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.

Sitting resumed

[John Duncan, Conservative, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development]

Mr. Speaker, I would like to congratulate my colleague from Desnethé—Missinippi—Churchill River. I know that was the first 20-minute speech that he has made in the House of Commons, and he made it a memorable one for multiple reasons. I think it was one of the longest 20-minute speeches in the history of the House because of technical difficulties.

Given the member's police background, I would like to ask him a question that I think the public would be vitally interested in. If this bill were to become law, would the police be able to monitor everyone's Internet activity, email content or cell phone use? It is a very simple question.

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

Mr. Speaker, how will my privacy be protected? The Government of Canada is strongly committed to maintaining the rule of law in all of the legislation.

None of the lawful access tools, production orders, preservation orders, interception orders and search warrants can be obtained in the absence of lawful authority. A person's reasonable expectation of privacy will continue to guide how the federal legislation will be updated.

In addition, the government will ensure that such authority will continue to be exercised, bearing in mind that privacy and human rights laws such as the Canadian Charter of Rights and Freedoms, the Privacy Act, and the Personal Information Protection and Electronic Documents Act must be adhered to.

[Greg Rickford, Conservative, Kenora, ON]

Mr. Speaker, I also applaud my colleague for his first 20-minute speech and for doing so well under those circumstances.

My question comes out of the experience I have had on the privacy and ethics committee. My understanding of this is that there is a careful balance we have to take between having lawful access to communications and protecting one's privacy.

I heard something in the speech about a lawful access initiative, and I was wondering if the member could just expound on that a little more and give us comfort that this act gives the appropriate powers for monitoring, but at the same time protects our privacy.

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

Mr. Speaker, what is proposed in this new legislation?

The proposed legislation will update certain existing Criminal Code offences and investigative powers, as well as create new powers to meet the demands of today's computer and telecommunications environment.

The proposed legislation will, among other things, update current Criminal Code provisions to allow police to obtain transmission data, also referred to as traffic data, that is received and sent via the telephone or the Internet and will require the telecommunications service providers to preserve, for a certain period of time, data related to those communications or to a subscriber if that information is needed in the investigation of an offence.

Under the legislation, it would also be an offence for two or more persons to agree to arrange or commit an offence against a child by means of telecommunications.

One thing I saw in my policing career was Internet luring, and this is totally unacceptable. During my police tenure, I at times saw how a family was divided and torn apart because their child who had been playing on the computer had formed a conversation with an unknown offender. That offender tried to lure that child out of his or her home to meet in a neighbouring community, or in that community itself. That is why this legislation is very important to help protect our young children and also to protect our communities.

Our mandate was for safer homes and safer communities, and I feel that this legislation will come forward and will protect all Canadians as a whole.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I am fascinated by this discussion because all Canadians are implicated in it in some sense because we are all living in a digital realm. All our kids are on the Internet. We recognize the need to make sure that police have the tools they need.

The member says that provisions will be in place to ensure that the normal rule of law, in terms of warrants and privacy, will exist, and yet there is a provision for telewarrants. In other words, if it is inconvenient to have a written warrant, it can be obtained verbally. I find that a very odd and possibly huge loophole to slide into the legislation.

I would ask the member to explain to me why it is that in this day and age, as hooked up as we are, we should have a provision so that if it is inconvenient to get a written warrant or to type anything or to send a fax, one simply needs to make a phone call and there will be access immediately. That seems to me to be a bit beyond what we would have under normal jurisprudence.

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

Mr. Speaker, I spent many years getting search warrants manually. It takes days to do a proper and thorough investigation. I have been in circumstances where I requested a telewarrant through a normal phone line but it was declined because we could not get the necessary information. That becomes a Canadian problem. We cannot protect the community if we are declined a telewarrant.

I feel this legislation will come forward and will cover all the bases needed to address the safety of Canadians.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I rise on behalf of my party to signal that we have done a fairly thorough review of Bill C-46 and will be supporting it at second reading to go to committee.

I do want to be clear, and I think it is obvious to anyone who peruses the bill, and it is a lengthy one, that it is a significant step forward in bringing a number of our procedures and much of our criminal law into the 21st century.

It has a number of short provisions in it. In the past we did not have technological terms that would allow us to lay charges or in some cases get warrants to pursue investigations simply because the term computer, for example, was not in the particular section of the code that was the subject of the investigation.

We have other changes, setting aside the technological ones, that are fairly short amendments, whereby we are again expanding the scope of a number of crimes to reflect the reality of cyber crime, crime that is based on the use of technological equipment.

