Evidence of meeting #21 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was police.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Normand Wong  Counsel, Criminal Law Policy Section, Department of Justice
Donald Piragoff  Senior Assistant Deputy Minister, Senior Assistant Deputy Minister's Office, Department of Justice

11:40 a.m.

Conservative

The Chair Conservative Mike Wallace

I'll call to order this meeting of the Standing Committee on Justice and Human Rights. This is meeting 21, and it's Thursday, May 1.

Before we move to the orders of the day, we have the third report from the subcommittee from last Tuesday, which authorizes two things: one, that the Minister of Justice come next Thursday, May 8, for our main estimates, and second, for the beginning of today's study on Bill C-13.

Can I get a motion to approve that?

11:40 a.m.

An hon. member

I so move, Chair.

11:40 a.m.

Conservative

The Chair Conservative Mike Wallace

(Motion agreed to)

Thank you very much.

Our orders of the day, pursuant to the order of reference of Monday, April 28, are that we commence consideration of Bill C-13, an act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act. We are fortunate to have here today the Honourable Peter Gordon MacKay, the Minister of Justice and Attorney General, with his staff to kick off the discussion of this legislation that has been referred to this committee.

Minister, the floor is yours.

11:40 a.m.

Central Nova Nova Scotia

Conservative

Peter MacKay ConservativeMinister of Justice and Attorney General of Canada

Thank you, Mr. Chair, colleagues.

I am pleased to be joined by Justice Canada officials. We are here to answer questions with respect to Bill C-13.

I am very pleased to be before the committee to speak to Bill C-13, Protecting Canadians from Online Crime Act.

Chair, colleagues, I submit to you that Bill C-13 is an important piece of legislation aimed at protecting Canadians from crimes that are committed over the Internet or online. It does so in full compliance with Canadian law.

One of the ways in which Bill C-13 accomplishes this important goal is by proposing a new criminal offence aimed at a particularly contemptible and insidious form of cyberbullying involving the non-consensual distribution of intimate images. It has literally resulted in the devastation of lives, the loss of lives. I can't help but think of young Rehtaeh Parsons, Amanda Todd, Todd Loik, and others who have fall victim to this insidious type of activity.

The second way in which Bill C-13 accomplishes this goal of protecting the public is by proposing changes that would ensure that the Criminal Code and other federal legislation is able to keep up with the high speed of technological change. The need to modernize is deeply embedded in this overall intent.

In this vein, Bill C-13 proposes some minor updates to existing offences while at the same time modernizing the judicially authorized powers that police use, to investigate crimes committed, using electronic networks or that of electronic evidence. I stress for emphasis that “judicially authorized” authority is invoked here.

Turning first to the issue of cyberbullying, as I mentioned, the bill proposes a new Criminal Code offence prohibiting the non-consensual distribution of intimate images. Essentially this offence would prohibit the sharing of sexual or nude images, as defined, without the consent of the person depicted. It is a very nasty, cruel attempt to humiliate or worse, and has, as I mentioned, a pernicious effect that has become all too prevalent, particularly amongst young people.

This proposed new offence would fill a gap in the criminal law, and respond directly to one of the recommendations made by federal, provincial, and territorial officials in the June 2013 report on cyberbullying and non-consensual distribution of intimate images.

It may be of interest to note, Chair, that this report received unanimous support from federal, provincial, and territorial ministers of justice and public safety. These sections around intimidation, harassment, and related sections in the current Criminal Code context go back to age of the rotary dial telephone, so the need for modernization is real.

The proposed bill has a three-part definition of intimate images. In short, an intimate image is one that depicts nudity or sexual activity, was taken in a private setting, and one in which the depicted person has a privacy interest. This approach, like the existing voyeurism offence in section 162, is similarly designed to protect the privacy of the person depicted.

