Bill C-13 (Historical)

Protecting Canadians from Online Crime Act

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

This enactment amends the Criminal Code to provide, most notably, for
(a) a new offence of non-consensual distribution of intimate images as well as complementary amendments to authorize the removal of such images from the Internet and the recovery of expenses incurred to obtain the removal of such images, the forfeiture of property used in the commission of the offence, a recognizance order to be issued to prevent the distribution of such images and the restriction of the use of a computer or the Internet by a convicted offender;
(b) the power to make preservation demands and orders to compel the preservation of electronic evidence;
(c) new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things;
(d) a warrant that will extend the current investigative power for data associated with telephones to transmission data relating to all means of telecommunications;
(e) warrants that will enable the tracking of transactions, individuals and things and that are subject to legal thresholds appropriate to the interests at stake; and
(f) a streamlined process of obtaining warrants and orders related to an authorization to intercept private communications by ensuring that those warrants and orders can be issued by a judge who issues the authorization and by specifying that all documents relating to a request for a related warrant or order are automatically subject to the same rules respecting confidentiality as the request for authorization.
The enactment amends the Canada Evidence Act to ensure that the spouse is a competent and compellable witness for the prosecution with respect to the new offence of non-consensual distribution of intimate images.
It also 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.
Lastly, it 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.

The House resumed consideration of Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act, as reported (with amendment) from the committee.

Speaker's Ruling

[The Speaker, Andrew Scheer]

Before providing my decision on the selection of report stage motions for Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act, I would like to address the concerns raised and the supplementary information provided earlier today by the hon. member for Esquimalt—Juan de Fuca, concerning report stage Motion No. 3, standing in his name on the notice paper.

I would like to thank the honourable member for having raised this matter.

As mentioned by the member for Esquimalt—Juan de Fuca, he also did write to me to urge that I select his report stage motion on the basis of exceptional significance.

I wish to reassure the hon. member that I have carefully reviewed all the relevant contextual and substantive circumstances surrounding the matter. While each case is different, and occasionally there are exceptional circumstances that merit the selection of certain report stage motions, ultimately I must be guided by the procedural practice relating to the selection of report stage motions.

House of Commons Procedure and Practice sets the following general principle with respect to the selection of report stage motions. At page 783 it states:

As a general principle, the Speaker seeks to forestall debate on the floor of the House which is simply a repetition of the debate in committee…the Speaker will normally only select motions in amendment that could not have been presented in committee.

More guidance as to the selection of report stage motions can be found in Standing Orders 76(5) and 76.1(5). The note accompanying those standing orders states, in part:

A motion previously defeated in committee, will only be selected if the Speaker judges it to be of such exceptional significance as to warrant a further consideration at report stage.

As evidenced by his first having written a detailed letter, and now having raised the matter again in the form of a point of order, the member for Esquimalt—Juan de Fuca clearly feels that the circumstances surrounding the committee's consideration of his amendment are exceptional, and on that basis, the House as a whole should decide whether Bill C-13 should be amended in the fashion he is proposing. While I understand his argument, I would remind him that the Chair cannot make decisions on selection based on the likely outcome of the vote.

As I stated in the decision on December 12, 2012, page 13224 in the Debates, in relation to a point of order raised by the government House leader:

The Chair is and will continue to be guided by procedural imperatives in all of its decisions, not by somehow substituting the Speaker's prediction of the likely outcome of a vote expressed by the House itself.

His belief that the outcome might be different in the House from what it was in committee, or that a certain foreknowledge exists as to the will of the House on a given question, is not sufficient grounds for the Chair to determine that exceptional circumstances exist that would warrant the selection of this particular amendment.

Furthermore, I would note that Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity) at present stands referred to a Senate committee. The Criminal Code has not yet been amended in the manner that Bill C-279 proposes. Presumably, as both Bill C-279 and Bill C-13 advance through the legislative process, Parliament will, in due course, choose which approach it prefers.

