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.

Opposition Motion—Safeguarding of Personal Information

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I am very pleased to rise today on this very important issue. The New Democratic Party calls for accountability and an explanation on behalf of Canadians into the widespread spying and interference of Canadians' Internet use and their cellphone use under the current government.

What we are asking for today is eminently reasonable. We are asking simply to ensure the powers of the Privacy Commissioner of Canada, the member who represents us as a parliamentary officer, who represents the Canadian people, and that she have the authority to ensure that the laws of this land are being followed.

Now, we have a government, of course, that will do anything it can to obstruct the work of the offices of Parliament because right now the offices of Parliament are about the only bulwark standing in the way of the numerous underminings of Canadians' legal rights, and even the illegal activities that are being undertaken by the Conservative Party.

It has been said that one of the foundations of a democracy is to ensure maximum transparency for government and maximum privacy for citizens. However, the current paranoid and secretive government has flipped it. The Conservatives have maximum privacy for their black holes of administration where they refuse to answer the simplest questions, and they are getting maximum transparency on the lives of Canadian citizens to the tune of 1.2 million requests of telecoms last year.

Now that is a conservative number, and I say “conservative” in the way the Conservatives have begun to use this, because not all the telecoms bothered to even respond to the Privacy Commissioner of Canada. That is a very disturbing trend.

What does the 1.2 million requests mean? It means that every 27 seconds someone from a government agency, who, we do not know; for what reason, we do not know; for what possible motive, we do not know; picks up a telecom and asks for information about the private lives of Canadian citizens, and gets it without warrant.

Let us debunk the excuses we have heard from the Conservatives on this.

First is the bogeyman excuse. Conservatives use the bogeyman all the time. The bogeyman is out there roaming the streets. The member for Oak Ridges—Markham the other day made it sound like his neighbourhood was a case of Shaun of the Dead. There are these violent criminals and terrorists all over the place and so the Conservatives have to be able to call up a telecom immediately to gather any information they need whenever they want it.

Those laws already exist and it is fairly straightforward to get information if a violent crime is occurring. However, we are being led to believe that the bogeyman is out there and the current government has to stop it.

How does the government define terrorists?

I think we should say that, in this whole piece on spying, we are dealing with the revenge of Vic Toews. I refer members back to February 2012 when Vic Toews branded the new anti-terrorism strategy, “building resilience against terrorism: Canada’s counter-terrorism strategy”.

The government was going to go after terrorists, which included domestic extremism that is “based on grievances--real or perceived--revolving around the promotion of various causes such as animal rights...environmentalism and anti-capitalism”.

If a person is against the Northern Gateway Pipeline, under the current government's framework, he or she is a potential terrorist. Therefore, the government can decide to follow his or her movements, as he or she is one of the bogeymen.

A concern about animal rights is not that of concern for animal rights such as our Prime Minister's wife who tells us that 1,000 murdered or missing women may be a great cause, but they are here for abandoned cats. The government is probably not spying on the Prime Minister's wife. However, someone else who might have concerns about animal rights, and it is in there, is a potential terrorist and worthy of picking up the phone.

One of the other excuses is that the Conservatives are not asking for anything that is not already the norm. It is just like picking up a phone book and looking up a number. Calling a telecom and demanding private information on Canadians is just like using a phone book.

The Privacy Commissioner of Ontario, Ann Cavoukian, says that is a load of bunk. She said the following about getting even basic subscriber information such as ISP numbers:

...customer name and address information ties us to our entire digital life, unlike a stationary street address. Therefore, “subscriber information” is far from the modern day equivalent of a publicly available “phone book”. Rather, it is the key to a much wider subset of information.

Then the Conservatives say, “Don't you trust our police?” We certainly would trust the police. However, we also see that Ann Cavoukian has said that at no time have Canadian authorities provided the public with any evidence or reasoning that Canadian law enforcement agencies have been frustrated in the performance of their duties as a result of shortcomings in the current law. The privacy commissioners in their joint letter, also write to the Prime Minister saying, “The capacity of the state to conduct surveillance and access private information while reducing the frequency and vigour of judicial scrutiny” is the heart of the issue.

