EVIDENCE

Standing Committee on Public Safety and National Security NUMBER 042 1st SESSION 45th PARLIAMENT Tuesday, June 9, 2026 Le mardi 9 juin 2026 Standing Committee on Public Safety and National Security CANADA [Recorded by Electronic Apparatus] EVIDENCE June 9, 2026 Committee NUMBER 042 NUMBER 042 NUMÉRO 042 42 09 06 2026 2026/06/09 16:00:00 House Of Commons Comité permanent de la sécurité publique et nationale Standing Committee on Public Safety and National Security SECU Chair Jean-Yves Duclos 1 45

(1600) [ Translation ]

The Chair (Hon. Jean-Yves Duclos (Québec Centre, Lib.)) :

Good afternoon. Thank you for being here. I now call to order meeting number 42 of the House of Commons Standing Committee on Public Safety and National Security. Before we resume our study of Bill C‑22 , I want to ask the committee to consider the supplementary budget the clerk sent out to members a few hours ago. It's an estimate of the committee's financial needs. Obviously, the amounts listed are estimates, so the actual amounts could be lower. If so, any unspent funds will go back to the Liaison Committee, as you know. You've probably seen the budget proposal by now. Are there any questions about it? Is it the pleasure of the committee to adopt the proposed budget?

Some hon. members: Agreed.

The Chair :

Now that the budget has been adopted, we can move on to the agenda. Pursuant to the order of reference of the House of April 20, 2026, and the motion adopted by the committee on April 30, 2026, the committee is meeting to study Bill C‑22 ,

an act respecting lawful access. Go ahead, Mr. Ramsay.

Jacques Ramsay (La Prairie—Atateken, Lib.) :

Thank you, Mr. Chair. Given the importance the government places on Bill C‑22 , given the desire to dispose of the bill before the House rises for the summer, given that law enforcement authorities are eager for lawful access tools, and given the slow pace of progress, I would ask if you could arrange for us to have the necessary resources to get through everything by the time the House rises, possibly by extending sitting hours.

The Chair :

All right. Your message has been heard. Mr. Caputo, go ahead.

[ English ]

Frank Caputo (Kamloops—Thompson—Nicola, CPC) :

We are already having extended sitting hours. The last time I checked, I think we are currently sitting for four hours. I'm not sure how fair it is to the staff or to other people here. The reality is that the extended sitting hours were necessitated by ramming this bill through. We had witnesses—often three experts to a panel—and we couldn't even hear from those experts. The reality is that the Liberals have tried to ram this bill through, especially when it comes to

part 2. I wrote a letter to the Minister of Public Safety today that has been publicly released. Law enforcement has spoken about two parts. There is

part 1 and

part 2. Conservatives are prepared to pass

part 1 as amended. If I'm prepared to take my colleague Mr. Ramsay at his word, which I am, then we can get

part 1 dealt with before we rise. Conservatives will amend

part 1. I believe we should amend it, and I hope we will find common ground on some of our amendments. I think that among the Bloc, the NDP and the Conservatives, you see a similar thread running through. If the whole point of this exercise is to get the bill right—and we take what Mr. Ramsay had to say as true—and law enforcement wants what's in this bill, I would hope they would want part of what is in this bill. My exhortation and my suggestion to the government.... I would love to hear from the witnesses on this point, but I know they can't opine outside of questions that are provided to them. The reality is that I think we can give them

part 1. I believe that law enforcement has asked for

part 1. Then the government can go back to the drawing board on

part 2, or we can have further study on

part 2. I haven't heard from the government that they are prepared to accept

part 1. We will give them

part 1—I want to be unequivocally clear—so long as appropriate amendments are made to

part 1. I am really puzzled as to why there has not been agreement to say to the Conservatives and Bloc that we should get through

part 1, amend it, look at that standard of reasonable grounds to believe versus reasonable grounds to suspect, and split that off. In fact, I had a motion in the chamber today to divide this bill into 22A and 22B. If law enforcement wants

part 1 and if one of the issues we have is the confirmation of subscriber information and a streamlined process for production orders, which means there's a court order, can somebody tell me why we wouldn't give that to law enforcement sooner rather than later, if we can come to common ground, which I believe we can, notwithstanding that we still have to go through the process? If we can get through that, why wouldn't we? I hope I'm not jumping the gun here, but I'd love to hear from the officials on whether they would take

part 1 if we could get it passed.

(1605) The Chair :

Unfortunately, that's not for them to answer at this point, but your points are well understood and well noted. Thank you, MP Caputo. [ Translation ] Mrs. DeBellefeuille, I think you wanted to comment as well.

Claude DeBellefeuille (Beauharnois—Salaberry—Soulanges—Huntingdon, BQ) :

Yes, Mr. Chair, I want to say something quickly. I just want to make the committee members aware of something. I think everyone here knows I'm not afraid of hard work, but when the committee is dealing with a bill that is highly technical and I have to wear my earpiece for four straight hours, so I can listen to the

interpretation and follow what's being said, it's a lot. I'm sure the members opposite want me to contribute to the discussion and to fully understand what's being said. I challenge anyone to keep their earpiece in for four straight hours listening to the

interpretation while I speak French. Then they'll see how hard it is. Nevertheless, I choose to do this. Today, we are meeting for four hours, but I hope the Liberals don't intend to keep us here until midnight or we're all exhausted. I hope they'll have respect for all the committee members. A decision to keep us here that long would push me beyond my limits. The fact is I am the only unilingual French speaker on the committee, so I have to wear my earpiece the whole time to hear the

interpretation of what's being said. That's what I wanted to say to my fellow members. I am ready and willing to work, but I expect members to hear what I'm saying. That, too, is an indicator. There's something else I want to say. I agree with Mr. Caputo, and I think it's unfortunate that the Privacy Commissioner isn't here. That is information we are missing. The department officials have consistently challenged the proposed amendments, so I'm curious. Why is that? I wish the commissioner had been given the opportunity to explain his recommendations.

I don't understand why there's resistance to inviting him here for a half-hour or hour, so he can explain why these amendments are important. Philippe Dufresne isn't just anyone. I don't understand the resistance. Why don't we invite him here to explain his rationale? It's like we're conducting a trial without taking the time to hear from a witness. He did not have a chance to address what the department officials have told us, about the amendments being overly restrictive. In short, I'm prepared to work hard and to work co-operatively with my fellow members, but I would ask that they respect my limits.

(1610) The Chair :

Thank you. You have made yourself clear, and your limits are duly noted. That brings us to today's agenda and the matter we are scheduled to discuss for the next four hours. As has been mentioned, we have a lot to do in a short amount of time, so we'll try to work as a team as efficiently as possible. I'll take a moment to quickly introduce the witnesses, even though you already know most of them. From the Canadian Security Intelligence Service, or CSIS, we have Ramzi Nashef and Juanita M. From the Department of Justice, we have Kimberly Gibner and Normand Wong.

From the Department of Public Safety and Emergency Preparedness, we have Richard Bilodeau, Shannon Hiegel and Fenton Ho. From the Royal Canadian Mounted Police, or RCMP, we have Chief Superintendent Richard Burchill and Sergeant Aaron Gilkes. (On clause 4)

The Chair :

When our meeting ended last week, we were discussing Bloc Québécois amendment 3, or BQ‑3, to which Mr. Mantle had proposed an amendment. Mr. Mantle's subamendment was translated and distributed to members, and that's where we're at. Would anyone like to comment on the subamendment? Mr. Caputo, you may go ahead.

[ English ]

Frank Caputo :

Thank you. I have one housekeeping issue. I want to double-check. Do we know whether we have all the briefs that have been submitted at this point?

The Chair :

I believe it was last Friday that you were sent an update on the state of the translation of the briefs. It obviously will have changed since then.

Frank Caputo :

Okay. I was just double-checking. Thank you very much. Could I be on the speaking list and move on to the subamendment, please?

The Chair :

Yes.

Frank Caputo :

Thank you, Mr. Chair. I would like to ask the whole table about this. You heard my initial monologue, if you will. I won't call it a soliloquy. It did talk about

part 1, and we are talking about subamending

part 1. Within the whole issue of getting through this bill, I think all the officials here would agree that the issue of lawful access has come before Parliament many times, most notably in 2014, I believe. It has now been 12 years. The Internet has changed substantially. I'm not going to ask every person to go through this one more time, but my impression is that from an official's point of view, speaking objectively, there is a need for lawful access. That's why we're all here. That's what we have been told.

That's why we had a number of people from your agencies come to committee and tell us that we need the powers that are in this bill. We have parted company, obviously, on the precise powers that are in the bill and whether those should be granted in the form of legislation or whether those should be tweaked or not. At the end of the day, it has been very clear from officials and from witnesses that the current state of crime and the evolution of technology require new tools. I think there's no doubt about that. Where I think we haven't gotten into the meat and potatoes is the “why”.

We've been told, “We want to catch terrorists and want to catch predators.” It is the job of the government to convince Canadians. It is not the job of the opposition. The job of the opposition is to scrutinize and to ask questions on behalf of Canadians. That's where I think

part 2 has really broken down. Would any of the witnesses be prepared to say that, yes,

part 1 is integral to what we do, and these are powers that we need sooner rather than later? Is anybody prepared to acknowledge that?

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

If I may, there is no doubt that

part 1 is important, but so is

part 2. Our job as the public service is obviously to hear concerns about gaps in the system. In this case, it's lawful access and some of the difficulties of law enforcement and the intelligence service in getting access to certain information because capabilities are not uniform across a particular sector. We've talked about the unevenness and about how this legislation, especially

part 2, is creating some consistency across core providers, for example, which would likely be telecoms in the first instance. It is about creating a level playing field. We've heard the concerns from law enforcement. We've developed policy options. The result is the legislation that's before you today.

Part 1 and

part 2 are obviously—it goes without saying—distinct parts of the legislation, but they are both equally important to solving some of the gaps that have been identified in various lawful access regimes and can help law enforcement and intelligence services fill those gaps. The legislation that's been put forward is the result of years of effort and policy and is trying to achieve the balance of having lawful access within the Canadian system while respecting the charter. That's the legislation before you. Obviously, we're here to support you in answering questions about amendments and providing our best information and advice on those amendments so that you can make an informed decision.

(1615) Frank Caputo :

I am mindful of that.

Part 2 aims at solving crime, and I understand that. I don't think anybody around this table is saying, boy, we want more crime. The question is about getting it right. To Mr. Bilodeau and to all the other witnesses, we have heard from so many witnesses. Frankly, not enough time was given to them because sometimes we had three experts on a panel. If you have an opening statement of five minutes each, that's 15 minutes, and that leaves 45 minutes for questions and answers, sometimes with three outstanding witnesses. Really, we could have had one of them, so we didn't always hear the in-depth knowledge.

