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 bill was last introduced in the 41st Parliament, 2nd Session, which ended in August 2015.

Sponsor

Peter MacKay  Conservative

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

Oct. 20, 2014 Passed That the Bill be now read a third time and do pass.
Oct. 1, 2014 Passed 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, as amended, be concurred in at report stage.
Oct. 1, 2014 Failed That Bill C-13, in Clause 20, be amended by adding after line 29 on page 14 the following: “(2) For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protections for personal information affirmed by the Supreme Court of Canada decision in R. v. Spencer 2014 SCC 43.”
Oct. 1, 2014 Failed That Bill C-13 be amended by deleting the short title.
Oct. 1, 2014 Passed That, in relation to 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, not more than one further sitting day shall be allotted to the consideration at report stage of the Bill and one sitting day shall be allotted to the consideration at third reading stage of the said Bill; and that, 15 minutes before the expiry of the time provided for Government Orders on the day allotted to the consideration at report stage and on the day allotted to the consideration at third reading stage of the said Bill, any proceedings before the House shall be interrupted, if required for the purpose of this Order, and in turn every question necessary for the disposal of the stage of the Bill then under consideration shall be put forthwith and successively without further debate or amendment.
March 26, 2014 Passed That, in relation to 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, not more than one further sitting day after the day on which this Order is adopted shall be allotted to the consideration at second reading stage of the Bill; and that, 15 minutes before the expiry of the time provided for Government Orders on the day allotted to the consideration at second reading stage of the said Bill, any proceedings before the House shall be interrupted, if required for the purpose of this Order, and, in turn, every question necessary for the disposal of the said stage of the Bill shall be put forthwith and successively, without further debate or amendment.

Speaker's RulingNational Security and Intelligence Committee of Parliamentarians ActGovernment Orders

March 8th, 2017 / 3:25 p.m.
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Liberal

The Speaker Liberal Geoff Regan

There are seven motions in amendment standing on the Notice Paper for the report stage of Bill C-22.

The Chair has received a letter from the government House leader arguing that Motion No. 6 could not have been presented in committee, as the changes it proposes arose out of a decision of the Supreme Court rendered very shortly before the Standing Committee on Public Safety and National Security began clause-by-clause consideration of the bill. A similar argument was made in relation to part (b) of Motion No. 3. The court decision in question was rendered on Friday, November 25, 2016, and clause-by-clause consideration began on Tuesday, November 29, 2016. The government House leader contended in her letter that there was not sufficient time to analyze the consequences of the decision and prepare amendments accordingly. For that reason, she has asked that they be selected at report stage.

The hon. member for Victoria has also sent a letter to the Chair arguing that these amendments should not be selected, as he believes they should have been presented in committee. He also argues that there are cases in the past where the Chair has refused to select motions presented by the government.

As members know, consistent with the note to Standing Order 76.1(5), the Chair would not normally select motions that could have been presented or were defeated in committee.

However, there have been exceptions. On September 22, 2014, the Speaker was faced with a similar case in relation to a motion at the report stage of 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. The hon. member for Charlottetown submitted a motion arising out of a court decision rendered after clause-by-clause and, in that case, the motion was selected.

The circumstances in the present case, although not identical, are sufficiently analogous to satisfy the Chair that the motions in question should be selected for consideration at report stage.

The Chair has examined the remaining motions submitted and is satisfied they meet the criteria spelled out in Standing Order 76.1(5). Motion No. 1 could not have been presented in committee, as it requires a royal recommendation. Part (a) of Motion No. 3 and Motion No. 4 further amend changes made by the committee. Motion No. 5 restores a clause deleted by the committee. Motions Nos. 2 and 7 propose to delete clauses. These motions will all be selected.

Motions numbered 1 to 7 will be grouped for debate and voted upon according to the voting pattern available at the table.

I shall now propose Motions Nos. 1 to 7 to the House.

October 21st, 2016 / 3:35 p.m.
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Partner, McInnes Cooper, As an Individual

David Fraser

Absolutely, and it just requires judicial authorization. That's what it takes. Before the Spencer decision, there was a patchwork system. A number of Internet service providers decided that if the police said it was an investigation into a child exploitation offence, then the Internet service provider would hand over the customer information when provided with the IP address by the police. Every Internet service provider in Canada followed that except for two, both of which are based in Atlantic Canada.

Investigations were able to proceed here because we have been able, for the last 10 years or longer, to go to a Justice of the Peace and obtain a production order that requires the Internet service provider to hand over that information. That process was actually made easier under Bill C-13. That bill is best known for dealing with the non-consensual distribution of intimate images, but it also lowered the threshold for a number of production orders that allow a Justice of the Peace to provide that information.

I find it surprising that I hear from law enforcement that it's now more difficult.... Well, it is more difficult, because you used to just ask and get it, but it was in only a very small subset of cases that they were able to get it. They're saying it takes longer to get it from the Internet service provider, when in fact a production order includes a timeline that's a court order. Before it was just voluntary, and they were hopping to it.

They can get access to this information, and if there is a problem with the amount of time or paperwork or whatever that is required for them to get it, the solution is to have more Justices of the Peace and to create a streamlined process or to fine-tune or tweak what's in Bill C-13, rather than throwing the charter out the window.

They say they're only looking for basic subscriber information, a customer name and address, but as the Supreme Court of Canada decision said, they're looking to connect that name and address with an activity that's unlawful, such as trading child pornography, cyberbullying, or something like that.

Canadian Human Rights ActGovernment Orders

October 18th, 2016 / 11:30 a.m.
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Thunder Bay—Superior North Ontario

Liberal

Patty Hajdu LiberalMinister of Status of Women

Madam Speaker, I will be splitting my time with the member for Edmonton Centre.

I am pleased to participate in the debate on Bill C-16, an act to amend the Canadian Human Rights Act and the Criminal Code.

