PUBLIC SAFETY #42: Bill C-22 NDP-2 Amendment

No. One is “reasonable suspicion” and one is “reasonable grounds to believe”.

The arrest without a warrant is a big power of the state to apprehend someone. What we're talking about here in clause 5 is the confirmation of service demand.

We've provided information to committee members before to the effect that, in every other country, they don't need this tool because service providers say “yes” or “no”, whether or not they have information. The issue in Canada is that we have service providers who require a court order any time they talk to the state.

The information is also “yes” or “no”, and this was changed from Bill C-2 to Bill C-22after consultation. The impact on privacy and a person's rights is far less. In fact, it impacts a service provider just to confirm whether or not they provide service to a telephone number or an IP address. The standards are different.

Chair, may I intervene? I think we're talking about clause 5—are we not? That's on the confirmation of service demand.

Thank you.

I'm sorry. I'm not sure we know who you are directing the question to.

I'll start, and then I may ask my colleague if there's an operational example that may reinforce what I'm going to say.

With the way the legislation is proposed now, “reasonable grounds to suspect” is for a constellation of facts that you have possession of, and it's at the very beginning of an investigation. You're still trying to link a criminal to a crime where there's a victim. The confirmation of service demand is simply about having enough facts, which you need to document and are disclosable in court, to say, “Do you service this person, yes or no?”

You get your answer, and then you build on that. There has to be investigative work done to support what you've already found out, in addition to any other investigative avenues you have, in order to get subscriber information to try to link somebody to the crime that you're investigating.

Yes, but reasonable grounds to suspect for the production order as the next step is.... In what you were asking, I think your point was about what the difference in time is. There are no new powers, per se. This relates to Madame DeBellefeuille's question as well. As proposed right now, the production order for subscriber information has a much narrower scope that you're looking to get at the beginning of an investigation, as opposed to going through the process of getting reasonable grounds to believe for a general production order, which gives a lot more information but also takes a lot more time. The purpose of these orders and the reasonable grounds to suspect is the timeliness and access to the information at the beginning of an investigation.

I hope that helps. If there's an operational example that could assist, maybe my colleague can help. I hope that answers your question.

I'm not sure what the question is. You're talking about the confirmation of service demand and about reasonable grounds to suspect to ask that yes-or-no question.

That's my understanding of the legislation as proposed, yes.

I suppose the way we would walk through a general production order is that we would have to meet certain obligations before we could actually present it to a justice, who would decide it. One of the main obligations we have to establish is that the evidence likely exists, but it's in the possession of the person or entity to whom we're addressing the order to produce. Essentially, at the outset we're trying to establish who might be in possession of the information. We essentially ask questions to whoever might be a provider in the hope that they will respond in the affirmative that they were providing services at a certain date and at a certain time. If that fails, that can end at least that point of an investigation.

To start off an investigation, it could hamper or completely stop the progress if we were unable to confirm right away that an entity held the evidence we were looking for.

I'm sorry. I thought you were asking me about our current process.

I'm referring to our current process. In our current process, we have to establish that the evidence is likely in the possession of the person we're addressing it to. We typically start off by asking questions, which is why the confirmation of service is more of a codification of our existing practices, but as my colleagues mentioned before, not all service providers respond to this.

Depending on the investigation, that can start off our investigation. Where we run into some issues is in establishing who might be in possession of that information. It might be a chain of providers that has it.

What can hamper an investigation as well would be, for example, when you have a reseller of IP services, and this larger provider sells its services to another provider, which resells its services to a web host, for example. According to the information you have, it belongs to the larger provider, but if you write a production order to the larger provider, by the time you receive a response, they might say that in this case, it is actually the smaller provider that has the information you're looking for, which would lead to another production order and so on.

That's correct. They wouldn't be in possession of the actual subscriber information, but they would be in control of the IP range.

I'm sorry.

Once we have established who is in possession of the subscriber information, we write out our information to obtain a production order, which would lay out the grounds that allowed us to believe that an offence has been committed. This information provides evidence of that particular offence.

The grounds to believe would be based on our perceptions also. For example, if you receive information like Internet logs, you might not look at them the same way I would based on our previous experience and what we know about Internet logs. Then we have to show how we attempted to corroborate the information we received, and we spell it out in a way that would make potentially anyone—or in this case a justice or judge, based on their criteria—also believe that an offence was committed and that this information will provide evidence of the offence.

If I were to give an example, it would be that Bob says he's receiving calls in the middle of the night. They're harassing calls. They are from Alice. He is able to show me a phone number that he received the calls from. Now, I have no confirmation quite yet that a crime has been committed because I haven't heard the calls that have gone through, but I do have a phone number, so I suspect that an offence may have been committed.

I can reach out to a service provider and ask if they provide services to this particular phone number. If they respond yes, then I can move on, in this case, to a subscriber information production order because I'm still not quite sure that an offence has been committed, or it's not probable. It's possible, but it's not probable yet. If I receive a response that confirms that this account belongs to Alice, I start to increase my grounds, because Bob says that Alice was the one who did it, and this account happens to come back to Alice. I'd have to do some additional corroboration, but we're on our way to building grounds to believe. It's a step-by-step process.

