charter. They don't have the same history of protection of privacy that we do. That's a fundamental difference. I would argue that common law would give you some of this too, but they haven't gone down that path.
I just want to make the point that I don't think I heard a fair apples-to-apples comparison. I'm not suggesting that I heard all of you make it, but to finish Mr. Wong's thought on the issue in Canada, I'll say there is a difference, and it's because we have the Constitution.
Ms. Gibner, I'll go back to my question.
It was a conscious choice. Why go for a lower standard?
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
I'm going to start the answer and then pass this to my colleague Mr. Wong, because he answered your question about 2011. They set up something more akin to the international community, where it was done administratively. It didn't require a warrant from the judiciary. That might be important for you, so I'll let him speak to it. Unlike Mr. Wong, I was not here in 2011 or 2013.
To start the answer, I want us to again step back and remind ourselves and the committee that this is exactly what policy development is in the criminal law space. We think about section 8 because, as you pointed out, we have a charter. We have to be charter-compliant when we're thinking about balancing privacy rights and the needs of law enforcement.
It was a policy choice based on what we've talked about tonight: What is law enforcement seeking? What is the goal or objective of the tool? What are they trying to achieve? As we talked about earlier, these have to be calibrated when the tool is used. It's all those different factors, like the type of information being sought, when the tool is used and the nature of the privacy being intruded upon. That's how we came up with that standard.
If it assists you at all, I always like to compare. When you're looking at financial data and it's “grounds to suspect”, we think, “Well, this is a bit less than that.” If it's about a warrant to search your home, we think, “Well, that's reasonable and probable grounds. We're not going in anybody's house. We're just asking if Kim Gibner is a client of yours, yes or no.” It's those sorts of considerations we came up with for this policy.
Mr. Wong.
Acting General Counsel, Policy Sector, Department of Justice
Thank you, Kim.
I would add that when we were developing the policy on this.... To underline something Ms. Gibner said, these tools exist on a privacy spectrum. We try not to reinvent the wheel. We try to compare apples with apples, not with oranges. This tool is very similar to tools that already exist in the Criminal Code.
The objective of this bill is to provide police with tools that would give them timely access to data. They already have a tool—the general production order—that they use under reasonable grounds to believe. If this were raised to the level of reasonable grounds to believe, in my opinion, you would be undermining the objective of the bill.
Conservative
Jacob Mantle Conservative York—Durham, ON
Thank you for that.
Again, I want to push back a bit.
Ms. Gibner, as I've suggested tonight and will continue to repeat, I think the subscriber information that could be required, either for the confirmation of service or in the production order, especially in proposed paragraph 487.011(c), could go far beyond simply asking, “Do you provide information to Ms. Gibner?” The privacy interest that attracts, in my view, is higher, which leads me to my belief....
I'm sorry. It sounded like you wanted to jump in.
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
Yes. I just want to make sure that we're talking about the same thing.
A confirmation of service demand is without a judicial warrant. For reasonable grounds to suspect, it's just asking, “Is Kim Gibner your client?” Just to be clear, that's that one. That's all I meant about that one.
I totally take your point that within subscriber information, you've identified that proposed paragraph 487.011(c) could possibly raise different considerations. That will be for the committee to decide.
I was trying to be helpful to you and explain that we looked at the tool more broadly in terms of setting out something that was about basic subscriber information. I take your point that you're looking at paragraph (c) and saying, “What about...?”
Conservative
Jacob Mantle Conservative York—Durham, ON
Just for the record, I find everything you're saying very helpful. It's not my area of practice. As you often say, you know just enough to be dangerous. I'm trying not to get myself into any danger here.
We've been talking a lot about the confirmation of service and especially the ISPs. I would like to ask the chair to canvass the committee for unanimous consent to invite DuckDuckGo, a provider, to provide testimony in relation to part 2 of Bill C-22, an act respecting lawful access.
Conservative
Jacob Mantle Conservative York—Durham, ON
I'm seeing that there was no unanimous consent. Therefore, I would like to orally put that on notice as well.
Liberal
Conservative
Jacob Mantle Conservative York—Durham, ON
We were talking about the two decisions earlier, Ms. Gibner: the Spencer decision and.... I don't think we talked about Bykovets, but Bykovets is the second important one. This goes to my question about what type of information is attracting what degree of privacy. Granted, there may be a bit of overlap here between the confirmation of service and the subscriber information. Bear with me there.
My understanding is that for Spencer, the Supreme Court said that subscriber information attracts a high degree of privacy because it connects a person's identity to their online activity. Is that a fair ratio for the judgment—at least one part of it?
Acting General Counsel, Policy Sector, Department of Justice
If I may, our interpretation is that the Supreme Court said there's a high degree of privacy when you connect your identification with your online activity. It's the combination of both, not subscriber information on its own.
Conservative
Jacob Mantle Conservative York—Durham, ON
That's fair, but these two things are connected. You confirm the service at the suspicion standard. Then you use the information you got, with no judicial authorization. Then you get judicial authorization for the production order, in part based on that confirmation of service. Now I know the information. I know that Kim Gibner is being provided service, so now I can say, on the suspicion standard, that I think the evidence I need for this suspected crime is on Kim Gibner's phone.
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
I just want to add one thing, which is just for us to remind ourselves that we're at the start of an investigation, when we hear the officer say, “I can't start my investigation because the production order requires me to know who the service provider is and know that it will afford evidence of an offence.”
The confirmation of service demand does not have that criteria. It simply says that an offence has likely been committed and that the information I get will assist my investigation. The tool is meant to be at the very beginning of an investigation, when all they want to do is to know where to start. Something you said made me think that might be helpful for you to know.
I think you wanted to address his point, Normand.
Acting General Counsel, Policy Sector, Department of Justice
If I may, I just wanted to add that the facts in Spencer were very specific as well. It was not only about the identity of the online activity. Mr. Spencer had been on a file-sharing platform, LimeWire, and police had been observing him for some time, so they had a body of evidence about the activities of this IP address, which was publicly broadcast and was downloading known files of child pornography. It's a very different context from subscriber information in isolation or even connected to a sole IP address that might be linked to an email address that sends harassing email messages. It's very specific.
