Information & Ethics committee  Yes.

Information & Ethics committee  As we just discussed, part VI of the Criminal Code is the relevant section on electronic surveillance that requires a review.

Information & Ethics committee  Because policing is a provincial and territorial responsibility, there is actually a patchwork of different pieces of legislation that is relevant. That's part of an overarching problem in assuring that all police forces across the country adhere to golden, best standards when it comes to uses of surveillance technologies.

Information & Ethics committee  From what we've been told, in the way that these tools have been used, the RCMP has attempted to stay within the confines of the charter by ensuring that they get judicial authorization by using these for a small number of investigations and ensuring that it's only for crimes that are ostensibly particularly serious.

Information & Ethics committee  Part VI of the Criminal Code—and I remind the committee that I'm not a lawyer, although I work for a legal advocacy organization—is generally written to be technologically neutral and to allow for the right kinds of inquiries to be made with the right safeguards, but, because the technology has changed so fundamentally my point was simply that those who are expert in the use of this part should ideally be allowed to comment on the ways in which it should be enhanced.

Information & Ethics committee  Yes. That is my recommendation.

Information & Ethics committee  I think there are a number of ways to proceed with legal reform across a range of different laws that would provide an improved baseline of accountability and transparency. Previous witnesses yesterday talked about making privacy impact assessments mandatory, and I do support that recommendation as a baseline requirement.

Information & Ethics committee  I'm sorry. Is that for me?

Information & Ethics committee  I think it's well known that Canada's privacy regime has fallen behind. I think that there have been many statements before this committee over the last almost decade documenting the ways in which our privacy laws for both public and private sector fall short and have gaps that fail to protect—

Information & Ethics committee  Absolutely. This echos a recommendation that I made during the recent study on facial recognition technologies. It is that to counter this persistent pattern of police acquiring and using sophisticated and potentially controversial surveillance technologies without public disclosure, we should follow the lead of places like New York State and New Zealand in putting together an independent advisory panel that would include relevant stakeholders from the legal community, from government, from police and national security, from civil society and of course our regulatory bodies who are relevant, like the Privacy Commissioner.

Information & Ethics committee  Thank you for that question. I think Professor Deibert has referred to this, but I'll elaborate. We had yesterday an RCMP witness say, to paraphrase, that they don't actually think about doing a privacy impact assessment just because they're using a new technology. They consider whether the technology permits a new kind of invasion.

Information & Ethics committee  Any government agency wishing to use potentially rights-infringing surveillance technology that carries high risk to the public should absolutely have to do a mandatory privacy impact assessment, which should be made public in an appropriate form.

Information & Ethics committee  I think a number of different interacting legal instruments would be relevant in that situation. They'd have to be examined carefully to really determine what kind of loopholes there might be.

Information & Ethics committee  We have not done that research.

Information & Ethics committee  There was a case in the past called Project Clemenza, where it was revealed that a number of prosecutions were dropped rather than reveal the fact that a key to access encrypted communications had been obtained by law enforcement. That's the only example I know of, but the mention of a specific agreement, which your witnesses yesterday described as constraining the use of the tools and what could be said about them in public, does give rise to concern about appropriate disclosures in court.