Evidence of meeting #44 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 reasonable.
A video is available from Parliament.
Liberal
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
Thank you. I have many questions, but I just want to ask one question for now, based on the answer given by Mr. Wong to MP Ramsay's question. It's a follow-up of the previous question.
I get that there are numbers. You can talk about hundreds or thousands of cases in which investigations cannot be completed for many reasons. You gave the number, but I did not see the connections between the threshold for asking for information and the number of cases that could not be further investigated. There may be thousands of cases where you cannot complete the investigation, but the question is this: What percentage of those dead cases were caused because you did not have the reasonable grounds to suspect in order to get the information?
I don't see the causation here. The numbers of cases could be great, but what is the actual percentage of cases that could not be investigated further due to the obstacle that you mentioned?
Acting General Counsel, Policy Sector, Department of Justice
Thank you for the question.
Perhaps I wasn't clear when I spoke, but the recent Juristat report said 94% of cases were not cleared—and this is for child sexual exploitation cases. The two main reasons they gave were that they had insufficient evidence—either they couldn't meet the evidentiary threshold to get, probably, the next tool, or they were unable to identify the suspect. Those are the two main reasons that 94% of child sexual exploitations are not cleared.
The subscriber information production order is designed to help police lower that number, because it will provide quicker access to evidence so that they could identify the suspects and decide whether or not to pursue an investigation.
I would also like to say, in terms of the example that Sergeant Gilkes gave, that it's important when tools that the police use might generate other leads. You know you're investigating a bad guy, and that bad guy has known associates, or he's phoning other people. Some of the tools in the Criminal Code allow us to monitor the activities of these bad actors. Those numbers that are generated are the types of identifiers that need to be tied to an individual. Therefore, a lower-threshold tool with specific information allows police to get only the identifying information so that they can identify who's on the other end of that number.
The tools that are available for them today are the general production orders, and those would allow police to access any and all information when they can eventually reach that threshold. That's a longer process, but it's also much more privacy-invasive for, say, the pizza delivery guy whom the bad guy called. Instead of saying that he's the pizza delivery guy and no longer a suspect, he is now the pizza delivery guy whom the police have all the information on. These tools are not only meant to provide police with greater flexibility and agility in investigations but also meant—because they're specific production orders—to protect privacy.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
Mr. Wong, I think you have opened up another can of worms. By what you just mentioned, you're saying that one can lead to the other and to many others. This is exactly why we are being cautious. You were just telling me that this is a way to open up the gate to investigate many more people who may or may not be associated.
Acting General Counsel, Policy Sector, Department of Justice
If I may, these tools have existed in the Criminal Code for many years. This tool that I'm speaking about has existed in the Criminal Code since 1993.
Conservative
Acting General Counsel, Policy Sector, Department of Justice
These tools are available under reasonable suspicion.
Conservative
Chak Au Conservative Richmond Centre—Marpole, BC
Right.
I want to ask another question because of time.
Even if your logic is right and you can make that connection, saying that it's because of the high threshold that you cannot go on to further investigation, that doesn't mean it is a legislative problem. It could be a procedural problem where you cannot get the order, warrant or whatever you need to have to further investigate. It could be a lack of resources. It could be the work hours, or the judge may be on leave, on vacation. It could be many other reasons that you cannot get that kind of permission or authorization in time. That doesn't mean it's a problem in the law itself. It could be a problem in the administration. It could be a problem with procedure or a problem with resources.
Why do you need to change the law and not review your procedures so that you can get the information through the legal means faster, in a timely manner, instead of making this big hole and opening up many cans of worms?
Acting General Counsel, Policy Sector, Department of Justice
Thank you again for the question.
All of the procedures are actually statutory. They're in the Criminal Code. It's been since 2014—my colleague has mentioned this, and I think I have, too—when the Supreme Court decided in Spencer that there was a gap in the law and that the police's common law power was insufficient to get this information. Absent a reasonable law, police have had to avail themselves of the general production orders. This gap has existed in the law for the last 12 years.
