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.

Protecting Canadians from Online Crime Act

[David Wilks, Conservative, Kootenay—Columbia, BC]

Mr. Speaker, the reality is that Bill C-13 is a bill that is all inclusive. It provides what we want to do with regard to cyberbullying, but it would also enhance the ability of police to do investigations through electronic means. We need to continue down this road. This is a great start, and I look forward to looking at Bill C-13 at committee.

[Colin Carrie, Conservative, Parliamentary Secretary to the Minister of the Environment]

Mr. Speaker, I want to thank my colleague from Kootenay—Columbia. He has so much credibility when he speaks to these issues, as he served our country as an RCMP officer for years. Listening to what he has to say really gives us, here in the House, some perspective on what the bill actually means on the ground.

That is going to be my question to him, if he could elaborate. He said that he has been listening to the speeches throughout the day and that people misunderstand what the reality is out there. He has heard people say that we should split the bill. He said that we cannot have one without the other. I was hopeful that he could use some of the time remaining to actually explain this in detail so that other members in the House would realize why it is so important that we move forward with this very important bill.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Mr. Speaker, when we are dealing with electronic forms of communication, the police need to be able to obtain that information through those means. Because we are in a computer age, when someone in a far-reaching country can impact someone in Canada within seconds, the police have to be able to intercept, track, and monitor those types of things. The bill identifies specifically what the police can and cannot do with regard to the transmission of data and the electronic data they receive.

When police enter into an investigation, it is far-reaching, and it takes a long time to get to that electronic interception portion of the investigation. However, we also have to recognize that with regard to things we have seen recently, it can change very quickly. Giving the police the ability to have electronic data information is something that is essential to ensuring that this does not happen again.

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

Mr. Speaker, I do not think there is any question that every member in the House wants to see action taken to ensure that with the use of the Internet for bullying, for intimidation, and for spreading pornographic images, we have all the tools law enforcement needs. However, the balance must be maintained to ensure that we do not open up warrantless access to the records of thousands of Canadians who are committing no crimes.

I recognize the hon. member's time with the RCMP, and I appreciate the work he did. It could be cumbersome to obtain a warrant, but in most cases, surely the RCMP are able to obtain warrants as they go through the business of proceeding in criminal trials and investigations. That has been the rule of law in our country, and we need to extend it to the Internet, not raise the flood gates on warrantless access.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Mr. Speaker, I am a little confused by the question, because there is nothing in the bill with regard to warrantless searches. I would like to see the section that says warrantless search. There is nothing in there. There is a preservation order. A police officer must still go to a justice to get approval to get the information from the preservation order. There is absolutely nothing in the bill for a warrantless search and never will be.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I am pleased to rise to speak in support of this bill. In doing so, I wish to salute the leadership and thoughtful analysis that has been provided by my colleague, the member for Gatineau. As is so often the case in the House, I wish I could simply stand in this place and enthusiastically support this Conservative initiative, but once again the Conservatives cannot stop themselves from overreaching.

As others have noted in this debate thus far, the official opposition requested unanimous consent to have the bill divided into two parts and to allow the part that was initially introduced by my colleague from Dartmouth—Cole Harbour, Bill C-540, the non-consensual distribution of intimate images, dealt with in one fashion, and ask that it be adopted as quickly as possible in committee because of all-party support. Why could this not be about that? Because it is about more than that. Other provisions from the defunct Bill C-30 should be studied separately, in the NDP's view, and given the attention that they so desperately require.

I am going to speak first about some of the cyberbullying issues, then focus upon what are called the lawful access provisions and the critique that so many people have made about those provisions, and then return in the few minutes available to the issue of cyberbullying, which is so critical.

