Bill C-46 (Historical)

Investigative Powers for the 21st Century Act

An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act

The enactment amends the Criminal Code to add new investigative powers in relation to computer crime and the use of new technologies in the commission of crimes. It provides, among other things, for
(a) the power to make preservation demands and orders to compel the preservation of electronic evidence;
(b) new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things;
(c) a warrant to obtain transmission data that will extend to all means of telecommunication the investigative powers that are currently restricted to data associated with telephones; and
(d) warrants that will enable the tracking of transactions, individuals and things and that are subject to legal thresholds appropriate to the interests at stake.
The enactment amends offences in the Criminal Code relating to hate propaganda and its communication over the Internet, false information, indecent communications, harassing communications, devices used to obtain telecommunication services without payment and devices used to obtain the unauthorized use of computer systems or to commit mischief. It also creates an offence of agreeing or arranging with another person by a means of telecommunication to commit a sexual offence against a child.
The enactment amends the Competition Act to make applicable, for the purpose of enforcing certain provisions of that Act, the new provisions being added to the Criminal Code respecting demands and orders for the preservation of computer data and orders for the production of documents relating to the transmission of communications or financial data. It also modernizes the provisions of the Act relating to electronic evidence and provides for more effective enforcement in a technologically advanced environment.
The enactment also amends the Mutual Legal Assistance in Criminal Matters Act to make some of the new investigative powers being added to the Criminal Code available to Canadian authorities executing incoming requests for assistance and to allow the Commissioner of Competition to execute search warrants under the Mutual Legal Assistance in Criminal Matters Act.

Investigative Powers for the 21st Century Act

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Madam Speaker, one of the things I wish to advise my colleague is that for many years there was a bill before the House of Commons on child Internet pornography. It was first introduced in 1995 by Mr. Chris Axworthy, who was a long-time member of Parliament and became the attorney general of Saskatchewan.

The government was asked to introduce legislation through this bill or any bill it wished that would make ISP providers partially responsible to monitor their sites and when they noticed any that may have child pornography, they would be required to report it to the authorities. That is basically the bill in a nutshell, as well as certain amounts of time offenders would have to serve.

Child Internet pornography, in my own personal view, is one of the most despicable crimes perpetrated upon unsuspecting children. I have worked with OPP and RCMP officials on this and when I speak with them, they get quite emotional and concerned when they speak about what they have seen on these sites.

As a Parliament we need to do everything we possibly can in order to ensure that we mitigate, reduce and eventually stop this action. I know people are concerned about privacy rights. In fact, most ISP providers I have spoken to do not like me very much because of the fact that a bill such as this would force them to be partially responsible to monitor their sites.

I would like to ask the hon. member, who I know is an extremely intelligent and well-versed person on justice issues, not just in Quebec but in Canada, what does he think about asking ISP providers to be partially responsible, through legislation, to ensure that any pornography on websites can and will be reported to the authorities so they can do their job properly?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Madam Speaker, that is certainly the type of solution legislators come up with. We think that such matters can be solved with laws. However, I doubt that those working in the computer field and ISP providers are qualified to spend long hours poring over these sites.

That is why I have always called for reporting sites, among other things. Such sites are useful not only in cases of pornography but also in those involving potential killers. I am thinking of the horrible events at Dawson College, in Montreal, where young Anastasia was murdered. In the days that followed, some people contacted the police to report a certain site. The police arrested three or four people.

I truly believe that people know that they are doing something illegal. We could draft another bill to tell them that it is illegal, but we have to provide the tools to deal with them. I believe the best way is to use hackers, those who like to go from one site to another on the Internet. They have to be informed that they can contact the police if they stumble across a child pornography site or the site of a gun-crazed maniac, which could foreshadow a massacre. Although I have been told by the Sûreté du Québec that they have officers to respond to such complaints, I have never known the government do this with the RCMP or other forces.

Our objective is to identify the best solutions. At times, it may be legislation, but quite often it is also the enforcement of the legislation, the actual police work.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Madam Speaker, I am proud to rise in the House today to speak about the important piece of legislation which updates criminal offences for the new technological environment and gives police officers the tools to conduct their investigations in a world which has moved beyond old-fashioned telephone calls and snail mail.

