Information & Ethics Committee on Feb. 22nd, 2021

[Normand Wong]

I will just add to what Marie-Claude said.

The definition of child pornography in the Criminal Code is among the broadest in the world. We protect children under 18. The problem, as Marie-Claude mentioned, is the age-difficult media. When there are secondary sexual characteristics, unless you're dealing with an identifiable person, it's very difficult for anyone to tell whether that person is above 18 or below 18, so a lot of that material is not captured. That's probably what Marie-Claude is talking about.

[Cathay Wagantall, Conservative, Yorkton—Melville, SK]

That's very disconcerting.

There has been a lot of talk about the issue around jurisdiction. Madam Arsenault, you're chairing the Virtual Global Taskforce. Is that correct?

[C/Supt Marie-Claude Arsenault]

Yes.

[Cathay Wagantall, Conservative, Yorkton—Melville, SK]

Thank you for your work.

However, I can't help but think there has to be a way with MindGeek to work together internationally—because this is an international issue—to provide that capability to have jurisdiction absolutely wherever you need it for something like this.

Why is that not something that has been being worked on internationally, or is it? What needs to be done in terms of Canada's responsibility in enabling us to get over that hurdle? Clearly, it's a method of avoidance.

[C/Supt Marie-Claude Arsenault]

Within the Virtual Global Taskforce, pretty well all the countries, or many of them, have similar challenges with jurisdictional issues. We are working on identifying all these law enforcement challenges. As part of the VGT, we have industry and NGOs that are our partners. We also work with other NGOs that have some influence internationally to advocate for some of the challenges.

Perhaps Mr. Wong could speak from the international side on legislative groups that are also looking at these issues.

[Cathay Wagantall, Conservative, Yorkton—Melville, SK]

Thank you.

I'd like to expand a bit, however, your comment that you're working on it internationally. I know of NGOs that have reported scenarios like this to me and said that as the police force, it's very difficult to function in this environment because you don't have the jurisdictional support you need. It's supposedly been worked on for a very long time, yet we have a situation here where we've had only 120 reports since 2020 and that type of thing.

What has been accomplished, or what is being done that it's taking so long to get any kind of co-operation internationally to deal with this horrific situation?

[C/Supt Marie-Claude Arsenault]

The co-operation is there amongst all international partners when it comes to the exchange of information, the exchange of intelligence, sharing our best practices, and so on. On the legislative side, our group of law enforcement does not have control in terms of changing the laws—

[Cathay Wagantall, Conservative, Yorkton—Melville, SK]

Right.

Mr. Wong—

[The Vice-Chair, Liberal, Brenda Shanahan]

I'm sorry, we have to stop you there.

[Cathay Wagantall, Conservative, Yorkton—Melville, SK]

If Mr. Wong could provide an answer in writing, I would appreciate that a great deal.

[The Vice-Chair, Liberal, Brenda Shanahan]

Yes. That's a very good idea, Mrs. Wagantall.

I now move to Madam Lattanzio for five minutes.

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you, Madam Chair.

Thank you for being with us today to provide us with essential information that will help us along, I hope, in completing this study. My questions will be for Mr. Wong.

There are specifically three areas that I'd like to hear you on. I understand that there are limitations with regard to the application of the law right now, and changes or amendments to it might be necessary so that we can address this issue. The first one is really the definition of child pornography, because I think that's what is posing a problem.

Number two is the question of jurisdiction. I heard you say that it implies the question of having the material on the server. What about the question of making the material available and distributed in different countries? Would the fact that the material would appear in a specific country make the material or the distribution and availability of that material in that country a question of jurisdiction, so therefore if it appears there then it would have legal jurisdiction to be able to try?

Number three is the question of onus of responsibility. We heard that there could be a defence in terms of ignorance, i.e., they didn't know until someone flagged it, or the responsibility has shifted over to the person who uploads. Wouldn't legislative changes in terms of shifting the onus of responsibility onto those who make this kind of material readily available, other than the victims themselves, be...? We heard the testimony of Ms. Fleites. It was heartbreaking to hear that she tried and tried and tried, with proof of identity and with a licence, and yet again the material was taken down very temporarily, only to reappear again and again and again—a repeated assault.

