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

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

Mr. Speaker, I am pleased to rise and finish my intervention on Bill C-13 which is an act to amend the Criminal Code, the Canada Evidence Act, the Competition Act, and the Mutual Legal Assistance in Criminal Matters Act.

I want to talk for a couple of moments about some of what I said yesterday.

Bill C-13 was introduced with some considerable fanfare. Provisions in it would close the gap in the Criminal Code to make the non-consensual distribution of intimate images an offence and would deal with the definition of malicious intent.

This is a topic that the official opposition tried to deal with when we brought in a private member's bill, Bill C-540, in the spring, and subsequently encouraged the government at every opportunity to recognize the tragedies that were taking place out there as people of all ages, mostly women, had acts of violence being committed upon them. Whether it is called revenge porn or otherwise, people—sometimes partners, sometimes others—with malicious intent and with violent intent were distributing intimate images of those individuals.

I spoke to a situation in my riding involving 17-year-old Rehtaeh Parsons, who took her own life as a result of the situation she was involved in. She was allegedly raped, and the images of that were subsequently transmitted widely on the Internet.

I want to speak to that for a second. That young woman took her life because she believed that the worldwide distribution of those intimate images of her by her friends, by members of her community, and by others had sufficiently destroyed her reputation that she felt she had no way out.

Frankly, it is intolerable that the system was unable to support her. Her community, her schools, and the institutions and support services of the greater community of the Halifax regional municipality were unable to support her. As a result of that, the Province of Nova Scotia moved to make some changes, and I will speak to that in a moment.

Suffice it to say that the bill is extremely important for what it does in this regard. As I said yesterday, it is my belief and the belief of many on this side that had the government done what we tried to do with Bill C-540, which was to bring in a piece of legislation that was directly targeted toward the act of cyberbullying, then it would be unanimously approved by members of the House. We would move it to committee. We would hear from families, from people affected, and from experts, and we would deal with the matter and change the law. We would get it enacted and change it.

What the government has decided to do is to tie questions about the extension of its powers of surveillance to the bill. Many people, both in this country and beyond, have indicated that they have some concerns with that, and likely it will result in extensive discussion and conversation.

I want to add that dealing with bullying and cyberbullying means much more than just changing the law. We need to engage in national strategies. We need to provide supports. Whether through education or through health services, mental health and otherwise, we need to make sure that there is a plan, that there is a strategy for educating and supporting people to make sure not only that people realize that bullying and cyberbullying are wrong but that the supports are there for the victim.

We will be supporting this bill moving forward to second reading, but I urge the government to consider our motion to split the bill.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, I thank my colleague for his speech and for his ideas in regard to this important legislation.

I would like to know what concerns or fears he has in regard to the add-ons that the government has placed in the bill. These add-ons perhaps give too much power or opportunity for persons in authority to undermine the privacy of Canadians.

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

Mr. Speaker, my primary focus in respect to the bill is the same that it was when I brought in Bill C-540: to change the law to close the gap in the Criminal Code to make it an offence, and make it clear that it is an offence, to distribute intimate images without permission. That is an odious and violent practice that has to stop.

My concern is that the government has tried to tag on other changes to the Criminal Code regarding surveillance powers. They are changes that Canadians are concerned about. Experts have expressed that it is an overreach by the government and by authorities. It may have the impact of causing additional concern and distracting people from the intent that I have, which is to close the gap in the Criminal Code and make it an offence to participate in the act of cyberbullying.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I want to ask the member a bit about the overreaching to which he referred.

Prior to Bill C-13's coming into effect, the evidentiary standard for obtaining a warrant for electronic records in many cases was “reasonable and probable grounds to believe” the commission of an offence. That evidentiary standard is being lowered from “reasonable and probable grounds to believe” to “reasonable suspicion”. In order to be able to use the access to information laws to get records from a minister's office, the standard is “reasonable and probable grounds” to believe that the records are within the control of the office.

My question for the member is this: does he believe that ordinary Canadians who have electronic records in the possession of third parties should have those records more easily accessed than those that are in ministers' offices?

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

Mr. Speaker, I appreciate the member for Charlottetown's questions because they are very serious questions. The issues he raises are extremely serious, and they have been raised by a number of experts in this field over the days following the introduction of Bill C-13. Exactly those questions and the serious nature of those questions are really the basis of my concern. That is why I have urged the government to split Bill C-13.

It had originally introduced this legislation as being directed toward making it an offence to participate in the act of cyberbullying, which involved eight clauses: clauses 1 to 7, plus clause 26. Then the following 55 or so pages deal with matters that are not focused on the question of cyberbullying.

