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.

Privacy

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

Mr. Speaker, Conservative incompetence has reached a new high. This morning, the Supreme Court ruled what the NDP and privacy experts had been warning all along, that allowing police to pull private information from telephone companies without warrant was unconstitutional. Yet the Conservatives are steamrolling ahead with Bill C-13, which also allows unconstitutional spying on Canadians.

With yet another bill struck down by the Supreme Court, when will the Conservatives finally take a balanced approach that keeps Canadians secure without infringing on constitutional rights?

Agricultural Growth Act

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, I would like to say hello to everyone who is watching. I hope they enjoyed their cereal this morning because we know that cereal is a product of agriculture. Everything we eat is a product of agriculture. There are stories of people and farms behind everything we eat, stories of farmers who were taken to court by big companies and lost money. Family farms have had to shut down because they could no longer fight against the big companies.

It is good that we are modernizing and keeping up to date with new regulations. That is not a bad thing, but in so doing, we have to come up with a plan to protect those who may be pushed aside as a result and who do not have the expertise, money or ability to be part of such a market. It is important to recognize that.

My colleague gave an excellent speech about the type of situation that can occur. The farm he mentioned is not the first farm that has been taken to court by a big company for unknowingly having patented plants on its land, and it will not be the last.

We know how agriculture works. The wind scatters seeds elsewhere. There are no borders. It is important to comply with the new regulations, but there must be a plan for the smaller farmers. There must be a plan to protect those who do not have the capacity to keep up with the big multinationals.

It is important to mention that no one is opposing intellectual property. However, in agriculture, intellectual property does not necessarily have borders, as my colleague demonstrated. If I own a field and the seeds from the adjacent property come over to my field, I cannot do anything about it. I cannot put a net over my field so that other seeds do not land on it. The situation is more complex than what the Conservatives are trying to tell us. They are telling us that everything is fine, that everything is going well and that the regulations will work. It is more complicated than that.

One of the first things that the Conservatives did when they came to power was eliminate the Canadian Wheat Board. What was the role of the Canadian Wheat Board? It protected small farmers from bigger farmers.

I went to Europe where I met farmers who dreamed about having that kind of board to protect them from multinationals. We know how it works: the bigger farms swallow up the smaller ones, and the Conservatives have decided to disregard this type of relationship by giving more power to agricultural multinationals. What will we end up with? Agriculture that will no longer have local products or local farms.

If the Conservatives do not adopt a Canada-wide agriculture strategy or a national strategy to protect local producers, what will we end up with? Agriculture that does not respect the Canadian tradition of protecting its farmers.

The second thing they did was jeopardize supply management by putting it on the table during trade agreement negotiations. Small farms that are protected by supply management will not be able to keep up with the market and will once again be swallowed up by bigger players.

The ideas in Bill C-18 are valid and legitimate, and it is important to stay up to date and bring in new regulations for the agricultural sector, but we must not forget that people and farmers might suffer as a result. That is all I am trying to say to the government. We need to have a plan.

For example, the National Farmers Union opposes this bill because, it says, it will deprive the smallest farmers of their independence, increase costs for farmers and increase their exposure to lawsuits.

Is that really what the government wants to do? Do they really want to create that kind of instability for our farmers? The Conservatives have already done away with the Canadian Wheat Board, and now they want to get rid of supply management. Is that really how they want to treat our farmers? Do they really want to put them in a position that threatens their security and robs them of their independence?

That would give multinationals an unfair advantage, more power and more control. Is that really what our farmers deserve? No. I can name many people who agree with me. For example, the president of Keystone Agricultural Producers, which represents Manitoba farmers, said:

We're hearing this has been very successful in other countries in attracting investment in our industry, so that should be positive in the long-term for producers.

We'll be looking to our members for guidance on how they want to see this played out, but I'm glad to hear the Minister talk about farm-saved seed being a priority. That's what I hear from members as well.