With respect to the existing practice relating to report stage, I would remind members that since 2001, report stage has undergone a significant evolution so as not to repeat debate that already occurred in committee. As such, the Speaker is empowered to decline to put report stage motions that would be tantamount to a repetition of the work that was already done in committee.

Were I to select Motion No. 3 on the basis of the arguments put forward by the member, I fear it could lead exactly to a situation that our report stage practice was designed to avoid, namely a repetition of the debate that occurred in committee on this matter. Therefore, I must inform the member that Motion No. 3 will not be selected for consideration at report stage.

There are nine motions in amendment standing on the notice paper for the report stage of Bill C-13.

Motion No. 3, as indicated previously, as well as Motion No. 6 will not be selected as they are identical to amendments defeated in committee.

I shall now propose Motions Nos. 1, 2, 4, 5 and 7 to 9 to the House.

Motions in Amendment

[Françoise Boivin, NDP, Gatineau, QC]

moved:

That Bill C-13 be amended by deleting the short title.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

moved:

That Bill C-13 be amended by deleting Clause 3.

[Françoise Boivin, NDP, Gatineau, QC]

moved:

That Bill C-13 be amended by deleting Clause 20.

[Sean Casey, Liberal, Charlottetown, PE]

moved:

That Bill C-13, in Clause 20, be amended by adding after line 29 on page 14 the following: “(2) For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protections for personal information affirmed by the Supreme Court of Canada decision in R. v. Spencer 2014 SCC 43.”

[Françoise Boivin, NDP, Gatineau, QC]

moved:

Motion No. 7

That Bill C-13 be amended by deleting Clause 23.

Motion No. 8

That Bill C-13 be amended by deleting Clause 26.

Motion No. 9

That Bill C-13 be amended by deleting Clause 47.

Mr. Speaker, this morning we debated the bill on prostitution. This afternoon, we turn to the bill on cyberbullying. I am almost tempted to start out the same way. This bill also garnered a lot of attention and caused quite a stir. I received many comments from my constituents in Gatineau about this. These people had the same concerns I did. That told me that I was on the right track when it came to the position that the NDP and I took on this file.

I believe it is important to reiterate that many people take the government at its word and believe that it can have a positive impact on the lives of the young people who have suffered all kinds of bullying, their parents and everyone who has been affected by bullying.

As we all know, Bill C-13 was created in the wake of tragic situations involving certain Canadians. Young people committed suicide. Suicide can happen anywhere, in the armed forces and in the general population. Bullying is not a new concept. It has existed for many a moon. I think that we need to find real solutions to offer help instead of playing politics.

From the outset, our approach was not to hold up Bill C-13, but to allow it to take its course. We wanted to be sure that there was an in-depth study in committee and that various witnesses would be able to share their point of view on the bill.

The bill is known as the protecting Canadians from online crime act. It contains 47 clauses and is 53 pages long, but it does not even touch on cyberbullying or online crime. Rather, Bill C-13 addresses the distribution of images, one very small part of bullying. The rest of the bill addresses issues as varied as immunity for Internet service providers, the concept of peace officers and public officers, telecommunications theft and so on. Bill C-13 covers a lot of ground.

We shared these concerns with the minister, the Attorney General of Canada. We thought it would be wiser to split the bill in two so that we could tackle the image distribution issue head-on since it was not as controversial. As for the touchier violation of privacy issue, there are tools that the minister makes a point of talking about regularly, saying that we cannot do one without doing the other. He would have us believe that there are currently no tools available, but there are. We wanted to make sure that what we were doing on that score was completely reasonable. However, the government turned a deaf ear.

Naturally, witnesses told us exactly the same thing and said they were very concerned. Many aspects of Bill C-13 resemble Bill C-30, even though the government agreed to some changes and realized it could not go any further with that particular vision. It did make some minor concessions. The government tried to address cyberbullying via image distribution and the highly publicized cases of Rehtaeh Parsons, Amanda Todd and others who did the worst thing imaginable. Seeing no way out of the problems they faced, they saw that as the only solution. That really breaks my heart.

