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.

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

Thank you, Mr. Spratt.

My second question is for Ms. Brown and Ms. Schellenberg.

On page 2 of your brief, you make the following recommendation:

The Canadian Bar Association recommends dividing Bill C-13 into two distinct bills, separating lawful access provisions from new measures to specifically address cyberbullying.

I'd like to hear your thoughts on that.

[Michael Spratt]

I think there are some important aspects in Bill C-13. Obviously, new provisions are needed to modernize the Criminal Code and to deal with some of the instances that we've heard about.

Ideally, we could split the bill and fully consider the implications of the lawful access part. But if that's not an option, what we would like to see is the appropriate standard of reasonable and probable grounds that has been endorsed by the Supreme Court in the case of Vu and corresponds with the fact that reasonable suspicion is only appropriate when the privacy level is low.

It is not enough to say that it may or may not be high, let's get the information, and if it's not high it's not revealing information—no harm, no foul. We, as lawyers, all know that there are no ex post facto justifications, and the fact that you find information, or that it's not intrusive after the search, can't then justify the search in the first place. That's putting the cart before the horse, and that's frowned upon by the courts.

An appropriate standard would be ideal, along with disclosure to affected persons, and legislation about the retention, use, and future dissemination of that data. Of course, tying back to some of the horrific examples of police record checks that have been in the media recently would be very valuable in this bill.

Lastly, when we're dealing with voluntary disclosure, it should be a standard that is in keeping with section 25 of the Code, a section used by the minister to justify what's already in the bill and that is one based on reasonable grounds. That means that if, as a teleco, I have something that causes me concerns, I can hand it over. But as the police, if I'm going to a telecommunications company and asking for the information, I need to show reasonable grounds, which is more than just, “We regulate you; please hand over the information.”

I think those changes would be beneficial and would not set back the positive aspects and the positive intent of the first two pages of this bill.

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

Thank you, Mr. Chair.

Thank you to the witnesses for being here today.

My first question is for Mr. Spratt.

In your opening statement, you said you couldn't support Bill C-13 because it was too broad, wasn't constitutional and put the rights of law enforcement above privacy rights.

I'd like to hear your take on those three points. In your view, is Bill C-13 salvageable? And if so, how?

[Marian K. Brown]

I did turn my mind to this briefly in preparation.

As you likely know, those definitions of peace officer and public officer appear in section 2 of the Criminal Code. You have to be cautious because they apply throughout the code in hundreds of sections. When you look at the eight powers that are proposed under the lawful access provisions of Bill C-13, as I've said, seven of those are judicial authorizations. They require “informations to obtain”, these documents of dozens or hundreds of pages of justification. In reality, people who are not professional investigators are not able to meet that standard. But the one section that perhaps is amenable to use for other officials is the preservation demand, which is simply to preserve data without seizing it. That's the one provision that may be amenable to use by a broad range of officials.

Now just as a final note about the definitions, if you look at section 2 of the Criminal Code under “public official”, expecting that person to be is some kind of bureaucrat, in fact you will find that members of the RCMP fall under that part of the definition. So you have to be very careful about the effect of that definition throughout the Criminal Code.

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

I just want to say that I consider myself a youth and that I understand all that is going on right now with the Internet, and that I could be a victim of it. I just take it to heart the need to have the best legislation for the victims, because I've known victims of cyberbullying. I want to have the best legislation for all Canadians and for victims. That said, thank you very much and I'm going to start.

In the bill we're talking about peace officers. Peace officers not only include police services and policing but also public officers and administrators of federal acts. From questioning the witnesses from the association of police officers at the last committee meeting, it was clear that a peace officer does cover policing broadly and police services, so they don't need to include public officers and administrators of federal acts.

Why would we give extensive powers to, let's say, administrators at the Canada Revenue Agency? Does that mean that these people would have access to our information for another type of infraction?

We're talking about peace officers wanting to prosecute cyberbullies. Why include administrators of federal acts, why include public officers like mayors, etc.? Why?

My question would be for Mr. Butt and Mr. Gilhooly. Don't you think that only police officers cover peace officers broadly? Why do we need to include administrators of federal acts in Bill C-13?