The bill is designed to support and facilitate the inclusion of transgender and other gender diverse people in Canadian society. Diversity and inclusion are values that are important to us as Canadians, yet we have heard repeatedly from trans and gender diverse Canadians that they still do not feel safe or fully included in Canadian society. Social science research also shows that many transgender and other gender diverse Canadians are not yet able to fully participate in our society. They face negative stereotypes, harassment, discrimination, and sometimes violence.

We know that discrimination and violence have significant impacts on social participation and an individual's sense of safety in the public sphere. Research conducted by the Trans Pulse survey found that approximately two-thirds of trans people in Ontario had avoided public spaces or situations because they feared being harassed or being perceived or outed as trans. The survey also indicated that the majority of trans Ontarians had avoided public washrooms because of these fears. Trans Ontarians also avoided travelling abroad, going to the gym, shopping at the mall, and eating out in restaurants, all commonplace everyday activities and pleasures that many of us are able to enjoy comfortably. However, for many trans people, these activities can be fearful because of their previous experiences of harassment and discrimination.

The research also shows that transgender or other gender diverse people face significant obstacles in obtaining employment. This is not due to a lack of qualifications. The Trans Pulse survey results I mentioned earlier showed that 44% have a post-secondary degree, but trans people are significantly underemployed, with many having been fired or turned down for a job because they are trans. Others felt that they had to turn down a job that they were offered because of a lack of a trans-positive or safe work environment.

It is clear that too many transgender and gender diverse people are being deprived of the opportunity to contribute to and flourish in our society. This is important not just for trans people but for us all. When a person loses an opportunity to work or is too fearful to go out shopping or eat in a restaurant, we all lose a potential contribution to the workplace, to the economy, and to our collective social life. Discrimination is a matter of concern to us all. It both undermines the freedom of those individuals to make the life they are able and wish to have, and it deprives us all of their participation in our society.

The bill would be just the beginning but is an important beginning. It is another step toward greater acceptance and inclusion. By adding the grounds of gender identity and gender expression to the prohibited grounds of discrimination listed in sections 2 and 3 of the Canadian Human Rights Act, we would protect the freedom to live openly.

The amendments proposed by the bill would make it clear that discrimination in employment against trans people is unacceptable and a violation of the Canadian Human Rights Act. An employer cannot refuse to hire or promote a qualified individual simply because that person is trans or gender diverse. These amendments will make it clear that federally regulated employers and service providers will need to provide accommodation for transgender and other gender diverse individuals when required and treat them in a manner that corresponds with their lived gender. Explicit recognition will also serve to promote understanding and awareness about trans people and their rights.

I now want to address one of the amendments that the bill proposes to make to the Criminal Code, which is to expand the hate propaganda offences in the Criminal Code to protect those who are targeted because of their gender identity or gender expression. To put this proposal in context, it is useful to give some of the history of these offences.

There are three crimes of hate propaganda. They were created in 1970. These are now found in sections 318 and 319 of the Criminal Code. These offences are advocating or promoting genocide against an identifiable group, inciting hatred against an identifiable group in a public place that is likely to lead to a breach of the peace, and willfully promoting hatred, other than in private conversation, against an identifiable group.

As we can see, a key element for all of these offences is the term “identifiable group”. When the hate propaganda offences were first created and for many years afterward, the definition of identifiable group was very limited in scope. It was defined in the Criminal Code to mean a section of the public that was identifiable on the basis of race, colour, religion, and ethnic origin.

In 2001, the then member of Parliament for Burnaby—Douglas introduced in the House Bill C-415, later reinstated as Bill C-250, and entitled “An Act to amend the Criminal Code (hate propaganda)”. This bill proposed to add sexual orientation to the definition of identifiable group in the Criminal Code. The member quoted in support of his bill a statement made by the Supreme Court of Canada in the 1990 case of R. v. Keegstra, which upheld the constitutionality of the hate propaganda offence of wilfully promoting hatred against an identifiable group. The Supreme Court said:

The harms caused by [hate propaganda] run directly counter to the values central to a free and democratic society, and in restricting the promotion of hatred Parliament is therefore seeking to bolster the notion of mutual respect necessary in a nation which venerates the equality of all persons.

In 2004, Bill C-250 became law. As a result, the definition of identifiable group was expanded to include sexual orientation as an identifiable group for the crimes of hate propaganda.

I will now fast-track to 2014, when Bill C-13, the Protecting Canadians from Online Crime Act, received royal assent. One section of that bill amended the definition of identifiable group for the hate propaganda offences by adding more groups to that definition, specifically the criteria of national origin, sex, age, and mental or physical disability. As we have seen, the definition of identifiable group has been expanded considerably since 1970. This expansion reflects a commitment to equality and the desire of Canadians to protect more and more vulnerable groups in our society from the serious harms to human dignity that flow from the type of vicious hate speech prohibited by these Criminal Code provisions.

Bill C-16 proposes to add two new terms to the definition of identifiable group: gender identity and gender expression. Such an expansion is eminently justifiable on two grounds.

First, this expansion would extend to those in our society who are identifiable on the basis of gender identity and gender expression the same protections already afforded to other groups in Canadian society, such as those identifiable on the basis of their sex and sexual orientation. This would help to promote equality before the law and throughout Canadian society for trans people.

Second, this expansion would explicitly recognize that those who are identifiable on the basis of their gender identity and gender expression are in need of protection by the criminal law. For example, the Trans Pulse survey I mentioned earlier indicates that trans people are the targets of specifically directed violence; 20% had been physically or sexually assaulted for being trans, and another 34% had been verbally threatened or harassed but not assaulted.

Here in Canada, we criminalize hate propaganda, in part because it undermines the dignity and respect of the targeted group. It undermines their sense of belonging and inclusion in society. Adding gender identity and gender expression to the list would send a clear message that hate propaganda against trans and other gender diverse individuals is not acceptable.

I encourage all members of the House to support this bill.

