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]

I have time for one more question.

Canada signed the Council of Europe's Convention on Cybercrime in November 2001, as well as its additional protocol on hate crime in July 2005, but has not yet ratified them.

Will Bill C-13 be used to ratify the Convention on Cybercrime?

[Peter MacKay, Conservative, Central Nova, NS]

Thank you, Mr. Goguen.

Again, your legal background is shining through. You would know that it's already illegal to steal cable. It has been part of the Criminal Code since 1975. So this is not new. To steal cable, to steal signals, to possess a device used for telecommunication theft, this has been something that has been codified for many years. The behaviour is prohibited in other sections 326 and 327. It's a type of theft.

What we're again attempting to do is modernize through this Bill C-13 and these longstanding offences and the update around telecommunication language to expand the conduct that it covers and to make it consistent with other offences is what is found in this bill.

It would add, for example, imports or makes available. That type of language gets to the subject of transmitting inappropriate images, the type of images, nude images that can be most offensive and most humiliating for individuals. The approach itself, in principle, I would suggest, is not a substantial change. It is consistent with previous practices and code sections.

Moving onto the police investigation part, the tools that enable police to do their work to investigate, it includes updates to the existing Criminal Code production order provisions that deal with things such as financial data and transitions, because we know that Internet white-collar-type crime, fraud, is also very pervasive. This bill empowers police in that regard to preserve and get at necessary data, financial data in many cases, to help them build a case that protects citizens, to protect individuals who may fall victim to those predators who use the Internet to perpetrate financial fraud and crime. It's part of other efforts that are made by financial institutions themselves, the other legislation around proceeds of crime, money laundering, terrorist financing. These are all issues that are intertwined and, I would suggest, that are consistent with the effort found in Bill C-13.

[Peter MacKay, Conservative, Central Nova, NS]

Thank you very much, Mr. Goguen. Thank you for your work and your interest in this.

I would suggest that given the insidious nature of some of the online activity that we're talking about here, as in all things in the criminal law it requires balance. Bill C-13, I would suggest, very much seeks to strike that balance, and you will have to a chance able to hear from others on this as well. It creates a new data preservation scheme. The tools are intended to allow police to safeguard and preserve necessary evidence. Mr. Wilks, as a police officer, can certainly speak to the importance of the police ability to do just that.

This is about the preservation of a virtual crime scene that we're talking about. It also seeks to prevent deliberate or accidental interference in the administration of justice by having that critical data, that critical evidence, disappear. While this bill doesn't create additional obligations for telecommunications companies, it does very much put in place a practice in which police can preserve that important information, that data and evidence. It does not require them to retain data or develop new infrastructure, but it requires that do-not-delete orders to be respected, which I would suggest is critical, to answer your question.

Another feature of this bill in seeking balance around privacy and investigation is that once the demand or order requiring the preservation of that evidence has expired, that is, the order not to delete certain computer evidence, the Internet service provider is free, of course, to act however they choose, whether they normally preserve all the data or choose to delete it, as you would expect in the physical world. Once an investigation has been completed or a warrant has expired, there is no further legal obligation.

So it is in keeping with existing police and court practices around warrants and around seizures, while at the same time responding to the very real technical aspect of how data is preserved, relayed, and treated in the Internet and the electronic world.

[Françoise Boivin, NDP, Gatineau, QC]

I disagree with you on that one, Minister. Honestly, I agree there need to be tools, but what I submit to you is that you might not have reviewed the aspect of the tool as much, especially in view of the backlash your government received against Bill C-30. As for cyber-intimidation, it is pretty much unanimous—everybody agrees there's a need to do something about it.

I go back to the core of my question. What type of review have you done to make sure that when you introduce a new concept—because I agree they do need a warrant, but you have changed the burden of proof....

It is no longer the same thing. Every lawyer who practices criminal law is familiar with the principle of having "reasonable grounds to believe". You are also familiar with it because you were a Crown prosecutor and a defence lawyer. Yet suddenly we are talking about "reasonable grounds to suspect". New concepts are being introduced here.

Did you have these concepts tested before introducing Bill C-13, which will have a lot of ramifications beyond cyberbullying and the distribution of images? In fact, this bill casts a very wide net.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

Mr. Minister, thank you for being here. Once again, this meeting has been shortened because of a time allocation motion by your government on another bill.

Having said that, I appreciate the fact that you seem to want to fix some of the bad impressions that Bill C-13 left with experts in the protection of privacy and other areas. However, the fact that all those voices were raised against the bill the same day it was tabled and that those people saw some concerning similarities between it and Bill C-30 suggests to me that, in practice, after the Conservatives have passed it in the House, Bill C-13 may not be as clear as you seem to believe. That concerns me a little and I end up asking the same question every time you come and present us with a new government bill.