I sound like a broken record, I know, but I think the chief issue here that we are dealing with is that we didn't get a lot of the technical information. We were told that we needed this, and Mayor Brown touched on that. We need this because we want to catch criminals. I get that, and we get that, but how does proposed subsection 5.2 relate to that? How does the ministerial order relate to that? How do the different categories of metadata relate to that? How do location services relate to that without intruding on privacy, notwithstanding the requirement for a court order? Those are all very live issues in

part 2 that I don't think we really dealt with. I apologize. This might not seem like a fair question, but I think it's an apposite question. If given the choice of having

part 1 or nothing, I assume the officials would say that we need the powers in

part 1. Is that an accurate statement?

Richard Bilodeau :

As you noted in your first question, it's not for us to answer the question about whether or not

part 1 is sufficient and say that if we get

part 1, can we park

part 2. That is not up for us to answer. My first answer stands. Both parts address gaps in the system and are important for law enforcement and intelligence so that they can help further their investigations. We've answered questions—and law enforcement were here separately from us—on the necessity of some metadata. There are amendments, I understand, which are part of the proposals to be heard by this committee, that address some of the issues you just mentioned. I'm happy to answer questions about that to see what we can provide you with in terms of information and advice that can inform your decision.

Frank Caputo :

I get that, Mr. Bilodeau, and I'm not trying to put you in a corner. Officials are presumed independent. I understand that, and I still know you all have your own views. I am somebody whose professional life, frankly, revolved around data and its existence or lack of existence and how that created an evidentiary chain or an evidentiary gap, because that was just the way it went. When you had an evidentiary chain, you had a prosecution and a potential conviction. When you had an evidentiary gap, you didn't have an arrest or charges typically. I'm very mindful of that. The point I'm trying to get to is that if

part 1 is important, and I know you can't say this or it seems that you can't—

Richard Bilodeau :

It is important, no doubt.

Frank Caputo :

part 1 is important, then why aren't we passing a piece of important legislation? Can anybody weigh in on whether

part 1 would help if it were passed on its own, notwithstanding that

part 2 might be important as well? If they're both important, why aren't we passing some of that which is important?

(1620) Richard Bilodeau :

It's up to Parliament and MPs to make that determination. As much as

part 1 is important to advancing investigations, we have had real examples provided by CSIS and law enforcement about shortcomings in advancing terrorism investigations and child sexual exploitation investigations because we didn't have the gaps filled that

part 2 fills. That's why I said that both parts are important. Gaps have been identified in instances that harm the advancement of investigations and in holding the people who commit those crimes accountable.

Frank Caputo :

I'm very mindful of that. The reality is that we've heard a lot of testimony, if we're being candid, especially about

part 2, that has left Canadians with questions, in my view. I can't speak for all Canadians, but I'm reading the mail and reading editorials, and we have media here. There are questions about that. I don't think there is the same degree of questions.... I'm not sure if I can ask the RCMP this. I'll be direct. If

part 1 were passed tomorrow, would that be of assistance to the RCMP?

Richard Burchill (Director General, Technical Investigation Services, Royal Canadian Mounted Police) :

From an RCMP perspective, we work within the legislative context we're provided. Whatever Parliament decides to pass, if it provides tools for law enforcement to use, we'll do that, but as far as what that is, we're not part of that decision.

Frank Caputo :

Chief Superintendent Burchill, I'm going to hearken back to a lot of the testimony, which was that we are often going on fishing expeditions and that we have 10 service providers and just need to confirm whether somebody is a provider. We're going to look at amendments within that, but my impression from hearing from the witnesses is that they said, “We need both parts.” If witnesses and law enforcement want both parts, they clearly want one of them. My point here to the committee, to Parliament and to Canadians is a very clear one: If part of the equation is

part 1—which I think we can get to common ground on—and it would help, I don't think it's a stretch for officials to say, “Yes, that would help us.” Now, you can't say, “Please pass it alone.” I get that, but what I'm trying to get to—and perhaps through silence we're getting there; I don't know—is this: Why wouldn't we give you some of the powers you're seeking when we can come to common ground? On

part 2, we're nowhere near common ground. The government came in, and the minister sat, I believe, where Ms. Gibner is sitting. I asked flat out, “Will you address encryption?” We got answers like, “We're open to amendments.” Now here we are, three weeks later, and the minister is holding a press conference, not to get asked questions but to tell Canadians, “Whoa. Wait a minute. We're not just open to amendments. We're going to put forward amendments on encryption.” Three weeks ago it was, “Well, we'll see. We'll do as we please.” That was the gist of it.

Then we heard testimony for three weeks, and Canadians rightly created an opinion of the legislation in their own heads. Once that happens and Canadians aren't convinced, as a member of His Majesty's loyal opposition, it's not our job to plug those holes, those gaps. I've spoken long enough on this. I know you can't answer the question, but if

part 1 is going to help you, I don't know why we're not passing it and dealing with Mr. Mantle's subamendment within that point and Ms. DeBellefeuille's amendment within that point. I think we can get to common ground. I'll leave it at that. Thank you.

[ Translation ]

The Chair :

Thank you, Mr. Caputo. Shall Mr. Mantle's subamendment carry? [ English ] I'm sorry. I didn't see Mr. Mantle's name. MP Mantle, go ahead.

Jacob Mantle (York—Durham, CPC) :

Thank you, Mr. Chair. I presume everyone has now received the subamendment in both official languages. This is just to level set the purpose of the subamendment to Ms. DeBellefeuille's very good amendment, which originated from the Privacy Commissioner's suggestion to narrow the scope of information that could be available in a confirmation of service request. You'll recall that we had an exchange with Ms. Gibner and Mr. Wong on that. There was some disagreement or confusion on my part or their part—it doesn't matter—on how the list of subscriber information as described in the bill should be understood.

Specifically, it was whether the types of subscriber information listed in the bill are just that and nothing more, or whether this provides some sort of illustrative or non-exhaustive list. My suggestion was to delete the word “including” in proposed paragraphs 487.011(a), (

b) and (c). The advice from the legislative drafters was to not only delete the word “including” but also include the English word “namely”—forgive me; I don't know the exact translation in French—so that it is a closed list. What is described in proposed paragraphs 487.011(a), (b), and (

c) would be the list itself. That's why you received it as deleting “including” and including “namely”. I just wanted that on the record since my understanding of the advice I received from the drafters was different from my own suggestion. I want to talk a bit about why I moved that subamendment, but prior to that, I will just build on one point from MP Caputo with respect to the officials who are here. I want to ask the RCMP and CSIS if they could tell me how they were invited to appear before the committee for clause-by-clause.

(1625) Richard Burchill :

I became involved because of my current role as the director general overseeing our technical investigative services branch. Lawful access falls within my remit. Since last summer, when they started doing the tech briefs, I was involved from the RCMP perspective. I just became part of the process. That's how I ended up being here. I asked my chain of command if I could have Sergeant Gilkes attend with me for last week's appearance and any appearances going forward because of his subject matter expertise in operations. They were okay with that. I think he's been a good addition for us as a witness here at the committee.

Jacob Mantle :

What about CSIS?

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

It's a similar answer from our side, MP Mantle. I'm the director general for policy at the service. My teams have been involved in this and in all of the policy and legislation that we participate in as an organization. My colleague Juanita has been the senior policy analyst most responsible for our portions of Bill C-22 .

Jacob Mantle :

Okay, that's helpful. To clarify further, Mr. Burchill, did you ask to be part of clause-by-clause, or were you asked to be part of clause-by-clause?

Richard Burchill :

Organizationally, I don't remember being asked or asking; I was just—

Jacob Mantle :

It was from the RCMP, I guess.

Richard Burchill :

From the RCMP perspective, because I've been involved in the process since last year, when asked by parliamentary affairs who would be appearing, naturally I said I would be appearing.

Jacob Mantle :

You were asked by parliamentary affairs from the minister's office to—

Richard Burchill :

No. It was RCMP parliamentary affairs.

Jacob Mantle :

They would have spoken to Public Safety, presumably.

Richard Burchill :

Presumably they did, but I'm not sure.

Jacob Mantle :

Or maybe someone proposed—

Richard Bilodeau :

I can answer the question. I don't know the logistics about who sent an email to whom. I would just say that in my time at Public Safety, I have done a few of these bills, and it's common to have the people who are the operators, so to speak. As we're doing clause-by-clause, if there's a question about the impact of an amendment, it's important to get the views of the people who will be on the ground using the amendments in order to understand the impact from a practical perspective. If we go back to Bill C-70 on foreign interference, we had colleagues from RCMP, I think, and definitely from the service.

(1630) Jacob Mantle :

I don't know if CSIS has anything they want to add on that.

Ramzi Nashef :

The only point I would say is that the CSIS Act would change as part of Bill C-22 , so even if there wasn't...I think we would be because of equities. I would say that's a double reason we're here: The CSIS Act changes, which we are most responsible for, and some of the equities in

part 2 immediately impact our stuff.

Jacob Mantle :

Is it fair to say that you wanted to be here because it affects your line of work, whether it's RCMP or CSIS, and Public Safety wanted you to be here for the same reason? They wanted your expertise at the table. Is that a fair

summary? It doesn't seem like there was a specific ask one way or the other, but it's a natural progression from your involvement in the considerations of Bill C-22 . Is that fair?

Richard Bilodeau :

This is about trying to be helpful, and the way that we think we can be most helpful is by having a diverse range of experts who can answer your questions.

Jacob Mantle :

Absolutely. For my part, I agree with that. I think it's helpful to have you guys here, the RCMP and CSIS. To the RCMP and CSIS, it's fair to say that you're seeking the powers that are in

part 1 and

part 2, that you support them.

Richard Burchill :

As I said previously to Mr. Caputo, at the end of the day, law enforcement and the RCMP work within the legislative investigational context we're provided. If there is a move to put forward legislation that will give us tools to do better investigations for victims in Canada, we're certainly going to be supportive of that, but as described, we're here to try to help give the committee the responses it requires from the RCMP to make its decisions on this legislation.

Jacob Mantle :

You take no position as the RCMP on whether

part 1 or

part 2 of Bill C-22 should be passed.

Richard Burchill :

As I said, the position we would take is that we need to operate within the legislative context we're provided. If legislation is passed that gives law enforcement more tools to do better investigations in a more timely manner for victims, I'm supportive of that, yes.

Jacob Mantle :

Your view is that Bill C-22 does the things that you just described.

Richard Burchill :

I think with the way the bill is introduced, if it were passed as it is with parts 1 and 2, it would give us timely access to data in a structured, uniform way.

Jacob Mantle :

Thank you. What about CSIS?

Ramzi Nashef :

I have nothing significant to add to that.

Jacob Mantle :

Do you agree with that assessment?

Ramzi Nashef :

We've talked a bit about it today, but it isn't our job to advocate for a particular position. It's our job to give insights into our views on how to strike a balance between the things we've talked a lot about here, which are tools for security and law enforcement, as well as privacy considerations. As I said before and would reiterate, it's in nobody's interest on this side to be stepping into more of an advocacy role that could potentially, for example, erode the social contract that we have as key agencies of the Government of Canada.