October 5th, 2016 / 4:05 p.m.
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Conservative

Rachael Harder Conservative Lethbridge, AB

Thank you very much.

Kendra, I really value the point that you brought up with regard to the Canadian Human Rights Act. You said that it was repealed in 2013 and that it could be advantageous to bring that back.

Now, one thing that was also done in 2013 was the introduction of an anti-cyber-bullying law that came into effect in 2015. That was Bill C-13. It was overturned by the courts because it was said to violate the privacy of Canadians.

If we were to look at bringing back something like the Human Rights Act, which was repealed in 2013, or we were to look at pursuing anti-cyber-bullying legislation, how do we balance the privacy of individuals, the freedom of speech that individuals have under our Canadian Charter of Rights and Freedoms, with the protection of victims? How do we go about balancing that as legislators?

September 29th, 2016 / 12:05 p.m.
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Partner, McInnes Cooper, As an Individual

David Fraser

I'm not sure I have a solution. I have the advantage of getting to stand on the sidelines and point out problems. To the extent that I can contribute to solutions, I'm happy to. The problem is always going to be a threshold one, and I think the problem needs to be addressed by the people who are publishing it, rather than intermediaries who are pointing out that it exists. The analogue is, you wouldn't hold a librarian liable for telling you that down in the basement in the dusty stacks is a newspaper from 20 years ago that has this article. You need to be consistent. It's not the technology that necessitates making the rules. Technology might make new problems surface, but our democratic framework that includes freedom of expression needs to be superimposed over all those decisions.

I think this Parliament did a fantastic thing with Bill C-13. The first part of it related to the non-consensual distribution of intimate images. I've seen first-hand the huge amount of harm that sort of activity causes my clients. I think that is a very helpful addition, and that can be put in the continuum of the right to be forgotten. The Ontario courts have made it possible, just under the common law, for an individual to get a remedy in damages for that horribly harmful behaviour, and that can lead to an injunction to get it taken down.

One can easily say at the extreme end of the continuum that, when you're dealing with horrible revenge porn, whatever you want to call it, it's absolutely deplorable. There's no doubt that laws can work on that, but things like those teddy bears having bedbugs are part of living in a modern world.

September 29th, 2016 / 11:20 a.m.
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Canada Research Chair in Internet and E-commerce Law and Professor of Law, University of Ottawa, As an Individual

Dr. Michael Geist

I would largely echo David's comments.

I can recall appearing before a couple of House and Senate committees on Bill C-13, the lawful access bill, and much of the discussion for many of the witnesses was to try to emphasize the import of metadata. It's refreshing to have the issue raised right off the top and to have a recognition of the privacy import of that information.

I think the privacy community and the technical community, both of which have come forward on these issues, have consistently tried to argue that what we need is to take metadata far more seriously as a privacy issue. That has been largely missing. Frankly, we were met with largely dismissive responses and the law enforcement perspective that this is little more than dust and the sense that, somehow, lower thresholds were appropriate.

Yet when you take a look at what that metadata can ultimately reveal, as authorities in the United States have sometimes said.... I think Stewart Baker, the former general counsel of the NSA, has said, “We kill people based on metadata”.

The value of that information and the potential import of that information is huge, so I don't think it's a question of where it appears. I think it's actually essential that we address it as equivalent to some of the most sensitive privacy information that we potentially have both in our Privacy Act and in other legislative instruments where that same data is touched on.

September 29th, 2016 / 11:05 a.m.
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Dr. Michael Geist Canada Research Chair in Internet and E-commerce Law and Professor of Law, University of Ottawa, As an Individual

Thank you.

Good morning, everyone. As you heard, my name is Michael Geist. I am a law professor at the University of Ottawa, where I hold the Canada research chair in Internet and e-commerce law.

My areas of specialty are digital policy, intellectual property, and privacy. I served for many years on the Privacy Commissioner of Canada's external advisory board, and I have been privileged to appear before many committees on privacy issues, including things such as PIPEDA, Bill S-4, Bill C-13, the Privacy Act, and this committee's earlier review a number of years ago on social media and privacy.

I appear today though, as always, in a personal capacity representing only my own views. As you know, there is a sense of déjà vu when it comes to Privacy Act reviews. We have had many studies and successive federal privacy commissioners who have tried to sound the alarm on legislation that is viewed, as you just heard, as outdated and inadequate. I think that Canadians rightly expect that the privacy rules that govern the collection, use, and disclosure of information by and within the federal government will meet the highest standards, and for decades we have failed to meet that standard.

I would like to quickly touch on some Privacy Act concerns, but with your indulgence I'll talk a bit about some of the other broader privacy law environment issues in Canada that I think are really directly related to the Privacy Act.

First though, on the Privacy Act—and this is going to sound familiar as I have flagged some of the same issues that David did—I think the Privacy Commissioner of Canada has provided this committee with many very good recommendations, and I endorse the submission. As you know, most of those recommendations are not new. Successive commissioners have asked for largely the same changes, and successive governments of all parties have failed to act.

I want to highlight four issues in particular with respect to the current law, and as I say, David has flagged some of them already. The first is education and the ability to respond. The failure to engage in meaningful Privacy Act reform may be attributable, at least in part, to the lack of public awareness of the law and its importance. I think the Privacy Commissioner plays an important role in educating the public, and has done so on PIPEDA and broader privacy issues. The Privacy Act really needs a similar mandate for public education and research. Moreover—and you just heard this—the notion of limited reporting through an annual report, I think, reflects a bygone era. In our current 24-hour, social-media-driven news cycle, restrictions on the ability to disseminate information, particularly information that can touch on the privacy of millions of Canadians, can't be permitted to remain outside of the public eye and left for annual reports when they are tabled. Where the commissioner deems doing so to be in the public interest, the office must surely have the power to disclose in a timely manner.

