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
The Chair Liberal Jean-Yves Duclos
You'll have to do that; otherwise, we will not be able to proceed at any speed. For that to happen, it will also need to be translated and checked by the clerk. There are lots of steps in the process.
I'll have to suspend for the time it takes to consider the subamendment.
Liberal
The Chair Liberal Jean-Yves Duclos
I call the meeting back to order. Thank you for returning.
Before the meeting was suspended, we received a subamendment to amendment NDP‑6. This subamendment was moved by Mr. Mantle, the member for York—Durham. The English and French versions of this subamendment have been emailed to you. You should have received them a few moments ago, at 11:18 p.m.
Mr. Mantle, would you like to continue?
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I have a point of order.
I have not received the subamendment.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I'm subbed in for Mr. Lloyd, so I hope I can receive it.
Liberal
The Chair Liberal Jean-Yves Duclos
Yes, you will be sent that.
Is there anyone else who did not receive the subamendment? No, everyone else has it.
You'll receive that in a couple of seconds, MP Lawton.
MP Mantle.
Conservative
Jacob Mantle Conservative York—Durham, ON
Thank you, Mr. Chair.
The purpose of this subamendment to NDP-6....
I think Ms. Kwan has joined us, so I'm eager to hear her thoughts as well. Ultimately, it's her amendment, although it's similar to CPC-6.
What I have heard in the last meeting or so of testimony is that there is a problem with the police being able to get the information through the production order, at least as it's conceived currently, in a time that they would feel is reasonable.
Now, taking their view, I'm sympathetic to that, because there seems to be a bit of an iterative process that takes place. Partly, it seems to be just the nature of the investigation, but partly, it can be.... What frustrates me a bit is what seems to be a reluctance on the part of the recipient of a production order to prioritize that.
I have seen that in my own legal career. Companies often have limited resources, just like government or anyone else, so they may not perceive responding to regulators or, in this case, law enforcement to be at the top of their priority lists. However, in my view, it should be taken seriously when a production order is issued to an entity, whether it's a business or another type of legal person.
What I'm trying to achieve here is to take the spirit of Ms. Kwan's amendment, which is to set a baseline of 30 days to respond. That provides at least some target, both for the police to understand when they might receive information and for the recipient of the order to produce that information in response to the order.
Now, I accept that 30 days—from what I've heard from Mr. Wong—is a bit of a codification of what is already practised. The 30 days itself, in my view, is not arbitrary. It's a codification of existing practice, so that's a good starting point. However, I'm sympathetic to the idea that, in some circumstances, that's actually too long, especially in a case where the production order is more narrow, based on the investigation itself.
What I want to try to do with the subamendment is keep the spirit of the 30 days but then also keep what Mr. Wong said is important, which is the discretion of the judge to tailor that requirement to the situation. Thirty days would be the upper limit of the starting point. Then, if the circumstances were to demand it, the judge or the justice could decide on a shorter period. That seems to satisfy, at least in my view, both issues.
That is my intent in bringing this forward. I'll pause there and hear from, perhaps, Ms. Kwan—it was her amendment—and my other colleagues. Then maybe I'll have some other thoughts after hearing them.
Thank you.
Liberal
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I can't thank my colleague, Mr. Mantle, enough for this. This is a phenomenal subamendment. My colleagues agree. I see them smiling and lighting up at this late hour.
I think his subamendment actually speaks to the collaborative spirit that we've been striving for with this bill. We have a Conservative subamendment to an NDP amendment to try to improve a flawed Liberal bill. This is working across party lines to try to strike this balance that we've been talking about. I think it's very important. It also stresses our efforts from the get-go—not just in Bill C-22, Mr. Chair, but also in other laws, bills and acts.
I have the great pleasure of serving on the justice committee. One of the things that have been front and centre in a lot of the work our party did in the last campaign and that I've been tackling on the justice committee is trying to give law enforcement the tools they need to go after the “bad guys”, to use the colloquialism we've heard in this committee. It's to have the tools and resources they need to do so and to ensure that they have laws that are going to keep these people behind bars and not, as has been the norm after 10 years of Liberal reforms to criminal law, let them back out on the streets.
