Evidence of meeting #43 for Public Safety and National Security in the 45th Parliament, 1st session. (The original version is on Parliament’s site.) The winning word was subamendment.
A video is available from Parliament.
Conservative
Jacob Mantle Conservative York—Durham, ON
That's helpful, the point you made of trying to retain discretion.
This relates to one of the concerns I think I might have with the subamendment. It still uses in (b), “that relates to any information...specified in the order”. Does that not just put us back to where we were?
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
What those words mean is that the officer is producing information to the court in the affidavit, They're saying, “Here's what we're working on. Here's the nature of the offence, and here's the information that I think I need”. That information is the information that the officer is providing to the court. The court order will order information that relates to what's in the affidavit, the information that's in the affidavit.
Conservative
Jacob Mantle Conservative York—Durham, ON
The scope of that discretion is still being limited somewhat because it's based on what's in the order. Okay, I follow you, but would that not encourage our friends in law enforcement to write orders that are fairly broad, then? If it's anything that relates to what's in the order, then how I draft my order becomes extremely important. It always was, of course, but it is even more so now because the discretion is going to be limited to how I've drafted that order, so I am going to draft that order in a way that gives me maximum possibilities to rely on any information that I've specified in the order.
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
MP Mantle, you may want to have the officer unpack how that works. However, what I heard him say earlier was, “I have a bank fraud, and it's related to an IP address, so I want the name and the address of that information.” Those are the only facts he has. He can't make up more facts about a child pornography ring. I mean, the facts he has are that this information is related to this banking information, so I think there are built-in safeguards.
He has to be doing an investigation. He has to have reasonable grounds, what all of the information from the victim that's come to him means. He has to try to corroborate that—how he got that information to him—and the information that he wants is contained in those facts. That's how I would understand it, but it may be of assistance to ask him to unpack it.
Conservative
Jacob Mantle Conservative York—Durham, ON
Thank you. I appreciate that because I take Mr. Housefather's...what he's done, understanding that a bit better, trying to maintain that discretion and utilizing the language here as the tool.
Maybe I can go back to you, Mr. Gilkes. My concern is this: We're trying to find, maybe “middle ground” is not the right word, but I'm just going to use that as shorthand. We're trying to find that middle ground, where it's not everything but it's not so limited, and it's just going to be limited to what facts you have. I don't want to say, “Convince me,” but help me be comfortable that this will not lead us down the path of wanting to draft these orders more broadly to capture more stuff. Help me understand the guardrails here.
Acting Officer-in-Charge, RCMP Lawful Access, Royal Canadian Mounted Police
Essentially, what we're talking about here are the existing checks and balances. They're already in place. There is a justice or a judge who's going to review whatever application, whatever affidavit that you're swearing upon. They're going to determine, if they have been convinced of the point, that this information would be useful to establishing the offence. If you have reached the threshold of the grounds that are actually required before that, they would actually sign off and allow you to execute that warrant.
Conservative
Jacob Mantle Conservative York—Durham, ON
Okay, that's fair. I don't think it entirely alleviates my concern in terms of how you draft your orders.
Your point also confirms for me that our discussion about this on Tuesday, and here, is inextricably linked because, as you just said, it's based on the threshold. Is that not right? You'll be able to draft a broader order because the threshold will be lower unless we accept the....
As currently drafted in the bill, unless we accept amendments, the threshold is “suspicion” right now. That's going to obviously lend itself to a broader interpretation, I guess, because you're suggesting that the justice or the JP will exercise some of those guardrails for us. They're going to say, “Well, it's about bank fraud,” to use Ms. Gibner's example, “but you have something here about pornography. Well, that's not relevant here.” However, how we move from “relevant” to “not relevant” is much broader on a lower threshold. Do you agree?
Acting Officer-in-Charge, RCMP Lawful Access, Royal Canadian Mounted Police
I wouldn't agree that the breadth depends on the threshold. I think that the investigation can only be recorded, or produced or sworn to what has actually been collected. The investigators' only real interest is to reproduce whatever they've discovered through observation, through collection of evidence, through witness testimony or something like that, which has been provided to them in relation to the case. I can't really see an investigator producing anything outside of what they've already collected or what they've observed to a JP or a judge.
Conservative
Jacob Mantle Conservative York—Durham, ON
Ms. Gibner, am I describing that incorrectly, then? Do you see what I'm saying? If the standard is lower, then the guardrail is further out. Does that make sense?
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice
It is complicated. I totally understand what you're saying. But what I would offer for your consideration is that the facts are the facts. The officer is constrained to the facts of the case that he has. What he can ask for is limited to the investigation. Whether he's going to get the production order, search warrant or whatever he's after, the standard of reasonable grounds to suspect or reasonable grounds to believe is how much belief he has, or how well he knows, that the offence occurred. I think they're a bit distinct.
He doesn't have to know with certainty that the crime was committed. We agree on that. For reasonable and probable grounds, he only has to have reasonable and probable grounds, so he has to be only that certain in order to obtain certain orders. We use the percentage of less than 50% in the balance of probabilities. Suspicion just means how certain he has to be about the commission of the offence. So I see that differently.
I'm not sure if that's helpful.
Conservative
Jacob Mantle Conservative York—Durham, ON
It is. I'm just not sure I agree, I guess. I think the standard is—
Liberal
Liberal
Marcus Powlowski Liberal Thunder Bay—Rainy River, ON
I don't think the House pays us enough money to have to sit and listen to all this.
Conservative
Liberal
Marcus Powlowski Liberal Thunder Bay—Rainy River, ON
Mr. Chairman, I swear that there are cardiac surgeons who do heart transplants in half the time it takes the Conservatives to get through this subamendment.
Conservative
Conservative
Tamara Kronis Conservative Nanaimo—Ladysmith, BC
In the context of one of our colleagues having had a heart attack yesterday, that comment was uncalled for. I'd ask you to withdraw it.
Liberal
Sima Acan Liberal Oakville West, ON
It was in the context of him being a doctor. It had nothing to do with that.
Conservative
Jacob Mantle Conservative York—Durham, ON
Thanks.
As I was saying, I'm not sure I agree with that.
Mr. Gilkes, correct me if I'm wrong, but when you're drafting your production order or your information to obtain, you have that standard in the back of your mind. When you put it before the justice or the JP, you know that this is what you have to satisfy. If you know that what you have to satisfy is a lower standard, you can include more.
Let me break that down, because that's more of an argument than a question. When you draft your information to obtain, are you thinking about the test you have to meet?
