Public Safety Committee on June 16th, 2026

[Voices]

Oh, oh!

[Tamara Kronis, Conservative, Nanaimo—Ladysmith, BC]

It's to get us all on the same page on what we're talking about here, what the difference is between the existing standard and the new tool that's being created, and why it matters in the context of privacy law. I hope this conversation will allow us to really be able to make a good decision about which standard we should choose—the standard that already exists or the lower standard that the government would like to use in this bill. It's up to them to justify why using a lower standard is necessary. While the witnesses have been wonderful in explaining how they would use this and what it is, I haven't actually heard the case for why it's necessary.

I'll stop there, Mr. Chair. Thank you very much.

[The Chair, Liberal, Jean-Yves Duclos]

Thank you, Madam Kronis. You have raised the excitement bar quite high.

[Voices]

Oh, oh!

[The Chair, Liberal, Jean-Yves Duclos]

Now we will turn to MP Caputo, who will certainly meet that standard.

[Voices]

Oh, oh!

[Frank Caputo, Conservative, Kamloops—Thompson—Nicola, BC]

The MPs are smiling, but I do want to take a moment to thank the officials. I know it can be difficult. We have moments of levity among members, probably because it is now June, and this is the silly season, when it can be very difficult. A lot of people are working 15-hour days, yourselves included. We do thank you for putting on a brave face. I know you're not allowed to show the levity that sometimes we are. We really do appreciate you for being here.

I'm not going to take a super long time here—famous last words—because I am going to ask for a washroom break when I'm done—full disclosure. This is something that was actually brought up by professors Geist and Diab. I'm not sure in your preparation.... I know that you all do robust preparation. Professors Geist and Diab appeared on the same panel. Can I ask, did anybody review their testimony on the panel? They both talked about the grounds to suspect versus the grounds to believe. Is this triggering for anybody? One of the things that both of them said, as I recall—I'm pretty sure it was Professor Diab who definitely said it—was that a lower threshold of reasonable grounds to suspect generally would invite scrutiny under section 8. There's always scrutiny under section 8. What I mean by scrutiny under section 8 is perhaps a declaration of unconstitutionality.

We can sit here all day and all night, but if a law is declared unconstitutional at the end of the day as having breached section 8 and not having been saved by section 1, all this time we spend is in vain, really. One piece of litigation works its way up to the Supreme Court of Canada, which invariably these types of cases do, and then there's an issue there. I want to ask about this. I would like to ask about the officials' point of view. My recollection is that the professor said that a lower threshold of reasonable grounds to suspect would breach section 8 of the charter.

The government doesn't believe so. I've looked at the charter statement, and I don't think that the charter statement really tells you a lot. It says this right is engaged, but we're kind of doing this. It doesn't say, a reasonable ground to suspect will not invite the court to strike this down, because this case and this case established this, and based on that we come to this conclusion. That's what I'm looking for from a legal statement. I think we would all want that from a legal statement. I would like for somebody to address this question. The professor said the reasonable grounds to suspect threshold offends section 8. What do you all say to that?

[Kimberly Gibner]

I'll start that question. I think you're asking everybody, so I'll start the conversation and let others chime in. Obviously you know that we're here to assist the committee and answer questions. We are dedicated public servants who work on these issues day in and day out. Some of us have been accused of being advocates for the bill, because I think we are passionate about serving you.

[Frank Caputo, Conservative, Kamloops—Thompson—Nicola, BC]

I'm so passionate about the law too.

[Kimberly Gibner]

We definitely do not think that it offends section 8. It's going to be up to this committee to make that decision about the standard. We're here to make sure that you have the information you need. We've tried really hard to set out the thinking. That's what we're here to do, to make sure that you have the answers to your questions.

Without repeating myself I always want to start with first principles, which is, what is the purpose of section 8? It is the balance of the state interest of law enforcement and privacy interests. Spencer was about whether we were even in the realm of section 8, whether there was a privacy interest at all. The court confirmed that we are, and that the world of policing had changed. For this type of information, they needed lawful authority. When we're drafting a bill for your consideration, we are looking at the state of the law. There are all sorts of reasonable grounds to suspect. Somebody pointed out to me earlier today one of the provisions you probably dealt with more in your career than I did, which is the reasonable grounds to suspect for a roadside breathalyzer.

[Frank Caputo, Conservative, Kamloops—Thompson—Nicola, BC]

Oh, my goodness, yes—far too often.

[Kimberly Gibner]

It's reasonable grounds to suspect. There are all sorts of provisions in the code. There are all sorts of law enforcement tools, like the use of sniffer dogs—that is reasonable grounds to suspect. The courts are consistent that “reasonable grounds to suspect” is a criminal standard that has been around forever. It is lawful authority, and it is in those situations that the search is.... In comparison to your general production order or your search warrant to your home, which requires “reasonable probable grounds”, “reasonable grounds to suspect” is for more narrow, targeted searches.

You'll remember that “reasonable grounds to suspect” is also built into the tool itself. This means that, in reasonable probable grounds, there will be evidence of a commission of offence, so you are looking at building a case with an evidentiary perspective; however, in reasonable grounds to suspect, it is at the beginning of an investigation in which, in this case, for these tools, it's about obtaining information, not evidence at all. Again, they are tailored, narrow, small, judicially authorized safeguards of judicial review.

The “reasonable grounds to suspect” standard was chosen, and we do not think that it violates the charter, or we wouldn't have put it forward.

