Bill C-13 (Historical)

Protecting Canadians from Online Crime Act

An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act

This enactment amends the Criminal Code to provide, most notably, for
(a) a new offence of non-consensual distribution of intimate images as well as complementary amendments to authorize the removal of such images from the Internet and the recovery of expenses incurred to obtain the removal of such images, the forfeiture of property used in the commission of the offence, a recognizance order to be issued to prevent the distribution of such images and the restriction of the use of a computer or the Internet by a convicted offender;
(b) the power to make preservation demands and orders to compel the preservation of electronic evidence;
(c) new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things;
(d) a warrant that will extend the current investigative power for data associated with telephones to transmission data relating to all means of telecommunications;
(e) warrants that will enable the tracking of transactions, individuals and things and that are subject to legal thresholds appropriate to the interests at stake; and
(f) a streamlined process of obtaining warrants and orders related to an authorization to intercept private communications by ensuring that those warrants and orders can be issued by a judge who issues the authorization and by specifying that all documents relating to a request for a related warrant or order are automatically subject to the same rules respecting confidentiality as the request for authorization.
The enactment amends the Canada Evidence Act to ensure that the spouse is a competent and compellable witness for the prosecution with respect to the new offence of non-consensual distribution of intimate images.
It also amends the Competition Act to make applicable, for the purpose of enforcing certain provisions of that Act, the new provisions being added to the Criminal Code respecting demands and orders for the preservation of computer data and orders for the production of documents relating to the transmission of communications or financial data. It also modernizes the provisions of the Act relating to electronic evidence and provides for more effective enforcement in a technologically advanced environment.
Lastly, it amends the Mutual Legal Assistance in Criminal Matters Act to make some of the new investigative powers being added to the Criminal Code available to Canadian authorities executing incoming requests for assistance and to allow the Commissioner of Competition to execute search warrants under the Mutual Legal Assistance in Criminal Matters Act.

Protecting Canadians from Online Crime Act

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

I thank my colleague for her excellent speech, Mr. Speaker.

There are several points I would like her to expand on. I am the father of three preteens. Understandably, cyberbullying is of great concern to me. Like all kids their age, my children are very comfortable with technology. Unlike us at their age, kids today can be bullied even in their bedrooms. They have computers and access to the Internet. They can therefore be bullied at home as well as in school.

It is of the utmost importance that we take measures to address cyberbullying. Like my colleague said, not many provisions in the bill actually deal with cyberbullying. When the government introduced Bill C-13, it said it wanted to address the issue of cyberbullying. However, few of the bill's provisions actually do so.

I would like my colleague to comment on the attitude of the government—I am really trying to use parliamentary language here—that often puts on a dog and pony show about bills that, ultimately, are pretty hollow.

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

Mr. Speaker, I would like to thank the member for Châteauguay—Saint-Constant for his question.

As the father of three preteens, he is undoubtedly very concerned about the bullying that many children face on the Internet and in school. It must be very worrisome for parents to watch as their children get to that age. It is no secret that adolescence is a rough time for everyone. It is a difficult stage in life, yet it is perfectly natural. That is why I cannot imagine what it must be like to be the victim of bullying.

Suspension of Sitting

[The Speaker, Conservative, Andrew Scheer]

We will suspend to the call of the Chair.

(The sitting of the House was suspended at 10:34 a.m.)

(The House resumed at 11:12 a.m.)

Sitting Resumed

[The Speaker, Conservative, Andrew Scheer]

We will move on to statements by members.

The House resumed consideration of the motion that 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, be read the second time and referred to a committee.

Protecting Canadians from Online Crime Act

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, first, I would like to inform you that I will be sharing my time with the hon. member for Edmonton—Strathcona.

In order to support an empirical assessment of this bill on online crime, my speech will focus on identifying how the notions we are examining apply to the work of a criminal defence lawyer.

I want to emphasize the concept of empiricism, because the practice of criminal law is primarily something you learn on the job. Although there is theory associated with it, criminal law is primarily something that you learn on the job. In fact, that is one of the first things you learn, that criminal lawyers learn on the job. These are the principles that I applied and that were taught to me when I trained as a legal aid lawyer in Sept-Îles.

My speech will focus on those notions that pertain to common practice and the considerable latitude that judges and crown prosecutors have when it comes to judgments and sentencing. We will see that this has an effect and that this bill encompasses notions pertaining to the practice of criminal law.

I will also talk about the gradual rise in computer crime.

Cyberbullying already existed in 2005 or 2006, if I am not mistaken, when I started working as a legal aid lawyer. I think it was even called cyberbullying at the time. The term was already starting to be used and the phenomenon was growing.