Clearly this Criminal Code section and the accompanying sections are not the entire answer. It will require a much more holistic strategy, as members of this committee are aware. There is much public information-sharing and education involved. We need to reach out to the schools. We need to have law enforcement and the justice system itself more broadly involved. There have been numerous public information efforts undertaken, including pink days and anti-bullying days that are dedicated at various sports and entertainment venues. It will require that holistic approach.

The bill also includes a number of complementary amendments related to the proposed new offence.

For example, the court would be authorized to order a person in possession of intimate images to enter into a recognizance to keep the peace, when there are reasonable grounds to believe that the person would commit the proposed new offence.

In addition to pre-emptive action, such as peace bonds, which have that ability to deter, the court would also be authorized to order the removal of non-consensual posted intimate images from the Internet.

Further, Mr. Chair, upon conviction under this new offence section, the court could order a seizure of equipment—a computer or a hand-held device—make a prohibition order restricting the offender's access to the Internet or other digital networks, and order the offender to pay restitution to permit the victim to recoup expenses incurred by securing the removal from the Internet of non-consensual posted intimate images.

This bill also proposes to modernize investigative powers. These updated tools would assist police in the investigation of not only the proposed new offence, but also all online crimes and any crimes that involve digital evidence, such as, for example, fraud or the distribution of child pornography. These amendments are long overdue, I suggest, and police report that over 80% of major crimes now leave electronic evidence.

While Canadian law enforcement continues to use investigative tools that pre-date the Internet and were primarily designed to collect physical evidence, there's great work being done, as I'm sure the committee is aware, at the Canadian Centre for Child Protection. They do tremendous work and outreach with police forces across this country and with victims.

I would like to be clear that while some of these amendments were previously introduced in a former bill, Bill C-13 does not contain the most controversial aspects of warrantless access. Mr. Chair, in particular Bill C-13 does not include any provision that would allow the warrantless access to subscriber information or that would impose obligations related to telecommunication infrastructure modification.

These amendments relate to investigative powers and were strongly recommended by the same FPT working group that recommended the new proposed offence to respond to cyberbullying and the non-consensual distribution of intimate images. This working group recognized that the important link exists between the proposed new offence that affords the protection and ensuring that police have the necessary tools with which to investigate it and other related online criminal activities. It is, I would suggest to you, very much intertwined—the new offence and the ability to police and enforce under the current provisions.

To give you a quick example of why these modernizing amendments are needed, we need to look at basic but essential telecommunications data, a phone number and an IP address. To obtain a phone number, police can then use the existing built-in production orders in the number recorder warrant, proposed subsection 492.2(2). This is granted by a court on reasonable grounds to suspect. That is the standard. To get the same type of information in an Internet context, such as an IP address or an e-mail, police currently have to use a general production order, which is granted on reasonable grounds to believe, which is a different, higher standard.

This is not only an inconsistent treatment of similar types of information, basic information, it also means that in many cases police, in the context of an Internet crime, will not be able to meet the threshold to begin an investigation. Bill C-13 proposes to correct this.

In terms of reasonable grounds to suspect, I want, Mr. Chair, if I could, to take you through a few of these modernization proposals. One of these proposed new tools is data preservation. Essentially, the data preservation tools are known as “not delete” orders, which would allow police to ensure specific computer data is safeguarded while they apply to the court for proper authorization to acquire that data in order to preserve important evidence. We have police officers, I know, who are part of this committee and can speak to that important preservation exercise.

These tools will provide essential support in the investigation of offences where much of the evidence is in electronic form. It is an era where crucial evidence can be deleted—sometimes inadvertently, sometimes deliberately—with a keystroke. Police, I suggest strongly, need this power.

The data preservation scheme includes a number of important safeguards. For example, once a preservation demand or order has expired, the individual in question is required to delete all the information he or she preserved unless retaining it is part of his or her normal business practice.

Bill C-13 also proposes to update the existing judicially supervised production order scheme. These amendments would result in a comprehensive tool kit that would include a general production order, which is comparable to a search warrant, and four specific and more narrowly focused production orders that will often help police initiate their investigations.