We all remember when Vic Toews stood up in the House and told Canadian citizens who were concerned about the fact that they were being spied on, that they were basically in league with child pornographers if they had the nerve to stand up for them. That was such a boneheaded move and it caused such a blowback on the government that they had to retract the legislation. Why would the Conservatives show intent on pushing that through? We now know, they were trying to legalize what has become the common practice. Their shadow world of spying on Canadians is not legal. Gathering this information without warrants is not legal. This is why they put forward Bill C-30, to attempt to deal with it. We all remember Vic Toews had one of those pieces, “The Minister may provide the telecommunications service provider with any equipment or other thing that the Minister considers the service provider needs to comply with” their ability to spy on Canadians.

That seemed like such a bizarre request at the time, but we have seen with the NSA and the widespread spying on American citizens and citizens around the world is exactly what Vic Toews was getting at, which is the ability to create mirror sites. The fact that we just learned in Der Spiegel that the NSA tapped the underwater cable network between Europe and U.S.A. to listen in on what ordinary citizens were doing on the Internet. The Conservatives have the same vision. They wanted to legalize that ability, and they were frustrated.

We are hearing the biggest excuse from the Conservatives. They realize the Vic Toews approach of accusing ordinary Canadians of being like child pornographers really did not work, but now they would reassure Canadians that they would fix it. They will fix it all right. They will fix it so that not only they will get to spy on Canadians, but anybody who wants to will be able to spy on Canadians: corporations can spy on Canadians, and all manner of very dubiously named authorities now will be able to spy.

Let us go through some of the issues on Bill S-4 and Bill C-13. According to Michael Geist, Bill S-4 will “massively expand warrantless disclosure of personal information”, because under Bill S-4, “an organization may disclose the personal information without the knowledge and consent of the individual...if the disclosure is made to another organization”. Not the laws of the land, not the RCMP, not anti-terrorism units, but if an individual is in dispute with a corporation over some contractual obligation, it can call their telecom, have their information handed over and they will not be told.

The Conservatives will certainly fix it. They will fix it to make widespread snooping of everything we do all the time perfectly legitimate for any corporation that just phones up and says it wants to know what they are doing on the Internet.

That is not all. Let us look at Bill C-13, which will give a public officer or a peace officer the ability to call telecom, demand information, and the telecoms will receive legal immunity for passing over this private information.

An interesting article in the National Post points out that Rob Ford will now be able to make these requests, because, oh, yes, he is a public officer, and under the act, if Rob Ford wants to find out what his neighbours are doing, interfering with the drug gangs in Rexdale with whom he might be friends, he would actually be able to make the calls.

The Criminal Code describes these peace officers, public officers, as including reeves of small towns, county wardens, who would be able to get information, and even people designated under the Fisheries Act. However, there is another element that is really important. Under the present laws, even with all this snooping that is going on, it has to be part of an investigation. The government would remove the caveat that says this snooping, this spying on the rights of Canadians does not have to have anything to do with an investigation. If the Conservatives want a fishing trip, if they want to keep tabs on them, they will be able to do so.

This needs to be dealt with. This is a government that is spying on law-abiding citizens and treating them as criminals, and it needs to be held accountable for this abuse of Canadians' rights.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I want to thank my hon. colleague. I have great respect for the excellent work she does for Canadians on this very important file.

I would like to ask her about the spin we are hearing from the government. Conservatives keep changing their story about how they actually somehow care for Canadians' private information, and the Minister of Industry is telling us that Bill C-13 and Bill S-4 will fix the problem. They will fix it, all right.

Under Bill C-13, anyone designated as a public officer will be able to gather information without a warrant. It is in the bill. Under clause 20, what a peace officer or public officer would be in the Criminal Code would include wardens, reeves of small towns, sheriffs, justices of the peace, and persons designated under the Fisheries Act, meaning that the Fisheries Act would be able to get information from the telecoms about folks in Timmins—James Bay who are out fishing. Of course, mayors are included as well.

