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.

Motions in Amendment

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, it was clear to me that when the member called for the separation of Bill C-13 into two parts, one of which is the criminal sanction against the non-consensual distribution of intimate images, that she had not read the report of the CCSO, Cybercrime Working Group, dated June 2013, called “Cyberbullying and Non-consensual Distribution of Intimate Images”.

These are experts from every province and territory of Canada. They are the expert legal advisers who advise the provincial and territorial ministers of justice. The member has probably heard, if she has been here for the duration of this debate today, what the experts recommended in recommendation number 4. However, nobody is addressing what investigative powers that are recommended by the experts the government should enact in the Criminal Code.

Which of these provisions does the member disagree with? She is saying to separate it and to pass the non-consensual distribution of images part, which would not give the police any power to investigate anything. It would not stop anything from happening, the next Amanda Todd or Rehtaeh Parsons or Jamie Hubley, and the list of victims goes on.

In order to enable the police to help people, they need things such as the data preservation demands and orders. Does the member agree or disagree with that? They need new warrants and production orders for the transmission of data. Does she agree or disagree with that, yes or no?

[Jinny Sims, NDP, Newton—North Delta, BC]

Mr. Speaker, I want to give a quote from Michael Geist. He said this over and over again, on the threshold needed to gain a warrant and the fact that the threshold is far too low in this bill. He said:

Given the level of privacy interest that is involved with metadata, the approach in Bill C-13 for transmission data warrants should be amended by adopting the “reasonable grounds to believe” standard.

It is not going to come as a surprise. There are some serious concerns already about this bill and the overruling powers it would give. We have already had the Supreme Court of Canada make a ruling that bars Internet service providers from voluntarily disclosing the names, addresses, and phone numbers of their customers to law enforcement officials in response to simple requests. There is a possibility that this bill may be unconstitutional.

Why is it that the Conservatives, even when the courts have made a ruling, continue to go down that path? They seem to feel that they know better than our court system.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I would like to thank the hon. member for her speech.

I would like to ask her the following question.

Is it a responsible practice for legislators to repeatedly use these types of political tactics in order to try and hide previous bills in new ones and then turn around and say that we voted against a bill when we actually supported many parts of it?

Does the hon. member think that it is responsible for legislators to do that and to try and play politics with bills that are this important and issues that are this critical for Parliament?

[Jinny Sims, NDP, Newton—North Delta, BC]

Mr. Speaker, I want to thank my colleague, a hard-working member, whom I know is stellar in his service to his constituents. He does amazing work here in the House as well.

This bill is all about politics. It is about playing politics. We have parts of a bill that the current government said would never come forward again, and elements of that bill in Bill C-13 right now that are from Bill C-30. This bill, or kernels of it, originated with the NDP, as I said, by my hard-working colleague from Dartmouth—Cole Harbour.If this bill were separated, we could have passed it months ago. That concerns me. However, once again, the Conservatives would rather bury things that get into invasion of privacy.

Even the mother, in one of our most tragic deaths, says that this bill goes too far.

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

Mr. Speaker, I am pleased to rise in the House for the second time to speak to Bill C-13, which addresses cyberbullying.

When the government announced Bill C-13 to combat cyberbullying, everyone thought it was a good idea. Perhaps the government had finally come up with a good idea. Everyone here knows that cyberbullying is taking a heavy toll on our youth. The people who work on the front lines—psychoeducators who work in high schools, street outreach workers and everyone else who works with youth—know how bullying can destroy lives, individuals and families. Some cases have made headlines, including the case of young Rehtaeh Parsons. Unfortunately, we know just how far cyberbullying can go. It can lead to suicide. No one in the House would say that we can remain indifferent about an issue as important as cyberbullying.

In the first speech I gave on Bill C-13, I emphasized the need to take action on the ground. I could even draw a parallel with the speech I just gave this morning on Bill C-36. The Conservatives often think they can use justice to solve all the problems inherent in a given situation. In the case of prostitution, for instance, inherent problems include poverty, exclusion and mental illness. The same is true when it comes to bullying. Some of the factors involved in bullying cannot be addressed through criminalization.

The provisions of Bill C-13, which makes it an offence to distribute intimate images, are a good start. In fact, the bill fits in with the bill introduced by my colleague from Dartmouth—Cole Harbour, which aims to prevent the kinds of situations that unfortunately led to the suicides of several young Canadians over the past few years.