We agree wholeheartedly that there needs to be a modernization of our laws, which is why part 1 has been so uncontentious and why we were hoping that we would get support from the Liberals to work through these amendments and give police the tools that have been most often cited.
When Bill C-22 was first tabled, I canvassed the law enforcement in my riding, other stakeholders and people in the community. The number one issue they talked about was wanting to have a clearer path, a more streamlined process and, more importantly, a quicker response on getting production orders. We know that confirmation of subscription information was a key part of that, because oftentimes law enforcement had to have this two-part process. They'd have to spend time tracking down where an individual had an account before they knew what to fill out on the request for a production order. This was a very real issue and one that I think all of us would want to find an answer to.
Why that's relevant right now in Ms. Kwan's amendment and now Mr. Mantle's subamendment is that we want to make sure we are not creating a floor with the 30-day requirement. I think what Ms. Kwan has tried to do is actually very important here. I've oftentimes heard this legal precept quoted. I think Bruce Pardy at Queen's University often cites this. It is that a right without a remedy is not a right at all.
If we have this expectation that telcos and service providers have to turn over information, but we don't prescribe a window, we really haven't mandated what we're trying to mandate. I'll note that the Liberals, through Bill C-22, are also trying to force companies to conform their systems and their processes to the law. We don't want companies to create a process that basically turns back this information in 29 days where information could be and needs to be returned more quickly but can't be.
I think the 30-day limit is an important one. I also want to make sure we're not creating a floor there and we're actually acknowledging that there are exigent circumstances. There are situations in which members of law enforcement will need to move on things very quickly, but—and this is the crucial point—we still have to have judicial authorization for that. We still need to have a judge acknowledging the urgency of this. Look, we know there are times when our brave women and men in uniform are there in minutes when minutes count. This is something we need to be very mindful of.
I come from southwestern Ontario. Other colleagues may remember that about 11 or 12 years ago, there was a thwarted terrorist attack in Strathroy, Ontario. I was working in radio at the time. Strathroy is not the town you think of when you think of a terrorist attack, but someone had loaded up a homemade bomb in a backpack and called a taxi. There have been conflicting reports about where he was headed and how. We learned after the fact from reports that this was literally like a Hollywood script in terms of the timing of law enforcement intervening. They actually had to get information from the FBI because of gaps in the Canadian intelligence and investigative system.
I'm not denying that these things are real. While it is important that we work with other countries, that we get that intelligence, we also don't want to have to rely on other countries to do the intelligence and investigative work. We do have these situations where seconds and minutes count, and we need to be responsive to those. We know there are situations that are horrifying—children are being abused—and we need to be able to move quickly on this. This is so key: Having a framework built in directly to the law in this particular section that acknowledges the importance of exigency and the legitimacy of that, and the necessity of being able to respond quickly, I think, is very important here.
When we look at some of the case law that exists surrounding exigency, we know there has been a bit. I believe the Campbell decision, which, if I'm not mistaken, comes from 2024, was cited by at least one of our witnesses earlier. That's a very important one. When you look at how that decision was found...and actually I'll even share some of the facts of that case here, which are quite interesting, and speak to how law enforcement officials often have to make decisions very quickly. A big part of their job is to use that critical judgment.
In Campbell, it was actually just down the road from me in the other direction, in Guelph, Ontario, where police were conducting surveillance on a drug dealer nicknamed Gammie, I believe. They had information from an informant. They obviously had enough that they wanted to investigate this. They arrested the suspect after observing what they suspected was drug trafficking activity.