[Marian K. Brown]

If you're asking about non-judicially authorized disclosure, that is currently made under the provisions of PIPEDA or the privacy acts and there's a great debate whether those provisions are tight enough. That goes beyond what we can deal with in Bill C-13—

[Françoise Boivin, NDP, Gatineau, QC]

It's interesting to see so much diversity of opinion, which is not making our job any easier.

Rather than debate with you myself, I will let you debate one another. That will probably make things a bit more interesting.

I get the sense that the two people in the middle are somewhat of the same mind as I am, and that the two at the far ends—not to suggest that your views are as far out as your seats, of course—have a different opinion.

Mr. Spratt and Mr. Brown, I'd like to hear how you respond to Mr. Butt's arguments on the issues of recklessness and reasonable suspicion and on the immunity provision. How do you respond to what he just said? His comments would suggest that the bill is reasonable. I'd like to hear both of your takes on that.

I have a concern about Bill C-13 that no one has brought up. The whole matter of warrants makes us think that people's personal information will be passed around without their ever knowing about it. I haven't seen any amendment or provision being proposed to address that. I'd like to hear your thoughts on that issue.

Thank you. Fill your boots.

[Marian K. Brown, Executive Member, Criminal Justice Section, Canadian Bar Association]

Thank you, Ms. Schellenberg.

We hope that our input today will assist you in understanding how the draft provisions would function, if they're implemented, and of course in understanding what constitutional or charter issues may arise.

We are proposing numerous amendments that all have one of two main goals. Our first goal is to ensure that only truly intentional cyberbullying is prosecuted, and our second is to ensure that privacy interests are protected when data is seized.

Our written submission provides many details that we will not be able to cover today. What I will do now is give highlights of our recommendations on cyberbullying, on lawful access, and on the Competition Act.

First with respect to cyberbullying, as you know, the bill criminalizes a particular form of cyberbullying, which is the non-consensual distribution of intimate images. Distribution of sexual images of children is already prohibited by the child pornography provisions by the code, but the new section 162.1 proposed in Bill C-13 criminalizes non-consensual distribution of anyone's intimate images, not just young people's. In the CBA's view, this new offence is better suited to dealing with youth cyberbullying than using the child pornography provisions for youth conduct.

We're recommending some amendments that would more closely restrict the new offence to situations of truly intentional bullying. We echo Mr. Spratt's concern about the current wording of proposed section 162.1, which includes the alternative of recklessness. That could, in our view, criminalize conduct that is merely careless, and carelessness is an aspect of youth behaviour. Prosecuting someone who does not have the knowledge or intent required for a criminal offence would be a violation of section 7 of the charter.

In our written submission, at page 5 of the English version, we give an example of an adult distribution of images that would constitute reckless or careless conduct, but which is probably not the aim of this legislation. Because there are scenarios in which carelessness or reckless distribution under the current wording could incur criminal liability, we're recommending two specific changes to the wording.

Our recommendation 2, which appears at page 6 of the English version, is that the following phrase should be added to the offence section: “with intent to annoy, embarrass, intimidate or harass that person”. It's a much more specific formulation of intent. Our recommendation 4, at page 7 of the English version, is that the offence section be amended to remove the words “being reckless as to whether or not that person gave their consent”.

So we would take out the alternative of recklessness. In our view, those two amendments would ensure that only the distribution of images with a malicious intent would be prosecuted and would ensure that young people are not prosecuted for their merely careless or thoughtless distribution of images.

I'll turn now to our key submissions regarding lawful access. Seven of the eight main lawful access powers in this bill rest with the judiciary; that is to say that seven of those eight powers consist of judicial orders or warrants. The one exception is the preservation demand by an officer, whereby data is not seized without judicial authorization but is simply ordered to be held, so that it cannot be deleted, for a period of time.

So there is no warrantless seizure provision under this proposed regime, but the CBA recognizes that the issue of privacy in data is much broader than these particular Criminal Code seizure provisions. As we've heard from other presenters, perhaps the greatest concern is about law enforcement's obtaining data through the cooperation of service providers without the use of any of the eight powers that are covered in Bill C-13. Obtaining data outside of the Criminal Code purports to be authorized under PIPEDA, the electronic documents act, and other privacy statutes.