Upon closer examination of the bill, one can see that it refers to various subjects ranging from cyberbullying to terrorism, banking information, telemarketing and theft of a telecommunication service.

Most of the provisions have very little if anything to do with cyberbullying. This bill is similar to the Conservatives' previous Bill C-30, which allowed access to Canadians' personal information.

The parliamentary secretary said that it was debated extensively and thoroughly examined in committee. That is all wonderful, except that all the experts agree that the study should have been even more thorough when it comes to the provisions regarding access to information. That is why we asked that the bill be split. Unfortunately, because we ran out of time, the provisions on cyberbullying were not examined much, if at all. We focused on the access to information provisions.

This issue is very important for our young people, and I find it extremely unfortunate that the debate is centred around access to information. That has nothing to do with our young students or the young girl who is being bullied by her classmates or receiving hateful messages on Facebook.

Access to information will have no impact on this girl, or perhaps it will, unfortunately, if the government wants access to her private information, which would be too bad. This is not going to help young people who need their government to work for them and do something about this.

A number of experts said that Bill C-13, together with Bill S-4, might have extremely significant repercussions on access to our private information, including access without a warrant.

I also asked a number of questions about an oversight mechanism. I would like to point out that the Conservatives refused to adopt such a mechanism. My colleague from Gatineau proposed an amendment requiring the department to report to Parliament on the use of this type of power. I would like to note that section 184.4 of the Criminal Code has already been struck down by the Supreme Court, not because the mechanism allowed information obtained without a warrant to be shared, but because application of that section did not include any oversight mechanism or notification mechanism. According to the Supreme Court, the rights of people being wiretapped were intrinsically violated because they did not know they were being tapped. At the end of the day, without an oversight mechanism, we are giving the police and the government power without accountability. We can agree that we are giving nearly absolute power to the minister and police officers to access Canadians' information.

The Supreme Court was clear. I have not even touched on the Supreme Court's recent decision in Spencer, which reiterates that telecommunications companies do not have the right to turn Canadians' private information over without a warrant. It is a violation and it is unconstitutional because there is no oversight mechanism.

I made a comparison with section 188, which was not struck down by the Supreme Court. That section allows for warrantless wiretaps, but it includes an oversight mechanism. The department is therefore obliged to report to Parliament on warrantless wiretapping.

According to the Supreme Court, this is clearly unconstitutional. Unfortunately, the Conservatives refused to adopt our amendments on creating such a reporting mechanism, which is too bad. We can already see that part of the bill will likely be challenged in court or even deemed unconstitutional.

Who will be the main victims of that challenge? My colleague from Gatineau told us several times. The main victims of the Conservatives' incompetence at drafting bills and studying issues thoroughly are the victims of bullying. The main victims will not be parliamentarians, lawyers or judges. No, the main victims will be victims of bullying, who unfortunately will have to wait for a legal challenge—which could take years and could go all the way to the Supreme Court—before justice is served.

I would like to underline the fact that when the Minister of Justice held his press conference, he said that Bill C-13 only legislated on a specific issue, namely cyberbullying. I know of several articles that quoted him as saying that this was not an omnibus bill and that its only purpose was to legislate on cyberbullying.

However, this bill contains a clause that gives not only peace officers, but also public officers access to these powers. Several experts wondered who would have access to these powers. Who would have access to Canadians' information? Would it be only the police, and only in specific situations, or would it be public officers from Revenue Canada in other situations?

This bill is so badly written that, unfortunately, the main victims who will be denied justice will be victims of bullying. Is that really what the Conservative government wants?

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, the member was a member of the justice committee when we studied this bill, and I believe she sat through almost all of the hearings.

If I follow her argument, she said that the NDP proposed a bill that was one paragraph long. It talked about the institution of criminal sanction for the non-consensual distribution of intimate images. We all agreed on that, so we could have just passed it, but then we had to spend time at committee dealing with that aspect and all of these other things. We actually spent most of our time talking about the investigative powers.

I did not quite follow the logic, because I think what she said was that everybody agreed on that criminal sanction. We say, and the Cybercrime Working Group also says, that, in addition, we need to provide the law enforcement authorities with some powers so they can properly investigate such crimes and bring people to justice for those crimes. She admits that we had significant debate about those issues, because she said that it was pretty much all that we discussed when we heard from the witnesses.

I would appreciate it if she would tell us specifically what other witnesses we should have heard from. Her party put forward a list of witnesses and the committee strove to hear from them all. In addition, specifically, what provisions is she concerned about that were not discussed or debated at committee? I think everything she is concerned about was debated.