The world is changing and so is the way we communicate. It used to be that we could find a pay phone on every city block. That seems quaint to us now. Now we just reach into our pockets or our purses for our cellphones and make our calls on the spot. It used to be we could send a letter to a friend in England or other parts of the world, and it would takes days or weeks to get there. Now we can turn our computers on and send a message in a matter of seconds. We can do it while we are in a coffee shop or while we are walking down the street or even in the House of Commons.

The world is changing in other ways, too. We do not have to go to a store anymore to buy a new pair of shoes. We can sit in our living rooms and buy them online from a store in Paris. When we want to do research on World War II, we can haul out our old dusty encyclopedias or we can look it up on the Internet. We can look at whole books online. Even if people prefer to go into the library to pull a book off the shelf, they will probably look it up on a computerized card catalogue first.

Not only are the new technologies useful and efficient, but they are also unavoidable. They are present in every aspect of our lives. It is clear that criminals are taking advantage of the new technologies as much as anyone else. They use these technologies to facilitate their criminal activities.

Criminals use email and websites to distribute child pornography. Members of organized crime use mobile phones to plan their drug deals. Hackers can access bank records by electronically spying on computer activity.

New technologies give rise to new crimes and they provide new ways of committing old crimes. They create key evidence of crimes, old and new. Most importantly, for the bill before us, they create new electronic forms of evidence.

So, it is obvious that police officers need a way to obtain this evidence to do their jobs. They could be stuck in a telephone world while criminals operate on the Internet. That is why the Minister of Justice tabled Bill C-46, the investigative powers for the 21st century act on June 18.

We need the legislation to give police officers the tools they need to investigate crimes, whether they are facilitated with a traditional land-line telephone or a laptop. We need the legislation to give them the tools they need to collect evidence no matter what form it takes. We need legislation to prevent the Criminal Code from lagging behind the criminals. We need the legislation to ensure that our investigative techniques are as modern as the crimes they are investigating.

I am pleased to say that Bill C-46 does exactly that. Let me say a little bit more about Bill C-46. This bill does a few different things, some of the most extensive changes found in this bill are the Criminal Code amendments. Some of these amendments create new offences. For instance, the bill criminalizes certain forms of child sexual exploitation facilitated by the Internet.

There are also updates to some existing offences to ensure, for instance, that crimes traditionally committed using regular mail will now be punishable if they were committed using email. Finally, the bill creates and updates investigative powers to ensure that the tools available to police can meet the requirements of modern investigations.

I will talk more about these Criminal Code amendments in a few minutes. Before I get into that, I would like to briefly address the other legislation amended in Bill C-46.

Bill C-46 will also update the Mutual Legal Assistance in Criminal Matters Act to allow us to co-operate with global partners more effectively in the fight against cyber crime and other crimes that exploit modern technologies. These changes will ensure that Canada's treaty partners have access to new investigative tools in the Criminal Code.

The Competition Act would also be amended to ensure some of the important investigative tools created in this legislation are available to its investigations under that act.

One of my colleagues will go more into detail about some of these amendments when I am finished. Right now, I would like to tell members a bit more about the Criminal Code amendments themselves. As I mentioned, some of the amendments update the offences in the code, while some of them update investigative powers.

I will begin by telling members some of the important changes we have made in the area of child sexual exploitation.

The first one is communication for sexual offences against a child. Bill C-46 would create a new offence prohibiting people from using the Internet or another method of telecommunication to make arrangements with another person to sexually exploit a child or to agree to such arrangements. An offence of communicating with a child in order to communicate a sexual offence against that child was adopted in 2002. The police have found this offence to be a good tool in the fight against sexual exploitation.

However, concerns have been raised about this provision not going far enough to tackling this very pressing issue. Therefore, the proposed offence would add to what we already have by prohibiting communications between adults for the purpose of facilitating child sexual exploitation. This improvement would help police in conducting undercover investigations of child sexual exploitation crimes. A person convicted under this provision would face up to 10 years of imprisonment.