We feel it's important to comment that even if the lawful access provisions in Bill C-13 are made perfect, this will not eliminate arguments that PIPEDA and the other privacy acts perhaps should be more strictly applied. Even the very best drafted Criminal Code provisions will not diminish the arguments that voluntary cooperation between service providers and law enforcement should be more closely monitored.

Because of that bigger picture, two of the CBA's recommendations are quite broad. Our recommendation 8, at page 12 of our written submission, is that a single entity be created to monitor the impact of the seizure, retention, and use of personal information by Canadian law enforcement agencies.

Our recommendation 17, at page 24 of the English version of our written submission, is that the federal government conduct an independent comprehensive review of privacy interests in the context of electronic investigations.

Those sound very broad, but we're in a new world here. We're at a perfect storm of legal change and technological change, and it's no wonder that we're having difficulty with it.

Given the bill that you have to work with today, in our written submission we make several specific recommendations for amendments. We believe that three amendments in particular are key to avoiding violations of privacy interests under section 8 of the charter.

Our recommendation 9, at page 14 of the English version of our written submission, is that the officers' preservation demand, which is section 487.012—the only power without judicial authorization—should be limited to exigent circumstances, where data would otherwise be lost or destroyed before a judicial authorization can be obtained.

Our recommendation 14, at page 19 of the English version, is that the threshold for a transmission data production order—and that's section 487.017—should be raised from “reasonable grounds to suspect” to “reasonable grounds to believe” because transmission data may reveal private conduct.

Similarly, our recommendation 15, at page 20 of the English version, is that the threshold for a transmission data recorder warrant, section 492.2, also should be raised from “reasonable grounds to suspect” to “reasonable grounds to believe”, again because transmission data may reveal private conduct.

I'm going to say a few more words about transmission data. Our understanding is that it's not the same thing as metadata, which we understand to be data left by web browsing that can be located on a personal computer that is seized under a search warrant. We understand transmission data, as defined in this bill, to include not the contents of the communication, but only its origin and destination, direction, duration, time and date, size, and the protocol and type of the communication. That limited definition is very important because intercepting the contents of a private communication actually is a criminal offence under section 184 of the Criminal Code, unless a wiretap authorization is in place.

Bill C-13 cannot entail monitoring of the content of private communications.

I don't want to overlook the so-called immunity section, but unfortunately our working group did not discuss it in detail or make written recommendations about it. You've heard from other speakers about the terms of that section. All we can recommend is that you look closely and comparatively at the proposed section 487.0195, the existing section, which is old number 487.0114, combined with section 25 of the code, and you may wish for comparative purposes to also look at the immunity provision that exists for people who voluntarily assist with wiretap orders, which is section 188.2 of the Criminal Code. You'll see in that section that there is full civil immunity only for people who assist where there is either a judicial authorization or an interception in exigent circumstances. It's a more limited option for immunity.

[Gaylene Schellenberg, Staff Lawyer, Law Reform, Canadian Bar Association]

I'll just introduce the CBA briefly.

Thank you for the invitation to present the Canadian Bar Association's views on Bill C-13 to you today.

The CBA is a national association of over 37,500 lawyers, students, notaries, and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice, and it's that aspect of our mandate that brings us to you today.

Our submission on Bill C-13 was a joint effort, a team led by our national criminal justice section with input from our privacy and access to information law section, our competition law section, as well as our children's law committee.

With me is Marian Brown, an executive member of our national criminal justice section. That section's membership represents a balance of crown and defence lawyers from all parts of the country. Ms. Brown has practised criminal law in B.C. as crown attorney, as defence counsel, and as counsel for an oversight agency investigating police for over 18 years. She'll now address the substance of our submission and respond to your questions.

Thank you.

[Michael Spratt, Member and Criminal Defence Counsel, Criminal Lawyers' Association]

Thank you. It's always a pleasure to be here.

As you may know, the Criminal Lawyers' Association is a not-for-profit organization comprising more than 1,100 criminal defence counsel from across Canada. One of our objectives is to educate not only our membership but also the public on issues relating to criminal and constitutional law. The CLA has routinely been consulted and invited by various parliamentary committees to share its views on proposed legislation pertaining to these issues. The CLA supports legislation that is fair, modest, constitutional, and supported by the evidence.