It seems to me that the government is now moving backward to actually legalize widespread snooping and open up snooping to all manner of people who have no business being able to find out personal information, what people do on the Internet, or who they phone.

I would like to ask my hon. colleague why she thinks the government is telling Canadians that allowing widespread snooping by wardens, reeves, sheriffs, mayors, and people designated under the Fisheries Act will somehow protect Canadians' privacy.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

moved:

That, in the opinion of the House, the government should follow the advice of the Privacy Commissioner and make public the number of warrantless disclosures made by telecommunications companies at the request of federal departments and agencies; and immediately close the loophole that has allowed the indiscriminate disclosure of the personal information of law-abiding Canadians without a warrant.

Mr. Speaker, I would like to begin by stating that I will be sharing my time with my colleague from Timmins—James Bay.

I am very pleased today to move this motion to ensure that justice is served for Canadians. However, I am very disappointed to have to rise once again to protest this government's extremely reprehensible actions.

I would have thought that, after three years, it would have finally understood. However, once again, the government has been caught spying on its own people.

With such ridiculous statements as, for example, if we did not support bill C-30 we were siding with pedophiles, the government has constantly tried to minimize the impact of its proposed measures on the lives of Canadians, all the while boasting and insinuating that it is proposing reasonable and necessary measures, which has been proven to be false by many impartial stakeholders.

The Conservative government called our assessment “speculation and unwarranted fearmongering” or a series of outlandish conspiracies made up by the NDP. After being harshly criticized by the public, media, and civil liberty and rights groups, as well as by privacy experts, the government finally listened and withdrew these bills or let them die on the order paper.

However, we still need to point out that exploiting the personal information on Canadians without reasonable cause and without a warrant is a huge violation of their privacy. I do not think I have heard about 1.2 million criminals being convicted of accessing personal information in 2011.

Last week, new revelations showed that government agencies and departments allegedly asked telecommunications companies to share personal information with them without a warrant. Not once, not a hundred times or a thousand times. They asked 1.2 million times.

We condemn this highly questionable tactic, since there is no legislative oversight to determine whether the government's reasons for accessing this information were valid.

Like many Canadians, I understand and support the need for security authorities to have the tools they need to fight crime in our country and to make us feel safe at home.

However, how can the government justify 1.2 million requests in a single year to achieve that goal? That happened in 2011, and the government was not required to explain what this information was necessary or how and for what it would be used.

When I think of the majority of Canadians who abide by the law and who could be affected by these requests, I find it unacceptable, disgusting and incomprehensible that the government is treating them like criminals.

The privacy of Canadians has been taken lightly by past Liberal and Conservative governments for far too long, and Canadians affected by the thousands of data breaches in government agencies are paying the price. To hear that the government is snooping on them as though they were common criminals when they have done nothing wrong is another blow on top of it all. Last week the government tried to make us believe these requests were made for public safety reasons, but let us look at the case of the CBSA.

In response to my order paper question, after reviewing the number of requests made from the CBSA in one year, we find that no requests were made in exigent circumstances. The 18,849 others were made in non-exigent circumstances. From these requests, only two were made for national security reasons, none for terrorism alerts, none for foreign intelligence, and none on the grounds of child exploitation, so it is hard to believe the government when it says that these millions of requests were made for national security reasons when the numbers speak a very different truth.

Canadians understand that law enforcement institutions need information to identify, catch and judge criminals. However, when the government makes 1.2 million requests for Canadians' private information from telecommunications companies per year, that is not just about cracking down own crime; that is spying.

The vast majority of Canadians are law-abiding. There is no reason for the government to engage in such broad spying activities. If the Canadian government decides to spy on its own citizens, it should do so only if it has reason to suspect them and only with a warrant.

