Debates of Oct. 1st, 2014

Bill C-13—Time Allocation Motion

[Peter MacKay, Conservative, Central Nova, NS]

Mr. Speaker, I know that the member is a long-standing member of this place, and I do share his observations with respect to the necessity of managing House time.

We are now entering, as we all know, a very busy time. There are many bills and legislative initiatives, including private members' bills from the opposition, as well as the budget. All of this requires management of House time.

We have had sufficient debate on this legislation. It is time to move it forward for all of the reasons that we have discussed over the last half-hour. These reasons include the necessity to give the police the powers and the judicial oversight they need in order to prevent and pre-empt the type of online harassment and criminality that have caused harm and heartbreak in so many households in Canada.

[The Acting Speaker, Conservative, Barry Devolin]

It is my duty to interrupt the proceedings and put the question necessary to dispose of the motion now before the House.

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Acting Speaker, Conservative, Barry Devolin]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Acting Speaker, Conservative, Barry Devolin]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Acting Speaker, Conservative, Barry Devolin]

In my opinion, the yeas have it.

And five or more members having risen:

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

Vote #239

Protecting Canadians from Online Crime Act

[The Acting Speaker, Conservative, Barry Devolin]

I declare the motion carried.

I also wish to inform the House that because of the proceedings on the time allocation motion, government orders will be extended by 30 minutes today.

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for London—Fanshawe, Canadian Broadcasting Corporation; the hon. member for Vancouver Quadra, National Defence.

The House resumed from September 22 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, as reported (with amendment) from the committee, and of the motions in Group No. 1.

Report Stage

[The Acting Speaker, Conservative, Barry Devolin]

When this matter was last before the House, the hon. member for St. John's East had completed his remarks, but had not yet taken questions and comments.

Questions and comments, the hon. member for Burnaby—New Westminster.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, we have just seen for the 78th sad time the use of time allocation and closure by the government. It is a sad record that stands even worse than the former Liberal government's record. There is an appalling lack of respect for the Canadian public, discussion and debate.

The problems with this bill, though we agree with it in principle, are the questions around constitutionality and the government trying to ram through the bill without due regard for putting in place the kinds of amendments that make it constitutional and avoid the problems that the government has seen half a dozen times so far this year, with courts rejecting government legislation. With this idea of ramming the bills through, unfortunately, there are things like a court system and constitution that have to be respected.

Does my colleague from St. John's East feel the government has done its due diligence in this bill, given that it is so controversial, that there are concerns about its constitutionality and that there are real concerns about the impacts that go far beyond cyberbullying?

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, my colleague's question is important because it has to do with the differential role between what the House of Commons does and what the Supreme Court of Canada does. The Minister of Justice and Attorney General of Canada is charged with the responsibility of ensuring that legislation coming before the House meets the constitutional standard.

We have a case now before the federal court with an affidavit and suggestion. From the government's point of view, if there is some possibility, maybe a 5% possibility, of an arguable case that a law is constitutional, it is good enough for the government. I do not think is right.

It is the constitutional responsibility of the government to ensure that legislation coming before the House meets the Charter of Rights and Freedoms. Serious questions have been raised and they ought to be answered first. As well, the government should have a broader view of constitutionality than the narrow one it seems to follow.

[Peter MacKay, Conservative, Minister of Justice and Attorney General of Canada]

Mr. Speaker, it is a pleasure for me to rise again to take part in this debate on this important legislation. As members opposite would know, the legislation is intended very much to protect people, young people in particular, our most vulnerable; to protect seniors from online criminality and fraud that could defraud them of their life savings; to protect individuals from the security breaches and attacks that we know are happening regularly online.

The bill is about modernizing sections of the Criminal Code, respecting precedent, including recent Supreme Court decisions, and respecting the Constitution. However, it is about modernizing in a way that takes Criminal Code sections from the age of the rotary dial phone into the 21st century, the Internet age. We have more information available at our fingertips now and youth are more able to access information than at any other time in world history. Therefore, it stands to reason that we would want to bring legislation forward that would similarly modernize the Criminal Code and the rules that govern online criminal activity.