To cut to the chase, the CLA is simply unable to support Bill C-13. Quite simply, Bill C-13 is not only overly broad but is also likely unconstitutional.

Bill C-13 purports to be concerned with tackling cyberbullying by stopping the spread of intimate images that are disseminated without the subject's consent. The real tragedy of Bill C-13 is that those provisions are necessary, laudable, and should be proceeded with; however, in reality that aspect takes up only a small percentage of the bill. Bill C-13, in the balance, sacrifices privacy in favour of expanded police powers and liberal disclosure standards.

Bill C-13, along with Bill S-4 and Bill C-31, represents a dangerous and in our opinion unconstitutional pattern of erosion of privacy.

Let me speak of the cyberbullying provisions. They are important, are laudable, should be proceeded with, and are indeed necessary in the modern world that we live in. Largely, I don't have any objection to the small percentage of the bill that deals with those provisions.

Having said that, I would add that there is a legitimate argument that those provisions in and of themselves may be overly broad, in that the standard imposed for the mens rea is “recklessness”. That standard of recklessness may go too far, in that it may make individuals potentially liable who don't know or could not have found out the circumstances to which the images that are the subject of that provision relate. To that extent, the problem with the cyberbullying provision is not necessarily its aim but rather its execution in that one small regard.

The bill's aim is to punish those who transmit intimate photos sent to them, when the person who took those images has an expectation of privacy. That is likely to have significant public support, as it should; however, the scope of the provision is potentially overly broad, because it expands the mens rea element. By making “recklessness” one of the potential mens rea standards for that offence, the provision may catch not only the individual who was the original recipient of the image but also those down the line—the second-hand recipients of that image—who may have no knowledge of the circumstances in which that picture was taken or made.

Some caution comes from Don Stuart, a pre-eminent expert in the field of criminal law. As he points out in Canadian Criminal Law, the fifth edition, there is a risk that the recklessness standard can devolve into a far broader conception of fault than is desirable, and a more nuanced approach would involve defining recklessness as knowledge both of the risk and that that risk was likely.

That provision can be seen in other aspects of the code; for example, in item (a)(ii) of section 229, which deals with murder.

A modified recklessness standard in the cyberbullying provision would target the so-called “revenge porn” conduct, without drawing to the net those who simply pass on the photos without context and may not necessarily be as morally culpable.

If the provision is allowed to remain there without a clearer definition of recklessness, the section may attract some charter scrutiny. At that point, the issue would become one of over-breadth: does that section capture individuals who may not be morally blameworthy, but may nonetheless be captured under the recklessness standard? As I said, this is a minor issue with that aspect of the bill.

More troubling is the “lawful disclosure” aspect of Bill C-13. The bill announces itself as being about cyberbullying and protecting Canadians from online crime, but certainly it far exceeds those parameters.

I will start by saying that of course the most controversial aspects of Bill C-30 have been removed—the mandatory warrantless disclosure of basic subscriber information. However, there are still some serious concerns. I'll deal with two issues.

The first is that there is simply insufficient judicial oversight in obtaining those orders.

Now, the Supreme Court of Canada has recently considered the standard for reasonable suspicion, which is the standard we're dealing with in the legislation, in the case R. v. Chehil. The court made it crystal clear that the standard of reasonable suspicion falls well below the normal requirement of reasonable and probable grounds. That's the normal standard we usually deal with. Specifically, the Supreme Court said that the state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credible-based probability replaces suspicion.

The data, which is the subject matter of the searches contemplated in Bill C-13, contains a great deal of personal information. It's a misnomer to simply call it metadata. That dilutes the importance and impact of that data.

I understand that a pre-eminent expert in this area, Dr. Michael Geist, will be testifying at this committee later this week, and I think he will agree that metadata is deserving of an increased level of protection. And indeed he's not alone in that view. When we look at reports in 2013 from the Information and Privacy Commissioner of Ontario and the Office of the Privacy Commissioner of Canada, both reports reveal the heightened expectation and the intimate information that can be revealed through metadata. I would commend you to read those reports. It's quite shocking what can be discerned about an individual's communications and basic information about the individual through simply an IP address or some of the other metadata that's discussed.

