Justice Committee on Feb. 25th, 2013

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, I will call the meeting to order. This is meeting number 60 of the Standing Committee on Justice and Human Rights.

Just before we go to the orders of the day, I will let you know that Bill C-55 is in the House today. It's going to come here quickly, so I thought we would have a subcommittee on agenda in the last half-hour of Wednesday's meeting. We'll put that aside so we can make some adjustments to what we had planned due to government legislation coming to this committee.

Today the orders of the day are pursuant to the order of reference of Wednesday, June 6: Bill C-273, An Act to amend the Criminal Code (cyberbullying). The author of that private member's bill is the Honourable Hedy Fry. The member is here to discuss her bill. We have her for the first hour.

The floor is yours, Ms. Fry.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Thank you very much, Mr. Chair and colleagues, for the opportunity to present to you Bill C-273, which is my private member's bill that seeks to clarify in the Criminal Code where cyberbullying is an offence.

I want to begin by thanking all of you, from every political party, who have supported my bill, as well as people like members of the Canadian Teachers' Federation and the Canadian Association of Police Boards, along with Jer's Vision and other groups that have supported the bill.

I want to clear this up right away. This bill does not add any new section to the Criminal Code. It asks that the sections of the Criminal Code be clarified to include communication by means of a computer under the areas of criminal harassment, false messages, and defamatory libel. Currently those three sections of the Criminal Code actually pertain to every single type of communication, whether newspapers, letters, telegrams, cable and television, telephones, or radio. All of those modes of communication fall under those three areas of the Criminal Code. The only one that doesn't—and that's because it's a new segment and the Criminal Code never brought itself up to speed on it—is using a computer as a means of communication.

All of these things are already there. I'm just asking that we add using a computer, because in theory the only thing that is actually protected, out of all of the communication means, is a computer. Every other means of communication was there.

I just wanted you to know that there have been a couple of misconceptions during the debates and so on about the bill, and I want to take those on right away. First and foremost, I was told that the reason this bill should not be considered was that the Senate was studying the issue of cyberbullying and therefore we should wait. We have seen the Senate report now. Actually the Senate report does not clarify anything. The Senate report actually only looks at talking about a task force, but it does mention certain areas that I'm trying to bring forward in my bill. I'll get to those in a minute.

The second misconception is that this bill is trying to criminalize children.

The third misconception—not misconception, but comment—is that more aspects of the Criminal Code than are currently there should be added, not simply those three areas: criminal harassment, false messages, and defamatory liable. In fact, it was the government, when it made its speech at the first reading, that suggested we should add other areas that currently do not include computers.

Lastly, I want to support anyone who has ever said that what we really need is an anti-bullying strategy that is comprehensive, that takes on all three levels of government, the private sector, NGOs, etc., and that deals with prevention and moves on to clarification under the Criminal Code and to assisting victims of bullying, etc.

I see cyberbullying as a public health issue, really, because it causes harm to others. It causes increased amounts of morbidity. People who do have depression are very prone to suicide under cyberbullying. So this strategy needs to be broadened eventually, but that doesn't mean the bill shouldn't be put in while we wait however many years it will take to come up with a conscientious strategy.

I just want to talk about the Senate's report. The Senate mentioned in its report that there is a need to study the issue further—which means, as we well know, that it will take another two or three years—and that we need to define what cyberbullying means. I thought the Senate would define cyberbullying, but it didn't.

Second, the Senate report highlighted witnesses' testimony stating that the sections of the Criminal Code dealing with harassment, which is what I'm talking about, effectively do not include electronic means of communication, which is what I'm asking for them to do.

The Senate report recommended that restorative justice initiatives be a key component of any coordinated strategy. I agree with that as we look down the road at developing a coordinated strategy. But the question is, as we wait to put all the i's and all the t's in place, while we dot them and cross them, how many people will be harassed? How many people would see their mental illnesses actually precipitated even further, and how many people could die? I am not being melodramatic here. We know that people have committed suicide as a result of cyberbullying. I think we should really take that into consideration in terms of timeliness of this issue.

Now, I've heard from a number of people that this bill will criminalize children, and that kids must be kids. Well, look, we all know the saying that “sticks and stones will break my bones but words will never hurt me”, and we all know that words hurt. We've seen bullying in schools: you push and you shove, and you call names, etc.

One of the things that differentiates cyberbullying from that kind of bullying—and I have been told so by many people who have been cyberbullied—is that if you're being bullied somewhere, you can leave. You can go home. You can get away from it all. You can have your friends and your family and all kinds of people to support you. But this isn't true about cyberbullying; it follows you into your home. It follows you into your computer. It follows you wherever you go, so that you cannot get away from it.

The other thing we say about bullying is that the best revenge is to grow up and be successful, and that tells everybody that when they bullied you they were really being ridiculous. That doesn't happen with cyberbullying. The thing about cyberbullying is that it never stops. What was said about you when you were 10 or 16 or 20 or 30 remains there in cyberspace forever, to be Googled about you when you're 90. Even after you've died, it is there about you.