It would facilitate our process greatly.

In terms of the confirmation of service, we can ask the providers if they provide services. For example, as I mentioned before with resellers, I can confirm who provides services right away through a confirmation of service demand, which can be sent out to the service provider that would possibly have this information. If they confirm that, I can move on to the next step at a threshold of “reasonable grounds to suspect”, and I can immediately write a subscriber information production order. From receiving a response that much faster, I can move on with my investigation.

It's not only that it's going to confirm what I think; it could be exculpatory in eliminating the possibility that this was the individual who committed the offence. I can either end the investigation more quickly or move on and carry on my investigation more quickly.

 

Jacob Mantle York—Durham, ON
Conservative

That makes sense.

Is the CSIS process the same or different? Is there anything you want to add on that?

 

 

Jacob Mantle York—Durham, ON
Conservative

Does anyone from Public Safety want to add anything?

This again raises the standards issue. The example you've provided on the phone number and going from there—I'm only speaking for myself at this point—seems to make some sense.

The problem I see, especially with proposed paragraph 487.011(c) under the definition of “subscriber information”, is that it's contemplating a whole lot more stuff, including information that would go to the biographical core that the Supreme Court noted.

That's why I thought that clarifying the definition was important. We didn't do that, fine, but now we're on the standard. I want to get the standard correct, because if we're going to touch things more expansively than just looking at whose telephone number it is for the first confirmation of service—“Do you provide service to this telephone number?”—and then for the production order, both of which will have the same suspicion standard....

Do I have that right, Ms. Gibner?

 

 

Jacob Mantle York—Durham, ON
Conservative

In that case, I am a lot more concerned about having the higher threshold of grounds to believe.

Maybe this next question is more of a policy question for Public Safety.

Thank you, Mr. Gilkes, for outlining your process. That's helpful, because I wanted to compare, for my benefit, the current process versus how you see the proposed process.

Maybe I could put the question plainly to Public Safety. Why did you choose to select a lower standard? Was that a conscious choice? It's in black and white. I assume it was a choice.

 

 

Jacob Mantle York—Durham, ON
Conservative

This is, again, different from previous proposals for lawful access in the past, including in Bill C-13. That did not have the suspicion standard. It had the “grounds to believe” standard.

Am I incorrect there? Okay. I apologize.

 

 

Jacob Mantle York—Durham, ON
Conservative

Okay.

This raises another point I wanted to make in response to something Mr. Wong said. He made reference to the issue that in Canada, we don't have the same process other countries do. In fairness, I think you omitted mentioning the reason we have that difference, which is that we have the Constitution and the charter. These have been interpreted to establish privacy jurisprudence around section 8.

That's important context. I've heard again and again about Five Eyes, the G7 and the G20, but Australia doesn't have a charter. They don't have the same history of protection of privacy that we do. That's a fundamental difference. I would argue that common law would give you some of this too, but they haven't gone down that path.

I just want to make the point that I don't think I heard a fair apples-to-apples comparison. I'm not suggesting that I heard all of you make it, but to finish Mr. Wong's thought on the issue in Canada, I'll say there is a difference, and it's because we have the Constitution.

Ms. Gibner, I'll go back to my question.

It was a conscious choice. Why go for a lower standard?

 

 

Jacob Mantle York—Durham, ON
Conservative

Thank you for that.

Again, I want to push back a bit.

Ms. Gibner, as I've suggested tonight and will continue to repeat, I think the subscriber information that could be required, either for the confirmation of service or in the production order, especially in proposed paragraph 487.011(c), could go far beyond simply asking, “Do you provide information to Ms. Gibner?” The privacy interest that attracts, in my view, is higher, which leads me to my belief....

I'm sorry. It sounded like you wanted to jump in.

 

 

Jacob Mantle York—Durham, ON
Conservative

Just for the record, I find everything you're saying very helpful. It's not my area of practice. As you often say, you know just enough to be dangerous. I'm trying not to get myself into any danger here.

We've been talking a lot about the confirmation of service and especially the ISPs. I would like to ask the chair to canvass the committee for unanimous consent to invite DuckDuckGo, a provider, to provide testimony in relation to part 2 of Bill C-22, an act respecting lawful access.

 

 

The Chair Jean-Yves Duclos
Liberal

Is there unanimous consent for that?

 

 

Jacob Mantle York—Durham, ON
Conservative

I'm seeing that there was no unanimous consent. Therefore, I would like to orally put that on notice as well.

 

 

The Chair Jean-Yves Duclos
Liberal

Thank you. That's well noted.

Should we move on to MP Kirkland?

 

 

Jacob Mantle York—Durham, ON
Conservative

No. I'm not finished.

 

 

Jacob Mantle York—Durham, ON
Conservative

We were talking about the two decisions earlier, Ms. Gibner: the Spencer decision and.... I don't think we talked about Bykovets, but Bykovets is the second important one. This goes to my question about what type of information is attracting what degree of privacy. Granted, there may be a bit of overlap here between the confirmation of service and the subscriber information. Bear with me there.