I'll just stop there.
Conservative
Liberal
The Chair Liberal Jean-Yves Duclos
There is a recorded division being asked for. I also forgot to mention that CPC-4 and NDP-4 are identical to that amendment, so the vote on that amendment will therefore lead us to skip CPC-4 and NDP-4 due to their being identical.
Mr. Clerk, I would ask you to proceed with a recorded vote.
(Amendment negatived: nays 6; yeas 5 [See Minutes of Proceedings]
Liberal
The Chair Liberal Jean-Yves Duclos
Amendments NDP‑4 and CPC‑4 are identical to the amendment we just dealt with, which takes us to NDP‑6.
Mrs. DeBellefeuille, do you want to present BQ‑6?
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
Yes, Mr. Chair.
I move that Bill C‑22, in clause 6, be amended by adding after line 3 on page 8 the following:
(5) An order must not be made if executing it would disclose medical information or information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries.
This recommendation comes from the Privacy Commissioner. It therefore seems to me that it makes sense for health information to be protected by solicitor-client privilege or notarial privilege. That said, I hope to have the support of my colleagues.
Liberal
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
Thank you very much, Mr. Chair.
Thank you to Madame DeBellefeuille for introducing this. I want to ask the officials a couple of questions.
Do any protections like this exist elsewhere, to your knowledge, in other statutes under other circumstances?
Acting General Counsel, Policy Sector, Department of Justice
Thank you for the question.
There is a general provision that applies to all production orders in the Criminal Code that allows the person served with the production order to object on the grounds that information is privileged. As far as lawyers are concerned, this is already covered. That's found at section 487.0193 of the Criminal Code, so this already exists.
In relation to the clinics, we've heard testimony before, and there are ways for a production order to be used against medical clinics or other things because of insurance fraud and such. Again, this is a judicially authorized production order, so the judge has the final say on whether or not the information sought is appropriate.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
Mr. Wong, I think you were speaking specifically, if I'm not mistaken, about the solicitor-client angle at first. You said a lawyer could object to an order, but they would not have a guarantee of being successful in that.
Is it a correct interpretation of your comments that the onus is on them to prove why that privilege needs to be invoked?
Acting General Counsel, Policy Sector, Department of Justice
Yes, but there are certain rules against getting production orders against lawyers' offices and certain procedures that have to be followed. This is with respect to people who usually receive these production orders, and they have the ability to object on that basis as well.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
From what you're saying, this is not redundant. This is actually shifting the situation quite significantly, it would seem, because now there is a statutory exclusion under this amendment. It isn't just replicating what's already in law, is it?
Acting General Counsel, Policy Sector, Department of Justice
In terms of what its objective is, it may be redundant. In relation to its scope, as I mentioned, there may be many reasons that police might need to serve a production order on a health clinic. It wouldn't be redundant in that way, but in relation to the solicitor-client information, it may be redundant.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I hope you understand that I'm asking this question seriously: Is medical information defined, or is that term in and of itself subjective, in your view, in terms of what would constitute medical information if this amendment were adopted?
Acting General Counsel, Policy Sector, Department of Justice
Medical information is not defined, to my knowledge, in the Criminal Code. Generally, the courts use ordinary dictionary meanings of things. It could be broad or it could be narrow, depending on the court that is interpreting it.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I mean, if we want to look to not too distantly in the past, there was a period in which vaccination status was actually highly germane to some regulations and restrictions on where you could go. I know that one of the concerns raised in relation to the broader issues of Bill C-22, specifically looking at metadata, is that location data would be retained. If we are talking about the type of information that could be made available, I know that a lot of people would be very mindful of whether vaccination status or other medical decisions and choices and things like that were subject to it.
As worded, would this protect someone's information related to vaccination status from being disclosed as part of a production?