If the law permits this kind of warrantless spying, the law must be changed immediately, and that is what the NDP is trying to do today. If the government needs a warrant to listen to Canadians' phone conversations, the same should apply to their online activities.

We understand that certain extremely urgent circumstances do not permit the obtaining of a warrant. However, the information we received from the Privacy Commissioner last week goes far beyond the imaginable: 1.2 million requests for subscriber data without a warrant is unacceptable and unjustifiable.

In Canada, we are very lucky to have a legal framework for obtaining a warrant. That framework protects Canadians and prevents abuses by the authorities. Unfortunately, there is a loophole in the system the Liberals introduced.

Today, the Conservatives are taking advantage of that loophole to spy on their own citizens. Clearly, the government is no longer in control of the warrantless disclosure procedures.

As I said earlier, the Conservatives' spying cannot be justified on national security grounds. Moreover, it is done in secret. The Privacy Commissioner is not even informed.

If the government had a real, viable motive for snooping on Canadians, it would have no problem whatsoever with warning Canadians when they were being snooped on, it would have no issue working with the OPC, and it would strengthen our laws to better protect Canadians against these types of abuses.

We do not know why, how often or how long the government has been spying. What is even more incredible is that the Conservatives have long been trying to expand the legal framework around requesting information without a warrant. If the government decides to spy on Canadians, there should be just cause, it should be overseen by the courts and it should happen only under exceptional circumstances.

What is even more ridiculous than the government's unwillingness to protect Canadians' privacy is its complete lack of understanding about the scope of the problem. Just last week, the Privy Council Office asked that all departments provide details about the number of personal information requests submitted to various telecommunications companies over the past three years.

That proves that the government has abused the loophole in the law to the point where it has lost control of its departments on this issue.

The Conservatives have proven that they are unable to protect the privacy of Canadians. The Privacy Act dates back to 1983, before the arrival of the Internet, and PIPEDA has not been updated since 2000, before the age of social media.

Instead of strengthening the laws and increasing government accountability, the Conservatives are moving in the other direction. Instead of protecting Canadians' privacy, Bills C-13 and S-4 will increase the likelihood that the government will spy on its own citizens. From an ethical standpoint, that is extremely problematic.

With Bill C-13 alone, the government would expand the number of people who can make requests for subscriber data so that even people like Rob Ford could access our personal information. It would create legal immunity for voluntary disclosure of personal information and it would expand the circumstances under which personal information could be disclosed.

As if that were not enough, the government is using taxpayers' money to spy on them. Government agencies pay telecommunications companies between $1 and $3 for each information request. That means that, at the very least, Canadian taxpayers have paid between $1.2 million and $3.6 million to be spied on. I say that is the minimum because only some of the telecommunications companies have disclosed how often they provide information to the government.

If all of those information requests were justified, and if the telecommunications companies were not worried about disclosing their practices, I would likely not be making this speech today. Unfortunately, the Conservatives are trying so hard to hide their spying that it is worrisome.

What are they using all that personal information for? Can they even justify the importance of the information? It is clear that the government believes that Canadians are criminals because it spies on them without their knowledge, as though it suspected them of something. This motion defends the privacy rights of law-abiding Canadians, and it is meant to counter the government's nefarious attempts to get information by the back door.

Since becoming the critic for digital issues, I have risen dozens of times to draw attention to and criticize the alarming state of our privacy laws. Laws that are meant to properly protect us in the digital age should have been revised years ago and are now unsuitable for protecting the public and our children.

In my time as opposition critic for digital issues, I have seen not one but four different pieces of legislation introduced in the House that would facilitate government snooping instead of fixing the problem.

Canadians are worried. They are right to be. The Internet that they have known as an open and free space for social and political discussions is threatened by the snooping of their very own government. Law-abiding citizens should be able to benefit from the Internet without the threat of being treated like common criminals.

I ask all my colleagues to vote in favour of our motion in order to restore Canadians' trust in matters concerning the protection of their privacy and of the Internet as the social and political tool it should be.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chairman.