We're here to give you our insights into the work we do and how we do it and where the challenges are, and then obviously to take the will of Parliament and implement it as best we can.

Jacob Mantle :

That's fair, and I would agree with that. I want more insight on a technical bill like this. I don't know who was here at the table in 2013—I'm not sure of the exact time—when Bill C-13 was considered. Mr. Wong, I think you indicated that you've been here and working on this for some time. Was anyone else here for Bill C-13 ? Mr. Wong, were you here for Bill C-13 ? Do you recall who was here on behalf of the government during clause-by-clause for Bill C-13?

Normand Wong (Acting General Counsel, Policy Sector, Department of Justice) :

I don't have a recollection. I think there was probably someone from the RCMP with me.

[ Translation ]

Jacques Ramsay :

I have a point of order, Mr. Chair.

The Chair :

The floor is yours, Mr. Ramsay.

Jacques Ramsay :

Could the honourable member get back to the topic at hand, specifically the subamendment?

The Chair :

Yes, we need to understand the point behind this line of questioning, which is starting to drag on.

[ English ]

Jacob Mantle :

I will be coming back to the subamendment shortly. One of the points I wanted to make, building on the discussion about

part 1 and

part 2 and who has been made available to the committee, is about the departure from previous practice when Parliament considered Bill C-13 in the past. This wasn't my review. Dr. Geist made this point earlier today. I'll read one small paragraph of his article, which caused me some concern.

(1635) Anthony Housefather (Mount Royal, Lib.) :

Mr. Chair, I have a point of order. The past practice of the committee on a bill from 2013 does not relate to the question of whether we should have an inclusive list or a non-inclusive list. It doesn't relate to the subamendment. If we follow the practice of the House, he needs to speak to the subamendment that he's put forward, not to a general framework that could be used to talk to every single amendment and subamendment repeatedly throughout the entire clause-by-clause. I do not believe he's being relevant. I would ask you, Mr. Chair, to bring him back to order.

The Chair :

Part of my job is to try to help committee members achieve a balance. As we said earlier, there is limited time. We want conversations to focus on what the task is. I invite MP Mantle to attempt to do that.

Jacob Mantle :

Sure. Let me explain how this ties back to the subamendment. I think all of my comments thus far have been substantive. I just want to make it clear that I'm trying to get to a substantive discussion here. I'm asking these questions because Madam DeBellefeuille's amendment and my subamendment are directly related to the recommendation from the Privacy Commissioner. That was a recommendation written to the public safety committee and discussed during the Privacy Commissioner's testimony here.

One of the problems I am pointing out is that we do not have the Privacy Commissioner here while we are discussing the subamendment and the amendment, which are directly from the recommendation. My point is that that's a problem and a departure. What we are engaging in here is a departure from past practice. I want to put on the record that in the previous discussion of Bill C-13 , officials from Public Safety Canada and the Department of Justice were here—their attendance is routine—but the inclusion of the RCMP and CSIS during this clause-by-clause is different.

I want to make that point, because if we are going to say that agencies that have a view on or are affected by

part 1 or

part 2 of Bill C-22 should be here to provide their input.... I don't disagree with that. I think it's helpful to have the RCMP and CSIS here to answer questions on this. At the same time, on this amendment and my subamendment, it would be helpful to have the Privacy Commissioner or a representative of the Privacy Commissioner here. That is how this line of questioning relates. Is that satisfactory, Mr. Chair?

The Chair :

That's a view you are entitled to have. As you noted, these are the officials here now. They belong to the portfolios of Public Safety and Justice. Other organizations, stakeholders and witnesses—many of them—would be outside the portfolio of Public Safety, which explains why they're not here now.

Jacob Mantle :

I don't know why they're present now but weren't in the past. That's my point. May I continue?

The Chair :

Again, my view doesn't matter that much, but I'll just mention that until now, I have observed the RCMP and CSIS providing helpful answers to a number of MPs around the room. My subjective assessment is that they've been helpful, which may justify the reasons they are here now.

Jacob Mantle :

I agree with that. My only point is that in the discussion of the amendments that we are currently considering under

part 1 and my subamendment, I believe it would be helpful to also have the Privacy Commissioner, which is part of the reason we asked. I want to make the point that we have a departure from previous practice, one that I agree with. Under the clause-by-clause review of Bill C-13 —

(1640) Anthony Housefather :

I have a point of order, Mr. Chair. This is repetition. Mr. Mantle has now made the same argument three times, which, again, doesn't relate to his subamendment.

Jacob Mantle :

I'm sorry, Mr. Chair. I disagree. I've laid out exactly how it relates to the subamendment. Having experts here to provide.... If Mr. Housefather can't follow that logic, I can't help him.

The Chair :

MP Housefather is apparently attempting to remind me, as the chair, of my responsibility to invite everyone to be as coherent as possible and to focus on the subamendment and amendment under consideration. There will be other amendments and subamendments later. We may want to avoid repeating arguments in ways that are not helpful and not supportive of the work of this committee. I'll remind you that we have limited time and we want to be as efficient as possible.

Jacob Mantle :

I agree with that. I will simply remind members opposite that this discussion and the back-and-forth we are having are because they chose to interrupt my line of questioning and—

Some hon. members: Oh, oh!

The Chair :

Let's try to focus on the subamendment.

Jacob Mantle :

Everyone can laugh or not laugh if they want. I don't really care. I have a particular view that I'm trying to express on this bill, and I'm going to continue doing that until you tell me I can't. I'll leave it there. I'm going to read the one paragraph I was trying to read from Mr. Geist's article, because it disagrees with Mr. Wong's memory of, frankly, more than 10 years ago. It's not fair, but.... Mr. Geist wrote the following this morning:

The departure on Bill C-22 is not the presence of departmental officials from Public Safety and Justice, whose attendance is routine, but the inclusion of the RCMP and CSIS, the operational agencies that sought the legislation in the first place. The contrast with how Parliament has handled comparable legislation is telling. When the Justice committee conducted clause-by-clause review of Bill C-13, the last lawful access bill to reach that stage, the officials at the table were from the Department of Justice, and the police and intelligence agencies that would use the powers were not there to advise members on the amendments.

Therefore, as I said, it would be helpful to have the Privacy Commissioner here to discuss my subamendment, which I'm now going to talk about. Ms. Gibner and Mr. Wong, we had a discussion about how to interpret the meaning of the definition of “subscriber information”. In reviewing the transcript of our back-and-forth, I was left with two different opinions that seemed to be expressed to me. Mr. Wong, in response to some of my questioning, you made the point that proposed paragraphs (a), (

b) and (

c) are supposed to cover types of information that the police will use, and they're described that way with examples to try to make them future-proof in terms of what other types of information, like that information, may be used to identify the subject. When you say future-proof, that means the information we have there could include other stuff in the future. That's the definition of trying to future-proof. In contrast, Ms. Gibner, you described the inclusion of the word “means” in the chapeau, and then the inclusion of the word “including” in the subparagraphs.

I made the subamendment, and I was left a bit confused, so as any good lawyer would, I went to the source. Don't worry. I'm not going to read the whole thing, but I will read a portion of it, because it's directly relevant to this.

Sima Acan (Oakville West, Lib.) :

It's only 305 pages.

Jacob Mantle :

It's actually over 800 pages, but I won't read it. I presume, Ms. Gibner, that you're familiar with Ruth Sullivan's The Construction of Statutes . She's the authority. Is that right?

Kimberly Gibner (Deputy Assistant Deputy Minister, Policy Sector, Department of Justice) :

I agree.

Jacob Mantle :

I'll read a couple of sections on understanding exhaustive

definitions and non-exhaustive

definitions. She actually has—I was surprised by this—a specific

section on when a statute has the words “means” and “including” in it, so we'll start there. She wrote:

Exhaustive

definitions declare the complete meaning of the defined term and completely displace whatever meanings the defined term might otherwise bear in ordinary or technical usage. An exhaustive definition is generally introduced by the verb “means”. For example, in

Part 2 of the Canada Transportation Act, “tariff means a

schedule of fares, rates, charges and terms and conditions of carriage applicable to the provision of an air service and other incidental services”. This definition resembles the ordinary meaning of “tariff” in the context of air transportation. Nonetheless, the statutory definition displaces any understanding of the term based on dictionary

definitions or linguistic intuition.

That's the exhaustive definition. She continued:

Non-exhaustive

definitions do not purport to displace the meaning that the defined term would have in ordinary usage; they simply add to, subtract from or exemplify that meaning. Non-exhaustive

definitions are generally introduced by “includes” or “does not include” (or “excludes”), as in the following examples:

sell includes agree to sell, or offer, advertise, keep....

Non-exhaustive

definitions are used to expand or narrow the ordinary meaning of terms, to deal with borderline applications of terms or to illustrate their range—

(1645) [ Translation ]

The Chair :

Excuse me, Mr. Mantle. I'm not an interpreter, but given how quickly and intensely you're speaking, the interpreter must be having a hard time keeping up.

[ English ]

Jacob Mantle :

That's a fair point, Mr. Chair. The text continues:

Non-exhaustive

definitions are used to expand or narrow the ordinary meaning of terms, to deal with borderline applications of terms or to illustrate their range of application by setting out examples.

That makes sense. In the last section, Ms. Sullivan describes examples in our situation, where we have “means” and “includes” in the same clause. She said:

A statutory definition stating that a defined term “means and includes” something would be confusing since it would imply that the definition both displaced ordinary meaning (means) and relied on it (includes). However, a definition that first uses “means” to stipulate a definition that displaces ordinary meaning and then uses “includes” to enlarge, narrow or illustrate the stipulated definition makes sense and is a conventional drafting technique. In such a case, the defined term applies to anything that comes within the stipulated definition regardless of whether it also comes within the meaning of the words that follow “includes”....

This is where it gets a little tricky, because there seems to be some disagreement at the Supreme Court on this. I won't go through all of it, but she makes reference to the Entertainment Software Association case. She notes, “It is not always obvious whether a list that follows ‘includes’ is meant to expand the scope of the stipulated definition or merely illustrate it.” She then quotes Justice Abella's majority in that case and Justice Rothstein's dissenting opinion. I won't read them, but they're there. After reading that, I was still unsure, to be honest.

Maybe if I had spent some more time considering it, I would have been more comfortable. What I have proposed solves this, in my mind at least, because we're simply going to say, in the current clause, “means” in the chapeau, and in each subclause, we'll remove “including” and use the word “namely” to denote an exhaustive list. I would like your view on this, Ms. Gibner or Mr. Wong, or whoever else would like to comment. In my view, by doing so, we've made it doubly clear that the amendment's purpose is to say the classes of subscriber information that are listed in that clause are exhaustive.