She disagrees with the decision that the committee made, but they were debated. Maybe she could fill us in on what was not debated and what other witnesses we should have heard from.

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

Mr. Speaker, to answer my colleague's comments, I remember him asking questions about metadata. We had professionals and experts answer what that was. However, I clearly remember that my esteemed colleague, the parliamentary secretary, did not agree with the experts. I clearly said, and I have my statement here, that it was not up to the parliamentary secretary to choose which data was more important than others.

I said that if we wanted to discuss what metadata really was and what we could do to protect it, my esteemed colleague really should have brought more experts. I specifically said this to him. Maybe we should have had more experts on metadata and what powers this bill would create to lawfully access this metadata without a mandate.

It is not up to Parliament to decide which data is more important than others. It is up to the experts, but the parliamentary secretary never called any experts to contradict what other experts had said at committee.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, I would like to offer one word in the beginning of my remarks, which is Snowden. When we talk metadata and improper access, he has released to the world thousands upon thousands of examples of where metadata has been abused and put into the wrong hands.

I am a little concerned, especially hearing my friend's speech, about the fact that perhaps with bullying, it is something like a magician. A magician distracts with one hand and picks pockets with the other. We are very concerned that this is opening a door to allow access to data that is well beyond what anybody would understand is necessary to help prevent bullying. That distraction is very concerning.

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

Mr. Speaker, I think it is extremely important. The main point of my speech was that right now, we are giving public officers powers that are not defined in the bill. The Parliamentary Secretary to the Minister of Justice spoke about customs officers and officials from Fisheries and Oceans Canada. There is no definition included in the bill. There are no guidelines for this type of power.

We are being told that if the official opposition really cares about helping victims of bullying, we should pass this bill quickly. All of the experts have clearly indicated that we must ensure that personal information is protected. However, we know that the government is not interested in protecting Canadians' personal information.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I am very pleased to rise in the House today to speak to Bill C-13, which has already been debated for three hours today and has just come back from the Standing Committee on Justice and Human Rights.

A lot of hard work has been done on this bill. I am thinking, in particular, of the many witnesses who appeared before the committee. I am happy to hear that good work was done in committee.

However, the results of that work are perhaps not quite what we on this side of the House expected. Unfortunately, the amendments that were made to this bill were not sufficient for us to be able to support it at report stage.

I must first say that this bill may be a rather sensitive subject for some people. It may hit close to home and be a sensitive subject for some people because it involves bullying and there is often mention of the unfortunate incidents that were reported in the media. It is vital that we remember the importance of the work we are doing as parliamentarians to try to address this issue, which sometimes has tragic consequences. Bullying is a problem in our society that has evolved over the past few decades. Obviously, the Internet is one of the elements that has changed the problem of bullying. It is becoming easier to bully someone online today because we can easily access the Internet with our cellphones and computers.

This problem has evolved and has become quite a significant issue for our youth and also for adults. As parliamentarians, we must discuss this problem and try to solve it, even though there is no magic solution. We have to consider the underlying causes. My colleague from La Pointe-de-l'Île often talks about the underlying causes. Furthermore, we must not believe that the solution to the problem is to create a Criminal Code offence and that all of a sudden there will be no more bullying. It is never that simple. It is therefore important to discuss this problem and other ways of dealing with it.

We were also somewhat disappointed with the process that led to the drafting of this bill. Members will remember that Bill C-30 was also introduced in the first session of the 41st Parliament and that there was significant opposition to that bill from civil society and the different political parties. It is unfortunate that Bill C-13 contains some of what was widely rejected in Bill C-30. I am talking about the provisions concerning the electronic surveillance of Canadians.

My impression is that the government is taking Bill C-13 and the issue of bullying—which is a very important and sensitive issue—and integrating certain parts of Bill C-30, which was very controversial, as I said. It was abandoned by the Conservatives after the uproar that followed its introduction. It is sad that they are using this tactic and are trying to do indirectly what they said they would not do. It was abandoned. It is disappointing to see that it is now being included in Bill C-13.

This issue could have been settled quickly, or at least more quickly. I do not think that we are going to solve the problem of bullying overnight. However, we could have at least moved in the right direction.

The hon. member for Dartmouth—Cole Harbour introduced a worthwhile bill. Unfortunately, it did not receive the Conservatives' support. However, one part of his bill did find its way into the Conservatives' current bill. I find that somewhat curious.