The four specific production orders contemplated by Bill C-13 would allow police to obtain four types of information: first, data to determine whether someone or something was at a specific moment in time, so it's tracking data; second, data that relates to the occurrence of telecommunications, such as an email associated with the telecommunications, so it's transmission data; third, data to trace a telecommunications item in order to determine the identity of a suspect; and finally, basic financial information such as a bank account number or the mere existence of an account of a particular person. It should be noted that this production order for financial information is already in existence.

The bill also proposes to modernize two existing judicial powers, warrant powers: the tracking warrant and the number-recorded warrant. These warrants are unique in that they allow police to collect the type of information in real time, and although the bill has been criticized in the media in particular for lowering judicial scrutiny, I would submit and point out that the proposed tracking-warrants amendments that apply to the tracking of individuals actually raise the standard of judicial consideration from “reasonable grounds to suspect” to “reasonable grounds to believe”. This increased privacy protection recognizes advancements in technology and their impacts upon individual privacy. However, police continue to be able to track things under the existing “reasonable suspicion” standard.

Finally, the bill also proposes amendments to achieve some efficiencies with regard to wiretap applications. These amendments will ensure that Canadian courts in all jurisdictions will use the same processes when they seek to obtain court orders related to wiretap authorization. The proposed amendments would create a single application for judicial warrants and orders that are related to the execution of wiretap authorization. This new process would clarify that the judge who issues a wiretap authorization can also issue the other supporting warrants or orders without requiring a separate application. In some jurisdictions, police have to go before several judges for these related powers, such as tracking warrants, a process that not only is inefficient but that also prevents the judge from getting the full picture of the investigation.

Lastly, Mr. Chair, I would like to take just a moment to address a few of the misconceptions that have been reported on Bill C-13.

Some have mistakenly led others to believe that the proposed legislation would encourage telecommunications service providers and banks to disclose information on their customers without authorization. I want to be very clear. The proposed legislation would not provide the police with any new powers for voluntary disclosure, nor does the bill propose to create a mechanism to bypass the necessary court oversight. To start the provision in question, proposed section 487.0195 is a “for greater certainty” provision and as such cannot grant police any additional powers. These provisions exist to clarify what is already part of the law. As part of their general policing duties, police may already obtain information from a third party voluntarily, without a court order, if—and this is the important part—the person or organization is not otherwise prohibited by law from providing this information. For example, they can already assist police in providing information if they are not prohibited by their duties under the Personal Information Protection and Electronic Documents Act, the PIPEDA. Persons who assist police in that fashion are protected from liability in those cases.

To be clear, this power exists in common law already. The 2004 clarifying amendment was meant to preserve this common-law power. It is found re-enacted here in this bill, and is intended to do the same. The proposed amendments in Bill C-13 are not designed to alter this in any way but are meant to make the provisions clearer and more transparent.

It was also suggested that the bill creates new warrants for police to obtain metadata using a lower threshold production order. This is also incorrect. Metadata refers, as members would know, to a large class of information that has been described as data about data. Examples of metadata include background information about an electronic document such as software, the type that it uses, its size, kilobytes, the size of characters it contains, etc. In relation to an electronic photo, it can include the number of pixels, the type of camera, and perhaps the date, the time, and the location the photo was taken. Some have suggested that metadata may contain personal information about people. It should be noted that Bill C-13 does not propose to capture this type of information according to its proposed definition of transmission data.

In fact, the definition of transmission is narrowly defined and captures only data that relates to the act of telecommunication. The definition of transmission data is the modern equivalent of phone-call information, not what is actually contained in the conversation, and these proposals are meant to ensure consistent treatment of similar information.

To conclude, Mr. Chair, I want to emphasize that this package of reforms is a targeted approach to serious forms of cyberbullying. All of the amendments to the investigative powers have been proposed here to provide police the appropriate tools to investigate crime in this Internet age, while at the same time minimizing the privacy impacts on Canadians.