Metadata as a starting point has a heightened expectation of privacy, and that is something that has been echoed by the Supreme Court, which agrees seemingly with Dr. Geist and with the privacy commissioners. In the recent case of Vu, which dealt with metadata found on a personal computer, the Supreme Court of Canada adopted the Criminal Lawyers' Association's submissions—we intervened in that case—finding that ordinarily this information, metadata, can help a user retrace his or her cybernetic steps. In the context of a criminal investigation, however, it can also enable investigators to access intimate details about a user's interests, habits, identities, drawing on a record that the user created unwittingly. Of course, in modern times there's a capacity to store, catalogue, and cross reference this information, revealing more and more.

The Supreme Court's comments about the heightened privacy inherent in this type of data is simply incompatible with the proposed reasonable suspicion standard that's found in Bill C-13. That incongruity exposes this proposed legislation to charter scrutiny, and in my opinion supports a conclusion that there's not only charter scrutiny here but indeed charter infirmity. There's simply no principled and justifiable reason that the new warrant provisions contained in Bill C-13 should not be based on the traditionally and judicially approved standard of reasonable and probably grounds.

Next, moving to the issue of the incentives for non-judicially supervised disclosure, Bill C-13 will also likely lead to an increased request for a telecommunications company to disclose information without court oversight and the corresponding protections. Privacy in this regard should be strengthened and not abandoned. Falling back on section 25 in the current Criminal Code is no answer to this problem. If you read section 25 carefully, you will see that section 25 requires reasonable grounds, and no comfort can be found in the appeal legislation as it offers no protection.

Of course as we see with that existing provision in Bill C-13, it broadens the scope of disclosure. No longer will the requesting organization be under an obligation to actually be enforcing or administering an act. The room for those requests is greatly increased. And indeed we see codification of the civil and criminal immunity which isn't in section 25, and as I said, section 25 requires reasonable grounds, which is completely absent in this section.

The real concern is that the expansion of police power and limiting liability for the party agreeing to disclose will result in increased police fishing expeditions, and of course we have seen from some reports some very alarming information about current practices in that regard.

Indeed, it would have been preferable to have discrete legislation on both the cyberbullying and on the lawful access legislation. However, given the current formulation of Bill C-13, the CLA recommends that the standards for obtaining those warrants be strengthened and brought in line with what the current Supreme Court case law would suggest is appropriate. No one wants to see evidence excluded. No one wants to get it wrong at the outset, and years later find out that the constitutionally suspect legislation was passed, evidence was excluded, and prosecutions were jeopardized because things weren't done right the first time. The provisions respecting the voluntary disclosure should be reconsidered to ensure both fairness, respect of privacy, and ultimately, constitutionality.

[Gregory Gilhooly, As an Individual]

Thanks very much for having me. I consider it an honour to be here, and I have spent the past several weeks reading up on what the committee's been up to. I must say that as a citizen I'm encouraged by the way the committee is dealing with this as a political issue and not as a partisan issue.

It is sometimes trite to say that everything we deal with is politics, because it is, and the political process involves give and take and back and forth, with the result of reaching an end that serves everyone. Partisanship is something else when you are serving another end. To the extent that the written materials, the transcripts, indicate that this committee has been working in a political fashion and not a partisan fashion, I think that is to everyone's credit here.

Just for a quick introduction, I guess I am probably best known, unfortunately, as a victim of one of Canada's better known pedophiles, Graham James. I was in an approximately three-and-a-half-year relationship with Graham, and I came to the justice system as a victim when I decided to come forward with my story. I lived the tension that goes on in this room, because I'm also a lawyer. I'm a graduate of Princeton and then the University of Toronto Law School. I started my legal career at Torys as a corporate lawyer. I've served as general counsel at several companies. I'll get into that later when we start talking about the motivations that a company and legal departments may or may not have to voluntarily give over information.

Suffice it to say that going through law school as a victim was an interesting process. Sometimes we can get caught up in academic and very intellectual arguments when it comes to trying to parse exactly what can and can't go wrong with a piece of legislation. That's the proper process. You play things out to determine whether or not you are dealing with something that will fundamentally infringe someone else's rights. There is that delicate balance at play all the time.

I am not a “lock them up and throw away the key” type, but I must say at the outset that I commend the current government and this committee for the steps they seem to be taking to bring forth legislation of the type that we see before us in Bill C-13.