I also think we need to think about strengthening protections. As you've heard, the Privacy Act falls woefully short of meeting the standards of a modern privacy act. Indeed, at a time when government is expected to be a model, it instead requires far less of itself than it does of the private sector. A key reform, in my view, is the principle of limiting collection, a hallmark of private sector privacy law. The government should similarly be subject to collecting only that information that is strictly necessary for its programs and activities.

I'd also flag, as David did, breach disclosure, which has been commonplace in the private sector privacy world, and it has long been clear that similar disclosure requirements are needed within the Privacy Act. The Treasury Board guidelines are a start, but legal rules, in my view, are essential. In fact, the need for reform is even stronger given the absence of clear security standards within the act. Provisions that establish such standards and mandate disclosure in the event of a breach are crucial to establishing an appropriate level of accountability and ensuring that Canadians can guard against potential identity theft and other harms.

The final issue is privacy impact assessments. As you all know, privacy touches us in many ways, and it similarly is implicated in many pieces of legislation. I recall that during the last session of Parliament, the Privacy Commissioner regularly appeared before committees to provide a privacy perspective on many different pieces of legislation. This approach of coming in after the legislation has been drafted at the committee, I think, runs the risk of rendering privacy as little more than just an afterthought. It's more appropriate to conduct a privacy impact assessment before legislation is tabled, or, at a minimum, at least before it's implemented.

Those are some of the issues on the Privacy Act side, but as I said, I wanted to talk about three bigger picture issues that I think are some of the moving parts in the federal privacy world.

The first has to do with Bill C-51's information-sharing provisions. I realize the government is currently consulting on national security policy, and there's, as you know, a particular emphasis on Bill C-51. From my perspective, one of the biggest problems was the information-sharing provisions. The privacy-related concerns stem from an act within the act in Bill C-51's Security of Canada Information Sharing Act. As you may know, the sharing of information went far beyond information related to terrorist activity.

It permits information sharing across government for an incredibly wide range of purposes, most of which have little to do with terrorism. The previous government tried to justify the provisions on the grounds that Canadians would support sharing of information for national security purposes, but the law now allows sharing for reasons that I think would surprise and disturb many Canadians, given how broadly those provisions can be interpreted.

Further, the scope of sharing is very broad, covering 17 government institutions, many of which are only tangentially related, if at all, to national security. The background paper on the national security consultation raises the issue, but in my view appears to largely defend the status quo, raising only the possibility, it seems to me, of tinkering with some clarifying language. If we don't address the information-sharing issue, I fear that many of the potential Privacy Act improvements will be undermined. I think this requires a wholesale re-examination of information sharing within government and the safeguards that are there to prevent misuse.

Second, I want to talk about transparency and reporting from a slightly different perspective. As many of you may know, in recent years, there have been stunning revelations about requests and disclosure of personal information of millions of Canadians, millions of requests, the majority of which are without court oversight or warrant, which I think points to a real weakness within Canada's privacy laws. Most Canadians have no awareness of these disclosures and have been shocked to learn how frequently they are used.

Recent emphasis has been on private sector transparency reporting. Large Internet companies such as Google and Twitter have released transparency reports, and they have been joined by some of Canada's leading communications companies such as Rogers and Telus. There are still some holdouts, notably Bell, but we have a better picture of requests and disclosures than we did before. However, these reports represent just one side of the picture. Public awareness of requests and disclosures would be far more informed if government also released transparency reports. These need not implicate active investigations, but there is little reason for government to not be subject to the same expectations on transparency as we expect of the private sector. Indeed, the Liberal Party focused on transparency in its election platform. Improvements to access to information are absolutely critical, but transparency is about more than just opening the doors to requests for information. Proactive disclosure of requests for Canadians' information should be part of the same equation.

Third and finally, I want to talk briefly about government-mandated interception capabilities and decryption. The public safety consultation that I referenced, which was launched earlier this month, has been largely characterized as a C-51 consultation, but it's much more. The return of lawful access issues threatens to scrap the 2014 lawful access compromise, and I think raises some really serious privacy concerns.

For instance, the consultation implies that “lack of consistent and reliable technical intercept capability on domestic telecommunication networks” represents a risk to law enforcement investigations. Yet left unsaid is that the prior proposed solutions in the form of government-mandated interception capabilities for telecommunications companies were rejected due to the enormous cost, inconsistent implementation, and likely ineffectiveness of standards that would exempt many smaller providers. Creating government-mandated interception capabilities for all providers represents an enormous privacy risk that I think runs roughshod over both PIPEDA and the Privacy Act.

Further, the consultation places another controversial policy issue on the table, noting that encryption technologies are “vital to cybersecurity, e-commerce, data and intellectual property protection, and the commercial interests of the communications industry”, but lamenting that some of those same technologies can be used by criminals and terrorists.

Given its widespread use and commercial importance, few countries have imposed decryption requirements. This year's controversy involving access to data on an Apple iPhone that was owned by the San Bernardino, California, shooter revived debate over access to encrypted communications. The consultation asks Canadians to comment on circumstances under which law enforcement should be permitted to compel decryption. A move toward compelling decryption, in my view, would place more than just our privacy at risk. It would also place our innovation strategy and personal security in the balance.

In conclusion, fixing the Privacy Act is long overdue. There is little mystery about what needs to be done. Indeed, there have been numerous studies and a steady stream of privacy commissioners who have identified the problems and called for reform. What has been missing is not a lack of information, but rather, with all respect, a lack of political will to hold government to the same standard that it holds others.

I look forward to your questions.

September 26th, 2016 / 4:55 p.m.
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Liberal

Marc Serré Liberal Nickel Belt, ON

You probably don't have time to answer, Mrs. Parsons, but you mentioned bill C-13 earlier and the disconnection with law enforcement. Could you expand a bit on?