During the arrest, he threw two cellphones onto the passenger seat, which were seized as part of the arrest. It was a bit interesting reading the facts of this case, where law enforcement actually started to communicate with someone who thought they were communicating with the drug dealer. This went on for two hours. They knew that serious quantities of very dangerous drugs were in play, like heroin that was believed to contain fentanyl, which I think all of us have seen as just a scourge on our country. It's affected many of the communities we represent and some more than others. Police were going back and forth on this, and then what ended up happening was that they arranged for the person they were texting to deliver the drugs—this was Campbell—and they were able to make the arrest because the person they were communicating with arrived at the arranged meeting location, carrying the drugs, and was arrested.
This makes its way through the courts and goes all the way up to the Supreme Court. What the majority found was that, in the circumstances.... Again, this involved a phone. In this case, it was a physical phone. It wasn't an intercept, such as we're looking at with Bill C-22. The majority held that the officers had a narrow and rapidly closing opportunity to prevent what could have been a very dangerous transaction, and there was an immediate risk to public safety. Ultimately, the majority found that obtaining judicial authorization first, having to go through that process, might have actually caused police to lose the opportunity to stop the sale and make the arrest.
I don't want to pretend that this was a unanimous decision. There was a dissent, and that dissent found that you could actually get a warrant in two hours. I think some members of law enforcement would probably chuckle at that, because they've encountered bureaucracy. They've seen the overburdening of our justice system, which is largely a response to failures in Liberal policy that are outside the scope of the subamendment but, I think, still warrant very deliberate and diligent scrutiny. The dissent also found that there wasn't an identified member of the public who was in imminent danger, so there was the possibility that drugs would enter the community, but it was general enough that it couldn't be, in the dissent's view, exigent circumstances.
All of that is to say that there is dispute, even among our most senior judges, and this is a very recent case. This is from 2024. Ultimately, it was exactly what we're trying to deal with now, which is acknowledging that law enforcement have to make very significant snap judgments. Yes, it is hugely important that we have judicial scrutiny after the fact on these things. I do like that Mr. Mantle is trying to say, hang on, we have to look at judicial oversight on this. To read the subamendment precisely, it's that...originally Ms. Kwan had said:
named in the order within 30 days after the service of the order
What Mr. Mantle has added here is, “or within such shorter period as is specified in the order where the justice or judge is satisfied that the circumstances make a shorter period necessary”.
This is a very important point as well. Necessity is different from convenience. We're not talking about officers going through a routine motion on a long investigation and suggesting that, because they'd like to have the information turned back more quickly, they can short-circuit the process and expedite it. No. This is about necessity. I know that there have been other court decisions, not dealing with electronic communications but dealing in general with this idea of necessity, in which we've determined that convenience and what might make your life easier as an investigator is not sufficient to rise to that level of being a tremendous obligation that should force us to expedite these things.
All of that is why I am generally quite supportive. I'm supportive of Ms. Kwan's amendment, but I think Mr. Mantle has elevated it to a point where we were able to provide a valuable improvement on what the Liberals are doing in the bill and in clause 9 in particular. I think it's important to note, contrary to the rhetoric we've been hearing from the public safety minister, that we are trying to be very responsive and, I'd say, proactive. This is a great example of being proactive on the needs of law enforcement and recognizing the urgency that exists in some of the situations that they find themselves in.
I'll turn to the officials on this. We know that, in clause 14, there is an exigency component to this. We know this already exists at some point in the law. How broad is that? Is it valuable, even looking beyond this particular subamendment, to ensure that we have those protections spelled out and to ensure, any time there's a statutory time frame baked in—even if it is, to the earlier point, trying to codify something that exists in common law—that we don't just view that time frame as being a floor, that we always try to strive above it and move more quickly if we can?
Acting General Counsel, Policy Sector, Department of Justice
I think I mentioned before that the provision in clause 14, the exigent circumstances provision, can be used only during the period in which the exigent circumstances exist. It's in relation to a subscriber information production order, although this provision is being amended for that type of information. The traditional process would be to go before a judge to make sure there's judicial scrutiny. The judge would have the discretion to issue the production order or not.