It was highly specialized at one time. In one specific case, a young woman told me that her photo had been taken by a webcam and ended up on other computers and that people were blackmailing her. When I was defending this case before the crown attorneys, they told me that the people best equipped to investigate and act on this were in the RCMP computer crime unit. I would say that in 2006, this type of thing was systematically handed over to the RCMP, who were best equipped to deal with it.

Over the years, I noticed that many incidents were called cyberbullying. Incidents included complaints made in cyberspace and in chat rooms or in the media about people who were making threats on the Internet. Some cases had to do with child prostitution. These things happened more frequently over the years.

I also noted that the judge had the discretion to impose conditions of release, which made reference to the use of means of communication or, at least, means of connecting to the Internet.

In some cases, I even saw judges impose conditions of release on individuals charged with cybercrime or transmitting pornographic photographs involving minors. The conditions of release imposed on these individuals might include banning them from being in possession of a cellphone that could give them access to the Internet.

I mention this experience and practice on the ground to point out that the courts, the judges and the crown attorneys were already introducing ways to limit the use of the Internet for unsavoury purposes.

This specific bill codifies practices that were already being used, depending on the judicial district, since practices can differ from one district to another. These practices were already being used by a number of legal practitioners and judges provincially and nationally too, I am sure.

New offences are being created because we have been seeing new types of crimes against the person as a result of the rise of social media. As I said, those crimes have gradually become more frequent with the increasing popularity of Facebook and other social media.

Legislation is adaptable and that, in combination with public opinion, has allowed for the development of a wide variety of sanctions and limitations designed to reduce the range of virtual threats to an individual's moral integrity.

When I say virtual threats, I am talking about online threats, or cyberbullying, not hypothetical threats.

It is important to understand that cyberbullying is a crime against the person. If you physically hurt someone by breaking his nose, you can be charged with assault and bodily harm. It is a crime against the person. In my opinion, cyberbullying also fits into that category because it is a question of a person's moral and psychological integrity. That is my point.

The media has paid close attention to certain issues in recent years. That is why we are here in the House today, to talk about cybercrime and how it is getting worse, and about cyberbullying.

I want to talk about adjusting orders in order to respond to new illegal practices such as cyberbullying. We have seen people use the Internet for good and for evil.

The issues I used to work on were usually related to death threats targeting specific ethnic groups. Orders and parole conditions have been developed over the years.

Given that practising criminal law requires ongoing exchanges with crown prosecutors, quite often, judges and crown prosecutors develop their own code of practice. That is how relatively flexible sanctions and measures have come to be imposed.

I will repeat an example from earlier. When it comes to conditions of release at the bail hearing stage, when a client decides to exercise his right to a bail hearing and wants to be released, the judge can always issue personalized conditions of release that do not appear in other cases.

These conditions can limit an individual's access to cyberspace if he has shown certain kinds of deviant behaviour, even if it is a question of charges only and the individual is considered innocent until proven guilty.

Any time there are allegations of inappropriate use of cyberspace, the judge usually limits the person's ability to use the Internet. I believe that is entirely commendable, although that is another debate. If we were to look at the advantages and disadvantages, one could raise arguments related to human rights and individual freedoms set out in the Canadian charter.

However, based on my rather informed opinion as a lawyer regarding the advantages and disadvantages, there is a very good chance that a court would stipulate that the rights and integrity of the victim are much more important than an individual's access to cyberspace. This will be debated by lawyers in due course.

Based on the evolving nature of measures aimed at restricting access to cyberspace, special attention must be paid to the clauses of the bill before us that have to do with preservation or production orders, in order to ensure respect for charter principles regarding privacy. That is what I was saying.

There are even some groups advocating for unrestricted Internet access who will challenge the measures proposed in the bill. However, I believe that if you weigh the pros and cons, there is a good chance that a court would conclude that it is reasonable for our society to limit Internet access for individuals who demonstrate a lack of good judgment in their comments or use cyberspace for dubious or criminal purposes.

I will also argue for the need to divide and reread Bill C-13 to conduct separate reviews of its stated objectives. It should be noted in passing that most of this bill has nothing to do with the protection of psychological integrity and should be placed in a separate bill.

True to form, the Conservatives decided to make this a catch-all bill, if I may say so, and to sneak highly contentious issues into a bill whose stated purpose and title would have unanimous support. This is a reprehensible practice and I want to make sure everyone knows that.

The New Democratic Party feels that—

[The Acting Speaker, Conservative, Bob Zimmer]

Questions and comments, the hon. member for Edmonton—Strathcona.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I would like to thank the hon. member for his speech on this matter. I know that he has considerable experience in his constituency representing his constituents in the courts. I take very seriously the issues he raises, which are of concern to the bar associations across the country.