September 26th, 2016 / 4:30 p.m.
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Leah Parsons Representative, Rehtaeh Parsons Society, As an Individual

Thank you for inviting me to speak here today on a topic that is very near and dear to my heart. My name is Leah Parsons. I am the mother of Rehtaeh Parsons. Rehtaeh died by suicide 17 months after her sexual assault. Rehtaeh was assaulted by four males in November 2011. A photo was taken and shared without her permission or knowledge. The photo was widely distributed in her school and community. She struggled emotionally to regain her sense of being. However, every time she attempted a fresh start, she was faced with the reality that the image continued to be shared as she moved from school to school.

This crime was reported to the police within a week yet the image was never contained or removed. Rehtaeh was just 15 years old at the time of this trauma. At this young age Rehtaeh was just developing the very core of who she would become. She left grade nine just a few months prior as a straight-A student with big hopes and dreams for her future.

Once she became a target of cruelty and ridicule, her mental health started to deteriorate, and it happened very fast. Soon my bright, confident girl was struggling with thoughts of suicide. Panic, anger, and sadness were emotions she cycled through on a regular basis. She just didn't have enough time and life experience to see that it was possible to navigate through this dark period. She became terrified of her own thoughts.

During the 17 months of struggle, Rehtaeh was forced to endure harassment both online and in person from her peer group. She knew what happened to her was not her fault, but society continually told her otherwise. The agencies put in place to protect did not seem capable and/or willing to help us navigate these turbulent waters. We were left desperately seeking and searching for answers and direction. Since Rehtaeh left us on April 7, 2013, at the young age of 17, I have been an advocate in the areas of cyber-abuse, sexualized violence, youth mental health, and suicide prevention and awareness. Amanda Todd and Rehtaeh shone a light on the dangers of social media with profound impact. It was very clear that society had to do something. Their deaths also created important conversations at our dinner tables across Canada and around the world.

Many changes have occurred since, but we still have a long way to go to protect females in our society. We talk more about the impact of cyber-violence now that we are aware, but we must continue to move along to empower and educate. I reflected long and hard when I was invited to here to speak about the issues of cyber-violence. What kept coming back to me were the many voices of mothers and young women who reach out to me for help and advice, sharing their stories of abuse, and desperately wanting change to make their lives and the lives of all females safe. They feel vulnerable and alone, and I know that feeling. Women are not taken seriously and are often dismissed when we voice our concerns.

Blaming women for crimes committed against them is not new behaviour. Women have been systemically marginalized for centuries. However, the ways in which women are targeted in this day and age unfold differently because of social media. On a regular basis, women share their concerns with me about the sharing of intimate images without permission and being a target of online cruelty and sexualized violence.

While some police and school officials take these offenses seriously, many do not seem to know what to do. Sometimes they even add comments that blame the victim. Time and time again I have been told that officials are advising women to stay off the Internet to avoid being harassed. In the case of photos shared online, some officials are suggesting that the female should just stop sharing intimate images. This advice is not the answer and only adds to the victim-blaming mentality.

There also seems to be a disconnect in knowledge within police agencies across the country regarding the new Bill C-13 within the Criminal Code of Canada, which prohibits the sharing of intimate images without consent.

Agencies have to make it a priority to know the law and enforce it. Once that image is online, getting the image removed continues to be problematic for many females. There does not seem to be a uniform procedure to remove online images, and it appears to take a very long time to get an image taken down.

As far as females being harassed online is concerned, there are no laws in place to protect them. Nova Scotia's Cyber-safety Act, put in place in 2013 after Rehtaeh died, was the first of its kind in Canada and was enacted to protect people from cyber-violence. However, this law was struck down for being too broad. Nova Scotia justice minister Diana Whalen will be introducing new legislation in the spring of 2017. This is a step in the right direction.

Enacting new laws and responding in a fast, efficient manner are just some of the ways we combat cyber-violence, but we cannot ignore the fact that there are underlying deep-rooted ideologies that will take a very long time to undo. Women are still objectified, and the message from multiple sources that we are being bombarded with on a daily basis is that you are not enough, meaning you're not pretty enough, thin enough, sexy enough, smart enough, etc.

When females internalize this message, some suffer immensely from poor self-image, which can often manifest in females being cruel to other females. This can be seen in some adolescent girls who are competitive, cruel, and hurtful to their female peers. That was certainly evident in the horrible messages I read that were sent to my daughter.

My background is in psychology, and from this perspective it is easy to recognize that what we do not like in ourselves, we cannot embrace in others. Therefore, empowering young girls to love who they are is of utmost importance. Peer acceptance is very important, and when young girls are at the receiving end of cyber-violence, their mental health suffers. We have to redefine what it means to be female.

That being said, we certainly cannot leave out the male population in these conversations. It always amazes when, after I've given presentations in schools, young males approach me to ask more questions about consent. They are confused, because no one has had a conversation with them about what sexual consent entails Some young males truly believe that when a girl says no to sexual advances, it's time to apply more pressure.

A similar behaviour is now common online in the pressuring of females to send intimate images. We attempt to teach our girls what they need to do to be safe but not how to value who they are. We are certainly missing the mark when it comes to males.

If males continue to view females as objects, how can they value them as human beings? Rehtaeh lost her value as a human being the day she was labelled a slut.

I know that if Rehtaeh had been seen as a person that night back in 2011 and not as an object to be conquered, and if her peers had rallied around her to show their support instead of blaming her, I would not be here speaking to you today.

I know that we can make a difference in the lives of all human beings, and we must act now. We are losing way too many young lives to suicide due to violence in all forms.

Thank you for allowing me to share my thoughts with you.

June 16th, 2016 / 4:50 p.m.
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Professor, Faculty of Law, University of Ottawa, As an Individual

Jane Bailey

Thank you very much for inviting me to be here.

My remarks are going to focus on cyberviolence against girls and young women, although, as will become obvious as I proceed, in the seamlessly integrated online/offline world that is inhabited by young people today, distinctions between cyberspace and real space are virtually meaningless. As we know, the consequence of so-called online behaviour can be very real.