The bill is about amending the Criminal Code in a way that would create a new offence of the non-consensual distribution of intimate images. It would also update a number of offences and the investigative tools that allow police to use modern technology to police the Internet, so to speak, by amending other statutes such as the Mutual Legal Assistance in Criminal Matters Act.

Bill C-13 would also allow Canada to co-operate with like-minded countries in the investigation of cybercrime. I know my friend from Lévis—Bellechasse, the Minister of Public Safety, fully appreciates, from his daily interactions with police and investigators, that they need this capacity to protect people from online criminality. The portions of the bill that we are bringing forward are consistent, related, and support the common objective to give the police the ability to prevent online criminal acts.

Bill C-13 would also achieve these goals in a balanced way, something that was recognized by many of the witnesses who have already given testimony and appeared before the Standing Committee on Justice and Human Rights, where the bill was thoroughly examined.

Following this review at the committee and to reflect concerns about the difficulty of forecasting the impact that these important changes to the law and the amendments that were adopted by the committee, this was done as part of the parliamentary process and in recognition of the contributions of members and witnesses. It was done in a way that proposes changes to Bill C-13.

An important change was that after seven years of coming into force, there will be a thorough review. This is not an uncommon provision, but when breaking new ground, as the bill would do, it provides sufficient time to lapse before we assess the implementation and the impacts of the reforms.

I mentioned that the thorough review of the bill by the Standing Committee on Justice and Human Rights took place. This review involved 10 committee meetings, hours of examination, with appearances by over 40 witnesses. Many of the witnesses came to urge the committee to pass the legislation, to move forward and address the serious problems particularly around cyberbullying. We heard from people like Glen Canning, who tragically lost his daughter to a very pernicious and persistent act of cyberbullying. Therefore, there is urgency in bringing this legislative movement forward.

Those most passionate that we heard at the committee were victims, those who had felt the sting of the loss resulting from ongoing harassment and humiliation online. In several of the cases, the people who had lost loved ones because of this modern plague of cybercrime urged the government and committee members to move post-haste in getting these provisions to the Criminal Code in place.

The insidiousness of some of this behaviour is troubling in the extreme and what happens in the virtual world can have deadly consequences in the real world. While some witnesses expressed concern about the proposals, most witnesses saw the wisdom of the bill. They congratulated the government on taking action to address cybercrime, which, I am quick to add goes far beyond just the legislative initiatives.

We have put in place programs and assistance to help with getting information into schools and spreading the word, particularly to young people, about how they can get help and how they can help remove some of these offensive images that cause them such stress and anxiety. That type of information is very important, as well as the improvement and modernization of the investigative tools, which require judicial oversight and the authorization of a judge before that type of information is sought.

This is a comprehensive and balanced bill. It is about protecting the public through this new offence that is designed to address the aspects of cyberbullying. In particular, it is about modernizing existing offences and the investigative tool kit. It is very much there to give the police the ability to do in a virtual world what they do in the real world, and to seek out those who are causing this type of harm through the Internet.

The offence of non-consensual distribution of intimate images prohibits the sharing of intimate photos or photos containing nudity without the consent of the individual shown in the photos.

It is important to respond in this manner to cyberbullying, which involves activities that can cruelly humiliate and shame its targets. It can cause irreparable emotional and psychological harm to the victim. There are far too many of these cases that we could enumerate here. Suffice it to say, the pain being felt and experienced by the families is unquantifiable. The anonymity of what happens online sometimes emboldens people and empowers some to act in a cruel and wicked fashion.

Bill C-13 would respond directly to recommendations that were made in a June 2013 federal, provincial and territorial report. Therefore, there is broad support and consensus among our provincial and territorial partners to move in this fashion. The report was unanimously supported by my predecessor, the Minister of Public Safety, as well as all of those provincial attorneys general and public safety ministers.

I also alluded to the committee, which heard from a number of victims of cyberbullying and sadly the parents of some deceased victims, many of whom have now become advocates for change to better address the scourge of cyberbullying. Most of these witnesses expressed strong and unconditional support for the proposals found in Bill C-13.

In particular, and his name has been mentioned previously, Mr. Glen Canning expressed serious concern to the committee about the challenge faced by police in responding to modern crime using outdated tools. He also expressed his belief that had Bill C-13 been law, it could have had a positive impact and might have saved his daughter, Rehtaeh Parsons.