I'd like to hear from you on these three points. Thank you.

[Normand Wong]

There's a lot to unpack there.

The definition of child pornography in the Criminal Code is among the world's broadest. It's not only images that we protect against or criminalize the distribution of, but it is also audio pornography and two forms of written pornography.

I am not sure it's the problem of the law. The problem often is the application of the law, and how that works when the rubber hits the road. We heard Inspector White talk about the circumstances in which these things come up, and Marie-Claude was talking about how much evidence and proof there is in being able to follow up on an investigation.

In relation to the jurisdiction—and that's the more difficult part—Marie-Claude was talking about what we're doing internationally. Canada is involved in the negotiation of a second additional protocol to the Budapest Convention, and that's the only international convention that covers cybercrime.

In that convention there are specific provisions or articles on child pornography. There is the ability of the international community to deal with this, but that second additional protocol has to do with transborder access to data, because it's almost a universal problem among all countries trying to combat crime in this sphere.

Other work is ongoing at the UN right now with the negotiation of a new cybercrime treaty and also the Five Eyes, Ms. McDonald, in the previous panel, mentioned the voluntary principles that they're working on. Our largest partner, the United States, also enacted the U.S. CLOUD Act. That is another method of addressing the issue of transborder access to data. Canada is involved in all those aspects.

In terms of shifting the onus, there is a difficulty, and Mr. Angus was highlighting some of the issues about the person who wrote in about the difficulty of getting the material taken down off these sites. There is a lag in that. The problem with some of this material, like the revenge porn, is that someone has to be affected. It's very difficult to police a lot of the companies, because without a complaint, there's no way of distinguishing that revenge porn from something that is otherwise completely legal. There's always going to be a bit of a lag time. I think it was mentioned that Minister Guilbeault and Canadian Heritage are looking at the 24 hour takedown in terms of the online harm.

[The Vice-Chair, Liberal, Brenda Shanahan]

I'll have to stop you there, Mr. Wong.

We will conclude this round of questions with interventions from Ms. Gaudreau and Mr. Angus.

We will then continue in camera.

We're going to Ms. Gaudreau for two and half minutes.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Mr. White, you talked about the handling of complaints recorded in the reports.

Since I'm not familiar with this area, can you tell me what you need to have in hand for the complaint to be investigated? Can you give me a brief explanation of how the process works?

[A/Commr Stephen White]

I would ask Ms. Arsenault to review the steps that follow the receipt of a complaint.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Fine.

[The Vice-Chair, Liberal, Brenda Shanahan]

Ms. Arsenault, you have the floor.

[C/Supt Marie-Claude Arsenault]

At the triage stage, if we determine that it is a case that meets the definition of child pornography, in that a child is involved, we can treat it as a priority. Another determining factor is the complexity of the investigations. In many cases, the complaint also involves serious acts of violence.

In terms of the data we've been talking about, there are companies that don't keep information for long. So we have to decide on our priorities to get the information we need to support the evidence. There are a number of things we need to consider to help us prioritize cases for investigation.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

In terms of prioritizing—

[The Vice-Chair, Liberal, Brenda Shanahan]

I unfortunately have to interrupt you, Ms. Gaudreau.

Mr. Angus, you have two and a half minutes. Make it short and snappy, please.

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

Thank you for that, Madam Chair.

I want to go back to this issue of the fact that Parliament signed a law into place in 2011 on mandatory reporting for service providers. We understand that last year, in 2020, the RCMP received their first report. That's almost 10 years of no reports.

If, in that time, case X tried to come forward, case Y came forward and case Z came forward with issues of non-consensual or child abuse on that platform and nothing was done, the fact that they're reporting now to NCMEC, is that okay for the RCMP? Do you just say, “Well, that was then, this is now, and they're now complying with NCMEC” or do they have legal obligations that they failed to fulfill under the laws of Canada?

[D/Commr Stephen White]

When I referred earlier to the 120 reports that we received from NCMEC, that was directly related to Pornhub, to my knowledge. We have been receiving reports over the years since the mandatory reporting act—

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

I'm sorry. You've been receiving reports from Pornhub-MindGeek?

[D/Commr Stephen White]

[Inaudible—Editor] from Pornhub-MindGeek.