My remarks are grounded in the work that I've been doing for 15 years on the intersections of law, technology, and equality, and in particular the eGirls Project, which I co-led with Valerie Steeves until 2014, and the work of the eQuality Project, which I currently co-lead with Dr. Steeves, and for which we're proud to have MediaSmarts as a partner organization.

I'm also a member of the national steering committee of the National Association of Women and the Law.

The eGirls Project itself focused on girls' and women's experiences with online social media. In it, we interviewed girls aged 15 to 17 and 18 to 22 to ask them how their perceptions of their online lives lined up with policy-makers' solutions for online issues for children and to find out what they would want policy-makers to know about what life was like for a girl online.

Of course, technologically facilitated harassment and violence surfaced in those conversations, but so too did their concerns around mediatized stereotyping; privacy; the intense scrutiny girls find themselves under online; and corporate policies, practices, and structures that compromise their capacity to participate as equals online and off. It's this latter issue that's led us to the eQuality Project.

The eQuality Project is focused on the way that online behavioural targeting actually shapes the online environment that young people inhabit and the degree to which it sets young people up for conflict and harassment, particularly youth from diverse and intersecting equality-seeking communities. One of our current initiatives is to review and assess the efficacy of criminal law responses by looking at Canadian case law on technologically facilitated violence against women and girls.

I had originally intended to talk about three things, but I'm only going to talk about two. The first is a pet peeve of mine: why the term “cyberbullying” has to be treated with caution. The second is what needs to be done based on lessons learned from the eGirls Project participants.

The term “cyberbullying” has to be treated with caution because its generic nature just too easily whitewashes issues of discrimination and violence, which require tailored responses beyond punishing individual children or even teaching them how to properly use technology.

Research shows that young people who are perceived as different, whether because of ethnicity, sexual orientation, gender identity, or perceived disability or disability, are at greater risk of being bullied and cyberbullied. Similarly, as we've heard, girls and young women are more likely to be targeted by technologically facilitated sexual violence. In a sexist society, one form of that, the non-consensual distribution of intimate images, leaves women and girls open to humiliation, embarrassment, and reputational ruin for expressing their sexuality, for exposing their bodies, or even for others' decisions to expose their bodies, which is perhaps the most troubling of all, despite superficially conflicting messages that tell girls and women that social success depends upon emulating a stereotypical, heteronormative version of “sexy”. I put “sexy” in quotes. I call that flip-top sexuality. I don't think it has anything to do with sex whatsoever.

To the extent that cyberbullying, then, as a term, suggests somehow random targeting or random effects, I think the term has to be approached with caution, in particular when we're talking about women and girls. Otherwise we're going to miss root causes, such as misogyny, homophobia, transphobia, ableism, and racism, that actually demand redress. We can't fix the problem by treating the symptoms.

The second point I want to talk about is what needs to be done. What did we learn from the eGirls' eQuality project participants?

First, consult directly with diverse groups of girls and young women and recognize the expertise of community organizations working against violence against women and in support of survivors. We cannot assume that adults' perceptions of the problems of girls and young women mesh with their own perceptions and experiences.

For example, Canadian federal public policy dialogue around children and technology has placed significant emphasis on the risk of unknown sexual predators online. The eGirls project participants indicated some concern about unknown sexual predators online, especially with respect to their younger siblings and relations; however, they demonstrated far more concern about the impact of the widespread availability and scrutiny of data relating to them and the ways in which the online environment exposed them to what they perceived as the risk of reputational ruin at the age of 12. Girls and young women may be equally at risk—if not more—of technologically facilitated violence by those they know than by strangers. For anyone working in the violence-against-women community, we've known this for a long time about sexual violence in general.

Second, recognize technologically facilitated violence against women and girls as an equality-based human rights issue and proactively address root causes rather than focusing solely on criminal law responses.

I'm a lawyer. I'm the first person to say that individual perpetrators should be held responsible for their actions, and I part company with any suggestion that an individual's unilateral decision to display his girlfriend's naked picture on a pornography site is an expression of sexuality that we ought to be giving much merit to or concern for, or that a charge in that case is necessarily wrong in those kinds of circumstances. Individual perpetrators do have to be held responsible for their actions, particularly where they're taken unilaterally.

Meaningfully addressing the disproportionate targeting of girls and young women for sexualized cyberviolence, though, requires nothing short of social transformation. That's what it's about. As a friend of mine said, “Yes, you're talking about ending the patriarchy, so good luck.” That's okay. That's what we're talking about: ending the patriarchy.

We have to address misogyny, racism, homophobia, and other intersecting oppressions that have been used as tools to keep women down, to silence them, and to keep them out of the public sphere. In the online context, they are preventing girls and young women from participating as equals. Some eGirls project participants felt it would be particularly important to address discrimination and prejudice through educational measures to combat these forms of oppression, as well as to address heterosexist stereotyping that privileges thin, white representations of femininity and sexuality that were a prominent part of the advertising they were targeted with in online social spaces.

Third, focus on the role that corporations play in structuring online interactions to compel data disclosure and make privacy protection difficult, instead of focusing on telling girls and young women what not to do. Too often, policy approaches focus on reactive responses that result in blaming those attacked for having disclosed too much and that subject girls and young women who have been targeted to further monitoring and surveillance by parents and other adults. The eGirls project participants felt that policy-makers should give girls in particular a break. That's a quote. “Give girls a break,” they said, and pay more attention to corporate practices and policies that compromise their ability to negotiate privacy in networked spaces.

Fourth, provide more support for girls and young women who have been targeted by technologically facilitated violence. The eGirls project participants felt there was too little focus on providing support and encouragement for targets of online abuse. Policy-makers need to make sure that community organizations working to combat violence against women and girls and to support survivors and schools dealing with these issues have adequate funding to meaningfully address these needs.