My understanding is that for Spencer, the Supreme Court said that subscriber information attracts a high degree of privacy because it connects a person's identity to their online activity. Is that a fair ratio for the judgment—at least one part of it?

 

 

Jacob Mantle York—Durham, ON
Conservative

That's fair, but these two things are connected. You confirm the service at the suspicion standard. Then you use the information you got, with no judicial authorization. Then you get judicial authorization for the production order, in part based on that confirmation of service. Now I know the information. I know that Kim Gibner is being provided service, so now I can say, on the suspicion standard, that I think the evidence I need for this suspected crime is on Kim Gibner's phone.

 

 

Normand Wong
Acting General Counsel, Policy Sector, Department of Justice

If I may, I just wanted to add that the facts in Spencer were very specific as well. It was not only about the identity of the online activity. Mr. Spencer had been on a file-sharing platform, LimeWire, and police had been observing him for some time, so they had a body of evidence about the activities of this IP address, which was publicly broadcast and was downloading known files of child pornography. It's a very different context from subscriber information in isolation or even connected to a sole IP address that might be linked to an email address that sends harassing email messages. It's very specific.

 

7 p.m.

 

Jacob Mantle York—Durham, ON
Conservative

That's fair. Thank you.

The second decision, then, extended that reasoning to the IP address. You said it was at the start of your investigation, and in that case, the Supreme Court used the words “first digital breadcrumb”. I get what you're saying. It's the start of the investigation, but the IP address, which we've been discussing as being basic information or not, is the first digital bread crumb you get in order to confirm the IP address is Kim Gibner's IP address.

I'm sorry to keep picking on you. I'll pick on someone else.

 

 

Kimberly Gibner
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice

I started it. It works.

 

 

Jacob Mantle York—Durham, ON
Conservative

Yes, it works.

The point I want to make here goes to the earlier question I asked you, Mr. Wong, about other places in the Criminal Code that use the suspicion standard. I would like you or Ms. Gibner to make the argument for me that for transmission data, tracking data and financial data—those are the three you noted that I was able to take down in time, the three of the four that are on the suspicion standard—there's an apples-to-apples comparison to the information on the confirmation of service.

I don't want to put words in your mouth, but what I'm understanding as one of the arguments is that in other places in the code, there's a lower standard—suspicion. As one of those places, let's take transmission data as the example. Transmission data is similar to basic confirmation under the first step of our investigation. Is that the position? If so, persuade me that's apples to apples.

 

 

Normand Wong
Acting General Counsel, Policy Sector, Department of Justice

I would not quite say it's apples to apples. If it were apples to apples, it would all be under a production order, because with the ones under a production order, we think there is a reasonable expectation of privacy. It's not as high as reasonable grounds to believe; it's at the lower threshold.

You brought up Bykovets. In Bykovets, the unfortunate fact was that police obtained the transmission data without availing themselves of a production order. That's where the investigation went awry and we ended up with the Bykovets decision. I don't think Bykovets would have happened had police actually used the tools that were in the Criminal Code and available to them.

In the confirmation of service demand, we have to give the police some threshold in doing their police business. In terms of privacy expectations, for the things that are on the lowest end of the privacy spectrum, we attribute the reasonable suspicion standard when we have to attribute a standard.

In terms of the confirmation of service demand, the police have done a certain amount of work, so they might come into possession of an IP address through the investigation of a complaint, as I said, of a harassing email. Behind that email address there's an IP address through which it was sent. They've obtained this information in a legal manner. All they need to do is connect the dots. As the first step in that, they have to find out which service provider actually provides service to this IP address, because without that, they won't be able to serve the production order for subscriber information.

They are not apples to apples in that respect. The reason it's a demand is that, really, there's no core biographical information, as you mentioned, in the service provider your phone number is served by. However, that is the first indication for police to get the production order, so they can get that first bit of real evidence towards investigating a crime.

 

 

Jacob Mantle York—Durham, ON
Conservative

I think you've made the point for me that I am concerned about, which is that they're not the same. That's why they should have different standards, in my view. I think transmission data, based on my review, refers to the technical details of a communication being sent. It's not an identifying piece of information. The argument there, then, is that you can use suspicion.

I take the point that we're at the first part. We're not at the production order part, but we will get to the production order part, which I also think should be raised to “reason to believe” rather than suspicion. Even at the beginning, it's still something different than just the technical data of a point of communication going from A to B. It is saying, “Kim Gibner is connected to this IP address.”

Based on my read of those two cases, the suggestion is that even that can attract a higher expectation of privacy.

 

 

Normand Wong
Acting General Counsel, Policy Sector, Department of Justice

I'm not sure I understood you, but the confirmation of service demand does not connect Kim to an IP address. It connects Rogers to the address so they can find out that it's Kim's. It's one step to remove.

 

Jacob Mantle York—Durham, ON
Conservative

I apologize. You are right. It's one step before what I suggested.