There have been concerns that by again bundling matters together inappropriately, the government has not really given appropriate opportunity for discussion and debate. We are supporting moving forward expeditiously to address cyberbullying and the distribution of any inappropriate information or information of a sexual nature, particularly about children. We would love to expedite those provisions, but we have waited long and hard for the government to act.

Could the member speak to the matters relating to the issuance of warrants and so forth that arose in the previous bill, and comment on whether he thinks they are appropriately addressed or if they merit considerably more debate?

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, I thank my colleague for her question.

As she said in her question, this is an omnibus bill, similar to what we have seen in the past; in other words, many items have been quietly slipped in.

The Conservatives are well aware that certain items that they sought public approval for simply did not pass that test. I am referring to specific measures aimed at limiting certain users' access to the Internet, and monitoring them as well. In short, some of these ideas now appear in this bill. From my admittedly brief study of the bill, I see that some rather unpopular and controversial ideas were rehashed and reintroduced in this very specific bill; that is highly objectionable.

Otherwise, in terms of the form and content of the bill, we will agree on the basic and key aspects of its wording. However, it would be advisable to review it carefully and split up certain components in committee.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I want to make it clear that the residents I represent in Winnipeg North recognize the degree to which cyberbullying is so harmful to society as a whole.

Today we have legislation before us. However, if the government were genuine in wanting to pass legislation to deal with the issue, I believe it could be done in a fashion that would receive all-party support.

In terms of expediting this issue so that we could have legislation passed through all the different levels before Christmas, the key is that we have to be able to take the issue of cyberbullying out of the bill that is being proposed and bring it forward as a stand-alone bill. All members of this House could accurately represent their constituents and see this type of legislation pass to become the law of the land if we recognize cyberbullying for what it is.

Cyberbullying is a horrific crime that needs to be dealt with through all-party support. Would the member not agree that singling out that issue and passing it would be the most effective way to get something done between now and the end of this year?

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, I would like to thank the hon. member for his question. I agree with him that cyberbullying is serious enough to warrant being examined separately and should have its own bill. From the title, you would think that the bill before us is just about cyberbullying. However, when you look at the bill more closely, you see that it addresses many other fairly contentious issues. I wanted to point that out.

The NDP's position is that we must study many issues set out in this bill individually.

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

Mr. Speaker, I listened to my colleague's speech and to his answer to the previous question. I think he said splitting the bill into two pieces, one with just the Criminal Code offence of cyberbullying and another with the investigative powers in it, would be a good idea.

I wonder if he could tell us if he has had an opportunity to read the federal-provincial-territorial report on cyberbullying, and in particular recommendation 4 that report, which talks about the investigative tools that are absolutely necessary to allow the police to gather evidence so that they could actually lay the charge and convict someone of cyberbullying. If it were simply stripped down to the offence itself, obviously there would not be.

I wonder if he could explain the comment by his colleague, the member for Windsor—Tecumseh, when he said they know a number of investigations that have gone on and have failed and of a number of charges that have been laid and have failed simply because the terminology in the code was not up to modern-day standards. I wonder if he could tell us which of the recommendations in recommendation 4 of the Cybercrime Working Group report he would not include in the cyberbullying bill.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, I would like to thank my colleague for his question.

The only problem is that this specific bill includes measures that are fairly invasive of people's privacy. These measures have been introduced before. Given that the Conservative government is very right-leaning, this bill could lead to government interference and people being monitored a bit too closely. The only concerns there could be are about surveillance because the Conservatives introduced these measures in the past with very little success. Now, they are trying again, despite the fact that Canadians oppose these measures.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I appreciate the opportunity to rise in the House to speak to Bill C-13.

The first part of the bill is very clearly a critical issue that we have been dealing with in Canada. I would hope that every member in this House would support expedited action, across the board, to prevent cyberbullying and the inappropriate, illegal, non-consensual distribution of sexual information, in particular related to children.

I welcome the fact, as do my colleagues, that the government is finally coming forward with a more reasonable bill, and that we do not have the slinging of insults. We appreciate the respect being given to this matter and the more respectful bill, and perhaps it is because the bill is now being tabled by the Minister of Justice. We hope we will have a better balancing of rights to privacy and the rights of children, and other people who are harmed by inappropriate acts through the Internet.

I do wish to bring to the attention of the House that this is not the first time that members of the House have sought action on the issue of cyberbullying and action, particularly where youth have been harmed, and in some cases have committed suicide, because of extensive bullying.

