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 Chair, Conservative, Mike Wallace]

I'm going to call this meeting back to order. We are going to do clause-by-clause on Bill C-13. I want to thank each and every one who has submitted amendments on this and on time. I know there were a few slight changes last night that needed to be made.

I also want to welcome Ms. May to the table, who has submitted pieces for amendment as a private member—she might like to call it something else—and we will deal with them as we go. As a member she will be, when it comes to.... As common practice has been I think, Ms. May will get a minute to talk about her amendment that she's proposing on Bill C-13. I might even have started it, I'm not sure, in a previous bill.

I will read out where there is a conflict. So when I say a “line conflict” that means that if this passes, the others will be out of order—not passable because we've already done something with that line. I should let the committee know that I'm not ruling on any amendments as out of order to begin with. They were all in order, so there you go. Thank you for that.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you.

Do you share—and we would like to know why—the concerns raised by the information and privacy commissioners of Alberta, British Columbia and Ontario, who felt that Bill C-13 would authorize and potentially encourage the private sector to disclose more data without a warrant to law enforcement by granting extended immunity with regard to such practices?

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

In 2010, your office published a reference document titled “A Matter of Trust: Integrating Privacy and Public Safety in the 21st Century”.

So an analytical framework was developed to assess measures that affect both public safety and privacy protection. As you said, the goal of the exercise was to strike the right balance.

Do you think that Bill C-13 provisions are consistent with the rights guaranteed by the Canadian Charter of Rights and Freedoms?

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

All right.

We previously heard from Mr. David Butt. He represented the Kids' Internet Safety Alliance. He's a former prosecutor and has argued many cases before the Supreme Court of Canada.

He said a number of things about the bill. He said that we should all ask precisely what pre-existing privacy rights bill C-13 takes away, and the answer is, precisely none.

He went on to say that the bill does not expand police powers to obtain information without a prior court order. So any suggestion that Bill C-13 authorizes more invasive warrantless cyber-snooping is an urban myth.

Specifically on the point of section 25, he asked whether the police can ask ISPs to provide voluntarily information about the Internet profile. Again, the answer is very little—just a subscriber’s name and address. That is all.

It was his view that this bill, and the provision we're talking about, simply codify section 25 and the case law. Do you agree or disagree with that?

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

Thank you very much, Mr. Chair. I also want to thank the commissioner for joining us today.

I just wanted to echo what my colleague said.

It's great that we have had several hours of debate in the House of Commons and in committee. However, I think it's important to mention that most of the experts agreed on one matter. They felt that the study of the bill should have been carried out in a more comprehensive manner when it comes to the provisions on access to information. Unfortunately, we could not examine the provisions of other bills, especially Bill S-4.

Although we have carried out a good study, we could have considered the issue in more depth. We could have taken into account other bills that could have an impact on the application of Bill C-13.

My first question is about your presentation. You talked about a lack of accountability mechanisms. In fact, Bill C-13 contains no oversight mechanisms or provisions for notifying individuals whose data has been shared.

For instance, section 184.4 of the Criminal Code was struck down by the Supreme Court, not because those mechanisms made it possible to share information obtained without a warrant through wiretapping, but rather because that section did not provide for any oversight or notification mechanisms. The people who were tapped by police officers were never notified of that fact.

I will make a comparison with section 188, which allows for a quick examination by a judge owing to the urgency of the situation. So the Supreme Court ruled that section 188 was valid, since it included an oversight mechanism.

Could you expand on the requirement, in Bill C-13, to comply with, on the one hand, section 8 of the Canadian Charter or Rights and Freedoms and, on the other hand, the ruling of the Supreme Court that calls for such a mechanism?

[Daniel Therrien]

One of our concerns with the amendment to the immunity clause through Bill C-13 is that it takes away a current requirement that immunity exists in the course of investigations, and that is no longer the case in the clause being proposed to you. To us, that is a concern.

Certainly, to broaden the immunity clause sends a strong signal to telecommunications companies, to enhance the kind of voluntary disclosure that is currently occurring. To us, that has serious privacy implications.

If the purpose of the clause is essentially to codify what existed, the status quo so to speak, then why is it needed? If it is adopted, it does seem to send a signal to enhance, to augment voluntary disclosure—something we are concerned with for privacy reasons.