I'm just deciding if another point I want to raise is perhaps better raised in the discussion of the production order itself. Maybe I'll save that.

I want to raise my view on the idea of the standard within.... I'm sorry. I'm getting the standards confused. I'm going to say belief versus suspicion just for shorthand. Why is belief versus suspicion important under section 8? My understanding is that the belief standard means that you have to think not only that a crime has been committed but that there's objective evidence in the place you want to look. You have to have an objective basis from which to say that as well. I think that's important.

I want to go back to the genesis of this. Like Ms. Sullivan, I had to go back to some basics with Hunter v. Southam. To me, this is the starting point, and it's why I think the standard should be higher, because it encapsulates.... I'm not going to read the whole case, but there are two key paragraphs that I want to put on the record for my view on the importance of the higher standard, whether for the first step or the second step.

By way of background, if you remember, that case was about an anti-combines organization, as it was called, which is an olden times word for an antitrust, anti-competition organization. It was investigating a newspaper. The general details, as I recall them from my notes, are that they could give themselves their own power to enter and get information. In reviewing whether the warrant to go into Southam's office was an unreasonable search and seizure under section 8, which had just come in—it was one of the first cases—the court took some time to explain the objective portion of section 8.

I want to put on record the two important paragraphs for me, which talk about that objective criterion. The court said the following:

The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them. To associate it with an applicant's reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit the right of the individual to resist, to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure.

Anglo-Canadian legal and political traditions point to a higher standard. The common law required evidence on oath which gave “strong reason to believe”—

That's a reference to Entick v. Carrington, which is based on entering someone's property.

—that stolen goods were concealed in the place to be searched before a warrant would issue. Section 443 of the Criminal Code authorizes a warrant only where there has been information upon oath that there is “reasonable ground to believe” that there is evidence of an offence in the place to be searched. The American Bill of Rights provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation...” The phrasing is slightly different but the standard in each of these formulations is identical. The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion.

For me, that encapsulates in summary why I fall on that side of the spectrum. Whether it's the first step of the investigation or the second, we have to have a credibly based probability over just suspicion. Suspicion is just a hunch.

Go ahead.

 

 

Kimberly Gibner
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice

My reflections are that he was talking about the law office that was being searched—so like your home. I think that language was about those sorts of things. You need to be doing those intrusive searches with that logic model. R v. Chehil is a more recent Supreme Court of Canada case that talks about suspicion.

You have it right. It is the debate around probability versus possibility. Again, if it assists you in any way, it's about the nature of the intrusion. You really want that higher standard—everything you read—when somebody is in your home.

However, a lower standard does exist in the Criminal Code for all sorts of different investigative techniques. In Chehil, it was a search using a sniffer dog on bags. Again, no warrant was required, but they're allowed to use that when they reach “reasonable grounds to suspect”. It is a concept in the criminal law, and it's to be used in less intrusive types of situations.

I don't know if you have any reflections.

 

 

Normand Wong
Acting General Counsel, Policy Sector, Department of Justice

Mr. Mantle, I think you've talked about how the common law grows, and it has. The reasonable suspicion standard has existed in the Criminal Code since 1993, after another Supreme Court of Canada case, R v. Wise. There is a lot of discourse in that case around how it doesn't necessarily need to be the Hunter v. Southam test for certain types of police—

The Chair Jean-Yves Duclos
Liberal

Sorry to interrupt you. I believe that Ms. Gibner has something to add.

 

 

Kimberly Gibner
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice

For the Chehil case, if it helps in any way, here's some of the language. The police officer had to have objectively discernible facts before a judge, setting out the connection to the criminal activity, with more than a mere hunch or an intuition, but less than a probability, and there had to be a logical connection between the facts and the offence, assessed through the totality of the circumstances.

Here is something that is really important. I want to underscore what the officer said, which is that a police officer may draw on their training and experience—they do that—when they're setting out these warrants. Again, what we're talking about as it relates to subscriber information is still a warrant before a judge. Based on their training and experience, those facts may mean different things. Something that the Supreme Court of Canada specifically said was that they rely on that training and experience in that threshold.

Jacob Mantle York—Durham, ON
Conservative

That is helpful, and I agree. I started at the genesis with the first case, and of course it's evolved, as common law does. I take the point that it's not that test anymore but a version of it. Even in those cases, it's still cited approvingly as the start. I like to start at the beginning and then go to the top to see how it's most recently been considered. I appreciate your comments there.

Maybe we interpret the facts a bit differently. You were making the distinction in the Southam case that you're investigating a place of business or a home. That obviously attracts a higher threshold. Of course, I agree with that. If you're going into someone's home, that probably has the highest threshold we could establish, but with our activities online, in all of their various ways, online has increasingly become our digital home. People are participating in society online in a way that they never have before. We as parliamentarians should recognize that and seek to protect the privacy of Canadians online in a similar manner sometimes, not at all times. I agree that some stuff attracts a lower expectation and some attracts a higher expectation, but where I disagree with the government on this is in some of the stuff they're suggesting, like that basic information should a attract lower expectation. I'm not sure that it should.

