Bill C-13 (Historical)

Protecting Canadians from Online Crime Act

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

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

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

My next question is for Mr. Fraser.

Could you sum up for me, in order of priority, the problems with Bill C-13 that you mentioned to us in your presentation?

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

Thank you, Mr. Chair. My thanks also to the witnesses for joining us today.

My first question goes to the representatives from the Boys and Girls Clubs of Canada.

Could you tell me whether you were consulted as Bill C-13 was being developed?

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

My second question goes to Ms. Deboisbriand from the Boys and Girls Clubs of Canada.

In your presentation, you mentioned focusing on restorative justice. You also said that the key to that kind of strategy is education.

For the benefit of all the MPs here, could you talk about your experiences in the trenches, the experiences young people are having and what provisions on restorative justice you would like to see? It may not be included in Bill C-13, but it could be included in a future government initiative.

[David Wilks, Conservative, Kootenay—Columbia, BC]

So when you refer to the 1.2 million pieces of data with regard to voluntary between what you're assuming is mostly law enforcement of one frame or another from a telco, what is your concern to which Bill C-13 would preserve?

[David Wilks, Conservative, Kootenay—Columbia, BC]

I just get a little confused when I start hearing about the 1.2 million pieces of data that are voluntarily...yet there is no other avenue for the police to do an investigation. There's just nothing. So this actually clarifies their ability to request the preservation of data as opposed to the voluntary preservation of data. It gives them some legitimacy to be able to go to the courts and say, “Listen, we followed the rules,” because more often than not what happens—and agree or disagree—when you get to court there's a lot of presumption that goes on because there's lack of data for the police to be able to utilize and present.

So I just don't understand where we're concerned that what's going to be put in Bill C-13 would be any worse than what we have now.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you very much, Chair, and thanks to the witnesses for being here.

I want to focus my questions in on the authority or the police powers as they exist today as opposed to what Bill C-13 will bring to police powers. I use my knowledge and my background with the RCMP. Having been so fortunate to be an affidavit for and the author for a part VI, I can tell you, and you are probably aware, that it's not a fun ordeal to go through.

Let's take it right back to the start of an investigation. We can use either a sex crime or a drug crime by way of example, because those are the two that normally are going to go down the road of an intercept, historically.

If I go to Bell, Rogers, Shaw, Telus—whoever it is—as a police officer, would you agree that the first thing I don't want to do is jeopardize the investigation? Would you agree that I don't want to jeopardize the investigation?

[Françoise Boivin, NDP, Gatineau, QC]

It should be amended, in that sense.

Thank you, Ms. Guthrie.

I will go back to you, Mr. Fraser.

Could you specify the type of amendment you would like to see to section 487.0195(1), when it is done without authorization or voluntarily? Should people have to be informed in those cases only?

It reminds me of the time when our committee was studying Bill C-55 about electronic surveillance. Perhaps other members of the committee will remember. The Supreme Court said that there was a deficiency in the Criminal Code in that respect because people never knew when they had been subject to electronic surveillance.

What is being said today is all well and good, but a number of cases will not result in charges at all. Information may be circulating anyway. Should there be specific provisions for all the cases in which charges have been laid? In those cases, we would end up knowing because the Crown would be forced to disclose the information. What kinds of provisions should we include in Bill C-13 to make sure that people are informed, within a reasonable timeframe, that they have been under electronic surveillance? If I remember correctly, I think that a period of 90 days was considered.

Should there be an automatic notification so that people find out that their information has been circulated, whether or not it came after a warrant?

[Sean Casey, Liberal, Charlottetown, PE]

The minister appeared before committee last week and said this immunity that is contained in this section is not new. It's been there since 2004. It's enshrined in the common law. It's also part of the Criminal Code.

Can you respond to that? Is this something that is new? Is this something that should be of concern to those who value their privacy? Is it a further encroachment above what was there before Bill C-13 comes into place?

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

So that information that includes the location of the individual can be disclosed, Bill C-13 actually raises the threshold to reasonable grounds to believe—is that correct?—in what's called a tracking warrant.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay.