Even in this fractured and divided Parliament, I cannot imagine many colleagues who would disagree with the need to better protect people of all ages from the distribution of intimate images without their consent. We have clearly heard from families, educators and law enforcement officials that there is a need to update the Criminal Code to address this kind of malicious activity. There seems to be no doubt about that. In fact, a few months ago I attended a presentation on Parliament Hill that was hosted by ResearchImpact, Canada's knowledge mobilization network group, that is seeking to maximize the economic, social, health and environmental impacts of research.

Among the presentations I heard in the Centre Block was one by a University of Victoria professor on a program that Professor Bonnie Leadbeater, a professor in the department of psychology at the University of Victoria, was involved in as a researcher. She is also the author and evaluator of WITS LEADS, an elementary school program, a program designed to bring together schools, families and communities to help elementary school children deal with bullying and peer victimization and to encourage adults to respond more effectively to children's requests for help.

This cutting-edge research by Professor Leadbeater and her peers has made a real impact across the country. In fact, for her work, Professor Leadbeater was awarded the Partnership Award by the Canadian Institutes of Health Research this past year. I am happy to see such important and applied research on bullying from my community and that it has had such national impact.

Therefore, it is unfortunate that the Conservatives are taking a straightforward issue that everyone supports and making it into something much more complicated than it needs to be. That is why the NDP has proposed the splitting of this bill, with all of its unanimous support, from those parts that are, frankly, much more controversial, as I will describe in a moment.

We all know that the initiative for Bill C-13 was the tragic events of the highly-publicized suicides of two adolescent victims of cyberbullying, Rehtaeh Parsons of Nova Scotia and Amanda Todd from my province of British Columbia. Frankly, the bill essentially repeats what my colleague, the member for Dartmouth—Cole Harbour, had already put in his bill, as I said earlier, so obviously there is no issue of support. However, the scope of the application of Bill C-13 is so much larger and targets a whole lot of other issues that have nothing to do with cyberbullying, issues like access to bank financial data, the Terrorist Financing Act, telemarketers and the theft of telecommunications services. These are all in the bill before us today.

It is the issue of access and warrantless disclosure of personal information from Internet service providers to “lawful authorities” that is at issue for this other part, the larger part of this initiative, and it is that I wish to address now.

Many experts on privacy law have expressed great concern over this initiative. A famous privacy lawyer in Halifax, David Fraser, has expressed it as “really cynical and disappointing”, to use his words. He says that there is a whole bunch of irrelevant and other stuff in here that is going to distract from the legitimate discussion of how to fine tune it and get it absolutely right. He is, of course, right.

I would like to focus on the very current critique of the bill by Professor Michael Geist who is perhaps one of our most famous academics and practitioners in this field.

Professor Geist, the Canada Research Chair of Internet and E-commerce Law, is a professor at the University of Ottawa. To say he has written prolifically on this topic would be an understatement. As recently as two weeks ago, he wrote the following:

The debate over Bill C-13, the government's latest lawful access bill, is set to resume shortly. The government has argued that the bill should not raise concerns since new police powers involve court oversight and the mandatory warrantless disclosure provisions that raised widespread concern in the last bill have been removed. While that is the government's talking points, I've posted on how this bill now includes incentives for telecom companies and other intermediaries to disclose subscriber information without court oversight since it grants them full civil and criminal immunity for doing so. Moreover, newly released data suggests that the telecom companies don't seem to need much of an incentive as they are already disclosing subscriber data on thousands of Canadians every year without court oversight.

This is not an opposition politician speaking. This is probably the leading academic expert on this matter in the country who is bringing this to our attention. No wonder there continues to be great concern.

Professor Geist goes on to talk about the work that the Privacy Commissioner is doing, the recommendations she has released designed to enforce privacy protections in the age of cybersurveillance and a report that includes recommendations for reform to our private sector privacy law to:

—require public reporting on the use of various disclosure provisions under PIPEDA where private-sector entities such as telecommunications companies release personal information to national security entities without court oversight.

That is what is before us.