The short title you have given to Bill C-13 is the Protecting Canadians from Online Crime Act. However, it touches on much more than online crime. In fact, it also includes a very limited section on distributing intimate images.

After drafting this bill, did you have it checked? I know you have your officials from the Department of Justice, but did you consult with your experts on the Constitution and the Charter to determine whether the bill would pass the tests we all know it will inevitably be subject to? It seems to be the fashion for the Conservatives to find themselves before the Supreme Court. Do you have assurances aside from just your personal perception that everything is hunky dory? Have you received serious legal opinions that give reasonable assurances that your bill will hold water in a very high percentage of cases, and not just in 5%, 10% or 15% of cases?

[Peter MacKay, Conservative, Minister of Justice and Attorney General of Canada]

Thank you, Mr. Chair, colleagues.

I am pleased to be joined by Justice Canada officials. We are here to answer questions with respect to Bill C-13.

I am very pleased to be before the committee to speak to Bill C-13, Protecting Canadians from Online Crime Act.

Chair, colleagues, I submit to you that Bill C-13 is an important piece of legislation aimed at protecting Canadians from crimes that are committed over the Internet or online. It does so in full compliance with Canadian law.

One of the ways in which Bill C-13 accomplishes this important goal is by proposing a new criminal offence aimed at a particularly contemptible and insidious form of cyberbullying involving the non-consensual distribution of intimate images. It has literally resulted in the devastation of lives, the loss of lives. I can't help but think of young Rehtaeh Parsons, Amanda Todd, Todd Loik, and others who have fall victim to this insidious type of activity.

The second way in which Bill C-13 accomplishes this goal of protecting the public is by proposing changes that would ensure that the Criminal Code and other federal legislation is able to keep up with the high speed of technological change. The need to modernize is deeply embedded in this overall intent.

In this vein, Bill C-13 proposes some minor updates to existing offences while at the same time modernizing the judicially authorized powers that police use, to investigate crimes committed, using electronic networks or that of electronic evidence. I stress for emphasis that “judicially authorized” authority is invoked here.

Turning first to the issue of cyberbullying, as I mentioned, the bill proposes a new Criminal Code offence prohibiting the non-consensual distribution of intimate images. Essentially this offence would prohibit the sharing of sexual or nude images, as defined, without the consent of the person depicted. It is a very nasty, cruel attempt to humiliate or worse, and has, as I mentioned, a pernicious effect that has become all too prevalent, particularly amongst young people.

This proposed new offence would fill a gap in the criminal law, and respond directly to one of the recommendations made by federal, provincial, and territorial officials in the June 2013 report on cyberbullying and non-consensual distribution of intimate images.

It may be of interest to note, Chair, that this report received unanimous support from federal, provincial, and territorial ministers of justice and public safety. These sections around intimidation, harassment, and related sections in the current Criminal Code context go back to age of the rotary dial telephone, so the need for modernization is real.

The proposed bill has a three-part definition of intimate images. In short, an intimate image is one that depicts nudity or sexual activity, was taken in a private setting, and one in which the depicted person has a privacy interest. This approach, like the existing voyeurism offence in section 162, is similarly designed to protect the privacy of the person depicted.

Clearly this Criminal Code section and the accompanying sections are not the entire answer. It will require a much more holistic strategy, as members of this committee are aware. There is much public information-sharing and education involved. We need to reach out to the schools. We need to have law enforcement and the justice system itself more broadly involved. There have been numerous public information efforts undertaken, including pink days and anti-bullying days that are dedicated at various sports and entertainment venues. It will require that holistic approach.

The bill also includes a number of complementary amendments related to the proposed new offence.

For example, the court would be authorized to order a person in possession of intimate images to enter into a recognizance to keep the peace, when there are reasonable grounds to believe that the person would commit the proposed new offence.

In addition to pre-emptive action, such as peace bonds, which have that ability to deter, the court would also be authorized to order the removal of non-consensual posted intimate images from the Internet.

Further, Mr. Chair, upon conviction under this new offence section, the court could order a seizure of equipment—a computer or a hand-held device—make a prohibition order restricting the offender's access to the Internet or other digital networks, and order the offender to pay restitution to permit the victim to recoup expenses incurred by securing the removal from the Internet of non-consensual posted intimate images.