Kimberly Gibner :

I'll start. I would take a step back and remind myself what the subscriber information provides to people who provide services to the public. It's not going to be one-size-fits-all, which means that the information needs to not be an exhaustive list. It needs to be an exhaustive definition that could have varying components or examples of it. Ms. Sullivan said it was a good drafting technique. That's a thumbs-up from Ms. Sullivan that we did a good job by putting in the chapeau. It must mean information used to identify the subscriber, and then they're giving examples of what that could look like.

It has to be non-exhaustive, as it were, because service providers capture identifying information in different ways. I am personally comfortable with that because it is a judicially authorized warrant where the police will have to go to a judge or a justice, identify the kind of information they want and set out how the reasonable grounds to suspect test is met in order to fall into those rubrics. That's how I would answer the question. Mr. Wong may have further things that might help you.

(1650) Normand Wong :

Thank you. I will just add that it is a convention that we use in the Criminal Code. The third thing that you read by Ruth Sullivan is exactly what this is. It's a class definition. The defined classes are proposed paragraphs (a), (b), and (

c) before the “including”, and all the “including” is supposed to do is give examples of what a class covers. The issue with making it “namely” and adding an exhaustive list in the paragraph (

b) category is that you leave out things like IP addresses that are assigned, so important bits of information would be lost. When I mentioned future-proofing last time, it wasn't about being vague; it was about not using terminology, as Ms. Gibner just said, that is inappropriate for all service providers and may be left out. I also made the comment that if we were to do something like that and make it an exhaustive list, the definition would have to be rebuilt into something to make sure that we don't miss important bits of information the police need for doing their investigations.

Jacob Mantle :

Okay. I think we're getting somewhere on understanding what the clause was intended to mean, which, in my view, reinforces why I wanted to move the subamendment. Whether you agree with it or not, that's fine. We can differ on that. Just to clarify, though, Mr. Wong, the BQ-3 amendment does include IP addresses, so that's not accurate. That was also included in the Privacy Commissioner's recommendation. Narrowing it to a finite list of discrete identifiers does include IP addresses. It's just written out—Internet protocol address—in the clause. That's an important bit of information, but it would be included.

I just want to push back a bit on the idea that if we create an exhaustive list, we're going to hamstring ourselves in the future. From a philosophical position, my view would be that that's okay; that's the law-making process. Parliament passes law. Those who utilize it or implement it do so. Then the courts interpret it, and then it flows back to Parliament to say, “Does it need to be...?” If Parliament is not satisfied with the law or with how it's operating, then we can legislate again.

I think there can be good-faith disagreement on how the feedback loop—if I can describe it as a feedback loop—in the legislation-making process—the enforcement and then the

interpretation—should work. Different laws take a different view on that, including whether there's regulation-making ability or whether agencies develop policies to interpret their own.... There's a whole spectrum of how that works. I would say that it's a fine result. I think you need to make a more persuasive argument to me that says in this specific case, having the non-exhaustive list here, then requiring the police to give feedback to Public Safety and then requiring Public Safety to bring that to Parliament through the appropriate channels is not the best way to do that, for whatever reason.

I haven't really heard that. The evidence I will put to you for why I haven't heard that is that at our last meeting, I asked you, Ms. Wong and Ms. Gibner, if there was anything not included in this definition that you thought needed to be included, and you could not give me any examples. Then I asked Sergeant Gilkes, and your response was, “I think that the categories cover most of the identifiers that I would look for.” The evidence you have provided to the committee is that the list is actually pretty good. It covers what we understand to be what police, Public Safety and CSIS need right now.

If in three or five years it changes, that's great. Come tell us, and Parliament can consider changes. To me, that's a good balance, because right now without the amendment, as we've established, we're talking about it meaning subscriber information, but the subcategories are non-exhaustive, so more things could be included. I think that's why the Privacy Commissioner honed in on this—I think so, but I don't know, and this is why I'd like someone here so that I could ask them—and suggested that a lot of information could be required. It's not just that it's a lot of different types of information.

It's that the different types of information that could be required attract different levels of privacy. The Privacy Commissioner makes this point by saying, “Depending on the nature of the services in question, such information could reasonably attract a heightened expectation of privacy.” Would you disagree with this, Ms. Gibner? Depending on the class of information and subscriber information, there may be different expectations of privacy attached to that. Is that fair?

(1655) Kimberly Gibner :

No, I wouldn't agree with that statement. I want to take a step back to when you were asking about the Privacy Commissioner. What we have done at the Department of Justice and at Public Safety is come up with legislation that has built-in privacy considerations. That's the Privacy Commissioner's mandate, as your colleague pointed out. Law enforcement have a mandate. You will recall that Hunter v. Southam set out that

section 8 protects a “reasonable expectation of privacy”, not “all expectations of privacy”. Law enforcement and privacy interests have to be balanced in the analysis. We came up with this legislation after already thinking that through. It is now up to the committee to think through whether we got that calibration right. What we did when we came up with that definition is think about subscriber information more broadly. It's not an exhaustive list because of the services provided to Canada. We can't possibly identify every single way services characterize subscriber-type information.

The category of subscriber information itself, more generally, is calibrated in such a way to target information in a minimally intrusive way, one that provides law enforcement with basic information about services, like name, address and the things we can think about today. My friend calls it future-proofing. When the digital world becomes an AI world, that language might not be exactly the same, but it is basic identifier information.

Jacob Mantle :

I'm having trouble with that. You're suggesting that all the classes of subscriber information in the definition attract the same level or expectation of privacy.

Kimberly Gibner :

Yes, I would say that.

Jacob Mantle :

How would you reconcile that with the Supreme Court saying that, for example, an ISP would attract a high level?

(1700) Kimberly Gibner :

Again, if I take a step back, you will recall that before Spencer, before 2014, the Supreme Court of Canada said of subscriber information that there was no reasonable expectation for that kind of data. Plant is the case you might recall. In 2014, Spencer changed the world. Spencer said that subscriber information does have a reasonable expectation of privacy when it's attached to an IP address you can link to online activity. You need to think that through as government in terms of judicial authorization. People can't do it voluntarily, which is what happened before that.

That's what the legislation before you is about. It is about a judicially authorized warrant to obtain this subscriber information now.

Jacob Mantle :

Regarding the definition of “subscriber information”, your view is that name, telephone number, email address, identifier assigned to a client, account numbers and types of services all attract the same expectation of privacy.

Kimberly Gibner :

That would be my view. I would refer you to the Criminal Code, where a similar provision already exists. To situate you, part of the balance we're talking about when we say “privacy rights” and “law enforcement” is built into a Criminal Code that already exists. I would refer you to

section 487.018, which is about financial data. It might assist the committee to review that provision, because it's along the same lines, MP Mantle, of what you're asking me. What sort of reasonable expectation of privacy do these things have? They list all sorts of information related to your finances that is accessible with the standard of “reasonable grounds to suspect”. You need a court order. You need to get it judicially authorized. The police need to have reasonable grounds to get that. That is the type of information that I would call subscriber information.

Again, I'm suggesting this to you because it's going to be you who has to decide. Financial information seems a bit more.... If we're comparing, you're trying to ask, “Is there a gradation, Kim, on kinds of information?” I would suggest that this is your marker. I just wanted to point that out, if it assists you.

Jacob Mantle :

This is helpful. I feel a bit outgunned here, but I'm trying my best. I'll put one case to you, Rodgers, in which the court said, “Since individuals have different expectations of privacy in different contexts and with regard to different kinds of information and documents, it follows that the standard of review of what is “reasonable” in a given context must be flexible”. Putting that over the broader framework of different categories of privacy interests, the “biographical core”—I think that is one of the phrases the court has used—of personal information can reveal their choices, their habits and their lifestyles. Tell me if I'm wrong here, because I'm not—

Kimberly Gibner :

That's correct.

Jacob Mantle :

All right. Good. I would think that some of the information in the definition of “subscriber information” could relate to that biographical core—for example, “the types of services provided”. In my view, then, proposed subparagraph 487.011(c)(

i) might actually attract a higher expectation of privacy than another part of that definition. That's why I'm having trouble with your perspective that everything in here attracts the same expectation of privacy. Do you disagree with where I'm going on this, or are we just going to...?

Kimberly Gibner :

I understand your question, and my responses are trying to assist you. I'm not sure what would assist you, but maybe talking to your RCMP witnesses here about the types of services.... You typically look at the types of services. We're thinking of the telco example: “Do you have cable? Do you have one phone or do you have two?” Out of all of the different kinds of applications, nothing is coming to mind that would be able to answer your question any better, but maybe you have something you're thinking about that we can respond to.

(1705) The Chair :

I would kindly and respectfully suggest that if you do have questions related to your subamendment, you may want to pose them. My subjective impression is that we are running a bit outside of the topic of the subamendment by looking at what are other important issues possibly, but not focusing on the subamendment.

Jacob Mantle :

That's fair. Let me bring it back. The reason this discussion is important is that by simply saying “the types of services provided”, as we are here, we elicit, as Ms. Gibner correctly stated, the common-sense reaction that those are services provided by the telco. However, it's not limited to that, because we know, as we just established, that these proposed subparagraphs are non-exhaustive illustrative lists. It's not just about the information that the telco has on you. It could be, for example—and I'll put it to you—a service related to hotels or an escort service that someone might have engaged.

I suspect that would be different from saying, “Telco, do you provide them services?” I don't know whether the RCMP or CSIS has any colour they want to add to your point. My point is that this being non-exhaustive leaves it open such that some of the information may have a lower expectation of privacy and for some it may be higher, and when we get to the discussion of the standard, that will also play a role there. Mr. Burchill or Mr. Gilkes, go ahead.

Richard Burchill :

I'm sorry. Just to be clear, what's the question?

Voices: Oh, oh!

Jacob Mantle :

It's about trying to understand what you think services provided.... I don't appreciate the laughter.

The Chair :

I agree.

Jacob Mantle :

Let me be very clear. If I wanted to just blow this up, I have 800 pages that I can work in. I'm not trying to do that.

The Chair :

It's a balance that we are currently achieving well, so let me come back to you.

Jacob Mantle :

Would information like, for example, services provided by hotels, Airbnb and escort services be useful in your investigation, yes or no?

Aaron Gilkes (Acting Officer-in-Charge, RCMP Lawful Access, Royal Canadian Mounted Police) :

I guess it depends on who is running the service. We cannot serve a judicial order or a court order to an entity that's currently under investigation. If we're going to be asking about details of their possible criminal enterprise, we cannot even serve them with something like that. We have to take into account the information we're receiving. In the way our investigations flow, there's more than just evidence of the offence that we are trying to collect, and there's precedence in that.

When we write the search warrants for a computer system, for example, we're searching for evidence of the offence—let's say photos, emails or something like that—but we're also searching for evidence of something like the use of a particular device or the use of an account. In terms of what can be provided to us regarding services, a lot of the time we're trying to corroborate and establish who might actually be behind or in control of the unknown that we are trying to establish. This does happen.