Keystone Agricultural Producers believes that intellectual property is extremely important, but that we must also protect our farmers. Therefore, seeds stocked by farms are a priority. I hope that the witnesses who appear in committee will be heard and that the Conservatives will vote for our amendments, if we propose any, or that they will change the legislation.

Based on the Conservatives' record, they very rarely vote for opposition amendments. Yesterday alone, the NDP proposed some thirty amendments to improve Bill C-13, and the Conservatives voted against each and every one.

The Conservatives must stop talking out of both sides of their mouths. They tell farmers from their provinces that they take their interests to heart, but then they introduce legislation that, unfortunately, will eliminate their independence and create economic uncertainty.

This could open the door to legal action against them by big multinationals who have plenty of lawyers and plenty of money. Unfortunately, smaller farms will be swallowed up by the bigger farms. That is the Conservative ideology.

Protection of Communities and Exploited Persons Act

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I have a lot of questions, but I will save some for our work in committee.

I am not clear on how the Parliamentary Secretary to the Minister of Justice interprets public places, so I would like him to clarify. For example, does he think that where Bill C-36 refers to an offence committed next to a school, that means only during school hours? Does this clause apply elsewhere in the bill to criminalize sex workers?

I asked the minister that question, but he never gave me an answer. Maybe that is because he does not know the answer. Maybe the Parliamentary Secretary to the Minister of Justice knows. Can he define the expression “sexual services”? What does the bill mean by that?

Also, what about the new Bill C-13, which has just passed another stage without amendment, or rather with just a tiny, inconsequential one, even though we proposed 34 amendments? Could the provisions in Bill C-13, which give more powers to police officers, also apply in this context, with or without a warrant, if a person were advertising sexual services on the Internet? Would the Internet service provider also be guilty of a crime?

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

Mr. Chair, again, this is related to the general category of extremely broad provisions within Bill C-13 that relate to preservation orders. In this case the recommendation is based on one from the Canadian Bar Association that the judicial preservation orders should be restricted to circumstances when the judge is satisfied there are reasonable grounds to suspect a criminal offence under an act of Parliament or a criminal offence under the law of a foreign state has been committed. It would also be a crime in Canada.

In taking that step, amendment PV-12 replaces line 7 on page 16 in clause 20 with the clarification that it must also be an offence in Canada. That same general concept is again put forward in line 17 on page 16. I won't read the whole amendment.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you very much, Mr. Chair.

This amendment is somewhat in the same vein as our amendment NDP-5. It is consistent with the experts' testimony on the definitions of "peace officer" and "public officer". According to the witnesses, the use of the words "public officer" in clause 20 of the bill is clearly a problem and should perhaps be reviewed.

We introduced our amendment NDP-5 precisely for the purpose of replacing the term "public officer" with "peace officer".

Mr. Chair, I think it is important to mention that all the experts who testified during the study of Bill C-13, particularly the Privacy Commissioner, noted the problem caused by the use of the term "public officer". I think it would be logical for the committee to take the experts' testimony into account and to adopt our amendment NDP-6, which would delete the words "public officer" used in lines 6 to 10 on page 14.

That is the end of my presentation on that subject.

[The Chair, Conservative, Mike Wallace]

We'll call this meeting to order.

This is meeting 31 of the Standing Committee on Justice and Human Rights. We are dealing with clause-by-clause consideration of Bill C-13.

(On clause 20)

We've finished with NDP-5. We're now moving on to NDP-6, still on clause 20.

This is the first motion in a set of amendments that remove the reference to "public officer" from the bill. The following amendments are consequential to this change and the vote on NDP-6 will be applied to them as well in order to remain consistent: NDP-7, NDP-8, NDP-10, NDP-11, NDP-13, NDP-15, NDP-17, NDP-21, NDP-22, NDP-23 and NDP-24. If NDP-6 fails, NDP-7, NDP-8, NDP-10, NDP-11, NDP-13, NDP-15, NDP-17, NDP-21, NDP-22, NDP-23, and NDP-24 will all be removed.