For full disclosure, I am a Liberal by political partisanship. I was a member of the Manitoba executive back when I was working with Canwest. I was a speech writer for David Matas, one of Canada's leading human rights lawyers. I consider myself lucky to have served the Liberal Party and lucky to have served David Matas, which may make some of the comments I'm going to make today in that context seem surprising, because I clearly live the tension—and you can probably see it as I rock back and forth in my chair—that there is the academic focus on preservation of individual rights and one's privacy, and there is the reality we face in our streets that there are monsters out there. When we sit down to write legislation or to take a look at legislation, we don't often consider the fact that there are monsters amongst us. I am living testimony to the fact that there are monsters amongst us. I have looked into the eye of the devil and have fortunately come out the other side.

I can say that we as a society sometimes, in my view, err in terms of ensuring that the rights of the individual are not sufficiently protected. I like to come at the issue from an approach that is opposite to what some of the people I assume will be speaking after me might take. I believe we have the wherewithal as a society to police behaviour and to ensure that our protectors are at all times acting in our best interests, and that if we ever find that the police or the state is going too far, that we as a society will take steps to correct the overreaching powers of the state.

I do not believe that anyone at any time need be afraid of legislating appropriate tools to protect children, to protect us, or to aid our police in trying to create a better society for all of us. If we make a mistake, we can always go back and correct it. We don't have to ratchet ourselves back at the outset in each and every instance to play against every hypothetical or every theoretical.

We live in a day where technology is changing. We are addressing cyberbullying here when we take a look at this bill, but we're clearly addressing more than simply cyberbullying. We are faced with any number of amendments to bring the Criminal Code into the now.

And to the extent that the police chiefs had issues with the tools at their disposal, my understanding in reading the transcript is that they made that clear to the committee earlier this month.

To the extent that victims welcome new legislation to protect others against things they have gone through, we heard from victims earlier this month as I read in the transcripts. I thought that Amanda Todd's mother was particularly brave in coming forward with her statement that she didn't want Amanda's name to be used as an excuse or an inroad to take away other's privacy rights. But at the same time, she was advocating tougher tools for the police. You can't have it spelled out any more clearly for you than the fact that there is a delicate dynamic: the balance is going to tip one way or the other eventually.

My concern as a victim is that the police have enough tools at their disposal to adequately protect us. My concern as a lawyer is that privacy rights and personal rights aren't trampled on. My reading of the bill here is that, but for a few tweaks, it's a very good step in the right direction. To the extent that your questioning of the police chiefs guided you in a way that gives you better tools and shows you how to craft the legislation properly, I think you're headed in the right direction.

I found it interesting in reading the transcript that, I guess, David Fraser came in. David is a leading practitioner in the field of privacy law. To say that I agree with everything he said I think would be an overstatement, but he is a bright man and he gave, I thought, excellent testimony to you to take under consideration.

What I found most fascinating, though, was when you move from the theoretical of David's testimony and into the practical examples that Mr. Dechert gave. You could see a breakdown in how theory didn't really mesh with what was going on in the real world. At one point when considering what appears to be one of the more controversial aspects in the legislation—the giving of information on the voluntary request when you're not otherwise prohibited from doing so—Mr. Dechert gave the example of a service provider who faces an emergency and you don't have time to get the warrant. The lawyer's answer was, “I would hope that the service provider would do the right thing.”

The unfortunate reality as a corporate lawyer who heads up a legal group is that you can hope all you want, but what the internal legal department is going to be saying is that there's not a chance unless we are clear that you are able to do that.

And so the interesting phenomenon we have in that one provision that seems to be taking up a lot of your time—although I'm focusing on it in the outset—is that the language appears to be a recasting of what is already present in the common law. Why does it have to be there? It's lawyer candy to say that if it's already the law, you don't need it to be the law. Well, there's clearly a problem, because you do need to remind people of their rights and their ability to do the right thing at the right time.

The way that the provision is crafted, it's simply there to remind corporate lawyers like me that you have the ability to do the right thing, and if you do the right thing you're not going to face repercussions from doing it.