If we had another case like Amanda Todd.... And my understanding is that this individual tricked her into providing an intimate image. He then went back to her with the threat that if she didn't provide even more revealing intimate images, he would post the first image to a Facebook site. He knew through her Facebook site online who her friends were, where she went to school, etc.

Without the provisions that Bill C-13 is seeking to add to the Criminal Code, how would a police officer, had Amanda Todd or somebody like her been able to come forward after the first image was provided but before the subsequent intimidation, have been able to find that individual and prevent him from posting the first image and threatening her and forcing her to provide any subsequent images?

[David Fraser]

I do. The only condition I would add to it...or “condition” isn't the right word. As it's written in Bill C-13, it allows a law enforcement officer who requires the preservation of that data to impose any conditions that officer deems fit, which gives too broad and open-ended a level of discretion to the law enforcement officer.

If they want to couple that with a gag order or something else like that, that should come from a judge, in my view.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Thank you to each of our guests for being here today and sharing their expertise with us.

Mr. Fraser, I'd like to start with you. You mentioned in your opening remarks that you were pleased to see the creation of a Criminal Code offence for the non-consensual distribution of intimate images. Then you gave us your views on some of the investigative powers that are covered in Bill C-13.

Are you familiar with the report of the cybercrime working group, which is made up of experts from each province and territory? Are you familiar with their recommendations?

Do you agree with their recommendations with respect to police investigative powers?

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

My thanks to all the witnesses here for coming to help us hopefully improve Bill C-13.

But I would like to tell Mr. Fraser and Ms. Guthrie from the outset that we share your opinion that it would have been preferable to divide the bill. The representatives from the Boys and Girls Clubs of Canada are saying the same thing. We introduced a motion in the House to divide the bill, listing exactly the same sections that the Boys and Girls Clubs of Canada mentioned in their brief. Unfortunately, we were not successful.

Everyone has their own expertise and there are people who have extremely specialized expertise in privacy, in electronic surveillance, in all kinds of areas. Unfortunately, we have to get down to the task and look at all the provisions.

I do not want to rain on your parade, but we tried and the government said no. That being said,

you raised some quite interesting points in connection with some of my concerns. I might like us to talk about them in a little more depth.

I do not want to ignore what the representatives of the Boys and Girls Clubs of Canada said. I heard their message. We had a meeting about it too. Actually, that was where the idea of dividing the bill came up. Most people do not see a lot of problems in the first part, but they see huge ones in the second part.

Mr. Fraser, you talked about the burden of proof. The burden of proof, to me, is the difference between reasonable grounds to suspect and reasonable and probable grounds to believe. Those terms are a little more familiar for those who have practiced criminal law.

For the benefit of the committee, could you highlight the distinction between the two? I do not know if you have read the minister's response. He seems to feel that a burden of proof based on reasonable and probable grounds to suspect is already well accepted by the courts.

I will ask you the same question, Ms. Guthrie.

Mr. Fraser, could you also spell out for me your position on immunity. I am not sure I completely grasped it.

Section 487.0195(1) says as long as it is “not prohibited by law ”. What specifically does that refer to? Does it affect the Charter? If I have the right to privacy, does the fact of distributing private information about me go against that? So would that immunity not exist?

Could you spell out for us a little more clearly and precisely the hidden cases in which immunity would not apply, if there are any? I would like to see whether the risk that most privacy experts have told us about in section 487.0195(1) is as great as they say.

If any other witness has an opinion that they would like to share with us on this matter, please feel free to do so.

[Steph Guthrie]

Thank you for having me here today.

I'd like to thank my fellow witnesses, who both had really eloquent and valuable things to say.

My name is Steph Guthrie. I am a freelance feminist and digital strategist. For the last year I have been speaking and writing at length about the issue that Bill C-13 claims to tackle.

While the bill's name in the press is the “cyberbullying” bill, the more specific problem that I think is addressed by components of Bill C-13 is actually known as “revenge porn” more specifically, a term that I hate for both its inaccuracy and its sexualized sensationalism. Whatever you call it, though, we're talking about sharing sexually explicit images without the consent of the person or persons depicted. While some such cases might involve hacking, in many cases the subject actually consented to share the images with one person for private use, such as a sexual partner, and that person then violates their trust and shares the image with others, despite the subject's in most cases obviously implied expectation of discretion.

