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

[Randy Kamp, Conservative, Parliamentary Secretary to the Minister of Fisheries and Oceans]

Mr. Speaker, it is a privilege to represent the good people of Pitt Meadows—Maple Ridge—Mission and to speak in strong support of Bill C-46, which proposes changes to the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act in order to bring criminal offences and investigative powers up to date with 21st century technologies.

Bill C-46 is an important piece of legislation. We are all very well aware that technology has been changing rapidly over the last couple of decades. Some my age or thereabouts have a hard time keeping up with the technological changes. These changes have changed the way that crimes have been committed and the type of evidence that police need to gather when investigating such crimes. Developments in technology have changed the nature of the crimes themselves, as well as the nature of the investigations required to combat them.

In many ways these changes have also made the world a smaller place. It used to be the case that overseas communication took days or weeks, sometimes even longer than that.

It was not all that many years ago, Mr. Speaker, you might recall that I lived in the Philippines for a number of years. I lived several hours north of Manila, the major centre. The only way to get information back and forth to my family and friends was the old-fashioned way, by letter. We did not have a telephone where I lived. In fact, there were no telephones in the town. People had to go to Manila.

The only way I could make a phone call was to drive to a neighbouring slightly larger town about an hour away, stand in line, wait for a telephone booth, hope the operator could connect me at the appropriate time and then pay quite a bit. Now in the Philippines I am told that per capita there are more cell phones than in Canada. Anywhere people go there now, they are able to be connected throughout the world. That is what has been happening.

Money can be moved from a bank in Singapore to an account in Switzerland by a person in Saskatchewan, of all places, without any trouble at all. These technologies have opened up a world of possibilities for Canadians and Canadian businesses, but they also create new challenges for law enforcement and criminal justice. Because of the global nature of these challenges, global solutions are needed.

Investigators face some of the most significant challenges brought about by these technologies.

Before I talk about the international nature of the problem we face and how this bill responds to it, let me talk in more general terms about cybercrime.

What is cybercrime? There is no universally accepted definition. It has had a number of definitions. It certainly includes crimes perpetrated over the Internet but also any crime in which computer-based technology is used, things as relatively harmless as spam, some would say, to much more important and serious things such as the exploitation of children.

Internet child pornography, for example, has become a $2.6 billion industry. The latest RCMP estimates indicate that there are 60,000 identified IP addresses in Canada accessing child pornography. People may be surprised to know this but the National Centre for Missing and Exploited Children documented that 85 children are reported missing every hour, not every day, every week or every month, but every hour, totalling more than 750,000 missing in a year. Many cases involve luring schemes facilitated online.

There is identity theft, which is very serious. In fact, in 2006 almost 8,000 cases were reported in Canada.

There is securities manipulation where wrong information is put online and the price of securities, stocks and so on go up or down in relation to that information. The markets are manipulated in that way.

There is the serious threat to critical infrastructure. It is estimated by some that the next threat to national security will be either the disruption of electronic commerce or the creation of an emergency situation.

All of these things are very costly. There are social costs certainly, but there are economic costs as well. We do not know how much these things cost. There really is no way to add them all up.

A study released earlier this year by McAfee estimated that hacking, Internet fraud, denial of service attacks and high tech mischief cost the world economy more than $1 trillion a year in lost business revenue, which is a huge cost. There is no reason to think these things will decline so we need to take them very seriously.

Some of this material was taken from a website put out by the Global Centre for Securing Cyberspace, interestingly based in Calgary, Alberta. Its mission is to proactively protect people, property and commerce from cyberspace-enabled attacks through the facilitation of cross-sector collaborations with law enforcement, government, industry and academia. There are some very helpful resources on that site that I would recommend to my colleagues and to anyone listening to this debate. People will find some very helpful things on the site if they are at all involved with the Internet or the computer.

Some of these attacks in cyberspace, cybercrime, can come from outside Canada. Our authorities need to be able to co-operate with authorities in foreign countries to investigate these crimes and to bring the criminals to justice. In order to make this co-operation effective, we, along with our international partners, need to have available a standard set of tools capable of facilitating these investigations in the new technological environment.

We believe that the ratification of the Council of Europe's Convention on Cybercrime and its additional protocol on xenophobia is an essential component of enabling these types of internal and international investigations. This convention is the only international treaty that is specifically designed to provide the legal tools to help in the investigation and prosecution of computer and Internet based crime, as well as more general crimes involving electronic evidence.