It is very important that we make those changes and bring things up to date because we know of a number of investigations that have gone on and have failed and of a number of charges that have been laid and have failed simply because the terminology in the code was not up to modern-day standards.

From that perspective, it makes a lot of sense to have this. In fact this bill is quite overdue in terms of when it should have been on the law books of this country. Those amendments have been planned for some time.

I want to say that there are some other relatively short amendments, and I want to note one in particular that is to clause 6. This is the section of the code that deals with hate propaganda and hate literature, and we are including an additional group in the identifiable group that would be the subject of an attack based on certain criteria. Right now the wording mentions colour, race, religion, ethnic origin or sexual orientation. We are adding to that list “national or ethnic origin”, because there have been a couple of cases in which that was the motivation for the attack by the hate-mongers and we could not charge them because the group in question did not fit within the definition of identifiable group.

That is a significant update, a significant change. It will allow us to catch people who publish and disseminate that kind of literature and that kind of hatred. That is an improvement. We have several more like that.

I want to make a few comments about some of the reservations. We heard one of them in the last questions from my colleague from Timmins—James Bay. There are provisions for amendments to the Competition Act more specifically than to the code, which will allow for telewarrants, so the police officer or the prosecutor would not actually physically stand in the presence of a judge. They would obtain a warrant through some form of telecommunication.

In terms of the design, it appears they would do that in the normal way. They would prepare written material, submit it to the proper judicial officer, and if so justified, they would receive the warrant. They could do it by fax, a combination of telephone and fax, or by computers, over the Internet.

There is a third way that is of concern, and it was raised by my colleague, the member for Timmins—James Bay. There are provisions in here whereby one will be able to seek a warrant through a telecommunication mechanism without putting anything in writing. I have to say that does cause me some concern. The test for that is that one can seek it where it is impractical to submit a request in writing.

I am concerned about that because it potentially could be open to abuse where people argue. As we heard from the last speaker, it sometimes takes a long time to get a warrant but that is the way our system works and it has worked quite well in terms of ensuring that the judicial officer has in his or her possession sufficient information to allow for the incursion into usually private residences, commercial establishments and now, more commonly, computers and that whole world.

We need to be very careful that we do give our judicial officers sufficient information. I must say that it is somewhat hard to imagine, on a consistent basis, being able to do that without submitting a reasonable amount of written text to the judicial officer. Again, it does not need to be by fax. It can be over the Internet. However, it can simply be speaking to a judicial officer over the phone and recounting the reasons why a warrant is needed and why it is impractical.

Another concern I have about the section is that it is not clear as to who determines the impracticality. We do not know whether it is the police officer or the prosecutor seeking it, and if it is the judicial officer, what do those officers need to do to establish that there is no criteria as to what impracticality means? I think that again is open to some potential abuse.

When I first started practising law, we did not have the provisions in the law to obtain warrants for wiretapping. It was just blank. In fact, I was involved early in my career with a couple of cases where we actually challenged the police forces who we believed were conducting illegal wiretaps. It was shortly after that that the legislation came into play.

However, I remember the debates that went on in this House at that time and, more generally, in legal circles, where we were debating what criteria had to be met for those kinds of warrants. When I look at the debate that went on at that time and the ultimate criteria that we put into play as to what we had to meet in order to get those kinds of warrants, I have not heard that debate today in the House, and I do not see the criteria in the legislation.

That is an area of concern for us and when it gets to committee we will be investigating that more thoroughly to see if there are ways we can, not only accommodate this type of amendment, but also provide some guidelines for our judiciary as to when they would allow for a warrant to be issued, in effect, over the telephone, without anything in writing in front of them.

It is really important, with the exchange that now goes on where the prosecutor and oftentimes the police officer appear in front of a judge or a justice of the peace to get a warrant, that the exchange that goes on of a personal nature is fairly crucial for the judge to make his or her decision, and that is much more difficult over a telephone.

The other major concern is the bill would, in two areas, place additional pressure on people who provide computer services, service providers, in that we would have two provisions for requirements to produce material and, coupled with that, requirements for the computer service operators to preserve material.

I have seen some commentary in the public media from service providers who are concerned about heir ability to do that. This would not be a problem for large service providers, the large companies, but it may very well be for the small ones. Are we going to allow for a relatively comfortable period of phase-in where they need to add additional technology if they do not already have it? That still remains a question mark. Will it be, in some cases, just too expensive? Would this put people out of business by simply asking for a preservation order from them, which comes only from the police and then they go get the warrant for production?