I thank you for your consideration, and I look forward to your questions.

11:55 a.m.

Conservative

The Chair Conservative Mike Wallace

Merci.

Our first questioner, from the New Democratic Party, is Madam Boivin.

11:55 a.m.

NDP

Françoise Boivin NDP Gatineau, QC

Thank you, Mr. Chair.

Mr. Minister, thank you for being here. Once again, this meeting has been shortened because of a time allocation motion by your government on another bill.

Having said that, I appreciate the fact that you seem to want to fix some of the bad impressions that Bill C-13 left with experts in the protection of privacy and other areas. However, the fact that all those voices were raised against the bill the same day it was tabled and that those people saw some concerning similarities between it and Bill C-30 suggests to me that, in practice, after the Conservatives have passed it in the House, Bill C-13 may not be as clear as you seem to believe. That concerns me a little and I end up asking the same question every time you come and present us with a new government bill.

The short title you have given to Bill C-13 is the Protecting Canadians from Online Crime Act. However, it touches on much more than online crime. In fact, it also includes a very limited section on distributing intimate images.

After drafting this bill, did you have it checked? I know you have your officials from the Department of Justice, but did you consult with your experts on the Constitution and the Charter to determine whether the bill would pass the tests we all know it will inevitably be subject to? It seems to be the fashion for the Conservatives to find themselves before the Supreme Court. Do you have assurances aside from just your personal perception that everything is hunky dory? Have you received serious legal opinions that give reasonable assurances that your bill will hold water in a very high percentage of cases, and not just in 5%, 10% or 15% of cases?

11:55 a.m.

Conservative

Peter MacKay Conservative Central Nova, NS

Thank you, Ms. Boivin. It is always a pleasure to answer your questions. I know you are quite interested in this area.

Of course, for this bill as for all the others, it is necessary to seek the opinions of Department of Justice officials in order to determine its constitutionality. We make sure to do it in the case of an initiative or a bill that affects the privacy rights of Canadians.

You mentioned the fact that we seem to be pre-emptively discussing some of the mythology around this bill. Clearly, this legislation had a predecessor bill that I think raised alarms, and that's why I highlighted the particular issue around warrantless access. This bill does not contain aspects of warrantless access. This bill goes right to the very heart of the necessity to have judicial oversight.

Similarly, I highlight again the fact that the provinces and territories were quite adamant about the necessity to move in this direction, and that report was very instructive in the drafting of this legislation.

11:55 a.m.

NDP

Françoise Boivin NDP Gatineau, QC

Are you talking about the report on

…cyberbullying and the non-consensual distribution of intimate images?

11:55 a.m.

Conservative

Peter MacKay Conservative Central Nova, NS

Yes, exactly.

11:55 a.m.

NDP

Françoise Boivin NDP Gatineau, QC

Yet everyone agrees that this barely affects sections 2 to 7 and section 27. For everything else, I don't think this report is specific enough to justify the 40-odd other sections that make up the bill.

Noon

Conservative

Peter MacKay Conservative Central Nova, NS

With respect, Madam Boivin, it would be, I suggest, a hollow effort to bring forward legislation that was aimed to protect people from online or cyber abuse and not have the ability to police or to enforce those particular—

Noon

NDP

Françoise Boivin NDP Gatineau, QC

I disagree with you on that one, Minister. Honestly, I agree there need to be tools, but what I submit to you is that you might not have reviewed the aspect of the tool as much, especially in view of the backlash your government received against Bill C-30. As for cyber-intimidation, it is pretty much unanimous—everybody agrees there's a need to do something about it.

I go back to the core of my question. What type of review have you done to make sure that when you introduce a new concept—because I agree they do need a warrant, but you have changed the burden of proof....

