Justice Committee on June 12th, 2014

[The Chair, Conservative, Mike Wallace]

Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Chair, if I heard her correctly, I think Madam Péclet said that it was the government's position that 487.0195(2) codifies section 25 of the Criminal Code. I believe that's what I heard. Of course, that wouldn't make any sense because section 25 is already in the Criminal Code. What it attempts to do is codify what is in the jurisprudence interpreting section 25 of the Criminal Code.

These cases have been mooted by us previously. I have yet to hear from any of my friends in the opposition any discussion of any of the relevant case law. They gloss over it. We've referred to several cases which you can find in the testimony before this committee. That's what we believe it will do.

With respect to this particular standard, as she will know, it is always inferred by the court that any such information supplied is done so to law enforcement on the basis of reasonableness and in good faith. That's the standard the court expects, and when the court has any reason to suspect that is not the case, it would make a different ruling.

In addition, the criteria of reasonable grounds and good faith are proposed to be added in a way that would appear not to apply to the voluntary preservation and production itself, but only to a person who would assist another person doing so. That's a drafting error.

In addition, only including reasonable grounds and good faith for the assistance could be interpreted as only applying the reasonableness and good faith criteria to the person who was aiding and not to the direct preservation or production of the information itself.

On that basis, Mr. Chair, we will not be supporting this amendment.

[The Chair, Conservative, Mike Wallace]

I have a speakers list.

Madam Péclet, do you want him to go first?

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Go ahead.

[The Chair, Conservative, Mike Wallace]

Mr. Casey, the floor is yours, and then I'll give Madam Péclet the last word.

[Sean Casey, Liberal, Charlottetown, PE]

The government claims that this immunity provision codifies the current state of the law. What I just heard is the view of the government is that the jurisprudence infers a reasonableness standard. There's a reasonableness standard in section 25 of the Criminal Code. If they're going to vote against an amendment that inserts a reasonableness standard, it's amazing.

[The Chair, Conservative, Mike Wallace]

Thank you.

Madam Péclet.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

To answer the parliamentary secretary, I'm sorry if I misspoke, but that's not what I meant. What I meant was that.... Well, it proves my point actually: why would we codify something that's already in the code? Exactly. Why would we add a new immunity that's already in the code?

If section 25 is already codified and if subsections 487.014(1) and (2) are already codified, then why would we need to codify a new immunity if there's already an immunity in the code? That's what I meant.

Also, if sections 25 and 487.014 save a certain jurisprudence, then the parliamentary secretary would agree with me that if jurisprudence exists and the fact that the courts already apply the reasonable grounds criteria in their judgments, then why not codify it to make it law?

He proves my two points, that if there's already an immunity codified, then why do we need to codify a new one, and if so, why not codify a criteria that is already applied in the courts? Both of my arguments were made by the parliamentary secretary.

Thank you.

[The Chair, Conservative, Mike Wallace]

This will be the last comment.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Chair, I just want to clarify. It's clear from Madam Péclet's comments that she has not read the decision of Justice Doherty in the Ontario Court of Appeal in R. v. Ward. Had she done so, she would understand this point.

[The Chair, Conservative, Mike Wallace]

We'll vote on amendment NDP-25.

(Amendment negatived [See Minutes of Proceedings])

We are still on clause 20, by the way, ladies and gentlemen. We are at amendment LIB-2.

So that the NDP are aware, amendments LIB-2 and NDP-26 are identical, so you may want to speak to it because if the amendment fails, yours will be removed.

The floor is yours, Mr. Casey, on amendment LIB-2.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

This amendment seeks to put into law the best practices that exist within the intellectual property companies or the IT companies. We have heard from the Internet Association and from Facebook that transparency reports are part of what they do. We also heard from the minister that as far as he's concerned, this is a contractual matter between the customer and the holder of their records.

This amendment proposes to impose an obligation on the parties that have been afforded an immunity to have some transparency with respect to the extent and frequency with which they take advantage of that immunity and disclose their customers' private information. This is something that is prevalent on a voluntary basis in the industry outside of telecommunications companies that we haven't heard from.

I would urge this upon the government. I would say it would be a step in favour of consumers, in favour of those who are now in a position where they have no idea—because they're not entitled to know—how often their private information is being accessed and produced.

I'll leave it at that. We've heard from plenty of witnesses.

The one final comment I'll make is with respect to the testimony of Parry Aftab, and there may have been other witnesses that talked about it as well. Given that this already exists within companies other than telecommunication companies that are in the social media sphere, there's undoubtedly a real marketing opportunity for telecommunications companies to come out and say, “You should become our customer because we will show your private information more respect than our competitors do.” I would suggest to you that this is very much something that the government should have an interest in, given its prevalence in this space anyway. If they do actually have respect for the private information of customers of telecommunications companies, this is a pretty darned fair quid pro quo for the immunity that they're giving to the telecom industry.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Casey.

Madam Péclet, go ahead on amendment LIB-2, which is the same as amendment NDP-26.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

We support this amendment. I think it would be reasonable that the companies.... It goes to the whole idea of making it more transparent and more accountable. I think a couple of witnesses have spoken about this kind of mechanism, such that we need to have surveillance and accountability and transparency. It would probably make it more acceptable. I'm not saying that it's acceptable that the government refuse all of our amendments, but maybe we will have a chance and maybe they will support this amendment for the sake of accountability and transparency.

[The Chair, Conservative, Mike Wallace]

Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Chair, the government does not support this amendment.

As Madam Péclet will know, the motion proposes to add to proposed section 487.0195 a requirement for telecommunications service providers to report to the minister on voluntary assistance. That would be incongruous with the scope of the provision, which simply clarifies the common law in jurisprudence and does not require nor authorize such assistance. Companies, as she will know, are subject to privacy legislation, which permits disclosure of personal information only in certain limited circumstances.