As I have said, I have heard those concerns expressed. One of the ways to deal with this may be to allow for a phase-in period when they can get their computers and the new technology up to snuff to meet the requirements of this.

The final point I would make is the point raised by one of my other colleagues in a question, which was about our ability, with these amendments, to give additional tools to our police officers and prosecutors around what are cyber crimes. Some of that is cyber bullying, which is an issue that has already been raised today, but it also expands our ability to deal with child pornography over the Internet. It would give some additional tools to the police for that purpose, which is another reason for supporting this.

With those two reservations that we have been able to identify, we will be supporting the bill but we will be looking at ways of perhaps improving it in committee. In committee, we may also identify additional problems with it but we believe overall that this bill certainly takes us in the right direction with regard to those additional tools that our police officers need.

[The Acting Speaker, Conservative, Barry Devolin]

When the House returns to this matter the member will have eight minutes remaining.

The House resumed from October 26 consideration of the motion that Bill C-46, An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act, be read the second time and referred to a committee.

Investigative Powers for the 21st Century Act

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I am pleased to rise here today to speak to Bill C-46. We will probably study Bill C-47 either later today or tomorrow. Bills C-46 and C-47 are very closely related to each other and, for those watching us, have to do with cybercrime.

It appears that the Canadian government has finally entered the 21st century and wants to address the very serious problem of cybercrime. Before going into the details, I would like to give some background. There was a convention, if we can call it that, known as the convention on cybercrime. That convention was the subject of many meetings. In fact, there were 27 different versions of the convention on cybercrime before the final version was drafted and signed by many countries, including Canada, the United States, Japan, South Africa, and even the Council of Europe. All the countries that signed the convention undertook to introduce one or more bills to implement the convention on cybercrime. That is precisely what the government is doing here today.

We can examine the technical details of the bill in committee. Yes, the Bloc Québécois agrees that Bill C-46 should move forward and be referred to the Standing Committee on Public Safety and National Security. This will also probably be true for Bill C-47.

Bill C-46 should allow police forces to adapt their investigative techniques to modern technologies like cellphones, iPods, the Internet, as well as social networking sites like Facebook and Twitter that link today's online world. This bill will give police forces access to such technologies.

When a bill like this is introduced there is one thing the government and parliamentarians must not forget: the bill must not infringe on basic rights even though we are trying to properly equip our police forces to deal with crime. All of this is being done in response to what happened in 2001. Even though we know that work on cybercrime began in 1995, the events of September 2001 had a substantial impact. That is when governments realized they did not have the means to intercept certain communications. Before and after 1995, and even before and after 2001, surveillance was used. It was very easy to realize you were being followed. We are not talking about a James Bond movie here. We are not nearly as sophisticated as the show 24, where the characters are totally equipped to deal with crimes of this nature. We needed to find tools to help deal with cybercrime and make them available to our police forces.

Cybercrime is very subtle and very insidious. It is everywhere today. The members opposite, especially those from the Conservative Party, talk about the luring of children or what some people attempt to do with computers, namely slowly but surely approach children to have sexual encounters.

It is much more than that. I am not saying that the luring of children is not a serious crime, far from it. This is an extremely serious crime. There are also other crimes that are much more subtle, including identity theft and the planning of major crimes. Just look at the London subway bombings. They were planned right here in Canada. Somewhere near Toronto, attacks were being planned with global targets. Here in Canada, the police thanked an individual whose assistance was instrumental in foiling a crime about to unfold in Great Britain.

Cybercrime has become a global phenomenon. Today, we cannot simply say that cybercrime only occurs in Canada, Quebec, or Ottawa and the surrounding region. Cybercrime is a global phenomenon and it has to be addressed globally. That is the purpose of Bill C-46 and Bill C-47, which we will study in the coming days.

There is something worrying me. We will have to carefully study the intrusion into the personal life of an individual. I hesitate to say this because the line between the intrusion into the rights of an individual versus the protection of society is increasingly blurred. We will have to keep a very close eye on this as we study the bill. We must ensure that citizens do not run the risk of being more vulnerable to an intrusion into their private lives. I do not think that anyone in this House is against adapting legislation to the new realities in technology and crime.

I believe that it is abundantly clear that criminals, especially those working on the Web, are brilliant for the most part. Anyone who can use such tools as Facebook or Twitter and the whole Internet is intelligent enough to hatch a good plan for a crime.