[Frank Caputo, Conservative, Kamloops—Thompson—Nicola, BC]

I'm just going to think about this, because you used the breathalyzer example—and I appreciate your bringing that example. The law did change in British Columbia a number of years ago, which basically meant that we didn't really prosecute a lot of impaired driving charges. However, I do recall there were reasonable grounds to suspect that a person had alcohol in their body.

Now, as I recall—and I can't remember whether it was an arbitrary detention issue or not—it did have to go through a section 1 analysis. I can't recall whether it was section 8, the search, in terms of providing a breath sample, or section 9, the roadside detention.

I always really appreciate, Ms. Gibner, how you engage with the law in discussing this. I think you articulated that quite well. I don't think anybody at the table there would say something along the lines of, “Look, we really want to put law forward that's unconstitutional.” Now, we still have to scrutinize that. Of course you're not going to put forward unconstitutional law. I don't think you would have your jobs.

With that being said, I think Bill C-2 had blatantly unconstitutional provisions in it. I'm not going to bust out parts 15 and 16 in it. With the greatest of respect to officials, I think that the legislative drafters were told what to put in, and that there was probably language in Bill C-2 that caused nine out of 10 constitutional lawyers to say, “Yeah, this probably offends the charter.”

The mere fact that something has been drafted, I don't think, is persuasive enough. I take it on its face: “Look, we're not going to put something in that we know is unconstitutional.” What we worry about is the grey area.

I guess what I'm asking you.... Tell me if this is an unfair question. I asked professors Diab and Geist about this, as I recall. They articulated their rationale as to why this offended section 8. I don't recall exactly how they connected the dots, but I guess what I'm looking for is this: Quite simply, do you disagree? Where do you depart from their analysis? Do you recall their analysis? This was a couple of months ago now, so help me out there, please. If you can't recall, I'm not going to be offended or anything....

[Kimberly Gibner]

I'm going to let my colleague answer that. I don't recall what their arguments were, so I can't respond. However, I think my colleague can.

[Normand Wong]

Thank you. I'll try. I don't want to comment directly on the testimony or the evidence that they produced. They're lawyers, we're lawyers: We have opinions.

Our reading of the Spencer decision, as Ms. Gibner has said, leaves space to develop lawful authority by other means. We've talked previously about administrative schemes they could have stood up as lawful authority to access subscriber information. This government decided to go for a more robust judicial oversight. The court didn't stipulate that it must be judicial oversight, but that is what the government decided to put in the bill.

The “reasonable suspicion” standard was chosen because of the type of information it is. As we've explained before, the “reasonable grounds to believe” standard is usually reserved for gross invasions of privacy, like the police coming into your house or looking at the contents of your banking records or everything else.

When you're constructing these tools, you have to put them on a privacy spectrum. This information, in the vast majority of circumstances, will identify only the person involved in criminal activity, or exculpate them, as Sergeant Gilkes said, when we find out that the person is just the pizza delivery boy. This is the reason that this was chosen.

In terms of working on the policy for these things, challenges to their constitutionality are commonplace. It happens all the time. As Ms. Gibner said, it isn't our business to introduce or put together policy that would be unconstitutional on its face. There's a requirement, actually, in the Department of Justice Act, for the Minister of Justice to inform Parliament if that's what he's going to do.

[Frank Caputo, Conservative, Kamloops—Thompson—Nicola, BC]

You raised an interesting point.

You have both been very articulate in how you have addressed this.

Here is one of my questions and, potentially, a concern. You talked about spectrums of privacy. Obviously, one's body probably attracts the greatest privacy interest. However, with these things here, there's a lot of privacy, because they have all of your details. They're essentially walking biographies of who we are, which, in some cases, people might not want other people to know about. It's things like that. They contain substantial information, so they do attract a high degree of privacy. Even the modules in your car.... There's a B.C. Court of Appeal case about the module that records information for the last three seconds before an accident. These are the types of things for which there is still an expectation of privacy.

On the spectrum of the expectation of privacy that you've just outlined, Mr. Wong, is there agreement, either academic or jurisprudential, on where these issues here, which are covered in this clause and this amendment, stand?

[Normand Wong]

One aspect of this clause is the request for transmission data. This production order has existed at the “reasonable suspicion” standard since 2014-15. Its complementary transmission data recorder warrant has existed since 1993, all at the reasonable suspicion standard, so it certainly has existed.

As we know, there's no specific tool for subscriber information, but the type of information available in the subscriber information production order is largely already available under the financial information production order.

[Frank Caputo, Conservative, Kamloops—Thompson—Nicola, BC]

I'm just wondering, Mr. Chair, if could we have a washroom break, please.

[John-Paul Danko, Liberal, Hamilton West—Ancaster—Dundas, ON]

I move to adjourn.

[Frank Caputo, Conservative, Kamloops—Thompson—Nicola, BC]

That's dilatory.

[The Chair, Liberal, Jean-Yves Duclos]

I don't think we want to have that, given that we have had three series of 50-minute breaks up until now.

I'm being tough, but I think—

[Andrew Lawton, Conservative, Elgin—St. Thomas—London South, ON]

Mr. Danko moved to adjourn.

[Frank Caputo, Conservative, Kamloops—Thompson—Nicola, BC]

You are much more robust than I in your fortitude, I suppose.

[The Chair, Liberal, Jean-Yves Duclos]

That is not true.

[Frank Caputo, Conservative, Kamloops—Thompson—Nicola, BC]

Did we have a motion to adjourn? Do we, really?