I'm not sure I've answered your question.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I'll be a bit more pointed with it. In the specific circumstances that we had prior to.... Let's take Ms. Kwan's amendment out of the picture.
Are you confident that, in exigent circumstances or where exigent circumstances exist, we would be able to expedite the mechanisms in this clause without specifying it? If so, where would you draw that authority from in the legislation, or in the common law if it's not in the legislation?
Acting General Counsel, Policy Sector, Department of Justice
The bill makes clear that police can act in exigent circumstances under 487.11, and that's in clause 14. Their ability to act immediately would exist with the provisions of the bill.
I appreciate the subamendment in terms of the flexibility. There is some concern with the upper level, because there is a risk, if 30 days is insufficient time, that the service provider will object, and the process in the bill or in the law currently is that it stops the clock and no production needs to be done until the order is judicially reviewed.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I hope that the committee will indulge, because this gets to the amendment, but I think your perspective on the amendment is relevant to how we view the subamendment here.
You're of the view that, if we specify a 30-day limit or a 30-day deadline, for lack of a better term, and some service provider, for whatever reason, takes 31 days, your concern is that they may say, “We've already failed to meet this deadline; therefore, there's no point in following through.” Is that the concern?
Acting General Counsel, Policy Sector, Department of Justice
No. There is a penalty for not complying with a production order, but if they find that the scope of the production is unreasonable for the time period, they have the ability to object: They won't be able to comply with it.
I think we've talked about this before. There is a bit of a back-and-forth dialogue. The flexibility that's currently built into the law for the judge to set the time is based on that flexibility. For instance, if the RCMP needed information from Rogers, they would talk to Rogers before they had the production order issued. They would come up with a time within which Rogers could provide that information. Depending on whether it's a simple production for subscriber information related to phone numbers, they might be able to do that in two or three days, and that's what they'd ask the judge for.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
If I'm mixing up the numbers in the two processes, please correct me, Mr. Wong. In those 30 days, there's already baked in a period to challenge these. It's 10 days, I think, or is that a different section?
Acting General Counsel, Policy Sector, Department of Justice
I believe you're right. It's in the amendments to clause 10. It is 10 business days. In those 10 business days they have to inform the peace officer that they will be objecting to the order and make an application to the court within that time. That is irrespective of the delay or the time set by the judge for the production of the information.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I realize that it's not your job to make amendments and to do our work for us, but just from what you've said, is there a way to add a time limit that the committee agrees to whereby, even if we don't prescribe it at 30 days, we could provide that mechanism whereby, in circumstances when it will take longer or a service provider thinks it will take longer, they have a way to work through that? My understanding is that they already have that, but if we're trying to codify for clarity, I'm certainly open to other subamendments that might be necessary.
Acting General Counsel, Policy Sector, Department of Justice
I think any time there's a set period in legislation, it takes discretion away from the judge. My colleagues from the RCMP were talking about tower dumps. That could be a great deal of information. It could be that they need 10 cell sites, the tower dumps for all those, for a range of phone numbers. It could be arduous work to compile all that information. Perhaps 60 days would be reasonable, in that case, for production.
If the ceiling were set at 30 days, that would remove the discretion of the judge. The service provider, by default, might object to the production order as being unreasonable. That would stop the clock and frustrate the peace officers from being able to get their data. That lack of flexibility creates a risk.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I apologize that I will have to continue with you, Mr. Wong, but you did mention—
Liberal
Marcus Powlowski Liberal Thunder Bay—Rainy River, ON
Mr. Chair, I have a point of order.
I know that we've been a highly efficient machine today—
Liberal
Marcus Powlowski Liberal Thunder Bay—Rainy River, ON
—moving through these motions. In the interest of maintaining that efficiency, do we have a hard stop at 12 o'clock? If so, Mr. Lawton may want to hurry up with this line of questioning, so that we can actually vote on this.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
If Mr. Powlowski is willing, I'm happy to stay late.