Everyone will agree that there is nothing worse than thinking that suicide is the only way to solve a problem or the only way out. As a society, we are failing miserably. In my opinion, claiming that Bill C-13 will save young lives is laying it on rather thick.

I do not want to dwell on the issue, but even Amanda Todd's mother told the committee that she did not want people's privacy to be invaded in order to keep others safe. That was not necessarily the objective. Once again, the government is failing to be transparent. Like Sophia Petrillo-Weinstock in the television show Golden Girls, I am tempted to say, “Picture it.”

Thursday, June 12 was the last day set aside for the clause-by-clause examination of Bill C-13. On Friday, June 13, the Supreme Court of Canada was scheduled to render its decision in Spencer v. The Queen. This case dealt with the matter of police access to personal information. Several witnesses who appeared before the committee said that this case would definitely have an impact. At the very least, the government should have exercised caution and waited for the Supreme Court ruling.

Some believe that the committee merely conducted a concept study, but that was not the case. The government was producing legislation. The government bill is 53 pages long and we examined it. Then, the committee heard from witnesses with regard to the various aspects of the bill that they were concerned with. For some, it was the distribution of images. For others, it was the violation of privacy and technology. We heard from a whole slew of witnesses who were concerned about very different aspects of the bill.

The people who were dealing with the part related to the interception of data and the gathering of information without a warrant or court authorization felt it was important to wait for the Spencer ruling. After it was tabled, some experts indicated that the June 13 ruling contradicted certain aspects of the government's bill. That is what we were trying to avoid. We had therefore asked the government to wait.

Time and time again in committee, I asked whether we should not wait until June 13. Should we not read the ruling? Should we not seek advice from staff at the Department of Justice who could explain the ruling to us and tell us whether or not it would have an impact?

In law, if you put five lawyers in a room, they would not all say the same thing. In the House, not everyone is a lawyer. Furthermore, even amongst those of us who are lawyers, not everyone is a specialist in every subject. That is why we study things in greater depth in committee, come back to the House with our recommendations, and then vote with full knowledge of the facts.

At this very moment, regardless of my personal opinion and the fact that several specialists said that the ruling in R. v. Spencer goes against many aspects of the bill, I am quite worried. If there is one area in which I do not want to see any glaring errors, that is justice. Justice must be applied correctly and equally across the board.

All that explains why we changed our position. We supported the bill at second reading, but all of our fears regarding this government bill were confirmed in committee.

It seems that the government is using this bill to try to score political points rather than make any meaningful changes. The evidence is quite clear. The fact is, the government voted against the motion moved by my hon. colleague from Chicoutimi—Le Fjord, M-385, regarding cyberbullying. Furthermore, it also voted against the bill introduced by my hon. colleague from Dartmouth—Cole Harbour, Bill C-540.

Basically, if you ask me, everything is crystal clear.

There is also Bill C-279, introduced by my hon. colleague who delivered a speech on it this morning.

This all tells me that this bill is more about politics than anything of real substance.

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

Mr. Speaker, I appreciate very much the comments of my friend opposite.

I particularly appreciate her expressions of condolences and compassion for the victims of cyberbullying. She was right to say those things. At the same time, she said she was taking a non-partisan approach to the bill.

Much of what my friend says is undeniably true. This is a complex bill. It does go very much beyond simply the issue of cyberbullying and the government's efforts to respond to this very real problem that has affected the lives of so many people in Canada, particularly young people.

