This bill was last introduced in the 41st Parliament, 2nd Session, which ended in August 2015.
Peter MacKay Conservative
This bill has received Royal Assent and is now law.
This is from the published bill.
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.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
So, there are standards.
Any kind of standards don't exist under C-13.
Thank you very much.
I just want to clarify that I'm an expert on cyberbullying; we've been doing it for 19 years. I'm a U.S. Lawyer in New York and New Jersey, and I'm not familiar with all aspects of criminal law here, although I have seen the responses of the Canadian Bar Association and others.
If indeed the existing law says it's part of an existing valid criminal prosecution, that test, from what I've been able to read, is not in C-13. If it were part of a valid criminal process and an investigation, I don't have a problem with existing law, but that change is what concerns me. It's the arbitrariness of what this is.
I'm not a legal expert here, but based upon just what you said, I see that there is a substitive difference between the two.
Maybe I should be taking Shaheen's legal literacy program so that I know a little bit more about this.
It's a concern to me that there doesn't appear to be a standard. That language is not in this bill. If it were, I might be more comfortable with it.
—that it's a lawful investigation, I think that's the turning point. I don't think that C-13 requires that it's a lawful investigation.
Those provisions under the Youth Criminal Justice Act would continue to apply. I think the point that we were trying to emphasize is that there is a way of strengthening some of the provisions in Bill C-13, so that we don't inadvertently catch certain young people or certain individuals for perhaps some careless behaviours where there isn't the—
I think one difference between Bill C-30 and Bill C-13 is that, thankfully, Bill C-30 mandated warrantless disclosure, whereas this bill doesn't mandate it, but it pretty much in practice means the same thing through the immunity clause.
In terms of accountability, I don't see a lot of difference there. There's very little in terms of accountability or oversight that I can see. I don't understand why there isn't any in here. I don't see why we would not add mandating subscriber notifications. I don't understand why we can't all agree that it's a good thing—record keeping of personal information requests so that we actually can look later and see what's happening and have a kind of data-driven process going forward, and a regular release of transparency reports by both government officials and telecom companies.
I would say that while there's been some progress and learning between Bill C-30 and Bill C-13 on the accountability and oversight side, I haven't seen much movement. I'm hoping that there can be some reforms made in that area. I would love to know if someone could explain why we wouldn't do that.
Associate Professor, Faculty of Education and Associate Member Law Faculty, McGill University, As an Individual
Thank you very much, Mr. Chair.
I wasn't going to say a lot on it other than to say that the provision in Bill C-13 should be accepted because without it, the discriminatory reroutes of cyberbullying that often perpetrate hatred and division due to people's ethic origin, age, sex, mental or physical disability, or religion will continue to be unjustifiably excluded from the protection of federal law.
I have to say at this point that I also support a submission by my colleagues, professors Jane Bailey, Wayne MacKay, and Faye Mishna. It was a written submission, and I don't know if they presented it at this committee. I was supposed to join them. They have noted that it is particularly important in light of the unfortunate repeal of section 13 of the Canadian Human Rights Act last year. This provision is also essential given the gap in the Canadian public's knowledge of substantive human rights. As I mentioned, there is a need for legal literacy, and so I commend the committee—or at least on this aspect.
Françoise Boivin NDP Gatineau, QC
Thank you, Mr. Chair.
My thanks to the witnesses who have appeared before us. Your presentations on your respective areas were extremely interesting.
It ties in significantly with what we have been hearing since we began this study. Of course, I would have liked more time to explore the matter more.
Professor Shariff, you began your presentation by talking about clause 12 of the bill, which deals with hate propaganda. You did not really have the time to talk about it fully.
Section 13 of the Canadian Human Rights Act has been repealed. So clause 12 of the bill is the only protection against hate propaganda we in Canada have left. Some categories that were not there before have been added, which is not a bad thing. So I would like to know your opinion in that regard.
Before you begin your answer, I want to thank Mr. Bernstein. UNICEF Canada did an extraordinary job on the brief you presented and the recommendations you have provided us with.