In conjunction with the necessary amendments in Bill C-46 to the Criminal Code and the other acts, ratification of the convention would put Canada in a position to effectively conduct modern investigations with an international component. Ratification of the convention would also assist foreign signatory countries by allowing them to access the Criminal Code's new investigative tools in appropriate cases.

I would like to read some paragraphs of the preamble of this convention so members will get a sense for what it is all about. It states:

Convinced of the need to pursue, as a matter of priority, a common criminal policy aimed at the protection of society against cybercrime...;

Conscious of the profound changes brought about by the digitalisation, convergence and continuing globalisation of computer networks;

Concerned by the risk that computer networks and electronic information may also be used for committing criminal offences and that evidence relating to such offences may be stored and transferred by these networks;

Recognising the need for co-operation between States and private industry in combating cybercrime and the need to protect legitimate interests in the use and development of information technologies;

Believing that an effective fight against cybercrime requires increased, rapid and well-functioning international co-operation in criminal matters;

And this is an interesting one:

Convinced that the present Convention is necessary to deter action directed against the confidentiality, integrity and availability of computer systems, networks and computer data as well as the misuse of such systems, networks and data by providing for the criminalisation of such conduct, as described in this Convention...

And so on.

It is an important convention. Canada was involved in the development of it, along with the Council of Europe. It does a number of important things, each of which plays a part in enabling investigations.

The first thing it does is it requires signatory states to adopt a minimum set of standards for computer-related crimes. For instance, the convention requires that countries criminalize illegal access to computers. This is basically a hacking offence. It also requires the criminalization of illegal interception, data interference, system interference and misuse of devices.

Now, to be clear, most of those activities are already criminal offences in Canada. The few gaps that remain would be closed with the rest of the amendments proposed in the bill that we are debating today.

The types of crimes we are talking about here are exactly the kinds of crimes that do not respect orders very well, and that is why we need co-operation from our global partners to fight them. We need to ensure our partners are not letting their own citizens hack into Canadian computer systems. We also need to ensure that we all have similar laws to ensure we can prosecute crimes in Canada that have connections to other countries.

The convention covers other types of crimes committed using computers. For instance, the convention prohibits the distribution of child pornography over the Internet, a crime that we have been working hard to fight here in Canada. The convention's additional protocol on xenophobia and racism also broadens the scope of the convention to cover criminal behaviour relating to hate, racism and xenophobia disseminated over computer systems.

We need to do our part and encourage other countries to join us in these important fights. Ratifying the convention and its additional protocol is a necessary step in that direction.

There is another side to what the convention does, which is equally important. The convention also creates a set of investigative tools that every state party will need to fight the kinds of crimes we have just been talking about. These are really important investigative tools in a world where data can be deleted in the blink of an eye. The convention requires that all its signatory states have this kind of mechanism in place. This will be of significant help to our international investigations.

As one can imagine, cross-border investigations are more complicated than domestic ones, which means that they can go more slowly. In order to ensure that vital data in a foreign country is not lost, we need to work with our partners so we will all have such tools available to us.

The convention would also require that we adopt a number of other important investigative powers and that these same tools be adopted by our partners. This common approach to the investigation of computer crimes will speed up the efficiency and effectiveness of cross-border investigations immeasurably.

The convention would also create some new ways of co-operating on these investigations. For example, it would require that each country designate a point of contact that would be available 24/7 to give immediate assistance in these kinds of investigations. This type of mechanism would vastly increase the efficiency of cross-border investigations, which can be quite complicated to conduct.

As members can see, the ratification of the convention on cybercrime is a vital component of Canada's fight against cybercrime and its ability to investigate crimes in the modern world. The amendments in Bill C-46 would go a long way toward addressing these issues, but to make our fight against these crimes truly effective, we need to recognize their increasingly global nature.

Together, ratification of the convention and the amendments in this bill would ensure that we can respond to some of the difficult challenges that new technologies currently pose to the criminal law and criminal investigations.

I encourage all members in the House to give Bill C-46 their full support.

[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.

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.

Sitting resumed

[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.

[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.

Investigative Powers for the 21st Century Act

[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--

[Daniel Petit, Conservative, Parliamentary Secretary to the Minister of Justice]

Madam Speaker, thank you for giving me the opportunity to rise here today to support Bill C-46. This bill proposes amendments to the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act. These amendments would serve to update offences and investigative powers, to ensure they are in line with modern technologies.