I think there could be a slight tweaking of the language. To get technical for a bit—and I don't want to take too much of your time—there's the not prohibited language. The provision is cast so that you're able to give up information that you're not otherwise prohibited from giving up. Perhaps if you changed the concept from not otherwise prohibited or not prohibited to lawful—you're lawfully able to give up—that would be a slight tweaking.

But for that, I think you've got in front of you a bundle of proposed legislation that gives the police adequate opportunity to do the right thing in our society going forward. They need the tools. They've clearly shown a request for appropriate tools. The victims have spoken, and along the way in trying to balance rights and access and tools you're going to offend everybody.

So my hope is that you just continue to go ahead and do the right thing: offend all of us, but make sure that the crimes don't happen on a go-forward basis.

[The Chair, Conservative, Mike Wallace]

I'm going to call to order this meeting number 26 of the Standing Committee on Justice and Human Rights. As the orders of the day indicate, 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, is being discussed. We have a number of witnesses.

I am going to go over a few administrative things for the committee before we get started, ladies and gentlemen. First of all, here's what we have, based on the witnesses we've invited here, based on the suggestions from all parties. We have witnesses today and Thursday, and then Tuesday and Thursday of next week. Then I've set aside for the week after that two meetings at this point, Tuesday and Thursday, to deal with the clause by clause because I'm assuming that there may be a few amendments and some discussion on them. It could go faster than that, but we have set aside two meetings. So the clause by clause will start on June 10.

Obviously we can move motions on the fly, but I would really appreciate it if you could provide amendments by Friday, June 6, the week before the June 10 clause by clause so that they can be translated and circulated to committee members. That would be helpful.

I want to let you know that the organization Facebook is on a number of our suggested witness lists. They have indicated they're not that keen on coming. We've tried to schedule them and they get moved around and so on. Then they wanted to be represented by an Internet providers association, which is fine. All parties requested that we see Facebook, but I don't think we'll see them live. I think they'll be here by video conference, but at least they'll be here.

I would like to entertain a motion to re-invite them to make sure they understand that the committee really wants to see them on this issue.

Mr. Dechert.

Justice and Human Rights

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

Mr. Speaker, I thank my hon. colleague from Bonavista—Gander—Grand Falls—Windsor for his support for splitting the bill.

In the previous exchange, the Minister of Justice suggested that I or the opposition members as a group were trying to delay action to protect children and young people from cyberbullying. Nothing could be further from the truth. It is a very interesting procedural motion that the official opposition is using, a motion of instruction to the committee to split the bill. The point of splitting the bill is for the very purpose of making sure that those provisions that are about cyberbullying and protecting people, potential victims and the vulnerable from cyberbullying are removed and moved through quickly and that the other parts of the bill enhancing sweeping new powers for snooping be subjected to longer hearings.

I noticed that the Minister of Justice did not like my reference to a Globe and Mail cartoon. I wonder if my hon. colleague from Bonavista—Gander—Grand Falls—Windsor noticed today's editorial in the National Post, a newspaper with a closer alignment to the current Conservative administration. It has also called Bill C-13 an unacceptable attack on our privacy.

Would my hon. colleague comment on that?

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I want to thank my colleagues for allowing me the time to do this. I also want to thank my colleague, the Liberal member of Parliament for Charlottetown, who did an extensive amount of work on this, as well as the member of Parliament for Malpeque and the member of Parliament for Mount Royal.

The enactment would amend the Criminal Code to provide most notably for a new offence of non-consensual distribution of intimate images. As well, there would complementary amendments to authorize the removal of such images from the Internet and the recovery of the expenses incurred to obtain the removal of 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 restriction of the use of a computer or the Internet by a convicted offender.

We are talking about the power to make preservation demands and orders to compel the preservation of electronic evidence, new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things.

A warrant that would extend the current investigative power for data associated with telephones to transmission data relating to all means of telecommunications, or warrants that would be associated with telephones and the like, as I mentioned, a streamlined process of obtaining warrants and orders related to an authorization to intercept private communications by ensuring that those warrants and orders could be issued by a judge who would issue the authorization and by specifying that all documents relating to a request for a related warrant or order would be automatically subject to the same rules respecting confidentiality as the request for authorization.

Last, it would also amend the Competition Act to make applicable for the purpose of enforcing certain provisions of the 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 related to the transmission or communications of financial data.