A good part of my amendment is very similar to the one that was just defeated, but it has additional clauses that are worth describing.

As you can tell, the goal here, and again these were recommendations from a number of witnesses, certainly the Chief Electoral Officer and Democracy Watch, and a few others, I believe, calling for the preservation of the telephone numbers that were called as an integral part of keeping track of the use of these kinds of campaign tools, especially if they're going to be misused. It would be a very good way to check, for instance, if it was a legitimate call or an illegitimate call, based on robocall servers having a list of the telephone numbers. If a telephone number was called that was never on that list, you'd have a pretty good sense you're looking for someone else.

But the second part of my amendment also deals with the commissioner having the ability to...and it is part of Elections Canada's brief at the bottom of page 6. There should be a mechanism not involving a court order for the commissioner to obtain access to call scripts or recordings, or to request that they be preserved beyond one year if a court order is anticipated. This particular provision that I'm putting forward is actually modelled on something that may look familiar to government members on the other side. It's actually modelled on Bill C-13's preservation demand provisions in the online bullying bill, to ensure that there can be a request that material be preserved before it might be destroyed in the ordinary course of business.

So I think I've probably given you enough details on this, Mr. Chair. It does make the system more robust. More critical information is preserved, and it is also more accessible to the Commissioner of Canada Elections, who without having to go to court for a court order, can just ask the companies that have that material in their possession to retain it and preserve it.

Thank you, Mr. Chair.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Mr. Chair, my speech will be in both official languages, but I only have one copy. What I have said so far was not in my written text. However, I will be happy to answer questions in both official languages.

Basically, dear colleagues, my goal today is to provide you with as much information as possible to obtain your approval for the Main Estimates 2014-15 for the Department of Public Safety and Emergency Preparedness.

If I may, I will get started right away so I can respect the amount of time I have.

I would like to talk to you about two very important aspects that have come up since the last time we met. As you know, we have strengthened our commitment in relation to the Lac-Mégantic tragedy. I think it is important to mention it. With respect to the initial commitment of $60 million, $25 million was earmarked for public safety. Since then, we have concluded an additional agreement that would grant funds based on a 50-50 cost sharing formula for the full amount of the decontamination work. I am particularly proud of the fact that we are committed to supporting the Quebec government financially with respect to the amounts required for all the decontamination and restoration work of the site.

Obviously, we have also given our support to the Alberta communities that were devastated.

In March, our government announced an advance payment of $500 million in funding under the disaster financial assistance arrangements for costs incurred by the Province of Alberta for the severe and tragic flooding.

One of the extremely important public safety issues that I mentioned in my opening remarks is our relationship with the Americans, a relationship that is based on the market and trade, and on safety. That is why Public Safety Canada is responsible for implementing the agreement signed by President Obama and Prime Minister Harper, the beyond the border initiative.

More recently, Canada and the United States launched phase two of the pilot project, which involves pre-shipment inspection of cargo trucks at the Peace Bridge border crossing, between Fort Erie, Ontario, and Buffalo, New York. I was accompanied by Minister Nicholson and some American representatives. This is one of the deliverables of the beyond the border initiative, but not the only one. There are still other results to achieve and we are currently working on them.

This past January our government launched the anti-cyberbullying campaign, Stop Hating Online, to protect youth from cyberbullying, an issue that we all know can have devastating consequences. This builds on the protecting Canadians from online crime act, the legislation introduced by my colleague, Minister MacKay, and we seek support of all members for that important bill.

The campaign includes TV, online, and cinema ads aimed at parents and youth with a focus on the potential legal consequences of sharing intimate images online as proposed under the protecting Canadians from online crime act.

The Stop Hating Online website, which provides concrete tools and tips for youth, parents, and educators is a great success. Our data is showing that this is one of the most effective campaigns the government has undertaken. We have had hundreds of thousands of visitors to the website since the campaign's launch, and Public Safety has been recognized for the high level of engagement it has seen on the Stop Hating Online initiative.

Let's talk now about the Main Estimates 2014-15 or, you might say, investments in safety.