This bill also proposes to modernize investigative powers. These updated tools would assist police in the investigation of not only the proposed new offence, but also all online crimes and any crimes that involve digital evidence, such as, for example, fraud or the distribution of child pornography. These amendments are long overdue, I suggest, and police report that over 80% of major crimes now leave electronic evidence.

While Canadian law enforcement continues to use investigative tools that pre-date the Internet and were primarily designed to collect physical evidence, there's great work being done, as I'm sure the committee is aware, at the Canadian Centre for Child Protection. They do tremendous work and outreach with police forces across this country and with victims.

I would like to be clear that while some of these amendments were previously introduced in a former bill, Bill C-13 does not contain the most controversial aspects of warrantless access. Mr. Chair, in particular Bill C-13 does not include any provision that would allow the warrantless access to subscriber information or that would impose obligations related to telecommunication infrastructure modification.

These amendments relate to investigative powers and were strongly recommended by the same FPT working group that recommended the new proposed offence to respond to cyberbullying and the non-consensual distribution of intimate images. This working group recognized that the important link exists between the proposed new offence that affords the protection and ensuring that police have the necessary tools with which to investigate it and other related online criminal activities. It is, I would suggest to you, very much intertwined—the new offence and the ability to police and enforce under the current provisions.

To give you a quick example of why these modernizing amendments are needed, we need to look at basic but essential telecommunications data, a phone number and an IP address. To obtain a phone number, police can then use the existing built-in production orders in the number recorder warrant, proposed subsection 492.2(2). This is granted by a court on reasonable grounds to suspect. That is the standard. To get the same type of information in an Internet context, such as an IP address or an e-mail, police currently have to use a general production order, which is granted on reasonable grounds to believe, which is a different, higher standard.

This is not only an inconsistent treatment of similar types of information, basic information, it also means that in many cases police, in the context of an Internet crime, will not be able to meet the threshold to begin an investigation. Bill C-13 proposes to correct this.

In terms of reasonable grounds to suspect, I want, Mr. Chair, if I could, to take you through a few of these modernization proposals. One of these proposed new tools is data preservation. Essentially, the data preservation tools are known as “not delete” orders, which would allow police to ensure specific computer data is safeguarded while they apply to the court for proper authorization to acquire that data in order to preserve important evidence. We have police officers, I know, who are part of this committee and can speak to that important preservation exercise.

These tools will provide essential support in the investigation of offences where much of the evidence is in electronic form. It is an era where crucial evidence can be deleted—sometimes inadvertently, sometimes deliberately—with a keystroke. Police, I suggest strongly, need this power.

The data preservation scheme includes a number of important safeguards. For example, once a preservation demand or order has expired, the individual in question is required to delete all the information he or she preserved unless retaining it is part of his or her normal business practice.

Bill C-13 also proposes to update the existing judicially supervised production order scheme. These amendments would result in a comprehensive tool kit that would include a general production order, which is comparable to a search warrant, and four specific and more narrowly focused production orders that will often help police initiate their investigations.

The four specific production orders contemplated by Bill C-13 would allow police to obtain four types of information: first, data to determine whether someone or something was at a specific moment in time, so it's tracking data; second, data that relates to the occurrence of telecommunications, such as an email associated with the telecommunications, so it's transmission data; third, data to trace a telecommunications item in order to determine the identity of a suspect; and finally, basic financial information such as a bank account number or the mere existence of an account of a particular person. It should be noted that this production order for financial information is already in existence.

The bill also proposes to modernize two existing judicial powers, warrant powers: the tracking warrant and the number-recorded warrant. These warrants are unique in that they allow police to collect the type of information in real time, and although the bill has been criticized in the media in particular for lowering judicial scrutiny, I would submit and point out that the proposed tracking-warrants amendments that apply to the tracking of individuals actually raise the standard of judicial consideration from “reasonable grounds to suspect” to “reasonable grounds to believe”. This increased privacy protection recognizes advancements in technology and their impacts upon individual privacy. However, police continue to be able to track things under the existing “reasonable suspicion” standard.

Finally, the bill also proposes amendments to achieve some efficiencies with regard to wiretap applications. These amendments will ensure that Canadian courts in all jurisdictions will use the same processes when they seek to obtain court orders related to wiretap authorization. The proposed amendments would create a single application for judicial warrants and orders that are related to the execution of wiretap authorization. This new process would clarify that the judge who issues a wiretap authorization can also issue the other supporting warrants or orders without requiring a separate application. In some jurisdictions, police have to go before several judges for these related powers, such as tracking warrants, a process that not only is inefficient but that also prevents the judge from getting the full picture of the investigation.