The Minister of Justice has already briefly outlined Bill C-46, but I thought I would take this opportunity to expand on a few particularly important and innovative aspects of these Criminal Code amendments.

As we have shown on many occasions, the safety of our communities, our families, and particularly our children is something that this government takes very seriously. As part of a responsible government, a member of Parliament and a citizen, I am concerned about the safety of our communities.

Before I continue, I would like to briefly explain what the lawful access initiative is all about. Lawful access has nothing to do with listening to private conversations or monitoring the Internet browsing or emailing habits of Canadians. This initiative aims to ensure that law enforcement and national security agencies have the technical and legal ability to keep up with changes in communications and computer technologies.

New technologies are powerful and useful tools. However, criminals and terrorists can use them to endanger public safety. Current technologies provide numerous benefits. We applaud innovation in computer science and technology. However, we recognize that modern technology can facilitate crime, such as the distribution of child pornography, and make police investigations very difficult and complex. This bill will help by providing law enforcement organizations with the tools they need to fight crime in today's environment. The bill updates various offences and creates new investigative powers.

Our justice agenda has recently been the target of criticism. We have chosen to take these actions because we believe that justice reform is necessary. Canada was one of the first countries to establish criminal provisions for computer crimes. However, no significant amendments have been made since 1990. As I said, technologies have evolved considerably since then, but Canadian laws have not kept pace with the changes.

These increasingly complex technologies are challenging traditional investigative methods, and criminals are taking advantage of the situation by using complex technology to carry out illegal activities and endanger our citizens. Fighting crime means overcoming major challenges. Modernizing legislative tools, such as the Criminal Code, is essential to enabling law enforcement organizations to investigate criminal activity effectively while protecting the privacy rights and civil liberties so important to Canadians.

Right now, law enforcement personnel can get a warrant to intercept communications on conventional phone lines. The legislative measures in this bill will bring the legislation up to date by including cell phones and other wireless technologies. These measures will require Internet service providers, ISPs, to have interception capability in place.

When law enforcement officials try to prevent a crime or conduct an investigation, ISPs do not give them all of the basic client information they need.

The measures in this bill allow them to obtain that information in order to protect children from online predators and to prevent other types of cybercrime. We believe that these measures are very important and necessary. We have to protect our children from these predators, especially as our children now surf the Internet at an increasingly younger age. These measures are very useful.

The proposed changes create a data preservation demand that requires an Internet service provider to protect and not delete information relating to a communication or a subscriber if the authorities and the police believe this information could help in their investigation.

Allow me to elaborate more specifically and in greater detail on preservation demands and orders, on modernizing the current provisions regarding warrants for tracking and on the new concept of “transmission data”. I think that each of these tools will have a truly positive influence on investigations in Canada.

Let us start with the new preservation demands and orders, which create new investigative powers for criminal offences under the Criminal Code and offences under the Competition Act. Their purpose is to ensure that volatile computer data is not deleted before the police have the chance to get a warrant or an order to collect the data for investigation purposes. The need for these types of tools is obvious in this day and age. Not only is computer data easily erased, but it can also be lost through negligence or simply through ordinary working procedures. A preservation demand or order will legally require a person to keep computer data that is essential to the investigation for enough time to allow the police to obtain the necessary warrants and orders to get the information. This tool will allow the police to begin the investigation without losing elements of the evidence when the loss can be prevented.

Some people might be concerned about the repercussions of these changes on the right to a reasonable expectation of privacy. They may have heard about the European data conservation systems and are worried that our legislation will import those systems to Canada. That is not what Bill C-46 is about in any way.

Data retention can make it possible to collect a large amount of data over a long period of time on all telephone and Internet subscribers, regardless of whether they are linked to the investigation. Bill C-46 does not provide for data retention. It provides for the preservation of data, which is completely different. This would allow for the preservation, for a limited period of time, of specific data related to a specific investigation and to specific individuals. It is important to note that the data will be handed over to the police only if a warrant or order has been issued. Furthermore, data that would not have been preserved as it is no longer useful to the investigation. That is quite a change.

This will ensure that the system put in place by this bill will not inadvertently lead to the type of retention that exists in European countries, as I have explained. So we can see that the preservation system we have created here is very limited and targeted. It was developed to be a temporary solution, so that the warrants and orders obtained by the police to gain access to information are not rendered useless because the data was erased in the time that it took the police to obtain the orders. That is what happened in the past.