For example, when we write a production order for a home service and obtain information that a second security system service has been purchased, we do a follow-up production order to obtain the location of that. We identify other homes belonging to the individuals. We identify other operations or facilities they may have that they're obtaining services for. For us, it's about the importance of being able to establish not only evidence of the offence but also other potential sources for evidence we could write about going forward.

Jacob Mantle :

Is there anything you'd like to add, Mr. Burchill?

(1710) Richard Burchill :

No. His example would illustrate what.... I hope it answers your question.

Jacob Mantle :

Yes, it does. It confirms part of my discomfort with the current clause, which is that it's being left open-ended. The scope of subscriber information could potentially be quite broad; therefore, there could be different privacy interests at play. I don't think that's the best balance, I'll say, between providing law enforcement the right classes of information to identify what services we're providing and potentially going to the next step of getting the production order and protecting certain privacy interests that Canadians, in my view, reasonably have.

To summarize, that's why I think this subamendment to create an exhaustive list is necessary, and that's in keeping with the Privacy Commissioner's recommendation to narrow the list of subscriber information to a finite list. Thank you, Ms. Gibner, Mr. Wong, Mr. Burchill, Mr. Gilkes and Mr. Nashef, for your comments. I'll leave it there.

The Chair :

Thank you. Your points have been well expressed and well understood. Next is Madame DeBellefeuille, to be followed by MP Au.

[ Translation ]

Claude DeBellefeuille :

I actually want to comment on the amendment, Mr. Chair. I thought my amendment was a reasonable compromise regarding clause 4 of the bill. By removing the word “including”, I think the subamendment is too restrictive and is not consistent with the intent of what the commissioner had proposed. I will therefore be voting against the subamendment. I'm eager for us to get back to my amendment, because I didn't get a satisfactory answer as to why you think it would be so terrible to adopt the amendment and, above all, restrict the services provided somewhat. That's really what's bothering me. As soon as we're done discussing the subamendment, I would like the floor to discuss my amendment.

The Chair :

Thank you. We now go to Mr. Au.

[ English ]

Chak Au (Richmond Centre—Marpole, CPC) :

Thank you, Mr. Chair. I will speak directly to the subamendment. I'm in support of the subamendment. However, before I go on, I have to share some of my observations, and I want to seek your guidance in the process. I think we are going in circles. I wonder whether we can move fast enough to produce a workable, acceptable and balanced piece of legislation for the sake of public safety. My feeling is that right now we have opinions from only one side. We are talking about trying to get a balance. I know this is what we are supposed to do. We have a piece of legislation in front of us. We have different views.

We have people who are in favour. Some people who are in a different group might say, no, this is going too far. What I observe here is that even though our witnesses said they are not here to advocate for the passing of the legislation as is, actually they are, because they will be the users and consumers of this legislation if it passes. I can understand that from their perspective of what they should have, the more, the better in terms of authority, power and convenience.

On the other hand, we have received lots of submissions from civil liberty groups and service providers, and they have a very different view. They have concerns. They have worries. They have also expressed some limitations of this bill if it is passed. What we have here today, as we had last week, is that whenever we raise a question, we get almost a rebuttal that this is not working, this is not the right thing or this is not the right approach. That is not what I would like to have. That's why I support the idea that we should at least have the Privacy Commissioner present to answer some of our questions.

Yes, he made a presentation before, and he was mentioned by other people in their submissions, but that's different from having him present. New questions, new perspectives and new insights have been raised. We need to have a balance of opinions and need to have people here who can give us another perspective so that we can actually strike a balance.

(1715) Anthony Housefather :

I have a point of order.

The Chair :

Mr. Housefather.

Anthony Housefather :

Mr. Chair, Mr. Au has been speaking for five minutes now and hasn't dealt with the subamendment at all. He's relitigating a motion that was defeated by the committee at the last meeting. Not once has he spoken to the subamendment in question. This is not within the scope of how we deal with clause-by-clause.

The Chair :

That is well noted. Thank you. MP Au.

Chak Au :

My suggestion is to be a bit more patient. I'm coming to you—

Sima Acan :

It's been 75 minutes.

Anthony Housefather :

We've been here for an hour and 40 minutes, and we haven't gotten through one subamendment.

Chak Au :

Let me tell you more about my background. I'm not a lawyer, so I'm not going to make long speeches. You don't have to worry about that. I'm a family therapist. I'm trained to listen to both sides. I'm used to it. That's where I'm coming from. That's why I made the statements I did earlier.

Sima Acan :

It's been 75 minutes of listening.

Chak Au :

Well, the more you interrupt me, the more I have to explain myself. Is that not the case?

The Chair :

Let's focus on the subamendment. Let's also respectfully listen to what the content of the input will be.

Chak Au :

That's why I said at the beginning that I am in support of the subamendment. I said that last time. We need to have a clear definition of what we are seeking. This is also what civil liberties groups are asking for and what service providers are suggesting. I mentioned last time that we should limit and be clear about the information we are seeking and have a clear definition. With that, I have expressed my opinion.

The Chair :

Thank you, MP Au, for having done that. [ Translation ] Shall the subamendment to BQ‑3 carry? (Subamendment negatived: nays 7; yeas 4 [ See Proceedings of Minutes ])

The Chair :

We are now back on BQ‑3. Go ahead, Mrs. DeBellefeuille.

Claude DeBellefeuille :

I don't know if you've noticed, but I'm putting a hand over my ear. It's not because I'm hearing impaired. It's because, when Mr. Mantle speaks English, I hear him in my right ear and I hear the

interpretation in my left ear. If I don't cover my ear, I think I might go crazy. I don't want to sound like I have a problem. I just want to explain why I'm doing this. It's the same thing when witnesses are too loud, sometimes. It's not your fault, Mr. Mantle. You're sitting close to me and you have a strong voice. You're a good speaker. All that said, I'd like someone to explain something to me. Mr. Wong used a great expression at our last meeting: he talked about a fishing net, as opposed to a fishing rod. I like the image.

He said it was as if Bill C‑22 allowed for the use of a large net and, as a result, increased the odds of catching fish, that is to say criminals, compared to using a fishing rod, which is more complicated. I don't know about you, but when I analyze things in life, I always draw a line where on the one side is what's unacceptable and, on the side, what's ideal. In my life, I always try to lean towards what's ideal, but I often settle for what's achievable. Now, I'll tell you how I feel about the amendment that the Privacy Commissioner recommended.

It's as if he's telling law enforcement he understands they've wanted legal access for 30 years and that, now that they might get it, they want the big net right away, without compromise. They should eat the elephant, or the whale, to stay with the fishery imaging, one bite at a time. When I ask law enforcement what my amendment would change, they say it would make things more difficult, more complicated. The Privacy Commissioner's objective is surely to restrict things a bit. The wording he proposed is clearer on the type of services.

We talked a lot about aliases at the last meeting, but I'm much more interested in the information on the services provided. At some point, there's a limit to allowing access to an exhaustive list of services provided. Regardless of how many times I ask law enforcement, I know they'll tell me the current wording of the bill is better than the amendment, because it would allow them to do more. However, if my amendment were adopted, the bill would still give law enforcement access to information to which they don't currently have. That would be a plus. Am I wrong, Mr. Burchill?

(1720) Richard Burchill :

I'm sorry, can you repeat the last part of the question?

Claude DeBellefeuille :

Would the amendment, as drafted, give you access to more information than you currently have access to? Would that be an improvement? It wouldn't give you as much access as the definition proposed in the current version of the bill, but would it be a plus compared to what you currently have? I don't know how the expression “ un plus ” is being interpreted or how it could be translated. Is that an advantage? I don't know how to summarize my question. I don't know how that was interpreted.

Richard Burchill :

I'll ask my colleagues from the Department of Justice to help me answer. As I understand it, under the proposed order in the bill, the information we have access to is more restricted. We only have access to a certain type of information at the moment. My colleagues from the Department of Justice could help me explain the difference compared to what we have access to at the moment.

Claude DeBellefeuille :

That's not the answer I was looking for. I don't really understand what you're trying to tell me. I'll clarify my question. My proposed amendment is in line with the Privacy Commissioner's proposal. Even if it's a little more restrictive, isn't it a plus compared to what you have access to now?

Normand Wong :

I'll answer in English. [ English ] It's not a plus because currently police use the general production order. In other motions that are coming up for discussion, you're also proposing to raise the level of judicial scrutiny, the test for it. It goes counter to the objective of the bill, which is to provide police with timely access to data. This would, in fact, give them less than they're currently getting under a general production order. The idea of the more precise tool is to give them information that is consistent, as Ms.

Gibner said, with other information that's available under “reasonable suspicion” already in the Criminal Code that relates to subscriber information. Your amendment would give them less than they're currently getting, and even with your other proposed amendments, if it were to stay the same, it would give them less than they're currently getting.

(1725) [ Translation ]

Claude DeBellefeuille :

I don't know if I understood you correctly. I have no doubt the Privacy Commissioner's team is competent in this area. They have a legal department. In fact, Mr. Dufresne is himself a lawyer. However, you're telling me he and his team knowingly proposed amendments that would undermine the work of police officers. That's troubling. I have a great deal of respect for the commissioner, and I'm saddened that he's not here to make his case or share his point of view, or that he doesn't even have the opportunity to say he was wrong if that's the case. What you just said is a big deal. I'm troubled by that.

I don't know if you're familiar with this Quebec expression, but you're telling me the commissioner is “ dans les patates ”, which means he's completely out in left field. What you just said is pretty big. I don't know how the expression “ être dans les patates ” is rendered in English, but it's very colourful in French. It means being completely wrong. I think that's a very strong statement, Mr. Wong. I'm shaken to hear you say the amendment would undermine the work of the police. I'll have to take your word for it, but I still doubt that.

If the commissioner was here, I could ask him questions and I'd be satisfied. I'm going to stop asking questions, because I'll basically keep going in circles. You're going to keep repeating the same thing. Deep down, what I'd really like to hear is the commissioner's answer. This little legal battle would allow me to better understand what the commissioner had in mind when he proposed this. He proposed eight amendments. I can't believe his entire team got it wrong. His intent was not to undermine the bill or lawful access. Thank you for your heartfelt answers to my questions. Mr. Chair, I'm done with my remarks.

The Chair :

Thank you, Mrs. DeBellefeuille. Mr. Mantle, you have the floor.

[ English ]

Jacob Mantle :

Thank you, Mr. Chair. I want to follow up on a point from my colleague. I'm going to put this back to you because I want it on the record. Mr. Wong, your view is that the Privacy Commissioner's recommendations are counter to your understanding of the purpose of this bill. In fact, it's worse than that. The Privacy Commissioner's amendments are redundant, because you would be back in the same situation of getting a general production order.

Normand Wong :

Yes.