Fifthand last is again another pet peeve of mine: do not make unnecessary expansion of police power the price of addressing technologically facilitated violence against women and girls.

One of our project participants lamented that protections from online predation for girls and women were too often associated with unnecessary expansion of police surveillance powers. Once again we saw with the passage of Bill C-13 that the censure of non-consensual distribution of intimate images came at the cost of expanded police powers that were in absolutely no way limited to addressing violence against women and girls.

In conclusion, it's time for adults to take responsibility for economic and social policy decisions that have resulted in the seamlessly integrated online/offline world our children now inhabit.

I'm happy to summarize that in the answer period, if I can.

March 10th, 2016 / 10:05 a.m.
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Liberal

Joël Lightbound Liberal Louis-Hébert, QC

I have two quick questions.

The first one you mentioned. You touched upon metadata in your answer regarding Bill C-13, and as far as I know, metadata is not defined in any way, shape, or form in our legislation. I was wondering if your office had any recommendations pertaining to metadata, and if it should be defined and where it should be so defined. Do you have any take on this?

My second question is regarding a recommendation that your office made back in 2008 that recommended to provide greater discretion to the Office of the Privacy Commissioner to report publicly on the privacy management practices of government institutions. That's a recommendation that was made in 2008 and I was wondering if this still stands and if your ability to report publicly on privacy issues is in any way hindered at this moment and what could be done.

March 10th, 2016 / 9 a.m.
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Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

Bill C-51, whose short title is the Anti-terrorism Act, 2015, had a number of parts. The first part pertained to the sharing of information between federal institutions, including personal information held by federal institutions. Such information can now be shared between government departments and 17 agencies that have specific responsibilities for suppressing or detecting terrorism. What Bill C-51 does is allow all federal departments to disclose personal information to these 17 agencies if it is relevant to detecting or suppressing terrorism.

We had concerns about the lack of comprehensive oversight mechanisms and the evidence threshold for sharing information, among other things.

I understand that the government plans to introduce a bill or conduct a study to review Bill C-51. We think that is an excellent idea.

The purpose of Bill C-44 was to give the Canadian Security Intelligence Service, CSIS, explicit authority to operate outside Canada. Before this bill was introduced, CSIS exercised its powers in Canada. Bill C-44 enabled CSIS to extend its activities outside the country. CSIS and the government were of the opinion that this was already provided for implicitly. Bill C-44 authorized it explicitly. The bill more explicitly authorizes information sharing between CSIS and similar agencies in other countries.

The concern we raised had to do with the risk of human rights violations, depending on the countries to which this information would be disclosed. We recommended that steps be taken to control this information sharing in order to avoid torture, for example, in the worst-case scenario.

Bill C-13 had to do with online crime in general, but amended the other law that my office administers, the Competition Act, to allow private companies to give information to police in investigations where electronic documents or personal information could be relevant. That applies in the case of online crime, but also more generally.

We had some concerns about that as well. We felt that the scope of the bill was too broad and that some provisions might not comply with a recent Supreme Court decision in Spencer, which provides for protection of some metadata when people use the Internet to share personal information.

March 10th, 2016 / 8:55 a.m.
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Liberal

Joël Lightbound Liberal Louis-Hébert, QC

Thank you.

I have a second question.

Regarding the disclosure of personal information, you said in your 2014-15 report that Bills C-13, C-51, and C-44, if I'm not mistaken, which now have the force of law, had a serious impact on the disclosure of personal information without people's consent.

Can you elaborate on Bill C-51? We have heard a great deal about information sharing between institutions. I am less familiar with Bills C-13 and C-44. I'd like you to talk a bit more about these three bills and the changes they made when it comes to disclosure.

Digital Privacy ActGovernment Orders

June 17th, 2015 / 5:40 p.m.
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NDP

Ève Péclet NDP La Pointe-de-l'Île, QC

Mr. Speaker, my colleague really put his finger on the problem, which is rather widespread and applies to other bills besides the one before us today.

For instance, following public pressure, the government unfortunately had to withdraw Bill C-30 from the order paper. However, there was also Bill C-51 and Bill C-13 on cybercrime. Now we are talking about Bill S-4, which completely destroys Canada's privacy protection regime. It waters down the criteria for obtaining warrants and, in some cases, even allows authorities to access the personal information of Canadians without a warrant.

I wonder whether the member could tell us just how troubled he is that this government says here in the House and elsewhere that it wants to protect Canadians, and yet it introduces a number of bills, like Bill C-51, Bill C-13 and Bill S-4, that put Canadians' privacy at risk.

Motion in AmendmentIncorporation by Reference in Regulations ActGovernment Orders

June 9th, 2015 / 1 p.m.
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Liberal

Sean Casey Liberal Charlottetown, PE

Mr. Speaker, I rise today to speak to Bill S-2, the incorporation by reference in regulations act.

Liberals will not be supporting the bill. I want to be clear that we do not seek to invalidate incorporation by reference in regulations, a technique that has been long in use and that is useful on a case-by-case basis. However, the government cannot be trusted to act responsibly with these expanded powers. We have seen time and time again the government's abuse of oversight mechanisms. I think specifically of its use of omnibus legislation and its bad-faith approach to the Department of Justice's constitutional review process, including the use of private members' bills to avoid that process.

A general power to incorporate by reference could embolden the government to do indirectly what it cannot do directly. For that reason, expanding the government's power to delegate lawmaking to foreign or private entities will not serve the public interest.

Liberals will not expand the Conservatives' power to privatize and export the power to make Canadian law.

There is also a chance that this bill could prioritize the English version of Canadian laws by allowing changes to be made to the English text without updating the French version.

To be clear, we agree that regulating by reference will undoubtedly continue to expand. Globalization, standardization, and technical and scientific progress make the tool necessary. However, a regulation-making authority should have prior authorization from Parliament in its enabling statute to use incorporation by open reference.