As well, there are amendments that have line conflicts with this change. If NDP-6 is adopted, then we'll worry about that at the time. Okay?

Madam Péclet, would you like to move NDP-6 and introduce it?

Justice

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, the fact remains that at the last minute, Conservative votes were swapped or changed in order to block an amendment to Bill C-13 that would have protected those most subject to hate crimes in Canada. This was an amendment that the Minister of Justice said in committee that he supported in principle.

Instead, Conservatives voted to deny equal protection against hate crimes to transgendered and gender-variant Canadians, even though this very same protection has already passed the House of Commons twice, only to be blocked in the Senate. What do Conservatives have against standing up for vulnerable Canadians?

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, yesterday, the Standing Committee on Justice and Human Rights rejected an NDP amendment to Bill C-13 that would have made discrimination on the basis of gender identity a hate crime. It just so happens that right before the vote, the member for Kootenay—Columbia, who supported the amendment, was replaced by the member for Lambton—Kent—Middlesex. Why did the Prime Minister's Office intervene to block this important amendment?

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Regarding our amendment, it is important to mention something. During his press conference, when he introduced Bill C-13, the Minister of Justice clearly said—and is still clearly saying—that this bill was only supposed to legislate a specific issue—cyberbullying. I am referring to a number of provisions here.

It is important to remind the committee that the Minister of Justice said several times that Bill C-13 was not an omnibus bill and that its only goal was to legislate in the area of cyberbullying. I put questions to police associations and, according to them, it was clear that law enforcement should be left up to peace officers.

However, the parliamentary secretary told us that not only peace officers would be in charge of enforcing the new legislation. Military police officers and customs officers would also have that responsibility. What the parliamentary secretary is saying—and I see that he is nodding in agreement—is that the provisions of Bill C-13 will not be used only by police officers, but also by other individuals who have not necessarily received the required training.

Various witnesses I questioned on this issue told me that people who do not have the required training to exercise these powers should not be called upon to do so. I am now worried because we are told that the powers vested in the police will be much wider and will also be exercised by federal public officers covered by the definition of the term “public officers”, set out in section 2.

I am sounding the alarm today. People who are concerned about the exercise of these kinds of powers should know that they will be conferred on all public officers and not only on peace officers.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

People who are here will remember having heard a number of witnesses, all of whom were experts in this area, including those from the Canadian Bar Association, say that the terms used in Bill C-13—namely “peace officer” and “public officer”—were much too broad and should be narrowed. For the entire clause of the bill, the term “peace officer” should be understood in the sense of paragraph (c) of that term's definition contained in section 2.

I had some fun during a discussion—but I no longer remember on which bill—just reading all the instances of “peace officers” and “public officers”. It was quite unbelievable to see on how many pages those expressions appeared.

It would be important to narrow the scope of those expressions, so that they would apply mostly to law enforcement. The goal of the amendment is to define those terms within the meaning of section 2, paragraph (c).

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you very much, Mr. Chair. I'm very pleased to be here today.

When I saw Bill C-13, it was interesting to note that clause 12 opened up the hate crime section of the Criminal Code to add additional grounds for prohibited discrimination. It seemed to me that this would be an appropriate place to have an amendment to add “gender identity” to the hate crime section of the Criminal Code.

This is half of my private member's Bill C-279, which passed in the House of Commons more than a year ago and is stuck in the Senate. It's also half of the previous private member's bill, which passed in the previous Parliament. So twice the will of Parliament has been to include gender identity in the hate crime section of the Criminal Code.

When this matter was raised with the minister when he was here, I believe that he said to Madam Boivin that he had no problem in principle with this. So I was optimistic that we could make this amendment in this committee and until just a few minutes ago a majority of the members present at this committee had voted in favour of the bill. But there appears to have been some changes on the government side, so now I am concerned. Those who are the most subject to hate crimes in our society are transgendered individuals and it is more than past time that we add this to the hate crime section of the Criminal Code. It will certainly serve the purposes of public education and of denunciation, and help provide some protection to a group who, as I said, have some of the greatest difficulties in our society.