The motion by my colleague, the member for Gatineau, was that we would split the bill. We would deal with the issue of cyberbullying, a matter of sufficient consequence that it needs the full attention of the House. Then we would deal with the surveillance issues and the powers that the government would like to see expanded for authorities in a separate manner. These are two consequential issues, and it is incumbent upon us to stay focused on each of them.

However, my focus at the moment is on the offence of cyberbullying. That is what I want to see us deal with here today.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, there is another part of this bill that deeply concerns me, and that is the provision of immunity to holders of electronic records, including telecommunications companies and Internet service providers. This immunity would extend to these entities such that if they were to voluntarily disclose information to law enforcement officials, they would not be subject to criminal sanction, nor would they be subject to any civil proceedings.

I would like to hear the views of my hon. friend with respect to that immunity that would be afforded, in that it would not be limited to cyberbullying investigations.

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

Mr. Speaker, that is a very important issue. It is a very important part of the bill and it needs the attention of the justice committee and other members of this House.

When the Minister of Justice introduced the bill with great fanfare outside, wrapping his arms around the families of those young people who took their own lives as a result of cyberbullying, he suggested that was the focus of this legislation, and we took him at his word.

However, what came to be apparent very quickly when we saw the details of the bill was that it contained matters far beyond the issue of cyberbullying, as if cyberbullying were not important enough.

We are talking about a practice of bullying on steroids, bullying that has been torqued up to the extent that people who are completely unknown to one another can create the kind of violence and damage to a person's reputation that we have never heard of before. They do it in anonymity, without any sense that they are going to be held accountable.

It is incumbent upon all of us here in this House, especially the government, to recognize it as a that scourge we need to deal with. That is what we need to focus on. The fact that the Conservatives have brought so many other important matters into this one piece of legislation is a question of playing politics, and it is unconscionable. I apologize to the families of Rehtaeh Parsons and Amanda Todd that the government is conducting itself in this manner.

However, as I have said before, I will stay focused, as I know my colleagues will, in ensuring that the matters relevant to cyberbullying get dealt with and that we do our jobs as members of Parliament and members of the justice committee to ensure that the legislation that passes through this House does what we intend it to do.

[John Carmichael, Conservative, Don Valley West, ON]

Mr. Speaker, I am pleased to speak today in support of Bill C-13, the protecting Canadians from online crime act.

The legislation would make Canada a safer place by closing the gaps in criminal law by providing police officers with the tools they need to properly investigate crimes in the age of Internet communications. If I may, I would like to spend my time today talking about the elements of Bill C-13, which deal with the new and updated investigative tools that the legislation would provide to the police.

I would like to emphasize that nothing in the bill creates authority for warrantless access to personal information. This is my first point because I want to make it clear that proposals for access to subscriber information from former Bill C-30 the protecting children from Internet predators act, which were so controversial and so very unpopular, are not included in this legislation.

Bill C-13 and its proposals to modernize investigative tools for police, represent a giant leap forward for Canadian police by giving them tools for modern technology and investigations. These are the same tools our international partners have been using for years. These new investigative powers not only provide police with the judicially authorized tools they need to collect evidence in a modern telecommunications environment, they also take into account advances in technology and the potential impacts they have on the privacy of Canadians. In other words, they give police the tools they need to effectively investigate today's crimes, while ensuring the privacy of Canadians is properly considered.

I do not think it is an overstatement to say that technology has fundamentally changed the way we communicate with each other. The possibilities and opportunities that new technologies open up for us are nothing short of incredible. However, with the great potential comes great risk. The Internet and other new technologies allow criminals to commit identity theft in Switzerland, while sitting in a cafe in Halifax. It has also facilitated the explosive growth of sexual exploitation offences, such as the distribution of child pornography. As we have recently seen, it can provide an online forum for criminal harassment and extortion two criminal forms of cyberbullying.

An important consideration for the legislation before us is that technology has changed the type of evidence left behind after a crime has been committed. Scotland Yard estimates that over 80% of all crimes, whether a fraud committed over the Internet or an assault in a bar, have some form of telecommunications evidence associated with them.

The legislative proposals in the bill will not only assist police in investigating online crime, but also all crimes that involve electronic devices.