The total funding for which I am seeking your approval is $8.399 billion. That is for the entire public safety portfolio and includes all the agencies represented here today. This is a net increase of $349.3 million, or 4%, over the Main Estimates 2013-14, which was approved and presented by my predecessor.

These investments will allow our government to continue to carry out vital programs needed to ensure safe and effective borders, a correctional system that actually corrects criminal behaviour and takes care of inmates with severe mental health issues, and a safe and secure country for all law-abiding Canadians.

Let me discuss some items found in the main estimates that are of interest to the members and certainly to Canadians.

Essentially, the increase can be attributed to the increase in financial transfers that we are going to make as part of the disaster financial assistance arrangements contribution program.

But there's some good news in the main estimates, such as Corrections Canada is returning to the fiscal framework nearly $119.5 million because the projected growth in the prisoner population as a result of our agenda on crime measures delivered....

As we have always said, locking up dangerous and violent criminals is the best way to reduce crime, and this is what is happening. The good news is that this is happening and the high projection of inmates is not materializing. On April 12 there were some suggestions that a lot of costs will be incurred for housing inmates. Well, we can see today that has not materialized. Correctional Service Canada is returning $119.5 million to the fiscal framework.

Regarding the Canada Border Services Agency to fulfill the Beyond the Border commitments, this request for $91 million is to modernize our border's infrastructure. I can give the example of Aldergrove where I was during this spring break...for modernizing our facility. These investments are important to ensure our border is safe and effective, and to allow the free flow of legitimate trade and travel, which is one of the key aspects of Beyond the Border, as well as slamming the door on criminals and terrorists who seek to harm law-abiding Canadians.

Lastly, as I indicated earlier, I would like to draw attention to funding requested directly by Public Safety Canada, notably a $662 million increase for funding under the disaster financial assistance arrangements. As you know this program is meant to help Canadians when they need our help, and that's what is happening here.

Clearly, a number of natural disasters have occurred. It is important to know that the process to reimburse expenses under the disaster financial assistance arrangements contribution program can sometimes take several months, if not years, after a disaster occurs. Initially, it is the provinces that reimburse the disaster victims and then there is an approval process for the expenses. That is why the expenses that have been approved under the arrangement include expenses related to the spring floods in Manitoba in 2009, the forest fire in British Columbia in 2010, the spring floods in Saskatchewan in 2011, and Hurricane Igor in Newfoundland and Labrador in 2010.

In 2012, there were also torrential rains in Nova Scotia.

The budget before you today also includes $500 million down payment, if I may call it that, for the unprecedented flooding that occurred in southern Alberta in 2013.

In summary, whether we are educating Canadians on the impact of cyberbullying, implementing the beyond the border action plan or helping communities recover after natural disasters, our government has the safety of Canadians at heart.

I would also like to mention that this budget provides for the modernization of the agency, which is under the direction of Ian McPhail, to put forward measures that we hope will strengthen the accountability process in terms of Royal Canadian Mounted Police monitoring.

I will be pleased to answer your questions. At the end of my first hour with you and when my colleagues answer your questions, I hope you will be able to support the Main Estimates 2014-15 relating to public safety.

[Donald Piragoff]

Thank you.

I can't comment with respect to the Amanda Todd case because, as you know, the British Columbia Attorney General has laid charges in relation to that case in respect of a person in the Netherlands, so that's an ongoing investigation.

The other part of your question was around what the United States or other countries have to assist them that we do not have.

Specifically, Bill C-13 would enact a lot of investigative tools, things such as the preservation order, the order that says “do not delete this data until we come back with a production order or a search warrant to actually access it”. That is a power that the Americans have had for many years, for at least for 15 or 20 years. We don't have that power.

That's also a power created by convention in the Council of Europe, a convention that, as the Minister indicated, we have signed but not yet ratified, and we will be the last of the G-7 to ratify it, if Parliament passes this bill.