Over time, more activities will be done by Canadians online and more of their life will be online. The common law needs to grapple with that and I hope protect it under charter jurisprudence and common law jurisprudence.

I have another point I want to make, but I think I'll make it in our discussion of the production order.

I want to ask for unanimous consent one more time, Mr. Chair, and then I will be done my comments. As in my other comments, we've been talking a lot about the first step here, which is about the ISPs and providers. I would like you to canvass the committee, if you could, to see if there would be unanimous consent to invite NordVPN to provide testimony on part 2 of Bill C-22.

 

The Chair Jean-Yves Duclos
Liberal

Is there unanimous consent?

 

Some hon. members

No.

 

The Chair Jean-Yves Duclos
Liberal

Thank you, MP Mantle.

 

Jacques Ramsay La Prairie—Atateken, QC
Liberal

You have to earn unanimous consent. You have to work harder.

 

Some hon. members

Oh, oh!

 

The Chair Jean-Yves Duclos
Liberal

Is it fine to go to MP Kirkland?

Jacob Mantle York—Durham, ON
Conservative

Wait one moment.

I think the strength of the request should do the work for us, Mr. Ramsay, despite your denial of unanimous consent.

I would like to put that on notice as a motion, Mr. Chair.

 

The Chair Jean-Yves Duclos
Liberal

MP Mantle, just to be sure that the clerks do the job they need to do in the manner that you are rightly expecting them to do it, if you can provide that in writing, it would be very helpful.

 

Jacob Mantle York—Durham, ON
Conservative

Yes. I've tried three times, so I will send three emails.

 

The Chair Jean-Yves Duclos
Liberal

Thank you so much. Go ahead, Madame Kirkland.

 

Rhonda Kirkland Oshawa, ON
Conservative

Thank you, Chair.

If you will indulge me, Chair, I am absolutely going to mention this amendment, but I've received news, and I think the public safety committee is the appropriate place to mention it.

Durham regional police, in my region, just put out a notice about an hour ago. We're devastated to hear about the line-of-duty death of an OPP officer near Hearst, Ontario. I want to officially extend my condolences to the OPP on the loss of Constable Tarun Bali. My thoughts and prayers go out to his family, friends, colleagues and all those affected by the tragic loss.

He was a young man who had been serving for only a couple of years. I felt that the public safety committee was a good place for us to remember that we stand with our officers and that when we lose one who's running towards danger when the rest of us are running away from it, it deserves mention.

 

Jacques Ramsay La Prairie—Atateken, QC
Liberal

May I suggest a minute of silence?

 

Rhonda Kirkland Oshawa, ON
Conservative

I'm fine with that, yes. That would be fine.

 

 

The Chair Jean-Yves Duclos
Liberal

Thank you.

 

Rhonda Kirkland Oshawa, ON
Conservative

Thank you.

[A moment of silence observed]

 

The Chair Jean-Yves Duclos
Liberal

As you will note, everyone in this room appreciates your heartfelt condolences, which we would like to share with your community as well.

Rhonda Kirkland Oshawa, ON
Conservative

Thank you. I think it's important for Canadians to see parliamentarians standing together when it comes to that sort of thing. Excuse my emotions.

To go back to the matter at hand and this amendment, can I just say how deeply thankful I am for all of you here? I know it's been a long time. We're asking very in-depth, very crucial questions. I'm really thankful for how much attention you've paid to this. You've been actively listening to all our questions and concerns. That means a lot to me personally as we delve through this.

It feels like some members come to the committee with decisions already made. I feel somewhat disappointed that the questions being posed and answered aren't being closely listened to, or not as well as you all are listening to our questions, so we can make informed decisions about these amendments. It's important to me that we make informed decisions on the amendments.

Ms. Gibner, I appreciate your help in all this. You've helped clarify a lot of things for me. You mentioned that when something is less intrusive, the threshold of suspect versus believe is acceptable. I'm with you on that to a point.

If I didn't feel like all of the amendments we're putting forward for part 1 and part 2 to qualify language, which are upcoming and have already passed, quite frankly.... When we want to qualify and clarify language to be “namely” versus “including”, for instance, as in the last amendment we looked at, being very careful to limit what you mean by “subscriber information”.... It seems that, in general, at least the Liberal members on our committee aren't willing to specifically name and qualify so that we can get more specific. We might have been more willing to accept the threshold of “suspect” if we understood what exactly it was.

I understand with this one that it's specifically in terms of.... It's not subscriber information. What's the wording? I'm sorry. I'm losing my train of thought. It's to find out whether or not they're a subscriber, yes or no.

 

A voice

It's the confirmation of service.

 

Rhonda Kirkland Oshawa, ON
Conservative

Yes. It's the confirmation of service. Thank you. It's been a long day. I realize that I'm going until midnight tonight, so it will be a lot longer.

I'd like to hear from all of you on this question, if I can. It would be all four organizations—CSIS, the Department of Justice, Public Safety and obviously the RCMP. If the committee were to adopt this amendment and make it “believe” versus “suspect”, would there be a problem with that, and if so, what would it be?