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

Thank you, Mr. Chair.

Good morning, Mr. Therrien. Welcome to our committee.

Congratulations on your appointment. We're very pleased to see it.

You mentioned a few things you would like to see changed in Bill C-13. One of your comments was that you would recommend that the bill be split into two parts so further study could be done. Frankly we've heard that from a few witnesses.

Have you followed the debate in the House of Commons on this bill?

[Françoise Boivin, NDP, Gatineau, QC]

I don't know whether you have examined this issue, but newspaper articles are being published around the world about all kinds of events, such as the Snowden case. Some providers of IT, Internet and telecommunications services appear to be trying to tighten their criteria so as to protect their clients. Governments do have some involvement in that. We feel that certain governments, like that of Canada, are trying to obtain as much access as possible, while providers are mobilizing to maximally protect the information.

Am I wrong to feel that the government is using any means available—be it Bill S-4, Bill C-13, or others—to expand access to information involving Canadians without too much difficulty?

Do you have anything to say about that?

[Patricia Kosseim]

We are pleased to see that the provision that would have allowed warrantless access to personal information, and especially to subscriber data, has been removed and is no longer on the table. That is clearly an improvement.

However, we did have reservations over some provisions of Bill C-30 that are also part of Bill C-13. I think the commissioner has done a good job of presenting our concerns.

[Françoise Boivin, NDP, Gatineau, QC]

Excellent, thanks.

You, at the office of the commissioner, probably analyzed Bill C-30 at the time. How does Bill C-30 compare to Bill C-13?

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

Commissioner, I want to thank you and your officials for being here. I am sure they have had more time than you to read Bill C-13, but I still appreciate your contribution to our study.

On Friday, the Supreme Court is supposed to render a decision in Matthew David Spencer v. Her Majesty the Queen. Do you think that could affect the work we are currently doing?

[Daniel Therrien, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada]

Thank you, Mr. Chair.

Good morning, members of the committee.

Thank you for your invitation to present our views on Bill C-13.

With me this morning are Patricia Kosseim, Senior General Counsel, and Megan Brady, Legal Counsel.

Today, I will first address the cyberbullying aspect of the bill, and then turn to the elements that introduce new investigative powers, as both aspects implicate privacy.

The Office of the Privacy Commissioner unequivocally welcomes the government taking action to address online bullying and abusive use of intimate personal images. This is a pressing social issue that is of serious concern to Canadians.

It is clear that Internet use has shifted many of our traditional views about privacy. Better education, legal reform and public discussion must all play a part in addressing the problem. We feel that a holistic approach is needed that includes public awareness—such as the government's new Stop Hating Online initiative—as well as a strong emphasis on digital literacy education.

We think it is important that children, parents and teachers all have access to educational resources that help explain online risks, and teach responsible use of technology and ethical behaviour in online interactions.

The government has signaled a commitment to digital literacy as part of its recent Digital Canada 150 strategy, and we would like to see continued dialogue and outreach to youth and educators as part of that effort.

Cyberbullying clearly presents grave risks to individual dignity and privacy for all citizens who use social networks and online communications. We believe the criminalization of non-consensual distribution of intimate images and the extension of existing Criminal Code provisions related to harassing communications sends a clear signal. We also need to ensure that cyberbullying carries serious consequences.

There are still clearly some complex privacy questions attached to many of the proposed measures, particularly those concerning some of the new investigative powers.We agree that the laws need to be modernized, but we have concerns about some of the specific proposals contained in this bill. Given the technical aspects of these amendments, my office has provided you with a written submission outlining these aspects in detail.

Allow me now to summarize our main concerns briefly.

I would begin by reiterating my view that, given the complexity of the issues you have been presented with in the course of your study, I would recommend dividing the bill into its constituent parts.

From a privacy perspective, the offence provisions are largely uncontroversial and could be dealt with quickly by the House of Commons and sent on to the Senate for review. On the other hand, given that sensitive personal information and significant police powers are at play, the lawful access components deserve very close scrutiny and would benefit from a focused and targeted review.

Our first concern, Mr. Chairman, relates to the issue of thresholds for authorizations. The accessing of data is significantly more intrusive than its preservation. While reasonable suspicion may be an appropriate threshold for preserving data, we believe that Parliament should closely scrutinize the proposed threshold for judicial authorization to access certain data. The divergence from the constitutional default of reasonable and probable grounds requires full explanation and a justification by government, and merits a cautious approach.