However, in her reading of Spencer, she somehow would leave the House, and Canadians, with the impression that this creates new police powers or this is somehow going to lead to further breaches of privacy. Nothing could be further from the truth. What Spencer did in fact was confirm the fact that no new powers were going to be bestowed upon the police. What we are attempting to do is to very much ensure that the police do have, with lawful access, the ability to protect people online, to protect seniors, to protect young people, to protect businesses from flagrant abuses or breaches of privacy that allow criminality to happen online. The bill is very much an attempt to modernize those practices and also to ensure that people's privacy is protected.

We, of course, will respect the Spencer decision. We believe that the bill does meet the balance that is called for in the effort to give police powers to investigate, but at the same time to protect privacy rights. We believe, as well, that there is still ample opportunity to examine the bill in a meaningful way.

I do appreciate the fact that we have had a debate in the House of Commons now and that there will be debate in the other place. However, it is important that we continue to move forward and make progress in this critical area where people's lives are literally at stake.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I thank the minister for his speech.

That being said, he is proving my point. It is interesting to hear the minister's version of Spencer. Nonetheless, what would have been the big deal to wait until the day after the Spencer ruling, for instance, or a few days afterward to have experts confirm what the minister just said. That is his interpretation, but I have heard others that say exactly the opposite.

We proposed 36 amendments. I appreciate the minister's compliments. It is true that I try to look at justice bills in a non-partisan way. However, every time we present something, even amendments as benign as those asking for accountability, they are all rejected. Eventually, we have to say, listen, we take our work seriously. Beyond their words and compliments in this chamber, the members across the way might want to put their money where their mouth is.

Specifically, we asked for the inclusion of a gender equality clause, which had been already accepted. When I asked the minister, he said he had no problem with that. However, in regard to this amendment, the Conservatives should not have played back-room games and try to place people we never see on the Standing Committee on Justice and Human Rights just to try to defeat the amendment.

It is those types of actions that make it hard for us to recognize the government's open mind and so-called transparency.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I want to know whether the hon. member for Gatineau agrees with me that there is something about this bill that is moving too fast and something that is moving too slow.

Does the debate that we are having here today and what has transpired on June 13 of this year not simply drive home the importance of the motion that this member brought before the House when the bill was introduced, that this bill needs to be divided?

The landscape has changed since this debate started. The Supreme Court of Canada pronouncement on June 13 has changed the landscape, as does the interaction with what is happening in the other place in Bill S-4, which also has a connection.

Given what has happened since the bill was introduced in the Supreme Court of Canada and in the other place, is the case for the dividing the bill not even more pronounced now than it ever was?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I will answer quickly. In any case, I think that my Liberal colleague knows the answer to that. A good lawyer does not ask a question unless he knows the answer.

We are not spending enough time on the issue of violating privacy, which is the bulk of Bill C-13, and too much time on the issue of the distribution of images, which could have changed quickly. Once again, it goes without saying that the bill could be split.

Once again, it is very unfortunate that this is not a possibility. I think it is wrong to play politics at the expense of victims. I always say that there is nothing worse than dragging victims to a press conference to try to give everyone the impression that they are being supported. Then it is truly sad to see their expectations deflate when they are faced with the inadequate reality.

In this context, we know that the government wants to pass Bill C-13 as quickly as possible in order to hold other press conferences. However, this has also opened the eyes of the victims and their parents. Like Amanda Todd's mother, they have realized that this bill may not do exactly what the government claims it will do. We need to further consider and analyze the provisions.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, it is an honour for me to speak today to Bill C-13. It is a sad moment because this bill contains all the flaws it had at first reading.

I want to also put on the record that I regret the Speaker's decision. I understand the Speaker's reasoning, but I would have fully supported the request by the hon. member for Esquimalt—Juan de Fuca for that amendment to be selected. That is an important issue of gender identity and ending discrimination, and I think it is a shame that we missed the opportunity today to have that amendment before the House of Commons.

The point was well made just moments ago by my hon. colleague from Charlottetown that it is a terrible shame that the bill was not divided. There is no doubt that easy passage would have created a bill that genuinely dealt with cyberbullying and did not, once again, resurface efforts at what is called “lawful access” but which is generally known in common parlance as Internet snooping by the state into the private lives of Canadians.