It is no longer the same thing. Every lawyer who practices criminal law is familiar with the principle of having "reasonable grounds to believe". You are also familiar with it because you were a Crown prosecutor and a defence lawyer. Yet suddenly we are talking about "reasonable grounds to suspect". New concepts are being introduced here.

Did you have these concepts tested before introducing Bill C-13, which will have a lot of ramifications beyond cyberbullying and the distribution of images? In fact, this bill casts a very wide net.

Noon

Conservative

Peter MacKay Conservative Central Nova, NS

Madam Boivin, I know and I greatly respect the fact that you, as a practitioner, follow these issues so closely. You would know that this concept of reasonable grounds to suspect is now in place. It has been accepted by the courts. It has been tested. It's constitutionality has been accepted, and for low-level privacy matters, I would suggest it has become the standard. We are simply codifying that with respect to the police investigative powers for certain types of privacy infringements, if you will.

As you know, you are always balancing the ability to protect the public, and I would suggest that this issue and the insidious nature of cybercrime demands that we give police the power to at least meet that threshold of starting an investigation. As they attempt to get more private information that would be considered of a more intrusive nature, they have to equally, and with a commensurate level of oversight, hit a higher threshold of reasonable grounds to believe. Just as we move our way through the courts and then get to that much higher standard of proof beyond a reasonable doubt. It is part of that continuum as you can appreciate that gets police in the door if you will, or online.

Noon

NDP

Françoise Boivin NDP Gatineau, QC

So “suspect” is lower than the other.

Noon

Conservative

Peter MacKay Conservative Central Nova, NS

“Suspect” is a lower threshold, but it has been accepted and, I would suggest, tested by the courts.

Noon

Conservative

The Chair Conservative Mike Wallace

Thank you for those questions. Thanks for those answers.

Our next questioner is from the Conservative Party, Mr. Dechert.

Noon

Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

Thank you, Mr. Chair.

Thank you, Minister, and to your officials for joining us today to talk about this important bill.

Minister, last week when I was in my constituency, I listened to a speech by Chief Jennifer Evans of the Peel Regional Police. She mentioned in her speech that her police service had done a survey of the concerns that people have in Peel Region, some 1.4 million people, on criminal justice issues. She said that the number one issue for people in the Peel Region is school safety and bullying. Every parent across Canada is concerned about the issue of cyberbullying and intimidation over the Internet.

I know that our government believes in an equilibrium between prevention and prosecution. We believe that victims deserve justice and that authorities at every level must participate to prevent crimes on the Internet.

Could you tell us about some of the initiatives put forward by our government to prevent crimes on the Internet?

Noon

Conservative

Peter MacKay Conservative Central Nova, NS

Thank you, Mr. Dechert.

I think your community, the Peel region, which I've had the pleasure to visit on a number of occasions, and where I've participated with you in public events and round tables, is reflective of a view held in many communities.

We've heard of the high-profile tragedies of cyberbullying and the resulting terrible ripple effect it has had. Yet, at the same time we've identified gaps in the criminal law, which this particular legislation means to fill. Similarly, the accompanying effort to empower the police to be able to enforce and essentially to have the effect that is desired.... By creating a new criminal offence around the distribution of intimate images, as well as this enabling legislation, this bill is meant to respond to these needs, and to do so, as you suggested, in a preemptive way akin to a peace bond. It does because when we see escalated behaviour online and the ongoing pernicious effect of bullying, which used to be confined to a schoolyard or to a playground, it now literally follows a young person home, into the classroom, and into every walk of their life, and has such a humiliating and devastating effect on them. We know that young people are in some ways more susceptible to this because of social pressures. This is a pressing concern that we are attempting to address here.

We've consulted broadly on this. I talked about federal-provincial-territorial consultation, but we've heard from many groups. I suspect you will hear from very informed and, in some cases, very emotional people who will come here and testify about how this has affected them and their families. So we're doing this in a way that we hope conforms with the intent of other bills, including the victims bill of rights, which you and members of this committee, we hope, will have a chance to examine in the near future. We're doing this consistent with other legislation aimed specifically at protecting children from sexual abuse, including luring and the very dangerous type of entrapment that often occurs online.