Lastly, Mr. Chair, I would like to take just a moment to address a few of the misconceptions that have been reported on Bill C-13.

Some have mistakenly led others to believe that the proposed legislation would encourage telecommunications service providers and banks to disclose information on their customers without authorization. I want to be very clear. The proposed legislation would not provide the police with any new powers for voluntary disclosure, nor does the bill propose to create a mechanism to bypass the necessary court oversight. To start the provision in question, proposed section 487.0195 is a “for greater certainty” provision and as such cannot grant police any additional powers. These provisions exist to clarify what is already part of the law. As part of their general policing duties, police may already obtain information from a third party voluntarily, without a court order, if—and this is the important part—the person or organization is not otherwise prohibited by law from providing this information. For example, they can already assist police in providing information if they are not prohibited by their duties under the Personal Information Protection and Electronic Documents Act, the PIPEDA. Persons who assist police in that fashion are protected from liability in those cases.

To be clear, this power exists in common law already. The 2004 clarifying amendment was meant to preserve this common-law power. It is found re-enacted here in this bill, and is intended to do the same. The proposed amendments in Bill C-13 are not designed to alter this in any way but are meant to make the provisions clearer and more transparent.

It was also suggested that the bill creates new warrants for police to obtain metadata using a lower threshold production order. This is also incorrect. Metadata refers, as members would know, to a large class of information that has been described as data about data. Examples of metadata include background information about an electronic document such as software, the type that it uses, its size, kilobytes, the size of characters it contains, etc. In relation to an electronic photo, it can include the number of pixels, the type of camera, and perhaps the date, the time, and the location the photo was taken. Some have suggested that metadata may contain personal information about people. It should be noted that Bill C-13 does not propose to capture this type of information according to its proposed definition of transmission data.

In fact, the definition of transmission is narrowly defined and captures only data that relates to the act of telecommunication. The definition of transmission data is the modern equivalent of phone-call information, not what is actually contained in the conversation, and these proposals are meant to ensure consistent treatment of similar information.

To conclude, Mr. Chair, I want to emphasize that this package of reforms is a targeted approach to serious forms of cyberbullying. All of the amendments to the investigative powers have been proposed here to provide police the appropriate tools to investigate crime in this Internet age, while at the same time minimizing the privacy impacts on Canadians.

I thank you for your consideration, and I look forward to your questions.

[The Chair, Conservative, Mike Wallace]

(Motion agreed to)

Thank you very much.

Our orders of the day, pursuant to the order of reference of Monday, April 28, are that we commence consideration 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. We are fortunate to have here today the Honourable Peter Gordon MacKay, the Minister of Justice and Attorney General, with his staff to kick off the discussion of this legislation that has been referred to this committee.

Minister, the floor is yours.

[The Chair, Conservative, Mike Wallace]

I'll call to order this meeting of the Standing Committee on Justice and Human Rights. This is meeting 21, and it's Thursday, May 1.

Before we move to the orders of the day, we have the third report from the subcommittee from last Tuesday, which authorizes two things: one, that the Minister of Justice come next Thursday, May 8, for our main estimates, and second, for the beginning of today's study on Bill C-13.

Can I get a motion to approve that?

Protecting Canadians from Online Crime Act

[François Choquette, NDP, Drummond, QC]

Mr. Speaker, I would like to thank my colleague for her question and comments.

She is absolutely right. Bill C-13 is a useful part of the fight against cyberbullying. The first problem is that the Conservatives already voted against a similar bill that we introduced.

The second problem is that this bill is a catch-all. It contains amendments to certain laws concerning financial data of banks, such as the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, as well as changes that concern telemarketing and the theft of a telecommunication service. It includes a number of the provisions of the former Bill C-30.

If Bill C-13 actually allowed us to seriously address cyberbullying, we would pass it quickly. Unfortunately, this is a catch-all that contains some very bad measures. That is what we have a problem with.

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Mr. Speaker, my colleague across the way has acknowledged the importance of this bill. It is an ongoing issue now in Canada.

Lianna McDonald is the CEO of the Canadian Centre for Child Protection in Winnipeg. Lianna has a lot of experience in working with victims of cyberbullying. She said that Bill C-13 “will assist in stopping the misuse of technology and help numerous young people impacted and devastated by this type of victimization”. For someone like Lianna McDonald who works every day with this, I would like to hear what my colleague has to say about her very insightful comment.

[François Choquette, NDP, Drummond, QC]

Mr. Speaker, I am pleased to rise in the House today to speak to Bill C-13. We could call it, among other things, the bill to protect Canadians against cybercrime.