The crux of the harm that is inflicted here is the violation of informed consent. If I share an image with another person privately, that consent is not transferable. Had I known that the other person might later share the image with others, I would be unlikely to consent to letting that person access the image in the first place. So any consent I provide to a person accessing that image is pretty clearly contingent on them keeping it to themselves.

For me, informed consent is an integral part of privacy. Indeed, in her influential privacy by design framework, Ontario Privacy Commissioner Ann Cavoukian cites freely given and specific consent as a vital element of digital privacy. Cavoukian's principle can be applied to non-consensual intimate image sharing, which—let's be honest—is a really clunky and cumbersome way of describing what is ultimately cybersexual assault. A survivor of cybersexual assault did not provide specific consent for their image to be shared with others. The perpetrator simply treated their consent as transferable to any other use, any other disclosure.

As I'm sure some other speakers over the course of considering this bill will share with you, the results of this are devastating. It does mostly happen to women, although men are not immune, and it destroys their lives. The images follow them into their job interviews, on their first dates, and to the laundromat. In some cases the perpetrator of the cybersexual assault incites violence or stalking against the survivor, publishing their personal information and the dates and times of their professional engagements, encouraging their “fans” to make an appearance.

In any case, the assault constricts the survivor's ability to live life normally and comfortably because they are constantly living with the idea that the people they encounter in their day-to-day lives may know intimate things about them that they didn't consent to share. Even if the survivor knows they did nothing wrong, they still must deal with the judgments, misperceptions, and intrusions of others. For many survivors, their ability to move freely, safely, and happily in this world is limited.

I am fortunate to not yet have been attacked and tormented in this way, but I could be. It's common for authorities and the media to malign people who send so-called sexts as teenagers with poor judgment and poor impulse control. But that doesn't line up with reality. According to a Harris Poll in 2012, a full 40%—that's not a majority, but it was the largest percentage—of people who send these images are in the 18 to 34 age range; and 20% of all adults sext. In fact, a McAfee survey puts that number closer to 50%. I'm willing to bet that a lot more than 50% of us have trusted a romantic or sexual partner only to learn later that our trust was misplaced.

Cybersexual assaults can and do happen to a lot of us. When Rehtaeh Parsons died by suicide after months and months of torment from her peers and indifference from authorities following her own sexual assault, first in the flesh, then online, I heard Prime Minister Stephen Harper say: “...we've got to stop using just the term bullying to describe some of these things....What we are dealing with in some of these circumstances is simply criminal activity.”

While I join my fellow witness in favouring a restorative justice approach, at the time I was already a vocal advocate for legislation to tackle cybersexual assault, and was accustomed to hearing political and legal decision-makers blame the victim for it. So I was cautiously optimistic at Prime Minister Harper's remarks.

Then I realized, as many Canadians realized, that most of Bill C-13 is not really about what happened to Rehtaeh Parsons. Buried within Bill C-13 is a set of decent Criminal Code amendments to tackle cybersexual assault. Though I do see some minor issues with those amendments, which my fellow witnesses have already covered off quite well, and I can certainly refer to them in greater length during the Q and A, I do think that the base for good cybersexual assault legislation is there in Bill C-13. But you have to dig pretty hard to find it amid the many other sweeping amendments that more closely resemble the lawful access provisions found in Bill C-30 back in 2012. That was the time when Canadians were told that opposition to the bill was tantamount to supporting child pornographers.

While some of the more egregious elements of the former Bill C-30 have been removed from this latest incarnation—and I'm glad to see that—it still significantly expands the state's capacity for surveilling Canadians without the pesky oversight of our court system.

One of the most troubling provisions in Bill C-30 was that it mandated the disclosure of user information to police without a search warrant. The newly designed provision in Bill C-13 very cleverly softens this, instead stating that police can request information, and the person or organization to whom they direct their request can voluntarily comply. However, the very next provision in Bill C-13 removes all civil liability for anyone who discloses another person's information to police upon request. This granting of immunity removes much of the incentive for an Internet service provider, or anyone else, to deny the request.