We are very close to that reality when we see someone using their cell phone, sending coded messages and providing information over the Internet. We have to follow this up. I will give the example of the transfer of “illegal” funds to tax havens. I spoke about this when debating Bill C-42 and Bill C-52. Today, criminals who use computer technology are increasingly smart. Thus, police forces must be equipped to deal with them. That is the objective of Bill C-46.

Technologies do not just benefit criminals and are also available to police. The Bloc Québécois believes that it is important and rather urgent for police to be equipped to detect not just crimes that have been committed, not just those about to be committed, but those that are being planned. We have to be one step ahead of the criminal planning a crime and able to intervene before an offence is committed. That is the objective of Bill C-46.

However, we must avoid allowing the police to use their investigative tools to gain access to a very large amount of information—it goes that far—but we must also monitor some peoples' activities on the Internet to learn more about their private lives. It goes far beyond listening to telephone conversations. This bill goes much further than that.

However, we must find a balance between the fundamental rights to privacy and safety. That is what this is all about. Is the right to privacy more important that the right to safety? That line is easily crossed by police officers or unscrupulous individuals.

We must remember that some police offers were convicted of having used the computer system of the Société de l'assurance automobile du Québec to monitor a spouse's new friend and watch over the movements of that individual. Those police officers were convicted because they had taken private information.

We must be very careful, and this will probably be the most important debate over the next few months. The Ligue des droits et libertés has raised some concerns. We must be careful, we must be prudent, we must be aware, and we must realize that there could be some slip-ups. When it comes to truly addressing security concerns, is protecting the rights of individuals less important than protecting society? That is a debate that will have to be held when the time comes to examine the bill in committee.

It is clear, and I would like to share a little about what the Ligue des droits et libertés has said. According to the Ligue, the bill constitutes an unprecedented invasion of privacy. It has brought up the following points. The government is presenting its bills as a way to make the necessary changes to traditional investigative powers for electronic surveillance to adapt to new communication technologies. But there is no comparison between the information transmitted through a telephone conversation and information that circulates freely.

Moreover, unlike telephone conversations, which leave no trace unless they are recorded, modern communications leave a trail in computer memories that can be detected long after the fact. That is a very important point, and I hope that nobody in this Parliament or in Canada or Quebec believes that once an email has been sent, it is over and done with. Unfortunately for them, I have bad news, because when people send an email using their computer or even their BlackBerry, there is always a trail. Their hard drives retain information about every email ever sent, and that information can be retrieved. That is where we find ourselves in a grey area.

But the Ligue des droits et libertés adds that everything we do in our everyday lives could come under police investigation. They will have access to lists of the websites we visit, emails we send and receive, credit card purchases, purchases of all kinds—clothing, books, winter gear—our outings, our movements abroad and in Canada, gas purchases, on-line and ATM banking transactions and medical information. Naturally, the list might get even longer.

We have to be prudent. I do not necessarily share all of the concerns expressed by the Ligue des droits et libertés, but they are urging us to be prudent. As parliamentarians, we have to use our judgment. We have to tell police forces—the RCMP, the Sûreté du Québec, the Ontario Provincial Police and other police services in large municipalities—that there are lines that must not be crossed once Bill C-46 is passed.

I firmly believe that one thing is for sure: police forces must have the tools they need to deal with crime in the 21st century. Yes, armed robberies and bank heists are still happening, although less frequently according to the latest statistics. We still hear about corner store hold-ups and all kinds of other assaults. But there is now a new kind of crime called cybercrime. We have been looking for ways to fight it since 1995. We have to make sure we have the tools to do that.

I listened closely to what the Ligue des droits et libertés said, and I feel that we have to be careful. The Ligue says that the bill provides little or no protection against unreasonable seizures without a warrant. The authorities will be able to obtain subscriber data even though the Personal Information Protection and Electronic Documents Act recognizes that this information is private. This is provided for in Bill C-47, but the authorities could still obtain this information. Without a warrant and on the basis of a suspicion, an officer will be able to ask a service provider to keep the contents of all your communications. It is like asking the post office to photocopy all your mail in case something should happen. I feel that people may go a bit too far sometimes, but this serves as a reminder that we must be cautious. I do not necessarily share the views of the Ligue des droits et libertés, but as politicians, we have to listen to both sides of the story.

The Ligue des droits et libertés also says that with a warrant obtained on the basis of a mere suspicion, an agent will easily be able to compel the service provider to turn over all its lists and so on. I believe that this is a bit dangerous, and we will have to address it when this bill is studied in committee. The Ligue added that with a warrant, which can be obtained on the basis of reasonable grounds to believe—less stringent conditions than for wiretapping—the content of your communications could be intercepted.

