Justice Committee on May 27th, 2014

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

Listening to the testimony today and from previous weeks, there seem to be three key issues that those who are concerned about the bill are raising. One is the standard, which is the reasonable grounds to suspect. I think that's an issue. Two, we're hearing about the recklessness standard is the issue. I want to focus on those quickly.

One of the things that Mr. Spratt said in his opening statement with respect to the recklessness standard for the distribution of intimate images is that it may apply to those down the chain without knowledge.

Now, Mr. Butt, you spoke about that in your statement, and I'd like you to comment on it. Would the recklessness standard apply to those who are down the chain without knowledge?

[David Butt]

Again, there have been hundreds of pages written by higher courts on what recklessness means, but at the risk of oversimplifying it, it's more than just carelessness. If I carelessly bump into Mr. Gilhooly, next to me, I may not even realize that he's there, but I should have realized. I'm just not even paying attention. But if I realize he's there, and I think, gee, is there risk I might bump into him, and then I go ahead anyway, that's recklessness. So people without any knowledge of the risk are not covered by recklessness, as I understand it.

Now there's another really important point here. Let's say there's a charter challenge to this legislation. The first thing the courts are going to do is to think, “We're not going to strike this down, but we're going to interpret this in way, if we can reasonably do so, that will make it survive.” What they will say is that mere carelessness goes too far. To respect the charter, they will use the more traditional definition of recklessness, which is that there has to be some knowledge of the risk, and proceeding in the face of that risk.

[Kyle Seeback, Conservative, Brampton West, ON]

So, if I were to get an e-mail chain from who knows who with an image on it, and that gets forwarded, that's not going to be someone who's reckless, right? If I have no information whatsoever as to where this image came from or the context of the image, and so I'm not going to be captured by this recklessness standard, am I?

[David Butt]

I don't believe you would be if there's no surrounding collateral information that puts you on notice. If it comes from a group of your friends and you happen to know that your friend just broke up with the person depicted in the image, and it comes all by itself with no.... This is an image being distributed without the person's consent—no tags on it, it just comes—but you happen to know that person just broke up with a friend of yours. I'd say you're reckless if you distribute that further, because there's something in your state of knowledge that speaks to the fact that you should be aware of that risk.

[Kyle Seeback, Conservative, Brampton West, ON]

To me, that should trigger that kind of thought process for people. I know people are young and make mistakes. I have young children. Unfortunately, they're going to be entering that Internet age with cellphones and other things soon.

They should have that thought in their mind that maybe they should do a little bit of due diligence before they redistribute that image.

I want to quickly talk about transmission data, which was the third one we discussed. My view of the transmission data is that, quite clearly, it does not include metadata. The police chiefs came and said quite clearly that it doesn't include metadata. It's very narrow and limited in scope.

I know Mr. Spratt disagrees with that, but what are your thoughts, Mr. Gilhooly and Mr. Butt, with how transmission data has been defined in this bill?

[David Butt]

I think it is wise and, indeed, necessary to stick with that narrow definition that the police chiefs have been presenting to you. I think it needs to be very clear if this comes to be interpreted by the courts that it is that narrow approach; it is not broader metadata that gives patterns.

To me, it's all about individual events that start a criminal investigation. It's not about broad intelligence about somebody's overall use. So I think that's a crucial limit and I'll defer to the experts, including the police who've been briefed by their IT people. If that's the definition they endorse, that's the one you need to have, from my perspective.

[Gregory Gilhooly]

And this statute is going to have to remain a living thing, because that will change over time as information and the ability to get it change. This will have to be a living and breathing document.

[Kyle Seeback, Conservative, Brampton West, ON]

Go ahead, I was going to ask you next, Ms. Brown, because in your statement you said that transmission data might reveal private conduct and—

[Marian K. Brown]

Yes, I was just going to speak to that.

[Kyle Seeback, Conservative, Brampton West, ON]

I hear that in a lot of submissions, that well, it may do this, it may do that. What's the hard fact behind “may reveal private conduct” in the definition of “transmission data”?

[Marian K. Brown]

It's a difficult point, because we accept that metadata is more revealing of private conduct, of browsing history. But transmission data, information on the mere originator and recipient of a communication, can be revealing if it's repeated. The example we gave in our written submission is of a person repeatedly contacting a specific health care provider, spending a lot of time on a mental health line, for example. That is for biographical information, and that's why we say that transmission data provisions may reveal private conduct and should be subject to the higher standard of reasonable grounds to believe.

[Kyle Seeback, Conservative, Brampton West, ON]

From my review, there are two aspects of the bill that are on reasonable suspicion, right? There's the preservation order, and I think that's largely accepted by most people as an acceptable standard. I think you recommend exigent circumstances. I think that if you're going for a preservation order, that's probably what it is, because you only get it for 21 days, and then if you want to see it you have to get a court order. But I think there's general acceptance of that.

Even Mr. Spratt, you're nodding, so I assume you generally accept that.

The issue we have is with transmission data, and it's the standard “reasonable grounds to suspect” versus “reasonable grounds to believe”.

Mr. Gilhooly or Mr. Butt, why do you think the standard should be the lower threshold?

[Gregory Gilhooly]

I'm going to speak to this in a different context. I believe you're going to be hearing from the Canadian Centre for Child Protection later this week. I come at this concept from having been groomed in terms of the offences that were done to me.