Civil liberties groups and academics sent a public letter to the various leading telecom companies asking them to shed new light on this policy of data retention and sharing policies. The claim is that our role in the whole surveillance activity remains a bit of a mystery, but there can be little doubt that Canadian telecom and Internet companies play an important role as intermediaries that access, retain and possibly disclose information about their subscribers' activities. These are the kinds of concerns that have so many Canadians continuing to be concerned.

I would like to read another quote into the record from Professor Geist. He says:

In fact, Bill C-13, the so-called “cyberbullying” bill, includes a provision that is likely to increase the number of voluntary disclosures without court oversight since it grants telecom companies and Internet providers complete immunity from any civil or criminal liability for those disclosures....The privacy implications of this secret disclosure system are enormous...

I wholeheartedly support the initiative on cyberbullying. However, once again, I wish the government did not overreach and go into this area of lawful access, which causes so much concern in the communities across the country.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Mr. Speaker, the member referred to warrantless searches and telecommunication companies retaining data and potentially providing it to the police. Could the member give an example of that?

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, one of the issues that is addressed in the bill is the so-called low threshold for what is called metadata. Professor Geist has been talking about the voluntary disclosure resulting from privacy threats of personal information and the lack of civil and criminal immunity granted to intermediaries like Internet service providers and telecom companies that provide disclosure. It is the definition in the bill of transmission data that is so concerning.

The bill would create a new warrant allowing judges to order the disclosure of transmission data when there would be reasonable grounds. However, there is also this continuing concern about metadata, which if we have learned nothing from the revelations in the last while concerning the national security agency and CSEC, we obviously have to address very carefully.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Mr. Speaker, as my colleagues have already said in the House, we have some reservations about this bill. We would certainly change a number of things.

I would like my colleague to tell us what he would like to change about this bill and whether he has confidence in the committee process given the Conservative majority in Parliament.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I am concerned about the provisions that used to be in Bill C-30, the “you're with us or you're with the child pedophiles” bill as the former minister of public safety referred to it. It would appear that many of those provisions have been put into this bill without a lot of analysis. We have an amalgam of a bill that everyone supports on cyberbullying with its controversial provisions of that sort dealing with public safety.

The bill will go to committee for which I am obviously grateful, but a lot more work needs to be done with it. Whether the government of the day, having tried once, failed and come back again, will accept amendments will remain to be seen. We live in hope.

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

Mr. Speaker, as my colleague said, there clearly is a difference between the Conservative talking points around critical issues of privacy and what is actually in the bill.

I have also reviewed what Professor Geist has had to say about the bill and I am concerned that the privacy of Canadians could be infringed.

Could the member for Victoria explain more clearly what the difference is between the sections where the judge would have supervisory powers over the access to evidence and where telecommunication companies would turn over private information without review?

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, to do so would require an analysis of the Personal Information Protection and Electronic Documents Act that has been the subject of a mandatory review by the House but has yet to take place; that is to say, we have not had that bill reintroduced. It deals with telecommunication companies and the like. How that is going to connect with this initiative is something about which many people are worried. In other words, we have a two-legged stool but we are only examining one leg here to fully understand how it is going to work.

The government should finally come forward with the amendments to PIPEDA that are long overdue and awaited by so many sectors so we really can effectively and fully answer the question by my hon. colleague from Saanich—Gulf Islands.

[Larry Maguire, Conservative, Brandon—Souris, MB]

Mr. Speaker, I rise to speak to Bill C-13, the protecting Canadians from online crime act.

I would like to use this opportunity to speak to some of the misconceptions about this important piece of legislation. Much has been reported in the media about Bill C-13 proposing an expansive new power that would allow police to collect and obtain evidence without a court order. Further, it has been reported that this new provision would encourage telephone and Internet companies to provide as much information as they want, because they would be protected from criminal and civil liability.

In all honesty, I am not sure where to start when addressing these assertions because they are misleading and inaccurate. The much maligned provision in question is the proposed section 487.0195 of the Criminal Code. This proposed section has been portrayed by some as a convenient way for the police to sidestep court authorization requirements by requesting, from organizations, for example banks, telecommunication service providers, et cetera, voluntary disclosure or voluntary preservation of documents or data.