Other provisions that would assist would those allowing the obtaining of transmission data. Basically that's data not with respect to the actual content of an e-mail, but one where it was sent, the route it took going through Rogers, through Bell, through Telus, through AT&T, going from the sender to the person who received it.

In the case of a cyberbullying situation, you have an e-mail that is received by the potential victim, and let's say that e-mail was part of the Bell network. You go to Bell network and Bell network says, “Well, that came from Rogers”. And then Rogers says, “Well, we were just a link in the chain. It came from AT&T”. Then you have to go to AT&T and say, “Well, are you their end point?”, and AT&T says, “Oh, no. That came from another service provider”.

These tools would enable the police to have all these ISPs preserve that data so that it's not routinely deleted, which is part of their practice, because they only hold it for a certain period of time. It would also allow them to get a transmission production order to say they're not asking for any of the content of the e-mail, but just want to know where the e-mail comes from. Did it come from across the street and go through all this routing, or did it come from another province or another country? That's all the police are asking.

Later on in the investigation, when they start to realize that maybe this were not just a suicide, that there may have been some criminality involved, that someone had encouraged someone else to commit suicide, then when they have a higher level of evidence and actually have reasonable grounds to believe, they can go to the ISP with a search warrant or a production order and say they now want to see the contents of the e-mail.

As the Minister said, it's a ramping-up system where at the first level, all you have is some suspicion that these e-mails might involve criminality, but you don't know that. All you want to do is to follow some leads, so you use the first tools to get the leads. When you get more evidence and you have more of a foundation for moving from suspicion to reasonable grounds to believe, then you start going after information that has a higher privacy standard, such as e-mail contents.

[Donald Piragoff, Senior Assistant Deputy Minister, Senior Assistant Deputy Minister's Office, Department of Justice]

I can talk about Bill C-13. Bill S-4 is another bill, and it's not our bill. That's the bill for the Minister of Industry, I believe, so that's his responsibility. You'd have to ask other officials or other staff, Mr. Chairman, with respect to that bill.

In terms of the interplay, as the minister said, the Criminal Code provision enacted in 2004 was enacted for the purpose of clarifying that when Parliament enacted production orders in 2004, the enactment did not have a negative effect on the common law power of citizens to voluntarily provide information to the police, whether it be telcos or whether it be a person at the door. When the police come knocking at the door saying that there was a big ruckus across the street last night and asking if they saw anything, the person at the door has the choice of saying that they don't want to talk to them or saying, “Yes, I saw a lot and here's what I'm telling you.” That person would be protected. That's the common law power. It's in section 25 of the Criminal Code.

There was a concern about having a power to compel people to provide information: would this have a negative effect on the voluntary ability of people to provide information? So section 487.014 was created at the time, for greater certainty. As it says, “for greater certainty”, the fact that there is a production order does not affect the ability of people to voluntarily provide information, and that provision also said that people who provide voluntary information get the benefit of section 25 of the Criminal Code. Section 25 of the Criminal Code is the provision that says if you do something that you are authorized by law to do, you are protected from civil or criminal liability.

What the new amendment does is update the existing section 487 provision to do two things. One, because there are other types of tools that have been created by the bill, such as preservation orders, if a company voluntarily preserves data, this makes it clear that not only in providing the data but also in preserving the data voluntarily, one would be protected from civil or criminal liability.

The current situation right now with many of the telcos, for example—you wanted to know the relationship, Mr. Casey—is that there is no ability to compel a telco or an ISP to preserve information. The authorities have voluntary cooperation from some telcos and some ISPs, but not all. Nevertheless, we do have some who do voluntarily cooperate with the police and will voluntarily preserve data while waiting for the police to come back with a search warrant or a production order.

This would, then, extend the immunity provisions to also include those individuals who voluntarily preserve data, to ensure they are not liable civilly or criminally because they voluntarily cooperated with the police. That's the relationship between the two, Mr. Casey.