Certainly, what the Ligue des droits et libertés is saying is important. It is calling on parliamentarians to be careful when we print and pass legislation, but especially when we apply it. Once the law is passed, it may be too late to amend it. I will say one thing right now: police forces must be equipped to deal with cybercrime and 21st century crime. It is clear that crime prevention is one promising solution. The police will need to be able to prevent such crimes, and that takes equipment.

Obviously, the authorities have to try to uncover a plot before it is carried out. Once a crime has been committed, it is a little late to intervene, even if the criminals are brought to justice. In closing, if the authorities can thwart the crime before it is committed, I believe that this bill is a step in the right direction.

[Paule Brunelle, Bloc, Trois-Rivières, QC]

Mr. Speaker, I listened carefully to my hon. colleague. There is no doubt this bill provides police forces with additional tools. What bothers me is the question of striking a balance between basic human rights and privacy. I think we do need to give police the tools they need to arrest criminals, but I also read what the Privacy Commissioner said about this:

Privacy is a critical element of a free society and there can be no real freedom without it.

Canada is currently on a dangerous path towards a surveillance society.

This makes us all think of Big Brother. I have a question for my colleague. How can we ensure that this bill really gives police forces sufficient guidelines so that privacy and basic human rights are respected?

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I thank my hon. colleague from Trois-Rivières for her question.

I will not beat around the bush. This will probably be the greatest challenge facing the committee that examines this bill, that is, trying to set guidelines to balance individual rights and the rights of society, and indicating how far police forces should go. Indeed, as the Supreme Court put it so well, the police cannot go on a fishing expedition. They cannot intercept just anything or do anything they want under the pretext that possibly, perhaps, something might be happening. No, guidelines are needed.

As legislators, we definitely must tell police forces that they cannot cross certain lines. I agree with Ms. Stoddart that the greatest challenge with respect to this bill will definitely lie in its implementation. We will probably need detailed definitions of the tools that will be available to the police to prevent crime. Indeed, with this bill, police will go from being involved in arrests, and therefore the punishment of crime—since police generally become involved after the crime is committed—to the prevention of offences about to be committed, since police will be able to intervene before the crime is committed. That is what cybercrime is all about. That will be the challenge.

[Nicole Demers, Bloc, Laval, QC]

Mr. Speaker, I listened closely to my colleague's speech. If memory serves me correctly, in 1948, George Orwell wrote the book 1984. He wrote about a society that is quite similar to the one the Conservative government wants to give us. In 1958 or 1959, Ayn Rand wrote Atlas Shrugged, which also described a similar society. Yann Martel, a very prolific Quebec writer, has been sending books to the Prime Minister and the 38th book he sent was a book by Ayn Rand.

Does my colleague not think that our Prime Minister and the government should learn from the past, from what already exists, instead of trying to get us to pass bills on law and order quickly without taking into consideration everything that might happen as a result of these bills, all the consequences these bills might have on society, on all individuals and on all human beings?

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I would like to thank the member for Laval. She is absolutely right. I do not think that we should be too hasty in passing this bill. Yes, we should pass it here in the House so that the Standing Committee on Public Safety and National Security—which is where it will probably go—or the Standing Committee on Justice—it does not really matter—can study it. That is where the real work will be done.

My colleague is absolutely right. We cannot have cameras all over the place watching everything and everyone for no particular reason. Where exactly do we draw the line? Somewhere between the rights of the individual and the rights of society. The line is a very thin one. The Supreme Court has urged parliamentarians to exercise prudence before making laws that infringe on the individual rights set out in the Canadian Charter of Rights and Freedoms. The debate in the coming months will focus on that. I have tremendous respect for my Conservative colleagues, and I hope that they will not try to rush this bill through. Clearly, we have to take the time to work on it properly. The Convention on Cybercrime has been in the making since 1995. It has taken 27 attempts to get to what we have now. I am sure that we can take a month or two to examine this bill properly.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

Mr. Speaker, I was very impressed with the speech by our colleague from Abitibi—Témiscamingue. I think that the concern he expressed about the need to protect privacy and civil rights in general in a bill like this is exactly right. There is another thing, though, that is very important and that is the need to ensure that the authorities have the effective means to control crime in the hyper-technological society in which we live.

Will this new bill give the police more effective means to control such crimes as money laundering or transfers to tax havens?

Do such provisions exist in this new bill? Could my colleague tell us a bit about that?