There are many troubling aspects on the Internet snooping or lawful access part of the bill that has bedevilled the part that we all would want to support to genuinely deal with cyberbullying. Therefore, my comments will be in relation to those portions that should have been split out, dealt with separately, and not brought forward as though there is nothing wrong with them. Those are the sections that relate to so-called lawful access.

Those sections that deal with the release of private information and private communications of Canadians under much less stringent circumstances than in the past, contrary to what the Minister of Justice said just moments ago, is very worrying. Had it not been worrying, we would not have seen such strong statements from various of our privacy commissioners, our former federal privacy commissioner, Jennifer Stoddart, and the Ontario privacy commissioner, Commissioner Cavoukian.

Many privacy experts have spoken out and said the bill would, as have so many other bills that have been put forward by the Conservative administration, violate our charter rights, certainly violate our privacy rights. The Canadian Bar Association and the Criminal Lawyers' Association have spoken out strongly, saying sections of the bill, with modest changes, could be made acceptable. However, those changes were all shot down in committee.

This is a case where, as the member of Parliament for Saanich—Gulf Islands and as leader of the Green Party, I was invited—I suppose that is the right term, “coerced” might be the one that comes to mind more often—by the new process that applies to members in my position, those with fewer than 12 members in the party in the House or independents, with 48 hours notice to come before various different committees. I brought forward a dozen or so amendments on Bill C-13 to the committee on this issue to try to deal with those sections where we would now ask for deletions. We would like to see the bill improved even now at report stage. Unfortunately, all my arguments were shot down and all the amendments were defeated.

In short form, I will cover the basic themes of what we find. Of course, some of themes have been well touched on by the hon. member for Gatineau in her quite strong explanation of what is wrong with the bill.

The provisions that allow for the telecom companies' voluntary disclosure of private information to be held harmless against any subsequent prosecutions are unnecessary. In fact, we now have the Spencer decision, which has been referenced as well this afternoon, that makes it clear that the bill is out of step with the Supreme Court. We do not need to make it easier for telecom companies to voluntarily turn information over without a warrant and without some of the protections that we used to see in other descriptions of when such information could be turned over.

The fact that we can see various levels of public officials asking for such information is worrying, in and of itself. The fact that they can do it voluntarily and be immune from prosecution is a further worry that we will have significantly more invasions of privacy in the guise of doing something about cyberbullying.

The second area of concern is the lack of accountability and oversight. We used to require that the police have reason to suspect. Now it is a watered-down provision.

We need to have more oversight when we are dealing with issues of privacy. In this Internet age, we are more aware than ever that the private information of Canadians, the kinds of things that we used to keep in our homes under lock and key, that a stranger would have to knock down the doors and rifle through our cabinets to get, now through technological breakthroughs and the Internet is easily accessible by the state through the simple process of pressuring a telecom to release the information to us. This is a significant threat to privacy rights in Canada.

Should this bill pass as currently before us? If it does, it would be a significant violation. It would inevitably lead to violations of the privacy rights of Canadians.

The other piece that has been widely criticized in this bill is the scope of public officers who can have access to this information. It has become too broad.

Justin Ling, who has a good sense of humour, had an opinion piece in the National Post on May 4, 2014. I know it was something of a spoof, but it was certainly a telling way to make the point that the list of public officers who would have unprecedented access to the private information of Canadians would extend to the current mayor of Toronto. Now, while he certainly is dealing with a personal tragedy in his life, and we hope nothing but the best for his health and recovery, the point was made that we do not want to have the private information of Canadians so widely accessible to such a broad group of individuals. Of course, it would also include CSEC, the Communications Security Establishment Canada. It would also include CSIS, as well as public officers of all kinds, including mayors.

This is not the kind of oversight, accountability, and control Canadians would come to expect when the apparatus of the state decides to reduce the tests and lower the threshold for having access to the private information of Canadians.