 

Kimberly Gibner
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice

I'll start, if I may.

The tool would not assist police the way it was designed, because what you heard the officer say was, “I have no idea who the service provider is. I don't know. I'm at the start of my investigation, and I need to know where to start.” That's the point. What I heard him say is that it's impossible to reach that threshold, so it doesn't go anywhere.

That's why I would say that the tool wouldn't be.... I think you heard my friend say that they would just be back to the drawing board. They would be in the same general production order world, where they already have to meet reasonable and probable grounds.

 

 

Rhonda Kirkland Oshawa, ON
Conservative

I'll go to everyone else, but you've made me wonder about another question. Essentially, you're saying that you don't know whether to go further in an investigation. You have a suspicion. You're not sure whether to move forward—perhaps RCMP and CSIS should get in on this too—or whether you should proceed with an investigation until you know...the confirmation of service. Would that even make a difference? You know already whether or not you want to proceed with an investigation.

 

Kimberly Gibner
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice

The IP address was one of the examples used. They said, “I have an IP address, but I don't have reasonable and probable grounds that it's Rogers who holds it. I don't actually know who it is associated with.”

 

 

Rhonda Kirkland Oshawa, ON
Conservative

What does finding out that it's Rogers, then, do? Then you get the production order—

 

Kimberly Gilber
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice

That allows them to go to court, because, of course, the court order says that they need to know who holds the information to get in the door—

 

Rhonda Kirkland Oshawa, ON
Conservative

That's rather than ask everyone.

 

Kimberly Gibner
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice

Yes.

 

 

Rhonda Kirkland Oshawa, ON
Conservative

Okay. That is making sense to me. Thank you. I appreciate your thoughts on that.

Who would like to go next?

Thank you, Ms. Hiegel.

 

Shannon Hiegel
Director General, National Security Policy Directorate, Department of Public Safety and Emergency Preparedness

I'm happy to chime in here, just because we've been working with the RCMP and CSIS on challenge functioning and trying to pressure test the concepts that we're talking about today that are in the bill.

We really saw this as a building block. It is the first block, and my colleague has done a great job of explaining how we saw this very much as a yes or no. With the ground of suspicion, that makes sense. If, say, we get.... I mean the royal “we”. I suppose it could be from any side, but certainly with law enforcement. When the U.S. child sexual exploitation centre, which has greater flexibility within the investigative space, provides the RCMP's unit with an IP address, it's literally put on the shelf right now.

To go back to the numbers and stats that Ms. Gibner gave, this would at least allow us that first crumb in order to figure out who in fact the IP address belongs to. The building block of that investigation, in its totality, has to be presented in a court in order to have somebody charged and prosecuted. All of that information would be put bare for all of the public to see.

For us, the collection of all of that information and all of the steps that both of my colleagues have spoken eloquently to certainly gave us pause and gave enough of a rationale to encourage that it be put forward to the table for consideration.

 

Rhonda Kirkland Oshawa, ON
Conservative

Is there anything to add? Does it make sense? Are you good?

 

Ramzi Nashef
Director General, Policy, Planning and Accountability, Canadian Security Intelligence Service

Just quickly, our bread-and-butter investigative authority is section 12 of the CSIS Act, which is at RGS—reasonable grounds to suspect. For a section 12 investigation, obviously we have to have RGS that there's a threat to the security of Canada. Not to get too technical, but section 2 of the CSIS Act lays that out broadly: espionage and sabotage; foreign influence; terrorism, essentially; and subversion. Those are the four broad definitions that we would be looking at.

On our side, there's an additional safeguard, let's call it, which is “strictly necessary”. That's to avoid what's been deemed here as fishing expeditions. Not just as a resource question but from an authorities perspective, we can only collect and retain information that is strictly necessary to advance an investigation for us at the RGS level, pinned to section 2 of our act.

Hopefully, that helps.

This is an additional tool, at the same standard, that would allow us, as we've talked about, to get one of the very first steps. Let's say there's a phone number that we think is involved in a terrorism case, for example. We need to determine which provider owns that phone number, whether that's Rogers, Telus, Bell or somebody else, so that we can then come back with the higher level of authorization, which, again, is coming from judicial authorization.

 

 

Rhonda Kirkland Oshawa, ON
Conservative

To clarify confirmation of service, let's say that in that example, you have a phone number but don't have a name attached to that phone number. When you're getting confirmation of service, you go to Rogers, let's say, and ask, “Is this phone number...?” You said it was a yes-or-no question, but are they also providing the name of that person?

 

Ramzi Nashef
Director General, Policy, Planning and Accountability, Canadian Security Intelligence Service

No. We come back with judicial authorization to get the name and address—that more invasive set of information, let's say.

Rhonda Kirkland Oshawa, ON
Conservative

Gosh, I feel like that's the clearest thing I've heard all night. That's great. It's not because you all haven't been clear. It's that people are having a hard time understanding it. My background is in education—I've said that before—so I like to bring things down to a level where everyone can really grasp what's going on.