I would like to bring to the attention of the House the motion M-385, tabled by the member for Chicoutimi—Le Fjord in October 2012. It was debated in this House. The member recommended that there be a broad-based strategy on dealing with cyberbullying.

It is noteworthy that just before I rose to speak a member across the way referenced the report on cyberbullying that was put together by federal, provincial and territorial ministers of justice and public safety. The very first recommendation is that the working group acknowledged the benefits of a multi-pronged, multi-sectoral approach to the issue of cyberbullying and called for action in a comprehensive manner.

That is very appreciated. Obviously, the justice ministers and the public safety ministers across this country recognize that we need to have clarification in criminal law. However, we need a lot more than that.

The member for Chicoutimi—Le Fjord recommended that. He recommended a broad-based strategy that all members of the House could develop together and, heavens forbid, reach a consensus on the measures we need to move forward on. Very sadly, the Conservative members all voted down that motion.

Also, members on this side brought forward Bill C-540, a private member's bill, from the member for Dartmouth—Cole Harbour. In that bill, he recommended the creation of an offence to produce or distribute intimate images of an individual without their consent. That was the response to the tragic suicide of Rehtaeh Parsons in his province.

In addition, another member on this side, the member for New Westminster—Coquitlam, tabled Bill C-213, which very succinctly addressed the matter of communication for the purposes of child luring.

Very clearly, the members of the official opposition strongly support action by the government to address child luring and to address and punish any cyber crime that would lead to bullying and could cause serious harm or suicide of our children.

Canadian families would clearly be grateful for expedited action, certainly the families of the victims of previous bullying incidents would. Most importantly, we would like to prevent any such incident from ever occurring again. I think all members of the House would concur with that.

What we want to do is to protect our families from harm. I concur. I join with my colleagues in strongly supporting the first provisions of this bill, which deal with and address cyberbullying. I am certain that we did our best to try to suggest to the government that it would be wise to expedite these measures by dividing the bill.

We may need to strengthen the investigative powers but, as I will speak to later on, we need a lot more than stronger criminal law; we need to make sure that our enforcement officers are fully capable of actually taking action on these matters.

However, as I mentioned at the outset, the most important measures we need are ones to prevent these acts from occurring at all, not simply taking enforcement action after the fact.

Why do we have these issues? Why are Canadians, in particular legal experts and privacy experts, raising concerns with the majority of the provisions of this bill? I am informed that 37 of the 47 clauses of the bill do not directly relate to cyberbullying. Therefore, it appears eminently reasonable that we would have further debate on those provisions to expedite the cyber crime provisions.

One of the matters that was of deep concern to Canadians from coast to coast to coast, in particular legal scholars, was the previous provision of a bill that was tabled in the previous Parliament. It would have allowed for intervention into accessing Internet material without a warrant. When objections were raised, the then minister of public safety accused anybody who had raised any concerns or had proposed amendments to the bill of being pro child pornography. That caused the government to ultimately withdraw its bill, and I think appropriately.

We are encouraged that the government has moved forward now with a more reasonable bill. However, legal experts are raising some concerns with the direction the bill is taking on the way it is imposing conditions on warrants. Those are critical matters.

We have long-standing legal precedents on when it is appropriate to allow for the seizing of material and where it might be a violation of a charter right. The prerequisites to obtain a warrant have been long debated in the courts. If we are to move in any way on shifting the burden on having to show cause before obtaining a warrant, it justifiably merits a good discussion in committee over those matters. However, the government has decided that it does not want to divide the bill, so unfortunately all matters will be going to committee.

I previously mentioned the matter of the warrantless disclosure. An equally concerning matter is the possibility for Internet providers to voluntarily disclose information. I would suggest that is a matter that also needs to be looked at closely. People exchange information of a private matter day in and day out. There should be some level of protection when there is an exchange of that information.

As I only have a few minutes left, I would like to speak to a matter that comes from my personal experience. I was involved for many years in the field of environmental enforcement. One of the lessons I learned from that is that the best way to deter a crime is to have a high probability of detection and punishment.

In order to make that happen, most agencies now, when they are developing legislation, are simultaneously taking a look at the capacities of their enforcement agencies to deliver. They ask whether they have enough personnel and whether they are appropriately qualified. This is an area that police and enforcement officers have been identifying for quite some time, that it takes very special skills and training.

I have not seen the government come forward with a parallel skills, training and capabilities strategy. I would encourage it to move expeditiously on that, so that the moment the bill becomes law, the government is immediately capable of enforcing that law.

In closing, the bill is going in the right direction, generally speaking. However, it will be important for particular matters, including the changing of the burden of proof and warrants, to be explored at committee with the appropriate experts.