Bill S-2 is a highly technical bill. Before elaborating on why Liberals will not be supporting it, let us go over the contents of the bill. Bill S-2 would amend the Statutory Instruments Act to provide an express general power to incorporate by reference in regulations. To incorporate by reference is to give a secondary document legal force by referencing it in regulations, such as a set of technical standards developed by the Standards Council of Canada.

Incorporation by reference has long been in use, and it is already expressly authorized in more than 60 federal acts. However, its legal status outside of these acts is uncertain. Bill S-2 aims to clarify that incorporation by reference is a valid technique of general application. Bill S-2 would also provide that any secondary documents referenced must be accessible and that liability or administrative sanctions could not apply if a document was not accessible. In addition, Bill S-2 would retroactively validate any incorporation by reference that was made before its coming into force.

In effect, incorporation by reference sub-delegates the details of regulation to a designated entity, which may be private or foreign. It creates efficiencies in the context of globalization, standardization, and rapid technical and scientific developments. It is important to appreciate that regulations incorporated by reference may not exceed the regulatory powers granted by statute. In addition, regulations made by reference remain subject to review and possible revocation by the Standing Joint Committee for the Scrutiny of Regulations.

There are two varieties of incorporation by reference. They are incorporation by closed or static reference and incorporation by open or dynamic or ambulatory reference. Incorporation by closed reference cites a secondary document as it existed on a particular date. Incorporation by open reference automatically allows regulations to change as secondary documents are amended. This latter technique delegates the details of regulation to whomever has the ongoing power to amend the secondary document. Bill S-2 would expressly allow both open and closed incorporation by reference.

Why are these changes a bad thing? Bill S-2 would reduce the oversight of federal regulations by allowing the sub-delegation of the regulatory power that is already delegated by Parliament to the Governor in Council and other persons. The current government cannot be trusted to use this power responsibly. Time and again, we have seen its willingness to abuse oversight mechanisms, restrict democratic debate, and violate Canadians' constitutional rights.

For example, the government's use of omnibus legislation has degraded the committee review process and hidden important legal changes from public scrutiny. Most recently, I can think of the unconstitutional amendments to the Supreme Court Act being hidden in a budget implementation bill. Yes, changes to the Supreme Court Act were in a budget bill. When those changes failed, we all remember how the Prime Minister and the Minister of Justice wrongfully criticized the Chief Justice of the Supreme Court for trying to save them some embarrassment.

With omnibus legislation, I also think of Bill C-13 and the way the government linked urgent and necessary cyberbullying legislation with immunity for telecommunications companies for warrantless disclosure. Again, the Supreme Court came to the rescue with the Spencer decision, which allowed us to support that cynically packaged piece of legislation.

In opposing Bill S-2's reduction of regulatory oversight, we also think of the government's disregard for the Department of Justice's constitutional review procedure. As the House is aware, Department of Justice lawyer Edgar Schmidt revealed to Canadians that the government proceeds with legislation even if it has a 5% chance or less of being charter compliant. It is the government's own faint hope clause, so to speak.

Is this a government that needs less oversight or more oversight? The revelation of the government's outright contempt for the charter was not surprising, given how often legislation and executive actions have been ruled unconstitutional by the courts. Let us review some of the greatest hits.

In 2011, the Supreme Court of Canada prevented the member for Parry Sound—Muskoka, who was health minister at the time, from closing a safe injection site, which would have caused an increase in the number of fatal overdoses and the spread of communicable diseases.

Last year the Federal Court prevented the government from making cuts to health care services for refugees. Also last year, right here in Ottawa, Justice David Paciocco of the Ontario Court of Justice found that the decision to impose a $900 victim surcharge on a 26-year-old impoverished Inuit offender who was an addict amounted to cruel and unusual punishment.

Some British Columbia courts and the Ontario Court of Appeal have also struck down the mandatory minimum sentences brought in by the government. This is all in addition to the negative responses to referrals related to the unilateral Senate reform and the appointment of federal judges to represent Quebec on the Supreme Court.

We have also seen the Conservative government's willingness to veil government legislation as private members' bills to avoid constitutional review. There are numerous examples of tough-on-crime, presumably government-driven legislation that masqueraded as private member's bills. All of these bills contained significant changes to the Criminal Code, and regardless of their merits, they should have passed through the Department of Justice's charter compliance review process.

This is not a government that Canadians can trust to protect and promote their rights and interests. This is a government tainted by scandals of public betrayal, from election fraud with robocalls to tampering with the Duffy audit, to a $90,000 payment to Duffy from the Prime Minister's chief of staff, to the Prime Minister defaming the Chief Justice of the Supreme Court. Canadians should not trust the current Conservative government.

As I have said, the danger with Bill S-2 is that the government would be emboldened to do indirectly what it cannot do directly, and any oversight would be retrospective rather than forward looking. That is why we will not support the expansion of the current government's power to delegate law-making powers to foreign and private entities.

In addition, Bill S-2 would put the average person at a disadvantage, since there is no guarantee that documents incorporated by reference would be meaningfully accessible. In particular, an incorporated document would not have to be registered in the Canada Gazette and might even be protected by copyright. It would also be increasingly difficult for people to know whether the version of the incorporated document they have is up to date, and in some cases, they would have to pay for access to copyright-protected documents. The bill would weaken the right of those governed by the law to know the contents of the law. We will not support the Conservative government's privatization of Canadian law.

We heard at committee that it may be possible for international bodies to amend Canadian law without our having a representative at the table. We heard that Canadian laws would not be centrally available to the public and that Canadians would sometimes have to pay to access Canadian law. Moreover, if Bill S-2 passed, the government would be generally empowered to decide which foreign and private entities could make law, and which laws Canadians should pay to see.

Time and again, the government has not been forthright with Parliament and the public, and so our position is that a regulation-making authority should have prior authorization from Parliament in its enabling statute to use incorporation by open reference. For that reason, we will not support the bill.