I honestly have less of a problem in this one particular spot with having “suspicion” versus “belief”. I think it's a problem in other places, but if it's literally a yes or no and then a production order to find out a name and that sort of thing, I can get behind it.

As I said, my reticence and hesitation come with all of the rest of the amendments. If we're not willing to qualify, name and clearly define some of the terms we're using in this bill, and if government members aren't willing to help us get amendments through to clearly qualify that.... That's when I'd be more supportive of this type of amendment. I'm not saying whether I would or wouldn't, but I'd have to hear a bit more from other colleagues who know much more about these particular things than I do, like Mr. Mantle. He's the one with the book beside him. He knows some more of that information.

However, that is very helpful to me, and I appreciate it very much.

The only other thing I'll comment on is what someone on the other side said to Mr. Mantle: “You have to earn unanimous consent.” I would argue that it honestly wouldn't matter whether we earned it or not or whether the argument was made or not. I am convinced that members on the other side would block and deny all of our wishes for consent, as they did with mine about the Privacy Commissioner.

I would like to reiterate, as I close, that Conservatives are committed to helping law enforcement. We are committed to getting through.... I've said this before. I personally would like us—I put in a notice of motion, but don't know whether we'll be able to get there—to split this bill, because I truly believe that if we can move along and get part 1 passed, then....

I'm sorry. I'm having a hard time concentrating because there's so much talking on the other side.

If we can move along on getting part 1 passed, then we can all get.... We're on the same page there, with some minor amendments, but I'm not feeling like there's any willingness to move on it, which makes me nervous as a member of the opposition, as I try to do my due diligence and my job as not only my constituents but Canadians expect me to. I'll end with that.

I thank everyone on this committee for the moment of time they spent in remembering the officer who passed away today in the line of duty. I will leave it there.

Thank you, Chair.

 

The Chair Jean-Yves Duclos
Liberal

Thank you, Madam Kirkland.

MP Au, go ahead.

 

Chak Au Richmond Centre—Marpole, BC
Conservative

Early on, I asked questions about the estimate of the number of times you will use this new measure if it's adopted. I also asked about the impact of not having this measure or tool in your hands in the past. I was told that there's no concrete information.

However, I want to draw your attention to a piece of information, a report completed by the National Security and Intelligence Committee of Parliamentarians in 2025. The name of the report is “Special Report on the Lawful Access to Communications by Security and Intelligence Organizations”.

As I mentioned, this report is as recent as 2025. On page 54 of the report, there is some very interesting information. I would say it's relevant to what we are talking about. I will read it out for you. Note that by “committee” I mean the National Security and Intelligence Committee of Parliamentarians:

The Committee did not see any clear, empirical data to substantiate claims by Canada's security and intelligence organizations that they face serious lawful access challenges because of rapidly evolving technology. CSIS and the RCMP do not systematically track how often they encounter various technological challenges in their national security investigations....

Further on, it reads:

As a result, they do not know in quantifiable terms the degree of impact and overall significance of these challenges.

Further down, it has:

This is an important omission because as these organizations advise the government and attempt to convince Canadians—particularly those concerned about the potential erosion of their privacy—that new legislation and resources are required to keep pace with evolving technology....

I would ask for comments and feedback on that. Is there any response to that piece of information?

 

Richard Bilodeau
Acting Senior Assistant Deputy Minister, Department of Public Safety and Emergency Preparedness

The NSICOP report you referenced—what we refer to as the “going dark” report—has a number of findings on lawful access and the need for lawful access. As you heard today from some of the witnesses, it is difficult to track because the RCMP and the police of jurisdiction have some of these requests.

I think it goes without saying that if we were able to track every single instance when our law enforcement tried to get information, it would be helpful. Obviously, NSICOP found that law enforcement and CSIS didn't do that.

I'm not sure what else we can say. We can rely, however, on the experience that CSIS and the RCMP have had over the years, what they've shared with us and what they shared with NSICOP. The information that was shared with NSICOP still led NSICOP to conclude that lawful access reform was necessary.

 

 

Chak Au Richmond Centre—Marpole, BC
Conservative

Are there any other comments?

 

Kimberly Gibner
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice

I'll add just one other comment. One reason I got that data for you was to highlight some stats that I was able to get at my fingertips, if it assisted you, on the thousands of investigations that were not closed as a result of not having these basic tools.

 

 

Chak Au Richmond Centre—Marpole, BC
Conservative

I just want to go back to the point I made earlier today. I'm trying—we all are—to find a balance, and that's why we have to listen to both sides.

You come here to advocate for additional tools that you can use. I appreciate that. I understand that. On the other hand, we also have a duty to try to strike a balance to protect the privacy of Canadians.

This report came to the conclusion that there's no substantial evidence to back up the claim that there's a serious lawful access challenge, so that's something we have to bear in mind. I'm not saying that you do not require further measures. However, going back to how we can strike a balance, as I said before, I think that with the loosely defined meaning of “reasonable grounds to suspect” and asking for the power to use it, the net is too wide and the risk is too big. Also, the temptation to abuse it is big.