I particularly appreciate and I think your colleagues on the panel probably agree with your recommendations for section 162 to maybe put more on the mens rea, on the intent, and to clarify this. So it didn't fall on deaf ears, and we'll probably discuss in the committee certain amendments on that aspect.
The other question I have is for Mr. Anderson of OpenMedia on hate crime. I hope I can join you in saying that I trust the government, but if we were able—and here I use a big “if”—to amend the bill to add some safeguards, remove the immunity that seems to bother a lot of people and maybe have some type of
…accountability. In other words, we have to force the authorities that have obtained the information to report on it, somewhat like the way it is done with electronic surveillance under the appropriate section of the Criminal Code.
If we could establish those safeguards—
do you think the bill would be more palatable? And how do you rate Bill C-13 versus Bill C-30? The floor is yours.
Charlie Angus NDP Timmins—James Bay, ON
Thank you.
I would like to begin with my sincerest apologies to Mr. Therrien. I think this began as a very fascinating discussion, and I believe that you are being set up here. We have less than an hour to discuss with you some very serious issues. These are issues that you obviously take seriously. You understand there's a complexity of issues, yet we are seeing this being rammed through without a chance to really delve into them.
This appointment will be forced through as the interim commissioner, Chantal Bernier, leaves her post today, and we've seen no remote indication from the government that they will hear from any of the privacy commissioners on Bill C-13. Bill C-13 will be the defining issue of privacy in Canada for this coming term.
Today we have begun to get a sense of where we would go with you as Privacy Commissioner and what your concerns would be. First you did not want to talk about splitting the bill, but then, when you reflected on it, you agreed that splitting the bill is important, because this is about ensuring that due process is done.
We're talking about constitutional rights. We're talking about the basic rights to privacy. We're also talking about issues of security. This is not a circus. This is something that needs to be reflected on.
We asked about the fact that the Conservatives have raised the trial balloon that a cop's spidey sense is all that's needed to gain private information from Canadians. You clearly suggested that you were concerned with that.
I would have thought that having an opportunity to have you come forward and talk more about this would allow us to understand what's at stake here.
Yesterday we had three of the privacy commissioners from across Canada raise very serious concerns about this government's attempt to push through Bill C-13 without hearing from the Privacy Commissioner of Canada, the commissioner's staff, or other privacy commissioners in the country. They said, “given the heightened and pressing interest in Bill C-13, we urge the Committee”—this was the committee for justice and human rights—“to postpone hearings on Bill C-13 until such a time as the Privacy Commissioner of Canada can appear and speak to this Bill”.
You certainly indicated you would be willing to do that, and you shared their interests.
Mr. Therrien, this has nothing to do with your qualifications, but this has everything to do with credibility regarding the independence of officers of Parliament to do their job and to be accountable to Parliament. We're not questioning who you are or what your history is, but we need to know and we need, within Parliament, to have that opportunity. I hear what you're saying, and I think you understand that an independent officer of Parliament has to be able to speak to the broader issues rather than to the short-term partisan agendas of any government.
I'm very disturbed at this time that these issues have been raised, issues regarding warrantless access and the concerns that you yourself have raised, coming out of the justice department, about the threshold that has not been proven for gaining access to Canadians' private information.
I do want to apologize for not hearing you correctly when you shared Ann Cavoukian's concerns that an IP address is not the same as a phone book. We've heard from this government again and again and again that if they just call up and they can get that information, it's like looking in a phone book. You, on the other hand, have identified, coming from your Justice background, and the privacy commissioners have identified from their expertise that this is basically the digital profile, the digital fingerprint of every Canadian as to who they are, what they do online, and where they can be located at any given time. That warrantless information needs a higher level of scrutiny.
Now, are there cases in which there are safety issues at stake? Certainly. We know about the issue of telewarrants and the need to be able to move. We know that if an immediate violent crime is in play or there is an issue of terrorism, police are able to access that and the telecom companies turn it over. However, my colleagues over on the other side say that every single case of the 1.2 million requests that were made last year—which we find an extraordinary number—was only to deal with terrorism and violence. I'm wondering, given your background in Justice, whether you think Canada is such a dangerous place.