If someone had taken a close look at what Graham James was doing to me over the first six, seven, or eight months of our relationship, there wouldn't have been anything other than, “This doesn't seem right; this is kind of out of the ordinary; something wrong is kind of, sort of, maybe going on here.” So when I hear of the lower threshold, I'm immediately thrust back to my own personal circumstance. So perhaps I'm a little biased, but I'm not fussed by the lower threshold.

[The Chair, Conservative, Mike Wallace]

Very quickly, Mr. Butt.

[David Butt]

In terms of reasonable suspicion for transmission data, it may or may not be totally revealing. There are a lot of examples where it will not be in an individual sense, that is, receiving one hateful bullying e-mail, for example. You need the transmission data to know who you're investigating. So because it's may or may not, that's where the other part of the bill is really important, that if the recipient of the order says you're asking for way too much, they don't have to provide it, and they can go to a judge.

[The Chair, Conservative, Mike Wallace]

Thank you for that. Thanks for those questions and answers.

From the New Democratic Party, our next questioner is Mr. Jacob.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you, Mr. Chair.

Thank you to the witnesses for being here today.

My first question is for Mr. Spratt.

In your opening statement, you said you couldn't support Bill C-13 because it was too broad, wasn't constitutional and put the rights of law enforcement above privacy rights.

I'd like to hear your take on those three points. In your view, is Bill C-13 salvageable? And if so, how?

[Michael Spratt]

I think there are some important aspects in Bill C-13. Obviously, new provisions are needed to modernize the Criminal Code and to deal with some of the instances that we've heard about.

Ideally, we could split the bill and fully consider the implications of the lawful access part. But if that's not an option, what we would like to see is the appropriate standard of reasonable and probable grounds that has been endorsed by the Supreme Court in the case of Vu and corresponds with the fact that reasonable suspicion is only appropriate when the privacy level is low.

It is not enough to say that it may or may not be high, let's get the information, and if it's not high it's not revealing information—no harm, no foul. We, as lawyers, all know that there are no ex post facto justifications, and the fact that you find information, or that it's not intrusive after the search, can't then justify the search in the first place. That's putting the cart before the horse, and that's frowned upon by the courts.

An appropriate standard would be ideal, along with disclosure to affected persons, and legislation about the retention, use, and future dissemination of that data. Of course, tying back to some of the horrific examples of police record checks that have been in the media recently would be very valuable in this bill.

Lastly, when we're dealing with voluntary disclosure, it should be a standard that is in keeping with section 25 of the Code, a section used by the minister to justify what's already in the bill and that is one based on reasonable grounds. That means that if, as a teleco, I have something that causes me concerns, I can hand it over. But as the police, if I'm going to a telecommunications company and asking for the information, I need to show reasonable grounds, which is more than just, “We regulate you; please hand over the information.”

I think those changes would be beneficial and would not set back the positive aspects and the positive intent of the first two pages of this bill.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you, Mr. Spratt.

My second question is for Ms. Brown and Ms. Schellenberg.

On page 2 of your brief, you make the following recommendation:

The Canadian Bar Association recommends dividing Bill C-13 into two distinct bills, separating lawful access provisions from new measures to specifically address cyberbullying.

I'd like to hear your thoughts on that.

[Marian K. Brown]

That recommendation was arrived at some months ago. We appreciate that the legislative process takes its own course, but our intent in making that recommendation is simply to enable full consideration of both parts of the bill. Cyberbullying is a very sensitive topic, and lawful access is a very difficult topic both technologically and legally. Our intent in proposing a split was simply to enable a full and productive consideration of both aspects of the bill.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Ms. Brown and Ms. Schellenberg, in your conclusion, you talk a lot about education and prevention. I'd also like to hear you comment on the importance of effective prevention and sensitive communication. Indeed, all the laws in the world won't fix all the problems in the world.

[Marian K. Brown]

That's for sure.

Because we are mere lawyers, we are dependent on people with expertise in education. There have been some excellent presentations from previous witnesses on how youth are being educated about the effects of cyberbullying and how they can be better educated about the effects of cyberbullying. We endorse those recommendations because, for the new offence provision to be used in a sensitive and appropriate manner, it can only go hand in hand with those educational efforts.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Very good. Thank you.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Butt, the impression you're giving me, though, is that you're relying on the courts to balance things up. What is our role? Isn't our role as parliamentarians to make sure that the bill will adopt at the end of the day, at the final stage after all readings, after hearing all the different witnesses? Is it, in our mind, the best bill that we can bring forward?

I've got a strong impression that your answers are always, “The court will do this; the court will do that; they will rebalance.” When I look at the state of the courts and the access of justice, it scares me a bit for the victims actually. There's nothing more frustrating than living through a court case after all this, and giving all those tools that we all want to give, then at the end of the day the judge saying, “Do you know what? Everything you gathered under that search warrant or whatever is worth zip.” That would be really sad. Maybe I'm wrong, and I didn't get you right, but that's the impression I have.

[David Butt]

I agree with you. That's why I say you've got the right balance. You have legislated effectively in this area, and part of legislating effectively, as my colleagues from the CBA have said, is that in seven out of eight of the new powers you've legislated judicial oversight. You have told the police that you would give them those powers, but would not give them without a leash. The leash is that, for seven out of eight, you have to go to a judge first.