I want to be clear at the outset that this provision is included in Bill C-13 for greater certainty only. As is the case for similar types of provisions used sporadically throughout the Criminal Code, proposed section 487.0195 is intended to clarify Parliament's intent relating to a provision and to assist the courts in interpreting the law. To be clear, proposed section 487.0195 would not provide the police with any new powers.

Under the law today, and under the law prior to the creation of production orders in 2004, police, as part of their general policing duties of common law, have always been permitted to obtain information voluntarily from a third party without a court order. In 2004, production orders were included in the Criminal Code to allow police to obtain a court order that would compel a third party to provide information in situations where the third party could not or would not do so voluntarily.

I say “could not or would not” here because companies have obligations regarding the protection of information. Companies that collect the personal information of Canadians have to store it, use it, and disclose it in accordance with privacy legislation, such as the Personal Information Protection and Electronic Documents Act. In addition, they may have other relevant obligations not to disclose information, for example, pursuant to their contractual agreements with the customers.

It may also be of interest to note that most privacy legislation is crafted in a permissive manner when it comes to disclosures. This means that the legislation spells out when a company can voluntarily disclose information. In other words, the legislation permits the disclosure of personal information in certain circumstances but never requires it.

This is a very important point, because there have been concerns expressed that section 487.0195 is somehow creating a new power requiring companies to provide access to information. It is not a new power, it is merely a re-enactment of an existing “for greater certainty” clause, nor does it contain any requirement to co-operate with a request. Police can ask for the voluntary disclosure of information, but the third party is free to refuse to disclose it until a judicial warrant or order has been issued. The initial version of this “for greater certainty” provision was enacted in 2004 as section 487.014 of the Criminal Code. It was created to make it clear that there was no need for the police to obtain production orders when persons were providing their assistance on a voluntary basis as long as there was no prohibition against the person doing so.

To put it another way, the primary purpose of this provision was, and still is under the proposed section 487.0195, to clarify that police do not need a judicial protection order every time they ask a person for information.

To sum up on these points, section 487.0195 is not new to the Criminal Code. It has existed since 2004. It is not a power. By its very definition, it can only clarify what already exists in the law, and cannot be the source of new legal authority.

The explicit protections from criminal and civil liability now found in subsection 487.0195(2) of this “for greater certainty” provision have also been mis-characterized as a “get out of jail free” card or as a provision that will open up the flood gates and allow the free flow of information between the private sector and the state.

It is true that Bill C-13 proposes to amend the law to explicitly refer to the protections from civil and criminal liability when a person chooses to provide voluntary assistance to the police. However, this amendment would not be a major change to the law as it presently stands. The Criminal Code currently provides this protection under section 25, which is cross-referenced in the current version of this section, section 47.014. The cross-reference to section 25 in the law currently and the new text proposed in Bill C-13 are both designed to clarify that a person who discloses information could not be sued or prosecuted for voluntarily providing information that they are not prohibited from disclosing.

It should be noted, however, that the considerable case law interpreting the scope of the existing protections under section 25 is consistent in that it only protects conduct that is reasonable in the circumstances. This is not a blanket protection for assisting police. A telephone company that voluntarily provides information to police that they are legally obligated to protect, including under contract, could not avail itself of these protections.

To be clear, whether Parliament again legislates in this area or not, this protection already exists through the court's interpretation of section 25 of the Criminal Code. Including language in the bill that explicitly indicates more clearly the existing protections from civil and criminal liability in the current law is not a proposal for substantive change. It would make the provision more transparent and understandable on its face. This is not a significant development of the law in this area, nor is there any hidden agenda.