This bill focuses on cyberbullying and bullying, something that I feel very strongly about. I have worked on this almost since I became an MP and even before that. I am the father of two daughters, one in elementary school and the other in high school. Thus, I am very concerned about the issue of bullying and cyberbullying. Furthermore, I was formerly a teacher. I was a high school and adult education teacher for almost 10 years.

I realized that bullying and cyberbullying are very important concerns. We have to tackle them and work on prevention. In fact, prevention is the first thing we must work on. This bill provides for solutions once the damage has been done, but we also have to work on prevention.

In that regard, even before I start talking about the bill, I would like to point out that the NDP is leading the fight against bullying. Two NDP members did an excellent job of bringing this subject to the attention of the Conservatives, who really did not have this on their radar. The first, the member for Chicoutimi—Le Fjord, worked very hard after being elected to introduce a motion, which unfortunately was defeated by the Conservatives. I still cannot believe what happened. It is mind-boggling to see all that.

What is important is that this motion was about a bullying and cyberbullying prevention strategy. The strategy was very well laid out. I will come back to that later because it really is an important element that the Conservatives should take a look at.

There was also the bill introduced by my colleague from Dartmouth—Cole Harbour, Bill C-540. I still do not understand why the Conservative did not vote in favour of this bill. I do not understand why they voted against it, since the main provisions in that bill can be found in Bill C-13. We could have saved some time if everyone had supported the bill introduced by the member for Dartmouth—Cole Harbour, which could have been sent to committee to be amended. That is what democracy is about. We fully support democracy.

However, it is completely unacceptable that the Conservatives voted against the bill and have now introduced a very similar bill. Furthermore, they are turning it into a partisan issue by saying that the Conservatives are the ones who drafted this bill and that they are very good.

It is sad to see this kind of partisanship in the House of Commons, especially on such an important issue. We are talking about the future of our youth. Young people are our future. We need to take care of them because our wealth lies in them. We need to pay attention to them and combat bullying and cyberbullying. This should not be a partisan issue. We should have been able to address this problem, which transcends party lines.

I am very disappointed that we were not able to move forward with these bills.

Before I go into more detail on Bill C-13, I would like to commend some groups in my riding of Drummond for the work that they have been doing day in and day out for years. Recently, in 2012, there was a big event to provide information, promote awareness and speak out against bullying.

All of the groups in the greater Drummond area that work every day on these issues were there. Sometimes large events like this are organized, but most of our organizations' work is done on a day-to-day basis.

The anti-bullying committee, which is part of the anti-violence committee, welcomed representatives from Sûreté du Québec, the Commission scolaire des Chênes, Collège Saint-Bernard, CALACS La passerelle, CAVAC, École aux Quatre-Vents—which has shown great initiative in the fight against bullying—Buropro, Commun Accord, the Association québécoise de défense des droits des personnes retraitées et préretraitées, the CSSS and others. Many concerned people in the greater Drummond area came together in the fight against bullying and cyberbullying. This was a major gathering in the greater Drummond area.

Earlier, I listened to the excellent speech given by my colleague from Sherbrooke. I also listened to the very heartfelt and passionate speech given by my colleague from Chicoutimi—Le Fjord, who has been fighting against bullying and cyberbullying for a long time.

The NDP members are the ones at the forefront of the fight against bullying and cyberbullying. That is why we are going to vote in favour of Bill C-13. However, we do so with a twinge of regret because we know that the Conservatives voted against a similar bill that we introduced.

This bill contains all sorts of measures. Unfortunately, the Conservatives use good bills that make sense, such as Bill C-13, as catch-all bills. This is what we call omnibus bills. They confuse the issue and therefore we do not know whether we will vote for or against the bill. If the fight against cyberbullying were the main focus of the bill, we would definitely have voted in favour of it.

What this bill is missing is a focus on prevention. I know how important that is from my experience as a teacher and a father and from listening to my colleagues, such as the member for Chicoutimi—Le Fjord. He proposed a strategy to combat bullying and cyberbullying. I would like to talk a little bit about it because it is extremely worthwhile. It is disappointing that the Conservatives voted against it, but it is not too late.

Front-line groups in Drummond and Sherbrooke are essential, as the member for Sherbrooke so rightly pointed out during his speech. They are the ones doing the work on a daily basis. However, the government must also stand firm at the national level, give good guidance and provide support.

I see that I have less than a minute to talk about this important, topical issue. The motion moved by the hon. member for Chicoutimi—Le Fjord stated that the House should study the prevalence and impact of different types of bullying, including cyberbullying. It is important to understand what this is really about. Then, we need to identify and adopt a range of evidence-based best practices to combat bullying and cyberbullying. Finally, we need to promote and disseminate anti-bullying information to Canadian families.