These are compelling arguments to be made for passing the bill. Further delays would leave more people vulnerable, simply put, and online crime to go unchecked. The alarmist rhetoric and some of the partisan banter here is not going to change that. Moving the bill forward will in fact fill the gap.

I hope the House understands just how important the proposed legislation is. Our police need these modern tools for modern times. Criminals are certainly using the Internet to great effect, and it is time to fight back. Bill C-13 would give the police the means to investigate and hold offenders accountable online, just as in the real world. It would provide the police with increased, judicially authorized, 21st century police tools and techniques.

I urge all members to support the bill. It is a balanced, necessary approach to putting in place offences and investigative tools that would provide the means to respond to criminal law challenges in this century and those that arise from cyberbullying.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I thank the Minister of Justice for his speech at report stage.

The committee did not have a chance to examine the Spencer decision and see how it relates to and affects Bill C-13, even though I asked the committee to do so, since we finished the clause-by-clause study on June 12 and the Supreme Court handed down its decision on June 13.

A number of experts have said that the decision tears Bill C-13 apart. The minister seems to be saying that that is not the case. Does he not believe that the burden of proof has been diminished? Besides the fact that it is used in other sections of the Criminal Code, how is privacy still being protected when the burden of proof required for the police to obtain private information on Canadian citizens is being diminished?

In other words, the expression “reasonable and probable grounds to believe” has been replaced by “reasonable grounds to suspect”, which seriously undermines the previous standard.

[Peter MacKay, Conservative, Central Nova, NS]

Mr. Speaker, I still firmly believe that the protections are there, that the protections do in fact exist. When it comes to the judicial oversight that is required in order for a warrant to be granted, the standard the member referred to may be described as less, but it is still going to be in the decision-making power of the judge. Therefore, to cast aspersions on the judiciary, to suggest somehow they are going to make improper decisions in granting that warrant, I would suggest is not helpful in this regard.

We are very much putting our trust, our confidence and our faith in the system to work when it comes to those important decisions. Let us not lose sight of the enormity of the challenge that the police are facing and the insidious nature of what is taking place online without the proper oversight. We know that there is an explosion of activity happening on the Internet. We know we do not have sufficient tools, which is why we are acting in this regard. We know that efforts have been made not only in this Parliament, but going back some years by previous governments to move in this direction. This is not a new issue. This is not a new phenomenon. What is urgent is that we put these tools in place, that we allow greater protections and afford the police greater ability to protect people from online crime.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, we all agree on the aspects of the bill that deal with the non-consensual disclosure of intimate images. The problem, as the minister knows, is with the non-consensual distribution of subscriber information, which is done without a warrant and on a voluntary basis.

My question for the minister relates to the advice that he receives from the Department of Justice. It is the Department of Justice lawyers who put together the bill. At the time they put together the bill, their view of the appropriate safeguards around subscriber information was in accordance with what the law was at the time the bill was put together. That changed in Spencer. That changed when the hearings were finished. In the Spencer case, it was those Department of Justice lawyers who argued that subscriber information does not attract a reasonable expectation of privacy. Given that the advice that the minister received in putting together the bill was subsequently found to be incorrect by the Supreme Court of Canada, does he not agree that it is now time to go back to the drawing board?

[Peter MacKay, Conservative, Central Nova, NS]

Mr. Speaker, no I do not. I do not think it will come as a surprise to the member or anyone in the House that I do not agree with that assessment. In fact, I can assure him that those same justice lawyers who helped craft the bill, who researched extensively the policing powers and the privacy balance that has to be sought and achieved, their advice remains consistent and the same. That is that Bill C-13, as currently drafted, does not in fact create new police powers. It does not enable them to go around existing requirements under the law to respect privacy.

I am little surprised and somewhat flummoxed by the position of the Liberal Party because it was its members who brought forward similar provisions in the past, through private member's bills, and spoke very favourably for the same supportive updating of the Criminal Code. In fact, the member for Beauséjour who was here a moment ago said the old tools, the old laws and regulations in common law around search warrants, lawful access, et cetera, have not kept up with the technology that organized crime is using. A former justice minister from the Liberal Party, Mr. Ujjal Dosanjh, said the police want to be able to apprehend or disrupt gang activity and they are at a disadvantage because of the state of the law in this area.