It would also amend 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 that I spoke of earlier.

There are some messages that we would like to put out there regarding this. This has been a long time coming. It was first introduced in the House on November 20, 2013. Cyberbullying is a scourge upon our society, as we all know, and has been evidenced certainly in the last two or three years. This is a problem not just in Canada but around the world. The party is supportive, in principle, of legislative measures that would provide law enforcement with additional tools to combat cyberbullying.

This is an area where the Criminal Code urgently needs to be updated to reflect the realities of modern technologies.

We believe, however, that legislative measures alone are insufficient to combat cyberbullying and we urge the government to commit to a broader, more holistic strategy to deal with cyberbullying that would also include public awareness resources for both parents and kids to allow them to see the signs of cyberbullying which they probably would not recognize under normal circumstances.

We introduced cyberbullying legislation last session that would have modified some Criminal Code offences to cover modern technology, as is done in C-13, which the Conservatives and the NDP voted down. The Liberals introduced legislation that would have addressed new technologies back in 2005.

The Conservative government is only figuring out now that police forces need these tools to keep up with technologies that are increasingly a part of today's crime.

We believe that a balance must be struck between civil liberties and public safety, particularly when it comes to warrants that may be intrusive and overboard. We do not support the measures that were in Bill C-30, which even the government had to withdraw because of the outrage some time ago.

Some of the bill would duplicate the rejected Bill C-30, such as word for word reproductions of the changes, subsection 487.3(1) of the Criminal Code and all but one word changes to subsection 492.1 and subsection 492 regarding warrants.

We are very concerned about efforts to reintroduce lawful access, which the Conservatives promised was dead at the time. That is not necessarily the case now.

Though the title is the protecting Canadians from online crime act, nobody is actually protected under this act. In typical fashion, this is all about punishment rather than prevention. Complex problems like cyberbullying require more than blunt editions to the Criminal Code. This omnibus bill touches everything from terrorism to telemarketing, cable stealing to hate speech, and is an affront to both democracy and the legislative process in the omnibus form that has been in going on in for quite some time.

We have seen that through the budget bills and a lot of the legislation that has passed through the House, so we can only assume that this type of pattern will continue with this legislation. Therefore, we support the motion to have the bill split and the provisions relating to cyberbullying be contained in a stand-alone bill at committee.

We are proposing two amendments.

The first is an amendment that would provide for a statutory review of elements of the bill, including the voluntary disclosure provisions. The sunset clause is a part of a law statute and we can repeal the law part over a specified time period.

The second is an amendment that would require an actual basis a report by telecoms detailing the volume of information being disclosed without a warrant.

As we mentioned earlier, we talked about the splitting of this bill, and we certainly feel this is a way to go. This would be the most responsible thing to do in light of the omnibus nature of this legislation. I believe that by doing this, we would be taking a principled and responsible approach.

Again, I go back to our original message of cyberbullying, which is a scourge on our society. What we can do in the House is reflect by looking at stand-alone legislation dealing with that. Basically, by making this a stand-alone provision, it would go a long way in enhancing the debate. Given the fact that we have had so much debate in the past, so much opposition and that there has been so much talk in the public realm about this legislation, this is something we can support.

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

Mr. Speaker, I thank my hon. colleague, the Minister of Justice, but I think he has a problem of selective hearing if he thought my entire argument boiled down to The Globe and Mail editorial cartoon.

I think that sometimes satire is the best way of piercing the veil of increasingly draconian policies. However, it happens that I also referenced the privacy commissioners from Ontario, British Columbia, and federally, all of whom have pointed to serious problems, as well as many other critics who are looking at this.

As a matter of fact, in the language used by Ann Cavoukian, this is very clearly a wolf in sheep's clothing. What could be clearer in saying that in the guise of doing one thing, this particular administration is willing to open the floodgates so that we will have private information from cellphone companies turned over to the RCMP?

I do think that satire often crystallizes an issue quite well. I encourage the Minister of Justice to pay attention when his legislation becomes the stuff of clear satire and the skewering of draconian polices by those, whether privacy commissioners, lawyers, or advocates for our civil liberties in this country, of which I consider myself one.

Before Bill C-13 gets rushed through this place, we should look at it and split the bill.