Jacob Mantle :

I think that warrants a response from the Privacy Commissioner, who might want to respond to that. I have another question for you, Mr. Wong. You mentioned briefly reasonable suspicion and that there are other provisions in the code where that is used. I'm not an expert, and I didn't practise criminal law. I had to take criminal law in law school, and that's the last time I touched it, thankfully. Could you just explain a couple of examples in the Criminal Code where that standard is used?

You mentioned in your response that otherwise we're just back to what you would get under the general production order, which is the higher standard. What are some specific examples in the code that use that?

(1730) Normand Wong :

There is only one production order under reasonable grounds, I believe, and that's the general production order. There are, I believe, four production orders currently and maybe even specified dates—no, that's reasonable grounds to believe. For trace specified communications, that's a transmission data production order. To go back to your earlier question about Bill C-13 , these all came about in Bill C-13. That's

section 487.015, and

section 487.016 is the production order for transmission data. The production order for tracking data is

section 487.017. The financial data production order,

section 487.018, which Ms. Gibner talked about, has been in the Criminal Code since 2004. That includes not only banking information but the customer's name and address and the type of subscriber information that we're talking about currently in the subscriber information production order. All of those things are under the reasonable suspicion standard.

Jacob Mantle :

Thank you. That's helpful. I thought you might go to the transmission one, because that's the one I'm aware of. I suspect that we will return to that in our discussion and debate on the different standards, because I think we may take a different view on what transmission data is versus what is being proposed in subscriber information. One of the other points the Privacy Commissioner made with this list needs to be dealt with in the list before we get to the standard. If the standard is not changed, the Privacy Commissioner makes the argument that the problems with the definition will be magnified because other portions of

part 1 rely on that definition. The Privacy Commissioner makes the argument that because the production order for subscriber information after you get the confirmation of service, which relies on the same definition, can be served on any person who provides service, that means that in some of the cases, service providers are going to be required to provide all—it refers to all—the information in the chapeau. What do you say to the critique that this definition compounds the problem because the subsequent production order for subscriber information would then rely on the same definition, which is very expansive?

Normand Wong :

I will refer back to what Ms. Gibner previously answered on the balancing of privacy interests with what police need. We're not on this clause yet, but in the way the subscriber information production order is constructed, it's based on the definition that we've already dealt with. We've tried to include the information that police need in an investigation, but the way the production order works is that the service provider would provide that information in relation to something else. That's in relation to the phone number or the IP address that the police have obtained because they're investigating a crime.

Jacob Mantle :

Thank you for that. I don't think that answers the critique of the Privacy Commissioner, but I want to reiterate, and will continue to reiterate, that this is why I think we can come to a reasonable place on

part 1. I clearly have some differences of opinion on some of the amendments, but as Mr. Caputo said, I think we can come to a reasonable position on

part 1, which, as we've heard, would be helpful. I will reiterate that our offer remains on the table for the members opposite to consider as we move through

part 1, especially as we move through the current BQ-3 amendment and the other amendments. With some reasonable amendments, which we're debating, we could arrive at a place where we could pass

part 1 and then continue the discussion that clearly needs to continue on

part 2. I think that's a reasonable off-ramp. We've offered that and you could—

(1735) Jacques Ramsay :

I have a point of order.

[ Translation ]

The Chair :

Go ahead, Mr. Ramsay.

Jacques Ramsay :

Are we still discussing the amendment, Mr. Chair?

[ English ]

The Chair :

The point is—and, again, the chair needs to be careful—we've heard those arguments before. MP Mantle.

Jacob Mantle :

Thanks. I would just remind members opposite that every time you do that, you're going to make this longer. You're operating against your own cause there. I was just saying that these amendments are important. If we can read a reasonable position on them, we can pass

part 1, which would be helpful, and then we can continue discussing

part 2.

The Chair :

Thank you very much for that. [ Translation ] Is it the will of the committee to adopt amendment BQ-3? (Amendment negatived: nays 6; yeas 5) (Clause 4 agreed to on division) (On clause 5)

The Chair :

Let's move to clause 5. Amemdment NDP‑2 is deemed moved. Ms. Kwan, you have the floor.

[ English ]

Jenny Kwan (Vancouver East, NDP) :

Thank you very much, Mr. Chair. With regard to this amendment, I note the International Civil Liberties Monitoring Group and the Canadian Chamber of Commerce have raised concerns with respect to production order thresholds, saying that “reasonable grounds to suspect” is an unreasonably low standard, particularly given the Supreme Court of Canada's findings regarding the high potential sensitivity of subscriber information, which has been described as “narrow in scope” but in fact is incredibly revealing about “personal aspects of an individual's life”.

With respect to the standard, this amendment replaces the language “reasonable grounds to suspect” with “reasonable grounds to believe”. Doing so in all provisions regarding subscriber information, production orders and real-time device tracking authorizations will set a standard that requires the probability of a crime rather than a mere suspicion before they can map a citizen's movement or demand identifying logs. I hope committee members will support this amendment. I note that others have also advanced exactly the same amendment.

[ Translation ]

The Chair :

Thank you, Ms. Kwan. Mr. Caputo, you have the floor.

[ English ]

Frank Caputo :

Thank you. To the officials, on “reasonable grounds to suspect” versus “reasonable grounds to believe”, is there an analogy to be drawn with

section 495 of the code as to the powers to arrest and the reasonable and probable grounds to make an arrest?

Jacob Mantle :

On a point of order, I don't mean to interrupt my own colleague. I just wanted to clarify something with the chair. Ms. Kwan made the point that other amendments are similar, and I just want to get your view on how other similar amendments would be affected if this is passed or defeated.

The Chair :

That's a good question. There's no impact on the subsequent amendments.

Jacob Mantle :

Thanks.

Frank Caputo :

Boy, I had a really good thought going there.

Section 495 of the code, as I recall, governs reasonable and probable grounds to make an arrest, and that is based on “reasonable grounds to believe”, as I understand it. Is there any connection between the powers of arrest versus the reasonable and probable grounds to believe? In other words, are they on the same standard? Would

section 495 operate on the same standard as “reasonable grounds to believe” if we were to adopt this amendment? I suppose that is a better way to put it.

(1740) Normand Wong :

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-22 after 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.

Frank Caputo :

Well, I understand that. I'm not sure I articulated my question properly. Right now, we're debating the standard on which a production order should be granted or not. If I understand Ms. Kwan's amendment, it is to take it from “reasonable grounds to suspect” to a “reasonable grounds to believe” threshold, unless I'm looking at the wrong threshold.

Normand Wong :

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

The Chair :

Yes, we are.

Normand Wong :

Thank you.

Frank Caputo :

Okay, I must be looking at the wrong thing on my chart. I'm going to consult the amendment directly for a moment.

The Chair :

In the meantime, we have MP Lloyd.

Dane Lloyd (Parkland, CPC) :

I believe this is about clause 5. I was wondering if the officials could tell us what the substantive difference in an investigation would be if it were changed from “reasonable grounds to suspect” to “reasonable grounds to believe”? What's the practical reality for a law enforcement officer in terms of the time put into something that requires a threshold of grounds to believe as opposed to grounds to suspect?

Kimberly Gibner :

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

Dane Lloyd :

It would probably be most appropriately directed to people who are in law enforcement, but if they don't have the answer, then perhaps some of the officials could answer.

The Chair :

The question is about the difference between....

Dane Lloyd :

In terms of getting a court order to get subscriber confirmation, what is the practical difference in terms of the time and effort thresholds that have to be hit by law enforcement when we're dealing with “reason to suspect” versus “reason to believe”?

Richard Burchill :

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.

(1745) Dane Lloyd :

I understand what the purpose of the confirmation of service demand is. What I think you're saying is that the evidentiary requirements would be higher for “reason to believe” versus “reason to suspect”.

Richard Burchill :

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.

Dane Lloyd :

Thank you. That somewhat answers my question. I know there are Canadians watching who might not understand this as much, and I'm learning myself, but to be clear, this is purely about “reason to suspect” versus “reason to believe”. This is about the court authorization that is necessary to receive a yes-or-no answer from the telecom companies or the electronic service provider. That is the confirmation of service. Is that correct? You're nodding your head, so I'll take that as being correct.

Richard Burchill :

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.

Dane Lloyd :

Yes.

Richard Burchill :

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

Dane Lloyd :

Does anyone else have a different understanding of that?

Normand Wong :

I'm not going to disagree with that articulation except to say that there's no judge involved. It's in the mind of the police officer. He has to have reasonable grounds to suspect before he can ask this of a service provider.

Dane Lloyd :

Is that something that's subject to judicial authorization?

Normand Wong :

No, but all of these non-warranted tools, like the exercise of an unwarranted power in the Criminal Code, always receive extra scrutiny when it comes to the prosecution. Any time a police officer acts without judicial authority or exercises powers that usually come with judicial authority, there will be a heightened level of scrutiny in terms of bringing the evidence forward. As Chief Superintendent Burchill said last week, the last thing the police want to do is jeopardize a case. They make sure they have those grounds before they act.

Dane Lloyd :

Thank you. I'm actually a bit more concerned now than I was when I began my line of questioning.

Voices: Oh, oh!

Dane Lloyd: What accountability mechanisms are in place? You're saying that law enforcement doesn't need to require any judicial authorization when they have a reason to suspect. What's stopping law enforcement from just spamming every ESP to ask whether this IP address or this person is a customer of theirs? What accountability mechanisms are in place for that?

Normand Wong :

The framework for the confirmation of service demand is built as a back-and-forth between the service provider and the police officer in order to get the information the police need. The service provider has the ability to respond or say they're not going to respond, or change the timelines because they might not be reasonable, depending on what type of service is being asked to confirm. The scheme is built with that co-operative approach, as are all the production orders in the Criminal Code. They're meant to be served on co-operative third parties.

Dane Lloyd :

Something that was said earlier, by either you or one of the other witnesses, was that the reason you needed to bring this forward was that there are stakeholders out there who require a court order in order to respond, but you've said that “reason to suspect” doesn't require a court order. To me, that sounds like it's conflicting.

Normand Wong :

There are reasonable suspicion production orders that require court supervision. There's an existing preservation demand that uses reasonable suspicion in the Criminal Code that police officers use as well. That's been there for many years. The preservation demand itself, or the confirmation of service demand, will not require a court order, so it doesn't have judicial oversight. As I was explaining before, in terms of the paper they want, it's basically for indemnity from liability. The service providers want to be compelled to do something. They don't want to be seen as being complicit with the state.

(1750) Dane Lloyd :

Perhaps this will be my final question. You said that as part of this back-and-forth, a company may decide not to respond to a request for confirmation of service. What would happen in that case? What would be the next step in that process?

Normand Wong :

There is a scheme that allows them to either respond or object. If they simply do not respond, there is a penalty scheme built in as well.

Dane Lloyd :

What if they object?

Normand Wong :

If they object, the clock stops. Until the matter is resolved, they don't need to confirm or deny whether they provide the service.

Dane Lloyd :

Thank you.

[ Translation ]

The Chair :

Thank you, Mr. Lloyd. Mr. Au, you have the floor.