If I understand correctly, the Parliamentary Secretary to the Minister of Justice seems to have an explanation. He says that it is all well and good to add an offence to the Criminal Code, but it is also important to grant investigative powers to the police.

I do not remember when exactly during the process of studying the bill this happened—it may have been the day after it was introduced—but the Spencer decision provided some clarification. Unfortunately, the bill did not change, even in light of the decision, which defined the limits that can be placed on electronic surveillance and the amount of personal information Internet service providers can share about Canadians.

I believe that the government should have complied with the Spencer decision, but that is not the case, unfortunately. That is the main reason we are opposing this bill.

I would like to clarify the court's decision in Spencer, which had to do with providers sharing information. The decision clearly established that Canadians had the right to online anonymity and that the police had to get a warrant to find out Internet users' identity.

However, Bill C-13 creates a new policy that allows access to personal information with or without a warrant. This opens the door to obtaining personal information without a warrant even though the Spencer decision said the opposite. It said that a warrant was absolutely necessary to get personal information about a Canadian citizen on the Internet.

Internet service providers have access to that information. They can find that information and share it with law enforcement to investigate bullying cases, for example. The Spencer decision set boundaries for getting information by requiring a warrant. However, Bill C-13 opens the door to getting personal information without a warrant.

All of this is unfolding in an era when people have growing concerns about electronic surveillance because the government is monitoring our actions more and more. Not long ago, groups met peacefully to talk about issues or met in the streets to demonstrate. We know that the government, which has thousands of employees who monitor Canadians, would watch what such groups were doing during those completely peaceful meetings and demonstrations that could not have given anyone any reason to believe there was a threat to Canada's security.

This is unfolding in an era when people feel that the government is collecting more and more information about Canadians. We also have to set clearer boundaries about how this information is obtained and about Canadians' right to privacy.

I would be pleased to answer my colleagues' questions.

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, the member mentioned the Spencer decision of the Supreme Court in his speech. Perhaps he did not have an opportunity to hear the speech I made earlier, but I will just quickly restate my position, which is that the provision in Bill C-13 that he refers to says that where a person is not prohibited by law from sharing information with police authorities, they will not incur any civil or criminal liability.

The Spencer decision of the Supreme Court said that in specific circumstances where telecom companies, which is one small part of information that might be provided to law enforcement authorities in cases like this, do that voluntarily, going forward, that will not be permissible by law. Therefore, this provision of Bill C-13 simply upholds the decision of the Supreme Court in Spencer. In other words, it has clarified the law, and the provision specifically says it is things that are not prohibited by law from being disclosed. What was previously disclosed voluntarily in that specific situation can no longer be voluntarily disclosed without prior judicial authorization.

However, there are other things that can be. It is a general rule of law that people have a right to co-operate with the police, and we wish them to do so in order to keep our citizens safe.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I would like to thank my colleague for that clarification.

In light of his explanation, I believe that a door has been opened. Perhaps it has been opened too wide in that it allows telecommunications companies and Internet service providers to voluntarily provide more information. In my opinion, the door has been opened too wide. My colleagues on this side of the House share that opinion.

The door has been opened too wide. In 2014, we must be very careful about this kind of measure and new provisions that may threaten Canadians' privacy. We have to be very careful in this regard. In this case, a line has been crossed. The government should have been more restrictive and more careful. The work is not finished. The bill is still being examined, and the Senate also has to look at it. Perhaps some improvements will be made there.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, it is interesting to be here and to talk about telephone companies. However, the Standing Committee on Justice and Human Rights did not hear from any witnesses who represented telephone companies.

Does the member share the parliamentary secretary's opinion that the testimony of these representatives was not relevant and that the blame for not calling these witnesses falls squarely on the opposition?

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I think that is an interesting question, particularly since I did not participate in the meetings held by the Standing Committee on Justice and Human Rights on this bill.

I am rather surprised to hear that no witnesses from telephone companies, telecommunications companies or Internet service providers appeared before the committee. I am rather surprised that these types of companies were not called upon to testify given that they share vast amounts of information. They have the power to collect that information. I find it rather strange that they were not called upon to testify when they are the ones who will be passing the information on to law enforcement upon request.

I was not aware of this. I am rather surprised and disappointed that the government refused to hear from such important witnesses. They could have shared expertise that was particularly relevant to the committee's examination of the bill. I am very surprised and disappointed to hear that.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Mr. Speaker, I am pleased to some extent to participate in the debate at this particular time, at the report stage.