I do not know how the member from the Liberal Party squares those comments with his reluctance to support the bill.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Mr. Speaker, I am pleased to speak to Bill C-13, the protecting Canadians from online crime act, now that it has been reported back to the House by the Standing Committee on Justice and Human Rights.

Without the provisions contained in Bill C-13, there would be no tool in the Criminal Code to enable the preservation of computer data and ensure important evidence would not deleted prematurely. In addition, without these provisions, there would be no tool designed for the production of specific types of data such as transmission data. Nor would there be a tool to assist in tracking a communication by using one order that could be served on multiple providers when it was revealed that the person under investigation was hopping from one hiding place to the next, from one server provider to the next, simply to cover his or her tracks. Bill C-13 would bring the kind of balance Canadians expect from a 21st century system of justice.

I want to address some basic principles so everyone understands what is at stake.

The new preservation tools are crucial. With regard to the storage of data, Canada's telecommunications industry is, in many ways, unregulated. We do not have laws for mandatory data retention, contrary to what exists in the European Union, and many Canadians believe we should not have such laws. Bill C-13 does not change that.

There are a number of providers with a variety of business practices. This is not a criticism of those practices. There are many reasons why data should be deleted. Some of those reasons have to do with privacy, but not all of them. Sometimes it is cheaper. Sometimes it is just the way technology is designed. However, sometimes these circumstances are consciously exploited by criminals trying to hide their trail and get away with their crimes.

The creation of the preservation tools reflects the diversity of legitimate business practices and acknowledges the fact that the industry is not required to retain data. However, we must understand the consequences of our choices. This also means that vital data could be deleted before production orders could be obtained from a judge enabling that data to be disclosed.

Preservation demands and preservation orders act as the first step in a lawful investigation. These tools ensure the data at least exists long enough for a judge to assess the evidence brought before him or her and determine if it should be disclosed to the police so it could assist in an investigation and eventually be brought forward in open court.

Let us consider the next step: the production of evidence. The new production orders provide the necessary set of investigational powers that enable a judge to grant specific types of data as specified in the order, which could be obtained by the police. This is another aspect that has not been understood in the media or by some witnesses who appeared before the committee. The new tools are not about disclosing data in general. It may be easy to grasp that these provisions would give law enforcement the specific tools it needs in the modern world of computers and complex telecommunications. However, there is another side to it.

The provisions in Bill C-13 ensure that a judge is aware of precisely what type of data is being sought by the police in relation to a specific investigation. This is quite unique. Most countries around the world do not provide their judges with this ability to carefully consider the circumstances and to uphold the rights and freedoms of the people and their jurisdiction by granting the authorities access to only one sort of data and not another. If the police do not need access to every kind of data, why should that be permissible?

These new tools make clear that police forces can obtain what is needed, but not more. If they can convince the judge that they need access to a particular type of data in order to assist in the investigation, then the judge can empower them to obtain that data from a service provider, but only that type of data, not every type of data that the service provider might have. This type of precision, this new approach, increases accountability, transparency and privacy protection. It is a new model for our new high tech reality. It is the right balance of freedom and protection for Canadians.

These are not simple issues and they do not deserve to be dismissed by misguided motions to delete vital provisions from Bill C-13. We must begin to understand that in a complex telecommunications network, where the Internet enables mobile phones, laptops and tablets to send data through the air in the blink of an eye, there are different types of data going through the network, data which can have diverse characteristics. We need different tools for those different types of data. The warrant for a tracking device and the warrant for a transmission data recorder are examples of those kinds of tools. They are crucial tools to combatting cyberbullying and online crime in general.

The current dial number recorder provisions in the Criminal Code were put in place when most Canadians did not have a cellphone and were not surfing the web. This is not the kind of technology that police face today when conducting criminal investigations.

The new transmission data recorder provisions can be used for collecting data from both telephones and the Internet. We all know that in today's world, a cellphone can be used to place a call, surf the web, or send a text message or a digital photograph. The transmission data recorder reflects this reality. It is not restricted to one type of data from one type of device. Again, a much more cautious approach has been taken than headlines would have one believe.