We will certainly have debate on this. In know that the hon. member who is now the Minister of Justice will have defences and will say that it absolutely does not reduce privacy rights. Why then do so many privacy commissioners think it does? If it does not intrude on civil liberties, then why do the major law organizations and legal scholars in this country say that it does?

There are a lot of members of Parliament on the other side of this place who describe themselves, in their own conversations, as libertarians. They distrust the state. They distrust government reaching into their private lives. I ask them this: How have they gotten so far from a distrust of the state to a cult of Big Brother? I am wondering how it happened that we have moved from a nanny state to a Big Brother state. If the government wants this information about Canadians, those of us on this side of the House who want to defend privacy rights, as a former minister, Vic Toews, said in this place, somehow “...stand with us or with the child pornographers”. Are we to continue to hear that when we stand for the privacy rights of Canadians, we do not care enough about ending cyberbullying?

It is not too late, still, to split this bill and allow us on the opposition benches to strongly support the measures that will protect the vulnerable from cyberbullying, but please, let us draw the line at letting Big Brother have more access to private information. This bill goes too far, and they know it.

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

Mr. Speaker, the member mentioned in her speech that she thinks this bill should be split into two pieces, one being a specific criminal provision having to do with the non-consensual distribution of intimate images, and everything else, that is, any investigative power, in a separate bill.

First, I did not hear from her what additional witnesses she thinks should come before the committee, since the committee had extensive hearings on this issue. My colleagues on the opposite side who were on the justice committee will confirm that.

Second, I wonder if the member has read the CCSO Cybercrime Working Group report, “Cyberbullying and the Non-consensual Distribution of Intimate Images”, and, in particular, recommendation number 4 of that report, which says:

The Working Group recommends that the investigative powers contained in the Criminal Code be modernized.... These amendments should include, among others:

Data preservation demands and orders;

New production orders to trace a specified communication;

New warrants and production orders for transmission data;

Improving judicial oversight while enhancing efficiencies in relation to authorizations, warrants and orders;

Other amendments to existing offences and investigative powers that will assist in the investigation of cyberbullying and other crimes that implicate electronic evidence.

How can the member stand here and say that we do not need these investigative powers to prevent the next Rehtaeh Parsons or Amanda Todd case from happening?

I would like to know if the member agrees with recommendation number 4 or if she disagrees with any of the parts of recommendation number 4.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, we know that the Criminal Code contains a lot of the measures we need for investigating cybercrime. The current Criminal Code contains the following:

For greater certainty, no production order is necessary for a peace officer or public officer enforcing or administering this or any other Act of Parliament to ask a person to voluntarily provide to the officer documents, data or information that the person is not prohibited by law from disclosing.

We know that we can do more. We can track down cyberbullying. We want to support law enforcement. However, we always need to bear in mind that our role here, as members of Parliament, is to hold to account a government that is increasingly exercising abusive powers in terms of the way bills are rammed through this House and in terms of the new powers given to the state to intrude into the lives of Canadians. We have continually less respect for civil liberties and more trust in the idea that Big Brother can handle things.

I submit that the existing Criminal Code elements go quite far in giving us the powers that we need, and this bill would go too far.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I thank my colleague for her speech, which was as eloquent as ever.

I want to read part of an interesting article from Global News that I read this morning called:

“Why anti-‘revenge porn’ pioneer doesn’t like Canada’s cyberbullying law”.

This is someone who would normally support the kind of initiatives the government is preparing to take.

“Mary Anne Franks has made a name for herself fighting “revenge porn”—the dissemination of intimate photos of a woman (it’s almost always a woman) without her permission or knowledge—often by an estranged partner.”

This says something that I thought was pretty interesting, and I would like my colleague to comment. She says, “I do not think it's ever going to work to try to protect privacy by invading privacy.”

Could I have the member's comment, please?