Thank you so much, Mr. Chair.
As we try to come to a consensus on the amendment proposed by my Bloc colleague, I think it's really important to understand the problem the government says it's trying to solve with this clause, and to stand that solution up against the Bloc amendment. It is similar to amendments proposed by both the Conservatives and the NDP, and it relates to a concern expressed to me by Ms. May. It is really important, at the outset, to recognize that all the opposition parties have taken issue with the way the bill is drafted around this standard.
I'm going to have some questions for the witnesses and will try to get to the bottom of this in a way Canadians can understand, because privacy is so important to Canadians. I know there are some people at home who are following this issue closely.
Before I get to those questions, though, there's something I would like to say, through the chair, specifically to my colleagues on the other side of the table, because they're the ones supporting the bill the way it's currently drafted, with respect to this standard.
When I initially spoke to Bill C-22 in the chamber, the issues around the government choosing the standard of “reasonable grounds to suspect” instead of “reasonable grounds to believe” attracted a lot of attention. One of our members, who practises criminal law, practically grabbed me by the lapels as I was coming out of the chamber after my speech, to talk about it. Ms. May also pulled me aside to have a conversation about it. The specific reason it's such a big deal to lawyers and lawmakers—it's important that people watching this at home understand—is that these questions.... “Reasonable grounds to believe” and “reasonable grounds to suspect” are not just technical legal terms. They determine how much evidence and how much work the state needs to do before it can intrude into someone's privacy.
I thought Ms. Gibner did an excellent job of explaining the basics of privacy law and the kinds of tests the court uses. I'm not going to reiterate the earlier conversation the committee had with respect to using the lower standard for production orders in general. I think the committee got that vote wrong, and I would have supported the Bloc amendment. The fact that the committee has already made a decision to use that lower standard for domestic subscriber production orders does not automatically mean the same standard has to apply in the international context.
That's the context in which we're discussing the standard here.
I thought Ms. Gibner did a really nice job of describing Spencer, because that case changed the frame. We no longer look at it and say, “This is just basic subscriber information or basic customer information.” Spencer made it clear, from a judicial perspective and a charter perspective, that we're dealing with what can be highly revealing information that attracts a reasonable expectation of privacy under the Constitution. It is useful to think about the ethos of Spencer being here with us in this room, because the way it situates this debate we're having reminds us that subscriber information is not considered to be neutral under Canadian law. It is often a key that connects a person to their digital life. Once that identity is disclosed, that privacy interest is gone forever. Once you know who it is, you know who it is. It's one of those things that are hard to reverse. That's why this standard matters, and it's why the choice of standard in legislation matters.
If Parliament chooses the threshold of “reasonable grounds to suspect” instead of “reasonable grounds to believe”, it's lowering the bar for the state.
When I say “the state”, I don't mean it in the sense of the United States, for people who are watching from home. I mean it in the sense of “the state”: the entity of government that in some ways takes care of us and in some ways has the power to show up at our house and drag us out at four o'clock in the morning, because that is part of the social contract. The social contract that we make is with the state. The charter relates to the things and the role that the state plays in our lives, when we have individual autonomy and when we are part of that collective. It really matters.
I sat and listened to my colleague, Madame DeBellefeuille, talk about how the conversation we are having here is not a filibuster. It is not something where we are holding up the work that the government wants to do. It is an inherent part of the work that we do in this chamber.
I understand that tempers have gotten high over the last few days and that there is an agenda that the government would like to push through, that there are things they want to do, but we have stood in the chamber over and over again and said that the government's failure to plan a legislative agenda with enough sitting days and enough time to get the work that they want done through Parliament is not something that should become our problem. We should not be rushing through important conversations about things as basic as privacy, especially when these are ongoing conversations that are happening in the courts and that are happening in our communities.
I'm not going to reiterate what Madame DeBellefeuille said, but I think it's really important that no one in this room feels that they are being pushed hard—I'm not going to use the word “bullied”—into skipping over understanding what these really important standards do, because we're no longer talking about the standard for a regular production order. What we're talking about when we get to this amendment is the same standard as it applies to something called a “mutual legal assistance treaty”. That is something that serves a slightly different purpose than the production order.
My understanding is that a production order, as we think about it, is a tool that's used by Canadian authorities to obtain information directly from companies and enterprises over which Canada has jurisdiction. When we get into mutual legal assistance treaties—or MLATs, as we call them, because who doesn't love a four-letter acronym—what we're doing is we're asking.... I want to make sure I'm correct on this, so please, someone, correct me if I'm wrong. An MLAT actually involves asking another country to use its legal processes to obtain information on Canada's behalf from a company or an enterprise in that country.
Have I got that correct? Okay. That's good, because that's where we are in this debate. We are debating the legal standard that should be used when we are asking another country to go and get information from one of its corporate persons, I guess. In Canada, it would be a person, but it would be more of a corporate person or an enterprise. We are asking it to go into its database, into its information, and give law enforcement in Canada information that Canadian authorities can then use.
That puts us into a different realm. It puts us over borders and it engages questions around international comity, around foreign sovereignty and around cross-border co-operation, and not just with the United States or even with countries that are democratic. The IP addresses could really be from anywhere. We'll talk about that a bit, I hope, but it's cross-border co-operation that simply does not arise in a domestic co-operation order.
I think, as Ms. Gibner pointed out, that what we have in Canada when it comes to our privacy landscape is something to which there is no comparator. There isn't really a Spencer in any of the countries that we're dealing with. It's a way in which Canadian rights and Canadian privacy rights are...“unique” is a bit of an overused word, but they're certainly not common, and it requires thinking. That means that we think about these problems in a different way.
There's been some conversation around the table. However, I hope the way I've explained this helps make it clear to everybody sitting around the table why it is possible to have one standard for a domestic production order and a different standard for an international production order.
Is that a fair summary of where we are, Ms. Gibner? Do you have anything you'd like to add to that?