In terms of what the authority is, as to when telcos or other companies are authorized or compelled to provide information, one would have to look at PIPEDA, and again, that's not in my purview of expertise.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

The minister seemed quite reticent to talk about the interplay between Bill C-13 and Bill S-4. Am I okay to ask about that? Are the witnesses comfortable talk about that?

[Normand Wong]

I was involved. I chaired that group. The working group was a subgroup of the cybercrime working group. It was basically an ad hoc group, containing not only members from the federal, provincial, territorial working group on cybercrime but also any other interested FPT working groups. It met a number of times over the course of the spring and early summer to develop this report. As the minister said, it came to be unanimously accepted by FPT ministers of justice and public safety.

The recommendations of that report are reflected in Bill C-13 and both parts of Bill C-13, including the new offence and the complementary amendments for that new offence, as well as the modernization of the Criminal Code and the introduction of modernized and improved police powers for this Internet age.

I'm not sure if I've answered your question.

[Patrick Brown, Conservative, Barrie, ON]

Thank you, Mr. Chair.

I have a few questions. The first is in regard to restitution. I understand that the penalties outlined in Bill C-13 include restitution so that victims can recoup some of the expenses associated with having images removed from the Internet or social media sites. I wonder if you could expand upon that and what it means.

While you look into that, perhaps I could ask an additional question.

In June of 2013, the working group of the coordinating committee of senior officials on cybercrime published a report, “Cyberbullying and the Non-consensual Distribution of Intimate Images”. Can you comment generally on that report, who was involved, and what its main recommendations were as they relate to the bill?

[Normand Wong]

You are correct vis-à-vis the new offence, but you have to remember that Bill C-13 covers more than the new offence. It also modernizes the Criminal Code, other substantive offences vis-à-vis modern technology, and provides police with the investigative tools they need to investigate Internet crime and any other crime involving electronic crime.

[Françoise Boivin, NDP, Gatineau, QC]

Am I wrong to say then that

...the scope of Bill C-13, with respect to the offence of distributing intimate images, is still fairly limited?

[Françoise Boivin, NDP, Gatineau, QC]

What about the provider? Let's say Facebook. Can they or any other type of server be pursued in some aspect for the fact that they host the image? There are a lot of the questions right now on C-13.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I like the fact that we can use the term “maître” in French to designate these individuals. Actually, I think it is used almost exclusively here for lawyer.

Thank you for being here, despite your busy schedule. The Standing Committee on Justice and Human Rights keeps you very busy, no doubt.

My questions concern the offence of distributing intimate images. In preparation for these hearings, I met with a lot of groups, obviously, and they shared their concerns with me. That is the case for representatives of Facebook, something we are all familiar with. We will very likely hear from them during the committee's work. The offence as worded in Bill C-13 could be perceived as much broader than intended. In short, there are certain concerns, and I will share them with you.

Among others, under the provisions on the offence of distributing intimate images, which is the new section 162.1 proposed to be added to the Criminal Code, the accused cannot be deemed guilty if the person in the image gave his or her consent. Therefore, if a minor consented to the distribution of the image, it is likely that the author will not be charged under the new section 162.1, which allows consent as defence, but instead under the offence of child pornography, which does not allow that defence. However, the sentences are much harsher for child pornography. If the accused obtained the minor's consent, could the accused be charged with child pornography and receive a harsher sentence than if the accused had not obtained the minor's consent, in which case the accused would be convicted of distributing intimate images?

We are also talking about not attempting to obtain consent; in other words, letting things slide. As we know, things move so quickly, without necessarily being motivated by criminal intent. Some people are concerned that people are considered as having committed criminal offences and prosecuted as a result when they had absolutely no criminal intent.

What do you say to those people?

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Pierre.

Mr. Minister, I have just enough time to ask you a quick question.

In his Bill C-279, my colleague Randall Garrison adds the expression “gender identity” to section 318 of the Criminal Code. Do you have an objection to amending clause 12 of Bill C-13 in a similar way to include gender identity in the definition? It would be good to know that ahead of time, because it could provide an indication to the Conservative members of the committee.