So, we cannot go through with this motion at this time, because we have not had the chance to bring forward the people from civil society, the people who are experts in this field.
Mr. Therrien, this has nothing to do with you and your position.
We note that the last time a Privacy Commissioner was appointed under a Liberal government, a committee that was chaired under a Liberal government said that two meetings were not enough and that there needed to be a process in place, because this is about ensuring the constitutional rights, this is about ensuring public safety, and this is about ensuring where Canada stands in the global community in terms of privacy.
We did not even get to the issues of data breach. We don't have the time. We didn't even get to the next round of questioning, because this government does not want to have that.
I'm very sorry, Mr. Therrien, that this is being played out on your watch. I think it has the potential impact to damage your ability to do your job, because of the tainted manner in which this government has approached this.
Associate Professor, Faculty of Education and Associate Member Law Faculty, McGill University, As an Individual
I will try to keep you interested after that.
My submission today relates to three aspects of Bill C-13 that I will address in the following order. I want to discuss the non-consensual distribution provision; the clauses relating to lawful access that have already been mentioned; and clause 12, the hate propaganda provision, which I support.
On the non-consensual distribution provision, Bill C-13 has been widely referred to publicly as legislation that is urgent and essential to reduce cyberbullying. It's been argued, as we've heard, that in the wake of tragic teen suicides, something has to be done to stop the non-consensual distribution of intimate and demeaning sexual images. These online activities amongst teens and university students have surfaced as the most insidious and harmful aspect of this phenomenon. Most often they target teenage girls and young women who are most vulnerable to offline sexual abuse, rape, and other forms of sexual violence, which are videotaped or photographed and distributed online without consent.
Clearly, in light of the suicides and the abuse, there needs to be regulations and consequences. But I have some significant concerns that this non-consensual distribution clause and Bill C-13, when taken together with the lawful access provisions, will miss their mark in reducing cyberbullying and sexting among teens, so I'll outline a number of points.
First of all, the provisions are largely focused on kids who receive contradictory messages from adult society. One thing that we seem to have forgotten when we think about legislating cyber-bulling is the fact that it is adult society that creates the norms of social communication. The norms of social communication have crept towards increased tolerance for sexism, misogyny, rape culture, and homophobia. Popular culture developed by adults, especially online marketing, comedy, and reality shows, place physical appearance, social conformity, objectification of women, sarcasm, and demeaning humour on the highest pedestals of socially accepted behaviour. So what do we expect our kids to do? And then we come down and blame them for copying what adults do in society.
I agree with UNICEF that we need to look at prosecution as a last resort. Even though the non-consensual distribution provision does take away from having to apply child pornography laws, which are designed to protect children against them, there are still questions about the sentencing, how the Youth Criminal Justice Act will be applied, and a range of other concerns.
Children receive confusing messages on the legal boundaries and rape culture, for example. Children confront difficult challenges at both ends. On the one hand, they must prove their strength in a digital and online social network where even friends can demean them publicly and excuse themselves by saying, “Just joking” when under peer pressure they might impulsively react or post comments and photographs they would ignore in different circumstances. Teenage girls are especially vulnerable when they decide to assert their sexuality like female celebrity idols, but end up being publicly humiliated through slut shaming when images sent in trust are distributed without consent. This is not going to be the panacea to addressing some of these issues because it's complex.
One of the areas that we found in our research is that young people confuse fun and have difficulty defining the lines between fun and criminal intent. Youth have difficulty defining the line at which their insults and comments become harmful and illegal, in terms of criminal threats, criminal harassment, sexual harassment, ownership of photographs, and public versus private spaces. It is often a competition about who can post the most absurd insults to entertain friends, and the person who's victimized is actually dehumanized. They totally forget about the person at the end of the vitriol, and thus establishing mens rea intent, criminal intent, under the non-consensual clause might be more complex than meets the eye, except in extreme cases.