I still have some hesitation in supporting the draft as it is right now.

 

Jacques Ramsay La Prairie—Atateken, QC
Liberal

What's happening?

 

Chak Au Richmond Centre—Marpole, BC
Conservative

That's it.

 

Jacob Mantle York—Durham, ON
Conservative

Don't worry. I'm back.

 

 

The Chair Jean-Yves Duclos
Liberal

Oh, okay—surprise, surprise.

 

 

Jacob Mantle York—Durham, ON
Conservative

I didn't want to disappoint Mr. Ramsay.

 

 

Jacques Ramsay La Prairie—Atateken, QC
Liberal

It takes a lot more than that.

 

 

Jacob Mantle York—Durham, ON
Conservative

I wanted to return to one question. In my view, you've been making your case for why you want to change the threshold for the standard.

I'm sorry. Did you want to put your hand up and go on record?

 

 

Marianne Dandurand Compton—Stanstead, QC
Liberal

I'm not the one speaking.

 

 

Jacob Mantle York—Durham, ON
Conservative

You are, though, because I can hear you.

 

 

Marianne Dandurand Compton—Stanstead, QC
Liberal

No. It wasn't me.

 

 

Jacob Mantle York—Durham, ON
Conservative

Okay.

Well, would you like to put that on the record?

 

 

Caroline Desrochers Trois-Rivières, QC
Liberal

No. We're listening to you. It's very interesting.

 

 

Jacob Mantle York—Durham, ON
Conservative

Good. I'm glad it is.

Jacques Ramsay La Prairie—Atateken, QC
Liberal

You have the floor, so go ahead.

 

 

Caroline Desrochers Trois-Rivières, QC
Liberal

[Inaudible—Editor]

 

 

Jacob Mantle York—Durham, ON
Conservative

I disagree with that characterization entirely. I'm sorry—not entirely. “In part” is what I meant.

In my view, you made a conscious choice to lower the threshold, and you've been establishing why you think that will give you more tools.

I'll start with Public Safety. Did you turn your mind to or analyze the potential deleterious effects of lowering the standard?

 

 

Richard Bilodeau
Acting Senior Assistant Deputy Minister, Department of Public Safety and Emergency Preparedness

By “deleterious”—

 

 

Jacob Mantle York—Durham, ON
Conservative

You've suggested what you think the benefit will be, which is quicker access to this information. Did you consider the downside risks to lowering the standard? This is with respect to the confirmation of service, which is what we're discussing now.

 

 

Shannon Hiegel
Director General, National Security Policy Directorate, Department of Public Safety and Emergency Preparedness

For this particular element, it's a consult that we obviously work very closely with our Justice colleagues on, but I would argue that, yes oh yes, absolutely, the pros and cons are always weighed in these considerations. We even think of it from a resourcing perspective for law enforcement. They're not just going to be in the position to start firing out a yes or no. It has to be led by something of suspicion—getting a tidbit of information.

When we weigh out everything, that's what we end up with as our recommendation. That may be a little more for our Justice colleagues, as it's around the negative impact of that from a court process perspective.

 

 

Normand Wong
Acting General Counsel, Policy Sector, Department of Justice

I would go back to what Chief Superintendent Burchill said in terms of investigations. This information, in probably close to the majority of situations, is given voluntarily currently. The confirmation of service demand is a stopgap for service providers that require the piece of paper so they have something to respond to in order to protect them from liability.

In terms of the deleterious effects, this is already being done. This is part of routine police work. As I think Sergeant Gilkes said, it's a requirement to know who the service provider is before you go to court to get a production order against that service provider.

 

 

Kimberly Gibner
Deputy Assistant Deputy Minister, Policy Sector, Department of Justice

Perhaps I could add to that, because what I'm hearing you say is that it's more about the safeguards. If it helps you think through the calibration, the safeguards and the tool, I'll just remind you that the telcos have the ability not to respond. There's that safeguard. Of course, they can judicially review the decision on the confirmation of service demand or any of the warrant provisions, including the new production warrant. There's judicial oversight for everything that's provided for in the code.

 

 

Jacob Mantle York—Durham, ON
Conservative

Thank you for that.

I think my question might be a bit more germane to the production order, when we get to that, and the implications of lowering the standard in the production order and how that might interplay with the admissibility of evidence obtained through a lower standard. I think we'll have another discussion about judicial oversight, up to and including judicial review, because that's the very last step in some of this. There are other provisions that I'm sure we'll explore in different parts of the bill.

The Chair Jean-Yves Duclos
Liberal

Good. Thank you.

Is it the will of the committee to adopt amendment NDP‑2?

7:45 p.m.

 

Rhonda Kirkland Oshawa, ON
Conservative

On a point of order, could you repeat that? It took me a moment to get my—

 

 

The Chair Jean-Yves Duclos
Liberal

I'm happy to repeat the question.

Is it the will of the committee to adopt amendment NDP‑2?

(Amendment negatived: nays 7; yeas 4)

(Clause 5 agreed to: yeas 10; nays 1)

(On clause 6)