The guiding principle for the bill was to ensure that the Internet and other new communications technologies did not create a safe haven for activities that were otherwise unlawful. To prevent this from happening, Bill C-13 proposes to amend a number of existing offences in the Criminal Code to ensure that the Internet and other modes of communications are covered. For example, proposed amendments to subsection 372.3 of the Criminal Code with respect to harassing telephone calls will not only modernize the language of that provision, but also make it applicable in some cyberbullying situations.

Because so many of today's crimes are being committed online and using Internet-based technologies, we must ensure that our investigative tools are designed with this technological environment in mind.

Another important element of Bill C-13 is the proposal to update the existing production order scheme. A production order is a judicially authorized order that requires a third party to provide police with documents containing information connected to an investigation. There are currently two types of production orders in the Criminal Code: those relating to financial information and those relating to any other type of data that might be needed to conduct an investigation.

Often the requirements of an investigation are quite targeted. In those cases it makes sense to create specific tools that are designed to obtain specific types of data that also reflects the expectation of privacy associated with that kind of data.

As such, the bill proposes to retain the two existing production orders already found in the Criminal Code, but it also proposes three more to deal with the specific types of data associated with modern technology. These would include judicially authorized production orders for the following: first, data related to the dialing, routing, addressing or signalling of telecommunications, which would be known as transmission data; two, data relating to the whereabouts of a person, transaction or thing, which would be called tracking data; and third, data relating to the tracing of specified communications.

This last type of production order is particularly important, as it would allow police, for example, to trace the origin of an email, which would be extremely useful for identifying someone who is engaging in cyberbullying, specifically criminally harassing an individual, but has used several IP addresses to conceal his or her identity.

As I mentioned earlier, some of the proposals reflect the impact on personal privacy that advances in technology have brought. Police have been able to get judicial warrants to track individuals or things for 20 years now. As we can imagine, technology has changed a lot in that time. Where we were once able to track people with only limited accuracy, there are now technologies, like GPS, that can track the location of a person with much greater precision.

To take account of this, the bill proposes to increase the threshold necessary to get a tracking warrant in order to track an individual. Specifically, the police would now need to demonstrate that they have reasonable grounds to believe, as opposed to reasonable grounds to suspect, that an individual has or will be committed and that tracking an individual's movement will assist in the investigation of that offence.

The existing lower threshold warrant will still be retained for tracking things such as vehicles. We believe the new amendment regarding individuals is a significant privacy enhancement. This dual approach will allow police to retain the efficiency of the lower threshold warrant for tracking things, while increasing the privacy protection in situations of tracking individuals where there are greater privacy interests at play. This is an example of what we call privacy with precision.

The bill proposes to create some new tools designed to respond to the special demands of the digital environment, the preservation demand and the preservation order. These new tools would provide for a quick freeze of data. They would ensure that a person or business preserves a specific set of data long enough for a police officer to get a judicial warrant or order to obtain that data. Let me be clear, that preservation would not be confused with the types of data retention schemes we see in other places around the globe.

The bill does not ask a company to collect everyone's information and keep it on hand indefinitely or for a certain length of time. That is data retention and the bill is not proposing data retention. Rather, this proposed amendment addresses the highly perishable nature of digital information.

For example, a company might be required to preserve data related to a specific transaction that it would normally keep in order to further an investigation of identity theft. This data would be preserved only for a limited amount of time in relation to a specific investigation.

This kind of tool is essential to our ability to conduct effective investigations in an era where crucial evidence can be deleted in the blink of an eye. The preservation demand and preservation order will give police enough time to go to a judge and get the warrants or orders they need to subsequently obtain this highly volatile evidence.

Before I conclude my remarks, I would like to point out that one of the common myths I have heard opposition members and media alike talk about is that Bill C-13 would make it illegal to steal a cable signal. The fact is, it is already illegal to steal cable signals. This behaviour is prohibited by sections 326 and 327 of the Criminal Code. It is a type of theft.

The amendments proposed in Bill C-13 to these long-standing offences will update the telecommunication language to expand the conduct that it covers making it consistent with other offences. For example, it will add imports or “makes available” to the prohibited content in section 327.

The bill would also make section 327 a hybrid dual procedure offence, which would give prosecutors more discretion in their charging practices depending on the seriousness of the offence.

Further, the amendments proposed to repeal the definition of telecommunications found in section 326 and the criminal law will rely instead on the statutory definition of telecommunications in the Interpretation Act. This is not a substantive change.

In conclusion, I would like to add that the government undertook extensive consultations with stakeholders from industry, police and privacy advocates across the country in developing these amendments. With their input, this bill achieves the right balance between promoting safety and security and protecting the rights of all Canadians.