Schools and organizations are important, but families are too. Parents have a role to play by talking to their children about the serious nature of what they are doing. Bullying and cyberbullying are serious and can have a serious impact on the community.

The organizations that are working on this issue in Drummond and Sherbrooke and across Canada need support.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, the member indicated that the warrantless production of documents and the warrantless search is now a thing of the past, and that this element of Bill C-30 is not present in Bill C-13. However, there is something in Bill C-13 that would provide immunity to Internet service providers and telephone companies when they produce records at the request of law enforcement authorities. In order to make it easier for them, this immunity would apply to both criminal prosecution for the production of these records and any civil suit.

Given that the member's position is that there are no longer warrantless searches, is it not the case that there is now an incentive for co-operation among Internet service providers, or at least a disincentive has been removed, which is tantamount to having warrantless searches all over again? What the government is doing indirectly is what it tried to do directly, through Bill C-30.

[Mike Wallace, Conservative, Burlington, ON]

Mr. Speaker, it is my honour and pleasure to speak in the House to Bill C-13, from a couple of perspectives.

As the chair of the justice committee, I am looking forward to the discussion and debate we will have with the many witnesses who come forward on this important bill. Because of the issue of cyberbullying, the Government of Canada, and all of us, recognize the importance of Bill C-13 and taking a proactive approach on this.

However, before I get into that, I will admit that I did not know much about the aspects of cyberbullying. Therefore, over the last few weeks I have had the opportunity to talk to my daughters, who are 23 and 24, one of whom has just graduated from university. The other one is still in university, which is not that far away from high school.

We live in a relatively affluent community. There is no denying that Burlington is relatively affluent. I asked them what they knew about cyberbullying in their high school or this community. To my surprise, both of my daughters indicated there were two incidents within their own high school. Young women were photographed without their consent, in what I will describe as compromising situations, and those images were distributed throughout the high school. It did not result in the kind of tragedy that we have had elsewhere in Canada; however, it was an absolute form of bullying that I was not even aware of.

This issue, which we all agree is an issue, does affect all areas of Canada. There is no economic disparity in terms of lower-income people being more apt to experience higher aspects of cyberbullying than higher-income communities. It affects everyone. That is why this bill is important and needs to be comprehensive.

I know we have heard a few discussions from the other side about there being a motion to deal with a strategy. Strategies are great for collecting dust. From our perspective, we need action. This bill takes action.

We heard that there was a private member's bill from the opposition on a specific portion of cyberbullying, which is accurate. However, I think we have, in a more appropriate way, taken a more comprehensive approach to attacking this issue and applying the laws of the land to it.

I have not heard anyone say that this is not a complicated issue. Once in a while it has been said that there is a simple answer. There is no simple answer. What we are doing today will not end cyberbullying. I do not think that anyone is declaring a victory over cyberbullying.

However, these are the tools we need to attack this problem. We need to make it a criminal offence. We need to give police and the judiciary the tools to enforce this law. We need it so that when we do catch these individuals who are spreading inappropriate, non-consensual photos of youth, which is the example I will use because we are familiar with it—although it can happen at all ages, and the bill does not apply just to youth but to everyone—the country will have the tools to say that it is a criminal offence, something that we will not tolerate, and they will face a consequence for doing it. In addition, we will provide the police with the ability to do investigations, to collect evidence to sustain a criminal offence in terms of prosecution through the court system.

My hope is that as we attack this problem through the police, the judicial system, and our criminal court system, and that as those who are committing these crimes are found guilty, it will be a wake-up call to end cyberbullying. It is a process that will not happen overnight, but it is one that we need to start.

I want to talk for a few minutes about some of the myths we have heard regarding this bill. In one of the earlier speeches, someone said we are making the stealing of cable signals illegal. Guess what? Stealing cable is already illegal. People are not allowed to take cable without paying for it. That is already in the Criminal Code. All the bill does is to improve the wording, to capture that activity and the new ways of telecommunications and cable providing Internet services. That is what the bill would do. Stealing cable signals is illegal. Everyone in the House should know that and should not be questioning why it is in the bill.

A big myth about the bill is that it incorporates the controversial elements of Bill C-30, which rightfully was withdrawn by our government, in response to two things. One was regarding some activity that could take place that would not require a warrant. It was clearly in the bill, and it is not in Bill C-13. Every activity requires a warrant. That was the reaction we had, and we went through the bill and changed the process to reflect what we heard from the public and the opposition parties.