The next amendment concerns false information, indecent communications and harassing communications. As I mentioned, the Criminal Code would also be updated to ensure that new technologies are reflected in a number of existing offences. For instance, the crimes of false information, indecent communications and harassing communications were previously recognized only when committed using old technologies, such as the telephone and telegraph. Now, these crimes would be punishable when committed using email, text messaging and any number of other mediums.

These amendments would be useful in the fight against cyber bullying, an issue that has become particularly worrisome of late. Cyber bullying is 21st century bullying. It is bullying using email, text messages or posting threats and defamatory messages on websites. It is an issue that has affected many Canadians, school children and teachers. Although the Criminal Code currently contains many useful provisions for fighting cyber bullying at its worst, these amendments would provide incremental tools for those situations that the Code does not quite reach yet.

Those are just two examples of the kinds of updates we have made to our Criminal Code offences, but new technologies affect the criminal law in many different ways.

Many traditional crimes often leave evidence in electronic form. The police must be able to capture this evidence in order to complete their investigations. Therefore, we have created a series of new investigative powers to deal with the aspect of changing technology. These powers are designed to target electronic evidence, yet tailored to ensure minimal intrusions on privacy and civil liberties.

Preservation demands the preservation orders. Two of the tools we have included in our package are the preservation demand and the preservation order. These would require the person subject to the demand or order to preserve a specific set of data long enough for police officers to get a warrant or court order to obtain the data. I would like to emphasize that preservation should not be confused with the types of data retention schemes we see in Europe and elsewhere.

This bill does not require Internet service providers, or ISPs, to collect everyone's information and keep it on hand indefinitely--

Suspension of sitting

[The Acting Speaker, NDP, Denise Savoie]

I am sorry to have to interrupt the hon. member.

Apparently the translation is not working for those who are listening to the French. We will therefore suspend the sitting for a minute or two to restart the interpretation system.

(The sitting of the House was suspended at 5:26 p.m.)

(The House resumed at 5:40 p.m.)

Sitting Resumed

[The Acting Speaker, NDP, Denise Savoie]

I will speak in English just to check if the system is working. The translation is coming through.

Can everyone hear me in both languages?

All right.

Resuming debate. The hon. member for Desnethé--Missinippi--Churchill has 10 minutes left.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Madam Speaker, what a preservation demand or order would do is require a person or business that is not the target of the investigation to preserve and prescribe a set of computer data for a limited amount of time in order to conduct a specific investigation.

We might want to think of this as a do not delete order because it is simply asking that the person preserve or save information already in their possession when a demand or order is made for a short period of time. This kind of tool is vital for our ability to conduct effective investigations in an age where crucial evidence can be deleted with a stroke of a key.

[The Acting Speaker, Conservative, Barry Devolin]

Order, please. Some confusion remains with the sound system. I understand that when we are speaking English, the French translation is working.

When I speak French, is there an English translation?

It seems to be working.

I apologize to the member for Desnethé--Mississippi--Churchill River. Once again, please continue.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Mr. Speaker, the preservation demand and the preservation order would provide police with enough time to go to a judge and get the warrants or orders they need to obtain this evidence. They can do this without fear that the highly volatile data they need will be lost or deleted, either inadvertently or in the manner of regular business practice during the sometimes long periods it takes to obtain a warrant or production order for that data.

Also, as I have mentioned before, we have built important privacy safeguards into these powers to ensure an appropriate balance is struck between providing for the safety and security of all Canadians in ensuring that their rights and liberties are respected.

Although a court order is not required for the preservation demand, the duration of the demand is limited to 21 days. This means that if a police officer does not get a court order or a warrant for the preserved data before the demand expires, the data will simply be deleted. The data will not be provided to the police without a court order or warrant.

The police can also obtain a preservation order from a judge or justice. The order will give them up to 90 days to get a production order or warrant to obtain the data that has been preserved. Again, if they do not get the production order or warrant by the time the preservation order expires, the person in possession of the preserved data is required to destroy it unless his or her business practices otherwise require that it be retained.