I'm hoping the changes on the other side of the government don't indicate an intention to defeat this amendment because that would be to thwart the will of Parliament as twice expressed before. So I'm remaining cautiously optimistic.

Thank you.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Chair, the government does not support this amendment. In our view, it is counterproductive to other proposals in Bill C-13 that seek to harmonize the periods of validity of warrants and orders that are used in conjunction with wiretap authorizations.

As Madam Boivin will know, in the context of section 184.2 of the Criminal Code with respect to consent wiretaps, which are primarily used for undercover operations in the organized crime context, such a limitation makes little sense and would create an inconsistent approach between consent wiretaps and regular wiretaps. On that basis, we will not be supporting this amendment, Mr. Chair.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

Since my birthday is approaching, I am feeling generous. So I would say that great minds think alike.

Amendment NDP-2 is in line with what we have heard over the last few minutes. The committee has heard testimony of various groups that have appeared before it.

It is nice that the Parliamentary Secretary to the Minister of Justice—who has more often than not introduced bills that provide mandatory minimum sentences—is giving the court a degree of discretion.

I am not talking about minimum sentences here, but rather about the idea of imposing a cap. That's the objective of Bill C-13. It was a good idea to stipulate “for any period that the court considers appropriate”, but it would be much more reasonable to specify that this period could not exceed five years. In this context, that would also provide guidance.

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

What I thought I'd like to do, picking up some of what I'm sure Mr. Dechert would appreciate, is that since PV-3, PV-4, and PV-5 speak to the same problem, I'll speak to it as a policy problem. You can take it from me that amendments PV-3, PV-4, and PV-5 speak to this policy problem. I will attempt not to go over a minute, and I won't try to accumulate it to three minutes. That's my intention.

What we have here again, the problem that we've referred to in the previous two attempts on PV-1, PV-2, and also NDP-1, is that the bill is overly broad. The way it's drafted, it could ensnare activities that are not within the scope of the purpose of the bill. So we don't, for instance, want to criminalize journalists if they are publishing an image that's in the public interest, if it's the kind of normal operation of journalists to publish images of, for instance, public figures, celebrities. That's not cyberbullying. We may have other public policy reasons for why we don't like that behaviour, but that's not the intent of the act.

This was identified by the Canadian Bar Association in their brief, that the way that Bill C-13 is currently drafted we could actually create a chill in media that when images are in the public interest they can't be published for fear of cyberbullying. The way in which amendments PV-3, PV-4, and PV-5 are drafted is to ensure that no person shall be convicted of an offence under this section, if they're essentially doing it as part and parcel of what we would consider normal journalism. We may not enjoy seeing those images. Goodness knows, I'd have been happy never to have seen Rob Ford smoking crack in his basement. But that kind of image, not that it was an intimate image.... But you can see the direction of the thought.

We really don't intend under this bill to criminalize journalists, and those amendments fix that.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

We did propose an amendment to clause 3 of the bill, which aims to replace lines 20 to 23 of subsection 162.1(1) of the Criminal Code. The amended provision begins as follows: “Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person...”. The rest of the paragraph would be replaced with the following: “with the intent of injuring, embarrassing, intimidating or harassing that person, is guilty”.

The reason for the amendment is very simple. A number of people have talked about this, but the representatives of the Canadian Bar Associations presented the most compelling argument. They talked about the notion covered under clause 3 of Bill C-13, which states the following: “...knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty”.

According to them, it would be preferable to refocus on the notion of mens rea, or criminal intent.

That is more or less what various ministers called for at the federal-provincial-territorial conference. They wanted an offence to be created for the distribution of the image. In some sad events that have taken place in Canada, the image was mainly used to intimidate, harass, harm or embarrass.

I think the legislation would be clearer, and it would be easier for law enforcement officers and crown prosecutors to issue an indictments if clause 3 did not create a legal uncertainty.