We need to address the roots of discrimination. It is important to note that the posted content in the forms of abuse both on- and off-line have become more vitriolic, and it is these roots that the law needs to address, not the symptomatic online behaviours by young people. The hate propaganda provisions begin to address this.
There are blurred lines between public and private spaces and content ownership for young people. They told us they have difficulty recognizing the difference between public and private online spaces, the ownership of photographs and videos, because they have grown up immersed in online environments where these lines are blurred. This again could hamper effective application of the non-consensual provisions. These findings suggest that rather than blaming kids for their apparently odd behaviours, we should look at the influence of adult society and adult role models and give them stability and clear boundaries that can guide their moral and social compasses, not harsh laws.
This raises a concern about the current lack of public legal education, because that will have an impact on the implementation of the non-consensual provisions. As far back as the 1980s, Chief Justice Bora Laskin of the Supreme Court of Canada observed an urgent need at that time for public legal education. We are not much further ahead. Implementing this new legislation without adequate public legal knowledge is risky because ignorance often results in reactive and harsher responses.
Our research indicates that there remains significant public ignorance about the differences between positivist laws like the Criminal Code and substantive human rights and constitutional frameworks that provide the balance between free expression, safety, privacy, protection, and regulation. This is the balance the government must strive to aim for. The balance, is repeat, is between free expression, safety, privacy, protection, and regulation.
Without sufficient knowledge about human rights and fundamental constitutional principles of our Canadian Charter of Rights and Freedoms, school administrators, teachers, counsellors, and parents may overreact and be too quick to lay charges or call for charges under these provisions.
We've heard that we need to engage youth in contributing to policy. I'm not sure whether this committee has heard from young people, but it is essential that we give them ownership and agency in contributing to law and policy, as research shows a drop in violence when kids take ownership. The non-consensual distribution clause might be quite confusing for young people who are grappling with defining the lines between flirty fun on Snapchat and harm from non-consensual distribution.
They should have a say in the new law that will affect them so strongly. Without legal literacy they are not likely to understand the ramifications of non-consensual provisions. So we really need to pay attention to the fact that there needs to be legal literacy among adults, among the public, and also among children.
Perpetrators are often victims and, therefore, the non-consensual clause might have the opposite effect if young people who were victims of cyberbullying and react as perpetrators are charged under this law.
As I explained to the Senate Standing Committee on Human Rights a couple of years ago, I am concerned about the impact of reactive legislation on children and youth who are simply testing social boundaries and that includes the perpetrators.
Am I done? I've got one minute, okay. I'm sorry.
On the lawful access provisions—I'm not going to repeat—I have the similar concerns that were raised earlier and I agree with many who testified here that the lawful access provisions should be rejected, or at minimum separated from the remainder of the bill.
If I may suggest, there are many unanswered questions but the committee should pause and ask themselves questions about how well the social online norms and perspectives of young people are understood by prosecutors, judges, law enforcement officers, teachers, and principals. What assumptions about youth will law enforcement, prosecutors, and judges bring to their application of the foregoing sections if they are not well informed about research or about the nuances and complexities of the evolving social norms and societal influences on children and teens? So, along with this legislation, we need to bring in the supports that bring in legal literacy and knowledge for the legal community about how the children are challenged in communicating online.
Thank you.
Mathieu Ravignat NDP Pontiac, QC
The privacy commissioners of three provinces wrote to the Chair of the Standing Committee on Justice and Human Rights, Mr. Wallace, to ask him to take a break in the study of Bill C-13.
If that was done—and depending of how long that break would be—you could appear yourself.
Do you agree with your provincial colleagues to put the study on hold?
Mathieu Ravignat NDP Pontiac, QC
So, if you were in office, you would like to appear during the study of Bill C-13.
I have given you my views on several aspects of Bill C-13.
As far as I understand, the acting commissioner is still in office, right?
I think Bill C-13 is clearly a very important piece of legislation when it comes to privacy issues.
Mathieu Ravignat NDP Pontiac, QC
Yes. Should she appear as a witness in the ongoing study of Bill C-13?