What this means is that specific data will be preserved only for a limited time period for the purpose of an investigation. Data that would not otherwise be kept by the businesses would be destroyed as soon as it is no longer needed for an investigation. This safeguard is an example of our efforts to respect the privacy of rights throughout the bill and is consistent with Canadian privacy law.

We have also updated the production order regime to tailor it to the needs of modern investigations. A production order is a judicial order that requires third parties to provide police with documents containing certain data in connection with an investigation we currently have to production orders in the Criminal Code.

There is production--

Suspension of Sitting

[The Acting Speaker, Conservative, Barry Devolin]

Order, please. The technical problems continue with the translation so we will need to suspend again. If the system is fixed in the next few moments, we will continue. If we are unable to repair the system, we will suspend until 6:30, at which time the votes will be taken and we will do that in both languages manually here on the floor.

We will suspend again, resuming once the problem is fixed or resuming at 6:30 for the vote.

(The sitting of the House was suspended at 5:45 p.m.)

(The House resumed at 5:59 p.m.)

Sitting resumed

[The Acting Speaker, Conservative, Barry Devolin]

Order, please. Colleagues, it is my understanding that the sound system is functional now. It is my understanding that the translation is working from English to French. Is the translation coming through in French?

Is there an English translation when I speak French? Very good.

Colleagues, it is my understanding that half of the microphones are now working, every other microphone. It is my understanding that this will be sufficient for us to proceed and it is also my understanding that the translation is working in both English and French. We will give this one more try. If it works, then we will proceed until 6:30, when the vote will be taken as scheduled. This is the last try. If this does not work, we will suspend and we will then wait until 6:30, when we will still proceed with the vote, doing the translation manually.

With that, I give the floor to the hon. member for Desnethé—Missinippi—Churchill River.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Mr. Speaker, I hope that I have not set the record for the longest 20 minute speech in parliamentary history. I will keep on going.

We currently have two production orders in the Criminal Code. There is a production order for financial information as well as a general production order for any other types of data that might be needed in furtherance of an investigation. In this bill, we have created more specific production orders for more specific types of data. This will allow police officers to target exactly what they are looking for in an investigation with tools designed to reflect the expectation of privacy associated with the data being sought.

We like to call this kind of tailoring privacy with precision. Instead of using one big hammer to hit every size of nail, we are providing several hammers that are precisely suited for specific types of nails. In addition to the two production orders that we currently have, we are proposing to create production orders for the transmission of data and tracking of data. We will address these concepts in more depth in just a few moments.

We have included a production order to trace specified communications, which is a really interesting tool because it allows police to trace the origin of a communication that may have gone through several different service providers. It is a very current tool that addresses the complexity of modern communications.

We have made some changes to the powers of the Criminal Code that will make investigations more effective while taking into account people's rights to privacy. One of these changes has to do with tracking warrants. Police have been able to get tracking warrants for over 15 years now. As one can imagine, technology has changed a lot in that time.

Where we were once able to track people with only a moderate amount of accuracy, there are now technologies that exist that can track objects or people much more closely. We are proposing to increase the threshold necessary to get a tracking warrant in situations where one is going to be able to track people more closely. This means that now, when police officers apply to the judge or justice for a warrant to do this more continuous and accurate type of tracking, they will have to meet a stronger test to convince the judge that the tracking warrant is needed.

However, the existing lower threshold warrant will also be retained to allow police to obtain less privacy-invasive tracking information. Specifically, police will continue to be able to obtain information related to the tracking of objects, vehicles and transactions at the current lower level. This dual approach will allow police to retain the efficiency of the lower threshold warrant while increasing the privacy protections in situations where there are greater privacy interests at play.

We have also updated what is currently called the dial number recorder warrant. The name in itself should explain why this tool needs to be updated. When we think of dialing, we think of old analog-type telephones, but people do not communicate with these types of telephones anymore. We communicate with cellphones, text messaging, email and numerous other methods that are emerging faster than I can keep track.