I want to start by commending my colleagues, our justice critic and other members of the justice and human rights committee, who have worked so hard on Bill C-13 and introduced 37 amendments at the committee stage to try to take away some of the more onerous portions of this particular bill so that it would not, for example, spend the rest of its life in court being challenged constitutionally. It has taken a fair bit of effort and energy, I know, and patience on their part to do what they have done. I want them to know how much I appreciate it.

I want to, also, remind members that back on October 17, 11 months ago almost, I rose on a point of order to say that I was concerned about the issue that had been raised in my private member's bill, Bill C-540, making it a criminal offence to distribute non-consensual intimate images. While I had heard from the government in the throne speech and from utterances of the then minister of justice that he supported this in principle, I was concerned that the issue would get bundled up in a major piece of legislation, a controversial piece of legislation, and that it may get delayed or lost.

I sought unanimous consent at that particular time to consider Bill C-540 deemed read a second time and referred to the Standing Committee on Justice and Human Rights. I did so because everyone in the House, of all parties, to a person, said that they supported the idea of holding people to account, changing the Criminal Code to ensure that the non-consensual distribution of intimate images was a crime and that people were going to be held accountable. I then moved a motion to say, let us move this to committee right now. This is a serious situation. It's affecting families. It is affecting lives across the country. Let us deal with it now. There is a will here. Let us find the way.

Unfortunately, that was turned down by the government.

It is interesting. The government then brought in Bill C-13, the initial portions of which dealt with the same issue that my private member's bill did, a little more thoroughly, of course, but it dealt with it. However, then the government did exactly what I and many of us were afraid of. It tacked on a great deal of what was in the former bill, Bill C-30, which it had to yank off the table two years ago because it was so soundly repudiated by privacy experts and others from across the country. The government attached it to the back of the cyberbullying bill.

When it introduced the bill, it did so in the company of the parents of people who had committed suicide, who had taken their lives as a result of cyberbullying, and it said, “We're here to deal with this”. It did not talk about the other parts of it.

Of course, there was great hope in those families and by advocates across the country that the government was going to move forward on this. Lo and behold, as is too often the case with the Conservatives, we got involved in a very controversial debate. We began to learn more about what was really in the bill, and advocates and privacy experts from across the country began to raise concerns.

Even one of the parents, who stood with the minister when the bill was introduced, said at committee that even though she wanted the Criminal Code to be changed to make the non-consensual distribution of intimate images a crime and that there should be consequences, she could not abide what else was in the bill, the outrageous and invasive parts of the bills that would allow for information on the Internet to be more accessible to authorities.

As was talked about in the recent Spencer case, the Supreme Court said it was about barring Internet service providers from disclosing names and addresses. It said that Canadians have the right to be anonymous on the Internet.

Here we have a bill that has been cloaked as an attempt to deal with the heartbreak and anguish experienced by families across the country as a result of their loved ones being bullied mercilessly through the Internet. It is a bill that has been identified as being meant to deal with that, yet in fact it is much more.

I had the opportunity to talk today with another parent. I explained to that parent what had happened, how things have progressed, the concerns that we have with the bill. I explained that the NDP would not be supporting this legislation.

He knew this anyway, because of work we had done in the past, the support I have provided, and the things we were doing together with other people to build awareness and to try to deal with this scourge of teen suicide. He understands my commitment. He, too, is shaken by the infringement on privacy provisions that are part of this bill. I am not going to tell the House that he gave me a pass, but he understands my concerns. He appreciates that I have tried to work, and will continue to work, with him and others to deal with this problem.

The point is that we are here. It has been a year and a half since I introduced the private member's bill, and it is another year and a half into this serious problem. We have still not dealt with it.

I get discouraged sometimes in this House when it seems that we cannot get from one point to the other without creating all kinds of controversy and hard feelings, bitterness and division.

Right now, as we speak, there are people in communities who are helping to build awareness of why cyberbullying is wrong. They are coming up with strategies to identify when teenagers and others are beginning to experience feelings of depression and suicide.

One of the parents I spoke to said that the most gratifying thing that happens as he goes across the country talking to junior and high school students is when the 12-year-olds and 13-year-olds come up to him. They are saying there is a problem and that this is what they are doing about it. The students are telling him what they are doing because they recognize it.

This is what is happening in communities across the country. People are recognizing that they have to step up and do something, because unfortunately governments are not up to the task.