I hope all members appreciate the importance of this bill. Our police need modern tools for modern times. Bill C-13 would provide them with just that.

I have heard encouraging words from all sides of the House on this important debate and I urge all hon. members to give the bill their full support.

[Robert Aubin, NDP, Trois-Rivières, QC]

Mr. Speaker, I thank my colleague for his presentation, which I followed closely.

Not so long ago I was a full-time teacher spending my days surrounded by teenagers. Some of them had already been victims of cyberbullying. People are saying this is an urgent matter. I would add that not only is it urgent, but we have some ground to make up.

In this new Bill C-30, certain items that caused division among us, including privacy protection, have resurfaced. I have some questions for my colleague.

From time to time, could the House not send a strong message to Canadians by unanimously and quickly passing bill?

Addressing cyberbullying and focusing our efforts on a bill solely devoted to this issue would send Canadians a very strong message on our will to do something about this.

Would it not be a good idea to split this bill to study both issues separately? We could make progress on the issue of cyberbullying quite quickly and come back to the issues that require further discussion later.

[John Carmichael, Conservative, Don Valley West, ON]

Mr. Speaker, we have heard a lot of debate on this bill and clearly this issue is very important for all of us. We worry about our children and young people in an age where technology has clearly moved faster than legislation or regulation. This bill brings together a number of elements that we believe as a government fully integrate the need to address these issues at one time.

Incidentally, I agree that the bill should be passed quickly and unanimously in the House, and I have heard good things from the opposition and my colleague that is what should happen. We should come together and pass the bill as it is written. I thank the member opposite for his agreement on that issue.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I realize that the Conservative talking points on this bill are that there is no longer any provision for warrantless search.

Clause 20 of the bill, proposed section 487.0195, reads:

(1) For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data...to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.

The next proposed subsection reads:

(2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.

That is what we call the poison pill. It provides immunity for holders of electronic records to voluntarily hand them over to police. It is akin to a warrantless search anytime a co-operative organization or corporation keeps those records.

We all know that telecoms and Internet service providers routinely provide information to advertisers.

My question for the member is: Does he still stand by the Conservative talking points, given it is in black and white in the bill that there is not only permission but encouragement for record keepers to co-operate with authorities with immunity?

[John Carmichael, Conservative, Don Valley West, ON]

Mr. Speaker, I will just repeat what I read earlier. In my presentation I spoke to warrantless grounds in the bill. Clearly that is what is in this bill.

Let me quote Jeff McGuire, Niagara Regional Police Chief, who said:

It is definitely a step in the right direction.... The chiefs of police association has long been asking for some assistance from the government and some tools to deal with this type of new communication.

Clearly, we as a government believe that we have to deliver new regulations, new legislation to deal with current technologies that have moved so quickly. This bill clearly does just that.

[Mike Wallace, Conservative, Burlington, ON]

Mr. Speaker, my colleague gave an excellent speech on this particular topic. We heard a number of speeches in the House on it yesterday, including from the opposition.

In general most of us around the table agree that we need to move forward on the cyberbullying bill and continue to tackle this problem. The minister has been at the justice committee, which I chair, even as of today, defending the estimates. There was a discussion about this particular piece of legislation. The minister clearly indicated that there was no such thing as a warrantless search as there had been in previous legislation that had been brought forward.

My question to my colleague is this. At the end of the day the bill is about protecting victims of cyberbullying. Why do you believe it is important for us as parliamentarians to move to help protect victims of these crimes?

[The Acting Speaker, Conservative, Barry Devolin]

Before I go to the member, I will remind all hon. members to direct their comments to the chair and not directly to their colleagues.

The hon. member for Don Valley West.

[John Carmichael, Conservative, Don Valley West, ON]

Mr. Speaker, I am a parent and a grandparent. I have concerns about my children in this day and age of technology.

I have watched my three-year-old grandson navigate through an iPad, and I do not have any idea how he moves through the technology. Clearly, in today's world there is so much access to different types of attacks on our children. Obviously, entertainment is one thing that we want our children to have, but I think we also have to be wise in what we allow them to watch or see.

Clearly, there are elements who take advantage of our children and our grandchildren in this world. We have all heard horrible stories. A member spoke earlier about a resident in his community who committed suicide, with no hope, feeling perhaps that her life had been ruined.

This bill brings hope to all Canadians. It brings us an opportunity to put regulation and legislation in place that will protect our children and our grandchildren from those who would take advantage of them. I think it does exactly what it was intended to do when the Minister of Justice introduced it.