We need to be able to capture the routing information that these new technologies produce. The transmission data recorder warrant would allow us to do just that. Where we could previously get the phone number that someone was dialing, we would now be able to get parallel updated forms of communication and destination information like email addresses as well. The warrant would provide for a much needed update with respect to new technology, since technology has moved well beyond simple telephone dialing.

I want to emphasize that we would not be getting the content of people's emails, text messages or phone calls under this warrant. We would not even be able to get the subject line of the email. We have other provisions in the Criminal Code to deal with access to the content of private communications and this bill does not affect those processes.

This bill allows police officers to get information about where a communication is coming from or where it is going, but that is the only information they are getting with this warrant. We have taken privacy very seriously in creating this legislation. There is nothing in this bill that would allow police to obtain information without a current court order or authorization. There are important privacy safeguards built into the preservation demand and the preservation order. Each investigative power has been carefully tailored to reflect the expectation of privacy associated with it.

Before I conclude, I would like to take a minute to discuss the global nature of many of these issues and the importance of ratifying the Council of Europe Convention on Cybercrime and its additional protocol on xenophobia and racism.

As I mentioned before, it is clear that technologies like cellphones and the Internet have had a huge effect on our lives. We also know that these technologies have, in a sense, made the world a much smaller place. Thanks to the Internet, it has become possible to commit a crime in Japan while sitting comfortably in an armchair in Sarnia.

The international community started thinking about these issues relating to computer crime back in the mid-1980s when personal computers started appearing in people's homes. Since then, the use of the Internet has become widespread, once again changing the rules of the game. The international community has been studying the challenges posed by these developments and working on solutions.

I am pleased to say that this bill would allow us to ratify the Council of Europe Convention on Cybercrime and its additional protocol on xenophobia and racism, which are the only existing instruments at the international level to combat computer-related crime. Ratification of this convention would allow us to co-operate with other signatory countries in the investigation of cybercrimes when, for instance, a Canadian falls victim to a crime committed in France. The convention would also help us access evidence that, due to the nature of Internet technology, can actually be found on a different continent.

Again, one of my hon. colleagues will tell the House a little more about the convention in a few minutes, but for now I would like to leave everyone with a few thoughts.

We have created an effective and efficient set of tools, which will allow police to conduct complex investigations in a modern world. As we know, this government is committed to combating crime in all its forms. We have also been particularly active in the fight against organized crime and the sexual exploitation of children. Bill C-46 is an important contribution to all of these battles.

We conducted extensive consultations when creating these amendments with all kinds of people and organizations. We heard from privacy advocates, police, industry, and regular folks who really care about the safety of their communities, as well as the protection of their rights. With their input, we have created legislation that achieves the right balance between promoting Canada's safety and security, and protecting the rights of Canadians.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I would like to begin my question with a little background by saying that I have always been inspired and very interested in speeches in the House where people draw upon their previous experience before arriving here. Many people bring compassion and some very reasoned arguments as a result of their previous experience.

I thought one of the interesting parts of the member's speech was about cyberbullying, which is close to my heart because in this century, certainly with the advent of technology and social networking on the Internet, that is a very pertinent issue.

I would like the hon. member to draw upon his previous experience as a front line officer, as he has in his speech, and perhaps provide the House with an example of why this bill is needed now.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Mr. Speaker, I served in the RCMP for the better part of 18 years and was stationed throughout Saskatchewan. As technology evolves, so do policing techniques and investigations.

When I first started in the RCMP, we did not have the technology of computers as we do today. As technology has evolved, I have seen a different type of bullying coming across policemen's desks. At first, we would get a phone call from a mother or father who would be upset over bullying. They would call because their child had been assaulted or bullied on the school grounds.

The unfortunate part is that what I have had to investigate today is cyberbullying. Cyberbullying is basically text messaging or other forms of verbal abuse toward another student or individual. It could be by a group of people bullying one child. Many times that one child has no avenue. I have seen action being taken by the schools, and they are helpless without having this bill passed, to battle cyberbullying. This legislation is needed and we need to get it through to help protect the future generations of Canadians.