Another important amendment proposed by Bill C-46 will update the current Criminal Code provision regarding the warrant for tracking. This warrant was created in 1990, over 19 years ago. The police were able to obtain and use the warrant to locate persons, vehicles or other objects. However, tracking techniques have changed dramatically. Their accuracy and persistence in locating objects has improved. This means that the current type of warrant is no longer suitable and may result in more serious breaches of privacy than before. Consequently, Bill C-46 proposes to increase the protection of personal information for the use of the most intrusive tracking techniques.

The bill establishes a double warrant system for this purpose. The police can obtain the first type of warrant in the usual manner: by proving to the judge that they have reasonable grounds to suspect that the warrant will assist in the investigation of an offence. They would use this warrant to locate objects, vehicles and transactions, as was done in the past.

When a more invasive technique for tracking individuals is required, police must obtain the second warrant, which provides greater protection of privacy than the first. Thus, there would be stricter requirements. According to Bill C-46, to obtain this warrant, the police will have to prove to the judge that they have reasonable grounds to believe—not to suspect, but to believe—that the warrant will assist in the investigation of the offence. Legally, this criterion is much more difficult to meet, and therefore it provides more protection of personal information than the warrant for tracking objects. This is an important legal distinction.

This approach to the tracking warrant provisions is very innovative because it provides stronger protection of personal information where it is really needed while retaining the current tool, which is effective for investigations where expectations with respect to the protection of privacy are not as high.

Lastly, I would like to talk about the new warrant for transmission data. For 15 years, police have been able to obtain a warrant under the Criminal Code for information such as the telephone numbers dialed to and from a suspect's telephone. That is what used to happen. Police could obtain such a warrant if they had reasonable grounds to suspect that the data could help them investigate a crime. Today, this type of data, which experts refer to as call identification data, include not only telephone numbers, but also technical data that all sorts of more sophisticated calling mechanisms can generate on a network.

The fact that the distinction between conventional telephones and the Internet is blurring also poses a problem for police in using the current warrant to obtain call identification data. For example, most cell phones can be used to access the Internet. And in a sense, the opposite is also true. Millions of subscribers use voice over IP to make calls on the Internet. The result is that technologies use IP—or Internet protocol—addresses in addition to telephone numbers; it is a sort of mixture. This has created a gap in what the current warrant can cover. The type of address data police need for their investigation can no longer be obtained using phone records or conventional equipment such as telephone number recorders.

And why should criminals be treated differently just because they use voice over IP to make calls instead of a conventional phone? That is an important question.

Clearly, we need a new legal concept that reflects 21st-century technology. Bill C-46 creates the concept of “transmission data”, which applies to Internet routing data as well as telephone numbers.

For the sake of clarity, I would add that this new concept applies exclusively to this type of data. “Transmission data” applies only to some parts of what is known as the “header”, which includes the email address and information about the email servers that transmitted the email.

This concept was carefully developed, specifically to exclude the contents of messages in order to minimize privacy infringements. This means that the police cannot use this power to read what people have typed in the “Subject” field. Moreover, the police will not be able to use this power to read what people have typed in the body of the email, which is very important.

Like the other amendments I just discussed, the power to intercept transmission data will provide the police with the investigative tools they need to fight crime in a world where techniques are constantly evolving. Like all of these tools, this power was specifically designed to fulfill this purpose with minimal infringement on privacy.

I repeat that our government wants to ensure that law enforcement officials have the tools they need to bring criminals to justice.

The proposed bill will ensure a fair balance between protecting public safety by giving police essential investigative powers and protecting the privacy and the rights and freedoms of Canadians.

I therefore urge all members to fully support Bill C-46, which will update our Criminal Code for the 21st century.

[Steven Fletcher, Conservative, Charleswood—St. James—Assiniboia, MB]

moved 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.

[The Chair, Conservative, Ed Fast]

Great. You have a unique opportunity because we have this legislation before Parliament right now, and all of you may want to look at Bill C-46 and Bill C-47 and see if we've addressed all the issues that are currently before you in terms of technology. If some additional improvements are needed, obviously that's the role of this committee--actually, the public safety committee will be looking at that--so this is your one opportunity to have direct input.

Mr. Comartin.

[Supt Brian Brennan]

I have looked at Bill C-46, yes.

[The Chair, Conservative, Ed Fast]

Thank you.