So there is a consistency and a theme here of protection and prevention that runs through this bill and other legislation I've referenced.

Thank you for that question.

12:05 p.m.

Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

Thank you, Minister.

As you know, Mr. Allan Hubley is a City of Ottawa councillor and a father of a bullied teen who took his own life rather tragically. Last November, when this bill was introduced, he said, “When we were younger, you always knew who your bully was, you could do something about it. Now, up until the time this legislation gets enacted, they can hide behind that”—the Internet, that is. He said that on Canada AM. He went on to say, “Not only does it start to take the mask off them, through this legislation there is serious consequences for their actions.”

Can you explain to us why it is so important to modernize the current Criminal Code?

12:05 p.m.

Conservative

Peter MacKay Conservative Central Nova, NS

Thank you for that question, Chair.

Mr. Chair, I fear there has been an evolution around this type of online behaviour that we all know is very cowardly. That stems from the anonymity of the activity that takes place online. Criminals can take advantage of the mask that exists on the Internet. The investigative powers of the Criminal Code need to be modernized to address that fact and to facilitate the investigation of criminal activity that involves this type of electronic communication.

This is, to coin a phrase, the modern Lord of the Flies, where there can be a group mentality that results in the type of sustained bullying of an individual, young or old, that can have an absolutely life-altering and sometimes life-ending effect. Allan Hubley's comments are not only relevant but also very poignant, given the situation that he and his family found themselves in.

The Criminal Code already has a variety of tools for accessing information. This bill allows for production orders, interceptions, authorizations, and search warrants. But most of the tools that are in the code now were put in place in the 1990s. That's the last time we had a modernization. That was before cell phones, the Internet, and hand-held devices were so common. The explosion of online activity is well known to all.

Not only are we falling back but we are out of step with other modern countries that have already moved in this direction. So I would suggest there is urgency, as I mentioned. Even the latest additions we've made around production orders and certain tools that are to be made available to police, go back almost 10 years, to 2004.

Existing tools, I suggest, are inadequate. They weren't put in place with this type of electronic world in which we now live in mind, where digital evidence is often volatile and crucial to pursue and prosecute cases, and to respond at the speed of light. When somebody presses a button on a device, it can literally go around the world quickly. So these practical amendments and this forward-looking legislation, I suggest, are absolutely crucial in our effort to keep people safe.

12:10 p.m.

Conservative

The Chair Conservative Mike Wallace

The next questioner from the Liberal Party is Mr. Casey.

12:10 p.m.

Liberal

Sean Casey Liberal Charlottetown, PE

Thank you, Mr. Chair.

Mr. Minister, I want to focus in on a proposed section that you referenced in your opening remarks. You know I've been a bit preoccupied with this proposed section 487.0195. If I understand what you said in your opening statement, it was that law enforcement presently has the power to obtain, without a warrant, information from telephone companies on a voluntary basis. They presently have that power. This statute recognizes that they have that power. Have I fairly characterized what you said?

12:10 p.m.

Conservative

Peter MacKay Conservative Central Nova, NS

Yes, that's correct. They currently have the power under the Criminal Code, as well—under the broader section 25 of the Criminal Code, which empowers it.

12:10 p.m.

Liberal

Sean Casey Liberal Charlottetown, PE

I think what you also said is that, when they exercise that power, the telephone companies that are voluntarily cooperating with police and providing information without a warrant have a common law immunity from class action lawsuits and criminal prosecution. They have a common law immunity that this statute has codified. Do I understand you correctly on that point?

12:10 p.m.

Conservative

Peter MacKay Conservative Central Nova, NS

It would have been codified in 2004, in fact, Mr. Casey. That was the latest update to the section we're referring to here, proposed subsection 487.014(1).