In our view, it would be a disproportionate reporting burden on the telecommunications sector. All other private sector industries, including banks, transportation, and hospitality service providers, are equally permitted under the common law to provide such assistance, but they are in fact not required to report such disclosures to anyone. On that basis, we will not be supporting this amendment.

[The Chair, Conservative, Mike Wallace]

We'll vote on amendment LIB-2.

(Amendment negatived [See Minutes of Proceedings])

With amendment LIB-2 failing, amendment NDP-26 is removed.

This takes us to amendment LIB-3.

Just so people know, there was a new amendment put on the table this morning. We're treating it as 26.1 which will come after LIB-3.

Amendment LIB-3 is on the floor.

Mr. Casey, the floor is yours.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Chair, I think the government would agree with me that part of the goal in this legislation is to modernize police powers, to modernize their investigative tools, to catch up with where technology has brought us in this day and age. I know I've said a lot of things in this meeting and often do say things they disagree with, but I think we can agree on that.

I hope we can also agree it's a fast-moving train in terms of what is happening in the world around social media and IT generally. It's fast evolving, and legislators and people in the enforcement field are having a hard time keeping up with the advancement in technology.

If we can admit we're in a rapidly changing environment, I would suggest to you it just makes good sense that we come back and examine whether what we've been doing in the course of amending this legislation stands up, whether it still fits three years down the road.

The sole purpose of this amendment is to require us to come back and take a look at what we've done and see if it still works.

This isn't by any means a foreign concept. We did it when we radically changed how we treat veterans. We had a study here in this session about the changes that were made with respect to trials in both languages.

Just last week the Minister of Industry appeared before a Senate committee on the digital privacy bill, something I've argued is intertwined with what we're doing here. This won't be terribly long, but I want to share with you an exchange between Minister Moore and Senator Eggleton on May 28 at the Senate committee that is studying Bill S-4.

Senator Eggleton said to him:

I agree with you; it's an evolving universe. I think in that regard it's also important to have parliamentary oversight. When PIPEDA was first put in place, there was to be a review every five years, and I think there was a review in 2007, but there hasn't been one since then. This is perhaps something that needs to be corrected to make sure that we can keep up with the changes in the universe and that Parliament can keep on top of this issue.

The minister said:

Quite right, and here I am, doing my best. But you're quite right. When we did the Copyright Modernization Act, and I think I may have been before this or another committee with a similar mandate, we wrote into that legislation as well, the copyright legislation, which I know is always a fight because it's often a zero-sum game when dealing with IP law. There are often governments, ours included, who find it a struggle to find the right balance, certainly, in a minority Parliament and the pressures associated with that, to arrive at the right balance. So we put in place in the Copyright Modernization Act a mandatory five-year review of the legislation so that politicians, regardless of their political willingness, are forced to maintain the best possible IP regime.

What I am proposing is entirely consistent with Minister Moore's testimony in front of the Senate committee. It's entirely consistent with other practices when we're forging new ground, especially in an environment that's as rapidly changing as this one.

All the amendment does is it mandates us to come back and take another look at the changes we've made.

[The Chair, Conservative, Mike Wallace]

Mr. Dechert, I'd like you to speak to this one.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Chair, I'd just like to say I do agree with Mr. Casey that parliamentary review is a good and valuable concept and one which we support. I would ask him to accept as a friendly amendment the amendment of “three years” to “seven years”.

The reason for that simply is it will take a substantial amount of time in our view for the law to be put in place and for the cases to generate sufficient evidence on how these provisions perform.

We certainly take the point that in many ways this is a new regime for investigating and protecting Canadians against cyber crimes, and the whole issue of cyber data and how it's treated and how it can be hidden is new and evolving. Therefore, we believe if a sufficient period of time is allowed to pass to see what the implications of these provisions are, that would be an appropriate time for the justice and human rights committee to review the impact of the legislation.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Dechert.

There is no such thing as a friendly amendment, so I'm treating it as an amendment to the amendment. The amendment to the amendment is to change the years from “three” to “seven”.

Mr. Casey, would you like to speak to the subamendment?

[Sean Casey, Liberal, Charlottetown, PE]

If we split the difference at “five”, we've got a deal.

I think seven years is too long, especially when the environment is so rapidly changing. Three years may well have been aggressive, but we have seen the number five in other pieces of legislation.

I'd be much more comfortable with five years, but I can say that I'm encouraged that there's even some interest from the government on this. I'm quite prepared to agree to something longer than three years. I do think seven years is too long in this environment.

[The Chair, Conservative, Mike Wallace]

Mr. Dechert, would you like to respond?

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Chairman, my response would be that, in the first instance, we need to allow a sufficient period of time to accumulate the evidence. Based on what that shows, at the end of that period of time that we're suggesting, it would certainly be in the purview of this committee to recommend to the government of the day, and the government of the day to propose a change to that, so that there's a five-year review thereafter.

[The Chair, Conservative, Mike Wallace]

Thank you.

I do want to bring to the attention of the committee that of course the committee is the commander of its own agenda, that if things change, and things need to be.... This is a legislated requirement for a review, but legislation can be reviewed any time, of course, before that.

The subamendment will stay at “seven”.

If there's nothing further, we'll vote on the subamendment to move from “three years” to “seven years”.

(Subamendment agreed to [See Minutes of Proceedings])

Is there any further discussion on LIB-3 with the new period of seven years?

Seeing none, we'll vote on LIB-3 as amended.

(Amendment as amended agreed to [See Minutes of Proceedings])