This provision is not expected to have a large impact on current practices. All it does is clarify and make more transparent the current protections. This clarification may help new companies that are just entering into co-operation with law enforcement for the first time to more easily be able to understand the scope of the law in this area. They would not have to hire lawyers to research the jurisprudence to understand how the protections afforded by current section 25 of the Criminal Code would apply in this context.

I will take a moment to speak about the other minor changes that are proposed for this section. Bill C-13 proposes to incorporate a reference to preservation demands and preservation orders into the section, to clarify that a person may also voluntarily preserve data, so long as doing so is not otherwise prohibited.

Bill C-13 also proposes to remove a reference to the public officer “enforcing this or any other Act of Parliament” from the current section 487.014 to ensure that the provision is not misinterpreted as precluding voluntary co-operation in the context of general policing duties that do not directly relate to the enforcement of a statute. Such common law police duties include contacting the next-of-kin of an accident victim, returning stolen property to its owner, or contacting the homeowner in the case of a break-in.

Police are better able to keep society safe and to investigate criminal activity when persons, groups, and organizations are willing to assist them. The purpose of the current Criminal Code section 487.014 and the proposed section 497.0195 of Bill C-13 is to ensure that police and the public can continue to work co-operatively. In the context of this provision, the proposed legislation does not provide the police with any new powers. The bill proposes small revisions to the current law, to make clearer in what circumstances the police do not require production orders if a third party voluntarily assists in a police investigation by voluntarily providing information.

I would add that the type of mis-characterization of the bill that we have witnessed by some commentators distracts from fruitful debate on the subject. This is an important bill, not only for what it provides Canadians in the form of increased protections on the issue of cyberbullying, but also because it provides police with an investigative tool box for modern technology that protects and respects people's privacy.

Canada's international partners have been using these kinds of updated tools for over a decade. These new and modernized investigative tools will not only give police access to the information and evidence they need to apprehend Internet criminals, but they will also assist police in addressing crimes generally in today's advanced telecommunications environment, where smart phones and computers are ubiquitous and telecommunications technologies are constantly evolving.

These tools have been carefully tailored to balanced the interests of the state in collecting vital evidence relating to the commission of a crime with personal privacy interests that Canadians value so profoundly.

Each tool was calibrated to reflect its relative level of invasiveness against the privacy interest in the information it is used to obtain. Although many of our international partners have had access to these types of tools for well over a decade, the extra time Canada has taken to enact these updates has allowed us to learn from the successes and failures of others, and I am confident that the investigative toolbox that Bill C-13 would provide police has incorporated the most sophisticated privacy protections for Canadians.

[Andrew Cash, NDP, Davenport, ON]

Mr. Speaker, I listened to my colleague's speech and many of the speeches this afternoon with great interest because at the heart of it, all parties agree with the essential underpinning of part of this bill, which is to protect young people from cyberbullying.

However, there is a history here, and my hon. colleague from Dartmouth—Cole Harbour presented a bill 10 months ago that would have done exactly this. We have been asking the government, as we have on many other occasions, to split this bill to make this a much clearer declaration and protection for young people, and with the adoption of the measures that were in the previous bill that my colleague from Dartmouth—Cole Harbour presented.

Could my colleague answer a simple question? If this entire House is focused and agrees on the importance of this, why would the government muddy the waters by bringing in a variety of other issues including the imposition of a two-year sentence for somebody who steals cable? Why would that be thrown into a bill that is supposed to protect young people from cyberbullying?

[Larry Maguire, Conservative, Brandon—Souris, MB]

Mr. Speaker, it has been pointed out by my colleagues very clearly why this bill is so important to be collectively put together in this manner, to try to protect from cyberbullying not only our youth of today but others as well in our Canadian society, particularly from electronic cyberbullying. There are many types of cyberbullying that are not offensive, but the type of cyberbullying that can be done electronically without consent is certainly not acceptable in our society. It does not keep our streets safe. It does not keep our young people, or many adults, from being put into abusive situations, because the type of cyberbullying we are talking about has been done without their consent in many cases.