We should be congratulated on that, but that is not what happens around here. That is part of the problem with the House. When a government listens to the opposition and the public and makes a change, it should be congratulated and not criticized for making that change. That is not what happens around here. The government was told that it was not competent to know that in the first place, so it was criticized for making a change. Why bother making a change? In this case, making the change was the right thing to do, and that is why we did it.

There was another piece in Bill C-30 that dealt with the framework by which a provider of Internet services would have to have something so that we could monitor the traffic, basically. We got rid of that piece. It is not in the current bill, and that was part of what we heard in terms of a response to Bill C-13.

I have heard from the opposition members not to be reactive, to be proactive. This is exactly what Bill C-13 does. It is proactive activity that the police are able to undertake so they can do their job, so we can bring criminals who are attacking our young people to justice. Being proactive is exactly what Bill C-13 does.

The third issue we heard about is that this is an omnibus bill. We agree with making it a criminal offence, which is excellent, and everyone should agree with that. However, there are other parts in the bill that actually implement the criminal offence, that allow the police and the judicial system to charge folks, investigate, bring them to court, and bring them to justice, to end this horrific crime that is mostly done against young people.

We need Bill C-13. I am looking forward to the committee stage. It is my understanding that we have a tremendous number of witnesses to talk about the different issues. That is where the debate will really happen, in terms of witnesses telling us what could be better. We will have a discussion among the members of Parliament, ask good questions, and we will get the best bill we can to help protect the young people of this country.

[Mike Wallace, Conservative, Burlington, ON]

Mr. Speaker, I want to thank my colleague for his excellent speech on Bill C-13. We have heard a few times today from opposition members about splitting the bill, and it was part of a previous question.

We seem to have agreement among the parties that first, the bill is going to go to committee, which is excellent; and that second, making cyberbullying a criminal offence is important. However, there seems to be a discussion about whether we give the police and the legal system the tools to actually enforce that criminal offence.

Can the member talk about why it is important that the bill have both? Not just identify and create a criminal offence for cyberbullying but also give police and other law enforcement and judicial systems the ability to enforce the new criminal law.

[Larry Maguire, Conservative, Brandon—Souris, MB]

Mr. Speaker, I rise to speak to Bill C-13, the protecting Canadians from online crime act.

I would like to use this opportunity to speak to some of the misconceptions about this important piece of legislation. Much has been reported in the media about Bill C-13 proposing an expansive new power that would allow police to collect and obtain evidence without a court order. Further, it has been reported that this new provision would encourage telephone and Internet companies to provide as much information as they want, because they would be protected from criminal and civil liability.

In all honesty, I am not sure where to start when addressing these assertions because they are misleading and inaccurate. The much maligned provision in question is the proposed section 487.0195 of the Criminal Code. This proposed section has been portrayed by some as a convenient way for the police to sidestep court authorization requirements by requesting, from organizations, for example banks, telecommunication service providers, et cetera, voluntary disclosure or voluntary preservation of documents or data.

I want to be clear at the outset that this provision is included in Bill C-13 for greater certainty only. As is the case for similar types of provisions used sporadically throughout the Criminal Code, proposed section 487.0195 is intended to clarify Parliament's intent relating to a provision and to assist the courts in interpreting the law. To be clear, proposed section 487.0195 would not provide the police with any new powers.

Under the law today, and under the law prior to the creation of production orders in 2004, police, as part of their general policing duties of common law, have always been permitted to obtain information voluntarily from a third party without a court order. In 2004, production orders were included in the Criminal Code to allow police to obtain a court order that would compel a third party to provide information in situations where the third party could not or would not do so voluntarily.

I say “could not or would not” here because companies have obligations regarding the protection of information. Companies that collect the personal information of Canadians have to store it, use it, and disclose it in accordance with privacy legislation, such as the Personal Information Protection and Electronic Documents Act. In addition, they may have other relevant obligations not to disclose information, for example, pursuant to their contractual agreements with the customers.

It may also be of interest to note that most privacy legislation is crafted in a permissive manner when it comes to disclosures. This means that the legislation spells out when a company can voluntarily disclose information. In other words, the legislation permits the disclosure of personal information in certain circumstances but never requires it.

This is a very important point, because there have been concerns expressed that section 487.0195 is somehow creating a new power requiring companies to provide access to information. It is not a new power, it is merely a re-enactment of an existing “for greater certainty” clause, nor does it contain any requirement to co-operate with a request. Police can ask for the voluntary disclosure of information, but the third party is free to refuse to disclose it until a judicial warrant or order has been issued. The initial version of this “for greater certainty” provision was enacted in 2004 as section 487.014 of the Criminal Code. It was created to make it clear that there was no need for the police to obtain production orders when persons were providing their assistance on a voluntary basis as long as there was no prohibition against the person doing so.

