Public Safety Committee on June 11th, 2026

[Aaron Gilkes]

I'll use Quebec since I've done more work in Quebec.

Quebec has its own judicial forms, which would have to be prepared and then presented. Those would be approved and signed and then returned.

[Jacob Mantle, Conservative, York—Durham, ON]

Those are forms set out by the court itself for the justice.

[Aaron Gilkes]

Correct, which you can find online.

[Jacob Mantle, Conservative, York—Durham, ON]

Is that the same in other provinces? In the civil sense, you write whatever order you want and you ask them to sign it. I suspect this is a little different.

[Aaron Gilkes]

I can confirm, through experience, that it's not the same in all provinces. Going from one province to the next, there's always a learning curve in exactly what's expected in terms of judicial authorizations.

[Jacob Mantle, Conservative, York—Durham, ON]

I think the problem Mr. Wong was pointing to is that when you come in with that affidavit and that draft, whether it's a form or a production order, you don't know exactly everything that you might need, so you're trying to.... I think what Mr. Wong was saying is that you have to try to guess a bit. Is that right?

[Aaron Gilkes]

I wouldn't call it a guess, unless you want to say it's an educated guess.

Essentially, you're trying to establish whether there has been an offence and whether this body, this person or whomever you're serving...you're trying to establish whether the information they have could actually contribute to your investigation. You have to think through the types of information you would require that would help your investigation move forward. That's what you're recording.

[Jacob Mantle, Conservative, York—Durham, ON]

Again, I think the problem Mr. Wong identified—and I'm trying to understand the problem—is that the amendment from the Privacy Commissioner would limit the document that's produced to the subscriber information specified in the order. In the case of Quebec, you said the order is already set.

[Aaron Gilkes]

The order itself is not set. As I mentioned before, it could be written. It depends on the form that's provided.

Essentially, we will normally attach a document, which we call an annex—it's basically an appendix—that highlights the items we require. That would be attached to the order to produce. That way, the person who's supposed to produce knows what is being searched for.

[Jacob Mantle, Conservative, York—Durham, ON]

Based on what you've said, my understanding is that the Privacy Commissioner's suggested amendment would limit what's produced to what you've put in that annex. Is that right?

[Aaron Gilkes]

That's correct. This would cause an issue for the police, in my opinion, because you don't know what that entity calls whatever it is in the subscriber information they retain. They might have different terminology. They might have a different category for the items or the information you're requesting.

[Jacob Mantle, Conservative, York—Durham, ON]

I'll pick companies at random. Bell calls it this type of information. Telus calls it this type of information. If, in your order, you're thinking it's how Telus organizes its stuff and you put that in, but it turns out that the company uses something different, does it mean you're out of luck when you go to...?

[Aaron Gilkes]

This does happen. We serve a production order and we receive a nil response. When there's push-back and an eventual discussion, if it's permitted—if you're lucky enough to have that discussion—it's identified and they'll say, “Oh, we call it X,” or, “We don't retain this, but we retain this, which is very similar.” If we are too precise, we may not obtain the type of information we actually require.

[Jacob Mantle, Conservative, York—Durham, ON]

That's interesting. I'm beginning to see your problem.

I will now analogize it to part of my practice, which was helping companies respond to certain types of information requests from judicial bodies, or in litigation or whatever you want to call it. I don't want to say advice. The suggestion would always be “responsive, but not helpful”. You respond to the question, but it's not my job, in an adversarial system, to fill in the blanks. If you got the question wrong, I'm going to answer the question you gave me. I'm thinking of the other side giving a nil response and saying you asked for the wrong thing.

Is that what happens, or is there a bit more...? We're not talking about civil litigation. We're talking about a company responding to law enforcement. I assume they are somewhat interested in being helpful, and not just responding. Is that right?

[Aaron Gilkes]

I can't speculate on their thought processes behind their response.

[Jacob Mantle, Conservative, York—Durham, ON]

Perhaps you can tell me about your experience in dealing with some of this.

[Aaron Gilkes]

Once again, I can't speculate on their thought processes, but they do, at times, respond in a way that we think is very narrow.

[Jacob Mantle, Conservative, York—Durham, ON]

Why? Do they know what you're after, or are they genuinely ignorant of what you're after?

[Aaron Gilkes]

I honestly can't speculate on the why, but I can say it happens and, sometimes, there seems to be a narrow scope applied to what's requested.

[Jacob Mantle, Conservative, York—Durham, ON]

The problem becomes that you've drafted it the best way you can and the way you think it should be drafted, based on all of your knowledge and experience in dealing with this stuff, and you list what you think you need. It may not be perfect, which slows you down, because you get a nil response or you get a response that's partially responsive. It gives you some, but you thought you were going to get B and C, and you only got A.

What do you do in that situation? If that's the problem, what do you currently do?

[Aaron Gilkes]

Depending on the investigation—

[Jacob Mantle, Conservative, York—Durham, ON]

Other than having a back-and-forth.... Is that the first step with the provider? You say, “Listen”....

[Aaron Gilkes]

Ideally, there would be a back-and-forth, but there isn't always a back-and-forth. It really depends on how accessible the provider is. Depending on the size of the provider, you may simply be dealing with a portal.

[Jacob Mantle, Conservative, York—Durham, ON]

For a production order.

[Aaron Gilkes]

Yes. For a production order, you may be dealing with a portal, through which you're sending information and then expecting a response. You can be somewhat limited in the type of discussion you're able to have with the person holding the records.