[ English ]

Chak Au :

Thank you. My colleague asked my first question regarding whether or not there's a channel for service providers to dispute or to not provide. You answered the question. Again, we are talking about keeping a balance here. I understand that law enforcers want more power and more convenience, but on the other hand, other groups, like civil liberty associations and service providers, have other concerns. I want to ask a question about the duty to inform. If a service provider provides the information requested and, after the investigation, law enforcement feels the guy is not a suspect, is there a duty for the service provider to inform the person involved, or a duty for the police to inform?

Normand Wong :

There is no positive duty for the police to inform, but there is an ability within the scheme to order non-disclosure if disclosure would impact the investigation. Because they're under privacy legislation, there is a positive duty to inform a customer if anyone has asked for their information. To counter this, there is the ability to impose a disclosure restriction within the confirmation-of-service demand. This is valid for a year. If it needs to be extended, it would have to be extended by a court.

Chak Au :

Are you saying that if a person is not informed, he could be kept in the dark forever?

Normand Wong :

Yes, I think that may be a possibility. As we talked about, a lot of these tools are used to figure out who the suspects are, who the innocent people are and who the victims are. If someone is an uninterested person, the police would not follow up, and the person would probably not follow up on whether the police inquired.

Chak Au :

When a company enters into a service agreement with a customer, what if there's a provision that says there's a duty to inform or get consent to release personal information as required? If there is such a service agreement between the company and the customer, it would put the company in a conflict, because you're compelling them to provide that information. Is that not the case?

Normand Wong :

That is the case, but, again, the framework allows objection based on certain grounds. One of them is “otherwise not”—if you're prohibited from disclosing for some other reason, including by law. I'm not sure contract law would override the Criminal Code in this case, but they would have the ability to object on that basis.

(1755) Chak Au :

If I understand you correctly, you seem to be implying that a company has the right to object to or withhold information, and there is no consequence for that company.

Normand Wong :

If the company does not provide the information or respond to the demand, there are consequences. However, there are off-ramps for that company if they don't think the disclosure is consistent with their legal obligations, so they could object. That's when the scheme kicks in and the clock stops, and then a judge will hear whether or not their objection is reasonable.

Chak Au :

In that case, would it not make your legislation useless? You keep telling us that it's because of urgency, the time and the need for a fast response that you need the information right now, immediately, before the guy is gone. Hypothetically, if a company chooses to delay by not responding, there may not be a consequence. What is the use of the legislation if you cannot compel? You want to ask for fast information, but if there's such leeway, if I can call it that, for a company to delay, what's the use?

Normand Wong :

Going back to one of my previous responses, these schemes—the confirmation of service demand and the production orders—are to be used with co-operative third parties that police have long-standing relationships with. If a service provider is not co-operative, police have other tools they can get. They could get a production order that compels, or they can get a warrant that authorizes them to do the work themselves. There are other means of doing this. Again, this is a tool to be used with co-operative third parties.

It provides those third parties with a piece of paper that indemnifies them because they're responding to a state request. It satisfies their needs and hopefully satisfies the police's needs as well.

Chak Au :

I have doubts about the effectiveness of the legislation as written. I have two more questions. In the case of a company that might be operating internationally, if there's a conflict of jurisdiction between countries and the company is bound by another jurisdiction not to release that kind of information, what will happen?

Normand Wong :

It's the same response as when they have a conflict of laws for contractual reasons. If they have a jurisdictional conflict of laws, they could also object because they're not allowed to release the information for those purposes. It's the same process. The clock would stop, and a judge would hear whether the objection and the conflict of laws were reasonable.

Chak Au :

The last question I have I raised last time. There's temptation when you're given power: You have the tendency to use it more and more. What measures in the legislation or through other channels would forbid law enforcers from the overuse or abuse of that kind of authority?

Normand Wong :

On the confirmation of service demand, I'm not sure of the exact figures. There is a large segment of the telecom sector that provides this information without any piece of paper, because they don't see it as being privacy-invasive and want to give assistance to police. The portion of the industry that requires a piece of paper instead of a production order—and the only one available for this type of information currently is a general production order, which is quite difficult to obtain—would be subject to this new confirmation of service demand. It's a new tool. We don't know how often it's going to be used.

I think there are other amendments later on that are asking for some sort of review, so if those pass, the proof will be in the pudding, so to speak.

(1800) Chak Au :

You reminded me of another question. Are you saying that you have no estimate for how many times this legislative power will be used? You have no idea how many times in the future this authority will be used.

Normand Wong :

I don't, but perhaps the law enforcement officials here might have some idea.

Chak Au :

Can anybody answer the question?

Richard Burchill :

It's pretty hard to look into the future to see how much it would be used, but this investigative technique is already used in every investigation across the country as we speak. The added piece to this particular confirmation of service demand that's different is that it documents our request and then that goes on the investigative file, which is disclosed in court. There will be more scrutiny to these requests than there currently is.

Chak Au :

Based on your previous experience in law enforcement, what would be your estimate? Can you say, “From my experience, I can say that perhaps five times in the past, I could have applied these new measures in order to facilitate my investigation”? Just give me some general idea; that's good enough. I'm not asking for statistics per se.

Richard Burchill :

I think it would be problematic to try to make a guess like that. I couldn't even come to a number for you that would be in the realm of reality at this point. That's trying to look into the future to say how often we would do a confirmation of service demand and document that for the file. I wouldn't be able to respond to that for you today.

Richard Bilodeau :

It's also hard for them to answer for all the different policing jurisdictions across the country. They wouldn't necessarily have line of sight on that.

Chak Au :

I understand. Thank you.

The Chair :

Mr. Nashef, do you want to step in?

Ramzi Nashef :

I was going to add a little point there, but my hand up to my colleagues didn't really work. Maybe I'll give you, MP Au, a bit of colour from our perspective. The intent is to continue to try to go voluntarily in this space, especially after the 2014 Spencer decision we talked about. I can speak for us in saying that the stickiness, so to speak, to use Norm's example of those who need a piece of paper, has largely been in the telecom sphere. What this does for us is give us a backstop so that if we can't get it voluntarily, we have the authority.

It's hard to say the number because it would depend on whether that stickiness persists or whether, because it's legislated, we get less of that. It is the response that would dictate that.

The Chair :

Thank you. MP Caputo is next. There's no pressure, MP Caputo, but when you're done, we'll stop and suspend for a few minutes for dinner.

Frank Caputo :

I was actually going to suggest that we suspend now.

The Chair :

It's not ready yet.

Frank Caputo :

Oh, okay. Well, there's no pressure, then, at all. May I ask, Mr. Chair, before I start, whether we have a cut-off time of 7:30?

The Chair :

I'll check with the clerk whether we have resources after 7:30.

Frank Caputo :

It would be helpful if we knew. I know the meeting started late. I think it would be helpful for all of us. I don't mind working, but I think it would be helpful for all of us to know when the meeting is expected to end. I'm going to come back to what I was saying earlier. I pulled out the provision I noted when I was speaking with Mr. Wong. The point I was trying to make is that right now proposed subsection 487.0121(2) says:

The peace officer or public officer may make the demand only if they have reasonable grounds to suspect that

(

a) an offence has been or will be committed under this Act or any other Act of Parliament;

Ms. Kwan's NDP-2 would change it to “reasonable grounds to believe”. If we look at the Criminal Code, under

section 495—this is the point I was trying to make—we see that it says:

A peace officer may arrest without warrant

(

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

There's the parallel I'm trying to draw.

Section 495 talks about arresting on reasonable grounds to believe. Ms. Kwan's amendment talks about making a demand on reasonable grounds to believe. I hope the parallel there is fairly clear. I'm drawing that parallel because “reasonable grounds to believe” has been defined in the case law—for arrest, anyway—as being below a prima facie case. It's been a few years, but my recollection is that a prima facie case is a fairly low threshold in law, certainly below a 50% threshold. The point I'm trying to get to is this. Given all of that, is the “reasonable grounds to believe” threshold all that high?

I get that it's higher than “reasonable grounds to suspect”, but if in the context of arrest it's below a prima facie case, could it be said that in this context, given Ms. Kwan's amendment, it's actually not that high of a threshold? Am I making any sense here?

(1805) Kimberly Gibner :

Mr. Caputo, if I can answer the question, you're making complete sense. What I would say is that the standard to ask somebody if they have provided services to Kim Gibner, yes or no, should be a different standard than for somebody who's being arrested.

Frank Caputo :

I understand that's different, but if we adopt Ms. Kwan's amendment, the threshold under, say,

section 495 is “reasonable grounds to believe”. The threshold under proposed

section 487.0121 would also be “reasonable grounds to believe”. Do you get what I'm saying here?

Kimberly Gibner :

“Reasonable grounds to believe” is everywhere in the Criminal Code, if that's what you're—

Frank Caputo :

Okay. Therein is my point. “Reasonable grounds to believe” in the context of

section 495 is below a prima facie case. That's a fairly low threshold, in my view. It's above a hunch and above “reasonable grounds to suspect”, but if we're articulating it as below a prima facie case under

section 495, would it not be below a prima facie case under proposed

section 487.0121? I hope I'm not getting too technical, but that's my point. I'm trying to deduce exactly what the threshold of “reasonable grounds to believe” actually means.

Kimberly Gibner :

Mr. Caputo, I apologize. I don't understand your question. Is “reasonable grounds to believe” a high threshold? It is the Criminal Code threshold used for many things—as you pointed out, to arrest someone and to search your house. The standard has been described in many different ways. We can go over some of the language that describes what are reasonable grounds. “Reasonable grounds to suspect” is a standard that is also above a hunch and has discernible facts that an officer would have to set out. “Reasonable grounds to suspect” is a standard that has been approved by the Supreme Court of Canada.

It is in the Criminal Code. For the confirmation of service demand—“Do you provide services to Kim Gibner, yes or no?”—“reasonable and probable grounds” was determined to be too high. It's not the same thing as searching your home. It is less intrusive information, so “reasonable grounds to suspect” was put before you to be the right standard.

Frank Caputo :

Perhaps I'm not articulating myself here correctly, Ms. Gibner, because what I'm getting at is what is in Ms. Kwan's amendment. Ms. Kwan's amendment was moved, and that is NDP-2. Are we not on NDP-2 right now?

A voice: Yes.

Frank Caputo: Okay. That's where I think we're getting our wires crossed. I worry, because Ms. Kwan's amendment says—I have it right here—“demand only if they have reasonable grounds to believe”. The parallel I am drawing is that “reasonable grounds to believe” is used throughout the code. If we accept this amendment, “reasonable grounds to believe” will be in the subscriber demand section. “Reasonable grounds to believe” under the arrest provision has been interpreted to be below a prima facie case. Are you with me so far here?

(1810) Kimberly Gibner :

Yes.