We must look carefully at the details. The new provision is important because it establishes appropriate safeguards. The transmission data recorder may be a mouthful to say and it may be difficult to understand some of the technological wording, but basically it is about the data that devices send to each other to connect into the network.

There are many different bits of data that could fall under the definition of transmission data, making a long, complicated list looking daunting. However, there are three things to remember.

First, police officers have to get approval from a judge. They must present evidence to a judge in order to use a transmission data recorder.

Second, the transmission data recorder is basically about mapping networks. It is about identifying devices and messages. It is not focused on identifying an individual person. That means it is not centred on the sort of attribution that was the focus of the Supreme Court of Canada's recent decision in Spencer in June 2014.

Third, and this is absolutely important, the police cannot use this provision to intercept what people say or text to each other or the digital photos that they send. The provision is crystal clear about this. It specifically states that it cannot be used to collect content. That means the transmission data recorder cannot be used to intercept voice. It cannot be used to collect text messages. It cannot be used to read the content of emails. It cannot even be used to read the subject line of an email. It cannot be used to collect a digital photo. To do that sort of thing would be to conduct an interception. To conduct an interception, the police would need a full-blown wiretap authorization, and that is the way it should be.

The police need the right tools, but Canadians need their privacy protected. Bill C-13 would strike the balance.

The warrants for the tracking device and the transmission data recorder not only improve police capabilities, but also strengthen the privacy protections for Canadians generally by ensuring that judicial standards are respected for different types of data.

Let us use another example to make that clear. The amended tracking order provisions distinguish between tracking things and tracking people. Now the existing provisions in the Criminal Code do not make the distinction. Therefore, if the police were tracking a package, like a drug shipment, that is one thing. However, if the police are trying to track a person, using a device usually carried or worn by the person, the new provision demands that the police meet a higher threshold of proof. The police must bring more compelling evidence before a judge, before that judge would permit a tracking warrant to be used to follow a person's movements. That is the way it should be.

The new provisions enhance privacy protections above the old provisions in the Criminal Code. The old tool is not good enough in today's society. The new provisions strike the balance between law enforcement needs and privacy protections.

I call upon all members to give their full support to Bill C-13 to ensure its swift passage.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Mr. Speaker, earlier we debated a time allocation motion on this bill. The Conservatives told us that this was urgent and we needed to vote right away. However, if this was so urgent, why did they not support Bill C-540, introduced by my colleague from Dartmouth—Cole Harbour? Indeed, much of that bill is repeated in Bill C-13.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Mr. Speaker, we have some leading precedence to this. The bill needs to be through by December 22. If it is not, then certain things will happen.

However, from a perspective of Bill C-13, the bill recognizes the importance of modernizing the Criminal Code and police techniques. Police forces cannot work in the century behind us right now. They need to get into the 21st century. The bill would do that.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I thank the member for Kootenay—Columbia for his service on the justice committee. He brings a perspective to the committee from his many years of police work that is extremely valuable.

I would like to ask him about the immunity provision contained in the bill. We heard a lot about it during the hearings. We have heard the government say that the immunity provision really does not do much. It does not convey any new powers.

We did not hear anyone at committee say, “We asked for this”. We did not hear that from law enforcement. We did not hear from any telco, so they could not tell us whether they asked for it.

Could the member offer any rationale for why it was there? What was the demand for an enhanced immunity for telephone companies included in the bill?

[David Wilks, Conservative, Kootenay—Columbia, BC]

Mr. Speaker, the fact is that it was codifying what was already in existence. We need to understand that those businesses were already under an existing rule of law, and that will remain in place.

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I join with the Liberal justice critic in complimenting the member for his experience as a police officer and how that helps the committee do its work.

In respect of that, I thought he made a good speech about what was meant by the term “transmission data recorder”. A lot of comment has been made in the House and elsewhere about the difference between the standard of reasonable grounds to believe versus reasonable grounds to suspect.

As a police officer, could he tell us what is necessary to prepare that kind of warrant application before the court, how much more time is required to prepare a warrant under the threshold of reason to believe and how would that delay an investigation in a matter where a young person was being harassed over the Internet?