As law enforcement officers and prominent figures of power and authority in our lives, it is also debatable the extent to which a person might feel compelled to provide the information to a police officer, even if technically they are volunteering to do so.

In the last week, a steady stream of damning media reports have indicated that the practice of voluntarily disclosing user information to police is already in full swing among Canadian telecommunications companies, with the state making over a million requests for user information in the course of a year—and that was back in 2011—all without warrants, i.e., without due process. All were quite obviously without users' consent.

Perhaps most of Bill C-13 isn't really about cybersexual assault, but I find it interesting that it violates some of the same privacy principles, such as freely given and specific consent. Most of us do not and would not give free and specific consent for the state to access any, and potentially all, of our data by way of our Internet service providers if we had any meaningful choice in the matter.

The consent we give is to our Internet service providers. If the police want our information because they suspect we are engaged in criminal activity, well, most of us would assume that is what search warrants are for.

Bill C-13 enshrines the idea of transferable consent in law, immunizing anyone who shares our information and violates our privacy without adequate legal justification for doing so.

While obviously different in many ways, the limitations on personal freedom imposed by Bill C-13 bear some striking similarities to those imposed by cybersexual assault. The state could be following us into our job interviews, on our first dates, or to the laundromat. The bill's provisions will restrict Canadians' ability to live life normally and comfortably because they are constantly living with the idea that the state, when they encounter it, may know intimate things about them that they didn't consent to share. Even if they know they have done nothing wrong, they must still deal with the judgments, misperceptions, and intrusions of the state.

For many Canadians, if Bill C-13 passes as written, our ability to move freely, safely, and happily in this world will be limited. That's why it pains me to say that after a year of arguing for legislation that criminalizes cybersexual assault, I cannot support this legislation as written. We should separate the components of Bill C-13 that deal directly with cybersexual assault from those that do not and debate them as different pieces of legislation. They are different issues.

Not only would this be in the best interest of Canadians, but I believe it would do greater justice to survivors of cybersexual assault than amalgamating their cause with another one that serves the state's pursuit of power more than it serves Canadians.

Thank you.

[Fahd Alhattab]

Fantastic. Thanks for having me, guys.

I'll give you some quick background about myself. My name is Fahd. I'm an Ottawa native. I've been here for about 16 years now. I like to say that I grew up at the Boys and Girls Club. I've been going there for about 10 years as a kid, and I started volunteering. Today I work there as both a volunteer and as a staff member. Thank you for having me here today at committee to speak about Bill C-13, the protecting Canadians from online crime act.

As some of you might know, the Boys and Girls Clubs of Canada are leading providers of quality programs for the healthy development of children and youth. Our association has 99 clubs and reaches over 200,000 children and their families in over 650 community service locations across Canada. So we're vast, and we really work with a lot of youth and really understand the issues that they're facing and the issues that we need to address.

Let me start off by saying that we very much welcome the action to address the harms of cyberbullying. We're concerned about the far-reaching consequences of cyberbullying and think that Bill C-13 is proposing to address one of the harmful manifestations of cyberbullying and the non-consensual sharing of intimate images.

Currently, young people who share intimate images of minors, and sometimes their own peers, are being charged with child pornography. We think this legislation is obviously more appropriate as a response than the use of criminal pornography charges. In this sense, we say thank you. This is a very positive step that Bill C-13 is taking forward.

We understand that Bill C-13 has also raised concerns on the respect of privacy. Young people deserve to be protected from cyberbullying, but they also deserve to be protected and respected for their privacy. Now, we're no experts on privacy, so our only recommendation on that is to encourage you to listen, obviously, to any concerns that are brought up, any considerations that are brought up, by the experts who are dealing with privacy, to make sure that we're protecting youth from cyberbullying but we're also protecting our children and youth and their privacy rights.

I have three main points that I'm going to bring up. Hopefully you can follow my train of thought; sometimes I ramble.

First, I want to talk about the importance of consulting with some of the youth that we work with. Bringing in legislation is great, but sometimes we have a different view on how the world of the Internet works for us and how it works for them. Second, to coordinate efforts across Canada, I'll be talking a bit more about the different legislation that's happening in different provinces. Unfortunately, the Internet doesn't really have borders. We have to take that into consideration. We also have to look at restorative justice versus criminal punishments.