Before we go to Mr. Comartin, because he had one last question, since you're on the issue, earlier you had talked about the challenge of trying to address the criminals, the organized crime figures, who port their cell numbers. I think you were the one who raised that in your initial presentation. They port it from one service to another, and it's very difficult to get the information from the service providers. Have you had a look at C-46 and C-47, which, by the way, are government bills, not private members' bills?

Have you had a chance to look at, say, Bill C-46, which deals with the whole technology issue?

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair, and thank you to all of you for being here.

I have a couple of things. Chief Beazley, you appeared before our committee on Bill C-14, which dealt with organized crime. It was a bill that our government brought forward. I'm sure you're all aware that the bill has passed into law. We have several other initiatives now.

It dealt with drive-by shootings, reckless discharge of a firearm in a public place, and the use of firearms for intimidation by criminals. It was targeted at organized gang violence, street-level gang violence--some of the typical scenarios we're hearing about in some large centres in Canada. You mentioned them in your remarks, even with regard to Halifax.

At the time, you mentioned the need for us to improve the intercept tools police have because of the complexity of criminal investigations. I know that our Minister of Justice has been asked whether we are trying to get ahead of the criminals, and he says, no, we're just trying to catch up to where they are when it comes to technology.

You were there in April. Then in June of this year, we introduced two pieces of legislation. One deals with investigative powers for the 21st century. That's Bill C-46. The other is Bill C-47, technical assistance for law enforcement in the 21st century. Without going into all the details of both bills, they deal with the interception capabilities of police when dealing with organized crime.

I'd like, maybe, Chief, or Superintendent Brennan, your comments on where you think things are going next. Do you think it's important that we constantly be monitoring these things to try to at least keep up if not get ahead of where these guys are, because technology seems to be changing so quickly?

What are some of the limitations you see in your ability when it comes specifically to organized crime? That's what we're studying today. What are some of the techniques you see them using that are causing you difficulty?

Business of the House

[Jay Hill, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I will proceed in the same order in which my colleague presented his questions.

We will continue today with our government's justice program because this is a justice week. We will be starting with our latest edition, Bill C-52, the retribution on behalf of victims of white collar crime bill.

That bill will be followed by Bill C-42,, the conditional sentencing legislation; Bill C-46, the investigative powers legislation; Bill C-47, the technical assistance for law enforcement legislation; Bill C-43, legislation to strengthen Canada's corrections system; Bill C-31, modernizing criminal procedure legislation; and Bill C-19, the anti-terrorism act.

All of these bills are still at second reading, but members can see from the long list that we do have many pieces of legislation to debate and hopefully move through the legislative process.

We will continue with these law and order bills tomorrow and next week when we return from the weekend. As is the normal practice, we will give consideration to any bills that are reported back from committee as well.

On the issue of an allotted day, Wednesday, October 28 shall be the next allotted day.

We will then resume consideration of the government's judges legislation on Thursday following that opposition day.

As my hon. colleague from across the way mentioned, speaking of our justice agenda, I should add that I was extremely pleased to see that despite the Liberals' best efforts to try to gut the bill, it was passed in the other place. For those who are not aware, there were 30 Liberal senators in the other place at the time when they were voting on those amendments. All of them voted for the amendments that would have gutted that legislation. Fortunately, the Conservatives in the other place were sufficient in number to defeat those amendments and actually pass Bill C-25, the truth in sentencing legislation. It actually received royal assent earlier today.

I would like to thank my hon. colleagues, the Conservative senators, for all the good work they did in pushing that bill forward and for all the good work they are doing in pushing forward other legislation.

The House dealt with Bill S-4, the legislation to crack down on identity theft. It was passed and received royal assent as well today.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Superintendent White.

In response to a question that you answered for my friend Mr. LeBlanc, and also for Ms. Brunelle, I think, regarding advancements in technology that white collar criminals and organized crime frequently employ, I think your response--and I don't mean to paraphrase you, because I know I'll do it inaccurately--was that law enforcement has a difficult time keeping up to the technological advancements that white collar criminals have access to, and that you're always a step behind, but this is one tool.

I was just wondering if you might be able to comment on this. I know you are not here to testify on Bill C-46, but you might be able to comment on how the interaction of Bill S-4 with Bill C-46 might operate. Bill C-46 is the technical assistance for law enforcement in the 21st century act, if you are familiar with that piece of legislation. How might that facilitate another tool?

Investigative Powers for the 21st Century Act

[Peter Van Loan, Conservative, York—Simcoe, ON]

moved for leave to introduce Bill C-46, An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act.

(Motions deemed adopted, bill read the first time and printed)