Frank Caputo :

Okay. If “reasonable grounds to believe” has been articulated as below a prima facie case when it comes to arrest, would it not be similarly interpreted to be below a prima facie case on “reasonable grounds to believe” when it comes to Ms. Kwan's amendment? Do you get what I'm saying?

Kimberly Gibner :

Yes.

Frank Caputo :

Is there an analogy to be drawn in the

interpretation?

Kimberly Gibner :

I'm not answering your question. I'm not being of assistance to you. Maybe Mr. Wong will take a run at that.

Normand Wong :

I think I understand your question now. The contexts are completely different. One deals with

section 8 of the charter: invasions of privacy and whether or not they're reasonable. The standard used there is “reasonable grounds to believe” or “reasonable grounds to suspect”. When you're talking about

section 495—and forgive me, but I'm not an expert in arrest powers—to me, it's not about

section 8. It's about

section 7 and other issues. It's about your freedom. It's about public safety and risk. There are other factors to consider in those cases, and prima facie is not a standard that we use in terms of investigative tools. Maybe that's why we were a little confused on that. The “reasonable grounds to believe” in

section 495 would have to be read with the law around habeas corpus in

section 7 and not with respect to

section 8 and invasions of privacy.

Frank Caputo :

That's a fair comment. You're right.

Section 495 engages

section 9, which is the right to be free from arbitrary detention. The reason I'm going there is that I'm trying to determine what this threshold actually means. What does “reasonable grounds to suspect” mean versus “reasonable grounds to believe”? That's what I'm getting at. In the arrest context, it is a personal subjective belief that is below a prima facie case that is objectively reasonable. That's my reading of what the Supreme Court of Canada has said. Where does that leave us, then? What is “reasonable grounds to believe” in this context, in your view, versus “reasonable grounds to suspect”?

Normand Wong :

This isn't necessarily my view, but there's lots of legal literature out there on this. In earlier hearings, when we appeared here after the bill was introduced, I believe you mentioned that “reasonable grounds to believe” is below “a balance of probabilities”. There are a lot of legal scholars who talk about that threshold. The top of the pyramid would be “beyond a reasonable doubt”. The civil standard “balance of probabilities” is somewhere in the middle, and the highest standard in the Criminal Code, for investigative purposes, is “reasonable grounds to believe”. It's somewhere below “a balance of probabilities”, but it's above “reasonable suspicion”.

Frank Caputo :

I see. That's helpful, because I took earlier comments to state that “reasonable grounds to believe” was above “a balance of probabilities”. I think that's very important. I know this sounds very nuanced and like we're just hammering at something, but the degree to which somebody must believe is very important for the purposes of this amendment; it really is. We're talking about “I suspect an offence might have happened” versus “I believe it has”. If it goes from a hunch to “reasonable grounds to suspect”, “reasonable grounds to believe” and “a balance of probabilities”, to me, that's a very important point.

When I consider that, and especially when I consider the higher threshold and the issue that was brought up by professors Geist and Diab, for instance, about being worried about

section 8 being engaged here—especially if you're looking at a

section 1 analysis and thinking about whether we have crafted this as narrowly as possible on the proportionality test—I'm not as uncomfortable with a “reasonable grounds to believe” threshold. It's not that much higher than “reasonable grounds to suspect”. It's higher, but still below “a balance of probabilities”. To me, that's very important. Do either of you want to comment on that? Feel free. I hope I'm not talking you or myself into circles. Is dinner ready yet?

Voices: Oh, oh!

(1815) The Chair :

When you're ready, we're ready.

Frank Caputo :

I'm ready. Let's go.

The Chair :

Are you ready?

Frank Caputo :

Let's pause there. Thank you.

The Chair :

We'll suspend for five minutes.

(1815) (1825)

[ Translation ]

The Chair :

I call the meeting back to order. Welcome back. We'll continue the debate. Mr. Caputo, you had more to say. You have the floor.

[ English ]

Frank Caputo :

This is very interesting stuff. I find this stuff absolutely fascinating. The one thing that was raised with me in the break, in fairness to the officials, is these are not easy questions. I'm not pretending they are easy, because they are tough, and that's why I'm asking them. We're establishing the threshold of grounds to believe something that you suspect versus something that is probable, as in it's more probable than not in your eyes that something happened or you believe that it happened, as opposed to you think it could have happened, which I think is above the 50% when it's framed that way.

One of the questions raised to me in the break that I hadn't considered is this: Is this analysis of “reasonable grounds to suspect” versus “reasonable grounds to believe” animated or informed by the stage at which you—“you” being a peace officer in law enforcement—are in your investigation? In other words, the service demand threshold happens right at the outset. How does that impact “grounds to believe” versus “grounds to suspect”? Does that make sense? Does it being at the outset of the investigation have any impact?

Kimberly Gibner :

MP Caputo, thank you very much for the question. You've absolutely hit the nail on the head. We've talked about the calibration between privacy interests and law enforcement, as well as the nature of the tool and when the tool is going to be used. Absolutely, both of these tools, the confirmation of service especially, are used at the very beginning of the investigation, when they have very little information.

They can get over the “reasonable grounds to suspect”—they have enough information to get there—but what you've heard them say is that right now they're using a general production order to get that kind of information and the subscriber information, and “reasonable and probable grounds” is just too hard to meet at the very beginning of an investigation. As you were deliberating it, I was looking at the March 10, 2026, Juristat statistics on crime. The report notes that in 2024, 16,905 incidents of online child sexual exploitation were reported by police, and that was 110% higher than in 2018.

Of those, 94% of online child sexual exploitation cases were “not cleared by police”, meaning that an accused had not been identified in connection to the incidents or there was insufficient evidence to get a tool. That's exactly what you've highlighted, MP Caputo: What we've been calling one of the least-intrusive tools out there is calibrated for the very beginning of an investigation.

Frank Caputo :

Could you see a scenario, hypothetically, in which the committee says, “Okay, this is a lower threshold”? I'm speaking hypothetically here; I'm not signalling which way I would vote on an amendment. Could it be that simply identifying a subscriber is a much lower threshold of intrusion, as you had put it, and that's why you could justify “reasonable grounds to suspect”, as in a crime has possibly been committed and we just want to know whether this person is a subscriber?

Then once you get to an authorization to get more data about them—that is in the production order, which is judicially authorized—could you not say, “Well, now you're getting a lot more information and therefore it could be justified that it goes to a higher threshold?”

Kimberly Gibner :

I think what I said stands for the subscriber information as well. Again, we know which service provider provides the service, so now I can go to court and ask a judge or JP to authorize the warrant. Then I'm going to set out the grounds that I have to get very minimal information—name, address—to conduct the very start of an investigation, and I'm going to be able to collect some basic information. What I said—I'm trying to be helpful to you—is how I would think through that problem.

(1830) Frank Caputo :

That's fair enough. I'm trying to work this through, and I get that once you have the subscriber demand and the subscriber information, you're only theoretically one step further ahead once you get that authorization for the subscriber information. If I'm taking your point correctly, we're actually not that much further ahead in terms of determining whether there are now “reasonable grounds to believe” versus “reasonable grounds to suspect”. Could you settle a debate between me and my colleague? I won't say who's on what side, but let's say proposed

section 487.0121 is the

section we're looking at. Let's say that a court says this offends

section 8 of the charter—not the way it was carried out, but the legislation itself offends

section 8. Would there then be a

section 1 analysis of whether or not that is a reasonable limitation on the

section 8 charter right to be free from unreasonable search and seizure? In other words, do you perform the Oakes test on the legislation if it's found to infringe

section 8?

Normand Wong :

I think we've stated this before. Every piece of legislation that is introduced by the Minister of Justice has to be charter-compliant. That's part of his mandate. We are not the charter experts where we work. There is a unit at the Department of Justice that examines all legislation and would do the analysis that's required to make sure it's charter-compliant.

Frank Caputo :

I understand that. We were just debating whether

section 1 would apply, as in whether it could be saved by

section 1, but it sounds like that's not your area. That's fair enough. I'll give the floor to MP Mantle. Before I finish, do we know what time we're finishing up here, Mr. Chair?

The Chair :

We have resources until between 8:10 and 8:25.

Frank Caputo :

Thank you.

The Chair :

MP Mantle is next, to be followed by MP Kirkland.

Jacob Mantle :

Thank you, Mr. Chair. This is the big issue in

part 1, in my view, so I'm going to spend a bit of time on it. The threshold is a key part of both the confirmation of service demand and the production order. Before I do that, I want to reiterate that, should we be able to deal with this particular issue, which is the standard to apply in

part 1—I don't know how to describe it—that would take a lot of the problems that we see off the table with respect to

part 1. What we have offered already and will continue to offer the government here is to work with us on this type of amendment to

part 1. If we can deal with this type of amendment to

part 1, I think we can get to a place where we could start discussing

part 2, which I think everybody reasonably understands is the more contentious part. With the hope that this will happen, I'd like to seek unanimous consent for the following, Mr. Chair.

The Chair :

Do you want to move a motion?

Jacob Mantle :

No, I just—

The Chair :

Do you want to move a motion?

Jacob Mantle :

I'm not moving a motion. I'm just asking for unanimous consent right now to ask that Windscribe be invited to provide testimony in relation—

The Chair :

I'm sorry to interrupt. That's a motion, and you need to have unanimous consent to move a motion. If you have unanimous consent, you can then present your motion. Is there unanimous consent to present the motion?

Some hon. members: No.

(1835) Jacob Mantle :

Okay. Mr. Chair, I'd like to put a motion on notice orally.

The Chair :

That's fine.

Jacob Mantle :

Here is the motion: “That Windscribe be invited to provide testimony in relation to

part 2 of Bill C-22 ,

an act respecting lawful access.” I'd like to put that on notice. I don't have it translated, but I can provide that in due course, as we are just putting it on notice. Mr. Chair, I don't believe that I need unanimous consent to ask if the committee will unanimously consent to inviting somebody to provide testimony. That's not a motion. I'm not moving a motion. I'm just asking for unanimous consent.

The Chair :

Well, you cannot ask unanimous consent for something that you're freely able to suggest. If you want a motion tabled and then moved, you need unanimous consent.

Jacob Mantle :

I've put it on notice. That's fine. When that comes up, we can debate it. The committee is the master of its own procedure. I would seek unanimous consent to invite Windscribe to attend.

The Chair :

I'm sorry. You can express these views. You can have a notice of motion. That's all right, but we cannot have a motion moved if you don't have unanimous consent.

Jacob Mantle :

It's not a motion.

The Chair :

So what is it?

Jacob Mantle :

I'm seeking unanimous consent from the committee to take an action.

The Chair :

Well, that's a motion. If you would like the committee to do something, that's a motion. You need unanimous consent before you introduce a motion. You can express a view, a general view, or you can have a notice of motion.

Jacob Mantle :

That is completely not correct.

Sima Acan :

We're in clause-by-clause.

Jacob Mantle :

The committee can do whatever it likes in terms of its process, if it decides to do so, by unanimous consent.