There is a wide range of new powers attached to Bill C-13, under which sensitive information would become more accessible to law enforcement and a wide range of other governmental authorities at a lower legal threshold of reasonable suspicion.

Transmission data provide a useful example of how authorities can obtain sensitive records via a reduced legal threshold under the new regime. Reasonable suspicion to access transmission data uses the precedent of the standard currently required to use a dial number recorder, or DNR; however, the information and records comprising “transmission data” as it is defined in the bill can be significantly more revealing than a record of telephone calls.

We believe that suspicion is too low a threshold for such potentially revealing information in a digital era, when every transaction, every message, every online search, and every call or movement leaves a recorded trace. As a result we suggest the bill use the traditional standard of reasonable and probable grounds to believe for the provisions under which access to information would be granted. This is the standard that should hold until a more compelling case for the use of a reduced legal threshold is presented and thoroughly examined.

A second concern is the broad range of authorities that can rely on these powers. The investigative powers and provisions in Bill C-13 see both peace officers and public officers at all levels of jurisdiction in Canada broadly empowered with a whole range of new techniques. While many law enforcement and security agencies have robust accountability mechanisms, other government bodies implicated by this definition have no dedicated review and no transparency requirements. We find this to be of particular concern.

Thirdly, there is the key question of legal immunity. Bill C-13 contains an amendment specifying that a person or organization enjoys legal immunity should they voluntarily preserve data or provide a document at an investigator's request without court authorization. We are concerned that this broad language could lead to a rise in additional voluntary disclosures and informal requests. This is of particular concern with private sector companies that are otherwise prohibited from disclosing personal information without consent under PIPEDA or substantially similar legislation. In essence, this could amount to permissive access without court approval and oversight.

Ultimately then, we believe Canadians expect that their service providers will keep their information confidential, and that personal information will not be shared with government authorities without their express consent, clear lawful authority, or a warrant.

Finally, there is the question of accountability and transparency mechanisms for new forms of surveillance.

There are no requirements in the bill to report on the extent of the use of any of the new powers. I feel that this is of serious concern, especially given the range of officers who can exercise these powers and the possible effects of extending legal immunity. In many other jurisdictions, ongoing reporting is part of the oversight structure. We believe Canada should have similar ongoing measures for reporting.

Thank you for your attention.

I look forward to any questions committee members may have.

[The Chair, Conservative, Mike Wallace]

I'm going to call this meeting to order. That means our friends from the media have to leave with their cameras. Thank you very much.

We're at the Standing Committee on Justice and Human Rights, meeting 30, as of the order of reference of Monday, April 28, 2014, 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.

We are televised for the first hour, and we have the pleasure of having witnesses from the Office of the Privacy Commissioner of Canada, Mr. Therrien.

Welcome, Commissioner. You can introduce your guests. You have 10 minutes, and then we'll go to questions and answers.

The floor is yours, sir.

[Cara Zwibel]

The provision in Bill S-4 that has the most relevant link to Bill C-13 is a provision that expands the exceptions in PIPEDA, which I mentioned earlier.

Right now there's an exception, so that a company does not have to seek an individual's consent before disclosing their information to law enforcement or government agencies in certain circumstances. This would expand that to include other organizations that might be requesting information where there's an allegation of breach of contract, for example, copyright claims, and things of that nature.

Really, the problem is that it puts the holder of the information, a private corporation, in the seat of an arbitrator of a contractual dispute or a law enforcement issue, and those are the things that should be done with judicial oversight.

The immunity provision in Bill C-13 obviously plays a big role. In our view. If the provision in Bill S-4 passes, there is an incentive for companies to hand over more information both to law enforcement and to others requesting information. We think the incentive should be going the other way.

[Sean Casey, Liberal, Charlottetown, PE]

Ms. Zwibel, you're aware that there is presently a piece of legislation before the Senate, Bill S-4, Digital Privacy Act. I think it's been admitted by the minister that there is a link between it and Bill C-13, yet both the minister and his officials were either reticent or outright refused to discuss it.

Why is the link between these two pieces of legislation important?