To put it another way, the primary purpose of this provision was, and still is under the proposed section 487.0195, to clarify that police do not need a judicial protection order every time they ask a person for information.

To sum up on these points, section 487.0195 is not new to the Criminal Code. It has existed since 2004. It is not a power. By its very definition, it can only clarify what already exists in the law, and cannot be the source of new legal authority.

The explicit protections from criminal and civil liability now found in subsection 487.0195(2) of this “for greater certainty” provision have also been mis-characterized as a “get out of jail free” card or as a provision that will open up the flood gates and allow the free flow of information between the private sector and the state.

It is true that Bill C-13 proposes to amend the law to explicitly refer to the protections from civil and criminal liability when a person chooses to provide voluntary assistance to the police. However, this amendment would not be a major change to the law as it presently stands. The Criminal Code currently provides this protection under section 25, which is cross-referenced in the current version of this section, section 47.014. The cross-reference to section 25 in the law currently and the new text proposed in Bill C-13 are both designed to clarify that a person who discloses information could not be sued or prosecuted for voluntarily providing information that they are not prohibited from disclosing.

It should be noted, however, that the considerable case law interpreting the scope of the existing protections under section 25 is consistent in that it only protects conduct that is reasonable in the circumstances. This is not a blanket protection for assisting police. A telephone company that voluntarily provides information to police that they are legally obligated to protect, including under contract, could not avail itself of these protections.

To be clear, whether Parliament again legislates in this area or not, this protection already exists through the court's interpretation of section 25 of the Criminal Code. Including language in the bill that explicitly indicates more clearly the existing protections from civil and criminal liability in the current law is not a proposal for substantive change. It would make the provision more transparent and understandable on its face. This is not a significant development of the law in this area, nor is there any hidden agenda.

This provision is not expected to have a large impact on current practices. All it does is clarify and make more transparent the current protections. This clarification may help new companies that are just entering into co-operation with law enforcement for the first time to more easily be able to understand the scope of the law in this area. They would not have to hire lawyers to research the jurisprudence to understand how the protections afforded by current section 25 of the Criminal Code would apply in this context.

I will take a moment to speak about the other minor changes that are proposed for this section. Bill C-13 proposes to incorporate a reference to preservation demands and preservation orders into the section, to clarify that a person may also voluntarily preserve data, so long as doing so is not otherwise prohibited.

Bill C-13 also proposes to remove a reference to the public officer “enforcing this or any other Act of Parliament” from the current section 487.014 to ensure that the provision is not misinterpreted as precluding voluntary co-operation in the context of general policing duties that do not directly relate to the enforcement of a statute. Such common law police duties include contacting the next-of-kin of an accident victim, returning stolen property to its owner, or contacting the homeowner in the case of a break-in.

Police are better able to keep society safe and to investigate criminal activity when persons, groups, and organizations are willing to assist them. The purpose of the current Criminal Code section 487.014 and the proposed section 497.0195 of Bill C-13 is to ensure that police and the public can continue to work co-operatively. In the context of this provision, the proposed legislation does not provide the police with any new powers. The bill proposes small revisions to the current law, to make clearer in what circumstances the police do not require production orders if a third party voluntarily assists in a police investigation by voluntarily providing information.

I would add that the type of mis-characterization of the bill that we have witnessed by some commentators distracts from fruitful debate on the subject. This is an important bill, not only for what it provides Canadians in the form of increased protections on the issue of cyberbullying, but also because it provides police with an investigative tool box for modern technology that protects and respects people's privacy.

Canada's international partners have been using these kinds of updated tools for over a decade. These new and modernized investigative tools will not only give police access to the information and evidence they need to apprehend Internet criminals, but they will also assist police in addressing crimes generally in today's advanced telecommunications environment, where smart phones and computers are ubiquitous and telecommunications technologies are constantly evolving.

These tools have been carefully tailored to balanced the interests of the state in collecting vital evidence relating to the commission of a crime with personal privacy interests that Canadians value so profoundly.

Each tool was calibrated to reflect its relative level of invasiveness against the privacy interest in the information it is used to obtain. Although many of our international partners have had access to these types of tools for well over a decade, the extra time Canada has taken to enact these updates has allowed us to learn from the successes and failures of others, and I am confident that the investigative toolbox that Bill C-13 would provide police has incorporated the most sophisticated privacy protections for Canadians.