I'll start with the first point, the consultation with youth. Young people are more connected. You all know this, and those of you who have kids. Young people are more connected that any generation before them. A recent study conducted by MediaSmarts actually polled 5,000 youth from grades 4 to 11 in the provinces and territories and found that youth in Canada have a universal access to the Internet: 99% of them have access to the Internet outside of school. We're digital natives. Twenty-four percent of grade four students have their own cellphones and that percentage increases to 85% by grade 11. The reality is they have access to everything and they're using it to socialize with peers. They're using it to find information. They're using it for sports, sexuality, and health. They're testing their boundaries, right? It's natural. It's a natural fit. So with the increased connectivity and the new social norms around electronic communications, young people are vulnerable to cyberbullying.

As David said, a lot of young people are victims of cyberbullying, and this bill will affect them the most. So my recommendation is that it is very important to speak to the youth and really understand where they're coming from and how they see that it will affect them on a very detailed basis.

To the second one, the desire to address cyberbullying has resulted in a patchwork of legislation across Canada. That really creates risks for children and youth confused about their responsibilities and rights, and the legal repercussions of their actions.

The Standing Senate Committee on Human Rights and the CCSO cybercrime working group both recommended that the federal government play a lead role in coordinating efforts to address cyberbullying, in part through a national prevention strategy, legal education, and digital citizenship. Whatever is decided and happens and moves forward, we argue that the leaders need to take charge, coordinate the message, and make sure that the federal government is playing a very strong role.

The government’s new campaign, Stop Hating Online, is fantastic. That's great. Those are the kinds of things we need. Taking the time to partner with organizations like the Boys and Girls Clubs of Canada, which serves 200,000 youth, would be even a bigger step, the next step forward. These campaigns are important. They really help what we're trying to do by educating young people and really moving them forward.

The last one is around restorative justice. We like to think we can educate our youth, but despite our best efforts the kids will break the rules. We were all kids. We work with them, or we have kids—I don't have any yet—but the reality is that's what's going to happen. You can imagine that to punish a sixth grade kid for pressing “send” on a cellphone and sending a picture that he received to a friend.... Giving him a legal punishment of child pornography doesn't seem logical to me. I know that many of you will agree with that.

What we've done is we have restorative justice programs. These foster responsibility in the wrongdoer and ensure accountability and meaningful consequences for the crime. The impulsive sharing of intimate images without consent, with no severe malicious intent, is perfectly suited for this type of intervention.

The Boys and Girls Clubs in British Columbia, Alberta, Yukon, and Ontario have been offering youth restorative justice programs for several years now with great success. In recent years we've actually been referred sexting cases.

The Ontario Provincial Police recently reached out to the Boys and Girls Clubs of Kawartha Lakes, to ask if they would partner with them to respond when youth are accused of sexting. The OPP will refer cases of youth between the ages of 12 to 17. The clubs' restorative justice program has been well established and has a very solid track record.

Similarly, Durham Regional Police Service refers sexting cases to the Boys and Girls Clubs in their area as part of the pre-charge program. The club has seen a few of these cases now, and prepares individual restorative plans for each case, because each case is different for many of the youth in how it ends up unfolding.

Obviously, as we know, education around this plays a big role, and it has involved educating minors about the consequences of sharing these intimate images and how sharing puts the recipient at risk of child pornography charges. As they come to understand this, their actions change and they understand the legal repercussions behind sharing these images.

As I said, a lot of our programs are very refined for the youth and very tailored to the youth, customized to them. The measurement sanctions are dependent on the severity of the offence. A lot of times we see young people who don't have the malicious intent but kind of go with it, and they end up having charges that are not adequate for them.

To summarize, let's protect the privacy of our children at the same time as we protect them from cyberbullying.

Let's consult with youth about the importance of this bill and how it affects them, and how we can ensure it protects them.

Let's coordinate our efforts across Canada to make sure that everyone is receiving the same understanding, and understand that the Internet does not have borders.

Let's take a restorative justice approach instead of a criminal offence approach.

Thank you.