If it's a false message and if it's criminal harassment, then it really defames your character, to the extent that it can harm your ability to pursue your own career and your ability to be successful in whatever you do. It shames your family, and it creates the kind of harm that you can't run away from anymore, as you used to do when somebody said bad things about you.

The reason we have sections in the Criminal Code dealing with criminal harassment, false messages, and defamatory libel is that we know those things are harmful. What I'm saying is that adults are also victims of cyberbullying, not just children.

When bullying crosses the line from just having mean things said about you to become a criminal act, such as criminal harassment, false messages, and defamatory libel, then it becomes a criminal matter, and the court treats it that way. If you use a telephone to do it, if you use television to say it, if you use a telegram, if you print it in a letter to the newspaper, or if you send it to someone in the mail via a newspaper, the courts and the police are able to track who sent it and where they sent it. They're able to get the telephone companies, the stations, and the newspapers to say exactly who sent that letter.

You cannot do that with a computer. One of the things about the computer today, while it's a good thing and we all applaud the digital medium and how it has really changed the world...the point is that it is anonymous. It's the anonymity that has allowed people to stray from simply saying nasty things to moving forward into sometimes crossing the line to criminal activity. This is where we're looking at dealing with it: when it crosses that line. Right now, you can't tell who's doing that and who is sending the message, but you could if they had used any other means of communication.

I want to talk a bit about this happening with adults. We need look no further than right here in Ottawa, where a woman, Ms. Katz—and this is open information, so I'm not giving you private information—was cyberbullied because she tweeted a bad review of a restaurant. The owner of the restaurant went on to impersonate Ms. Katz, so there is identity fraud involved there in e-mailing her boss and creating an online dating profile for this woman. Of course, she took it to court because she could, and it was obvious who was doing it; there was no anonymity there. It was the restaurant owner. The restaurant owner was convicted on two counts of defamatory libel and sentenced to two years in prison.

Justice Lahaie stated at the time that Ms. Simoes, who is the person who did the bullying, “was vindictive, vicious, and highly personal” in her “anonymous attacks against Elayna Katz” and that they were “akin to cyberbullying”. The judge said, “Cyberbullying of this nature can drive people to more tragic consequences than what happened here.” Justice Lahaie went on to say, “Unlike graffiti”, cyberbullying “can never be fully washed away.” I've heard this from a number of people, of whatever age. Young people have told us they cannot escape it. Young people have said this follows them through their lives as they get older.

We know that someone can cyberbully in the workplace. You and that other person are going up for some sort of promotion and competing against each other and suddenly there are anonymous things to the boss, with someone saying things about you that aren't necessarily true.

It not only happens in the workplace; it also happens in the House of Commons. We've seen it here, in the House of Commons, where someone decides it's okay to defame or to libel or to spread false messages causing harm.

We saw it in the case of Amanda Todd in British Columbia, where the actual bullying was not simply bullying but criminal harassment. It in fact affected her life, and she committed suicide.

Rebecca Marino of British Columbia was a very promising tennis player. She suffered with depression, and she was cyberbullied. People said that she should be killed, that we should get her. People said negative things about her. It increased her depression, and in fact she has now quit. She has closed down any computer and social media that she had. She has quit tennis. And she was carded; she was a seeded player in the world.

Now, at second reading of this bill, I heard the Parliamentary Secretary to the Minister of Justice say that we need to see more sections, not just the three, clarified. He named, for instance, section 264.1, uttering threats; section 266, assault; section 271, using the computer for sexual assault; section 346, extortion; section 403, identity fraud and impersonation with intent, as we saw with this other lady here; and section 423, intimidation.

This is an issue that goes beyond partisanship, and I hope we can all work together to make this happen.

Mr. Chair, if you can give me one more minute, I'd like to address the concerns around a comprehensive strategy. I agree with this; I think we need to talk about this as a secondary event that we should get on and look at in terms of a comprehensive ability to deal with other levels of government, NGOs, private sector workplaces, etc., to deal with the issue of cyberbullying. This bill was never intended to deal with any of those things; it was just to look at the issue immediately that was causing a lot of harm to people and costing them their jobs and their lives.

I just want to say that the anonymity of the Internet is a problem here in its ability to shield the identity of the person who is doing these criminal activities. It has led to a viciousness not normally seen in face-to-face bullying. Let's not forget that anyone can be a bully, especially if you have anonymity to hide behind.

Finally, this bill presents a logical and important step towards ensuring that bullies who pursue this brand of criminal activity and online cruelty and harm to individuals are appropriately punished and recognize the seriousness of what they do when they cross the line.

Thank you very much, Mr. Chair.

[The Chair, Conservative, Mike Wallace]

Thank you, Madam Fry. That was an excellent presentation of your private member's bill. I have seen other members come forward, and you certainly know your bill very well, which I appreciate.

We'll go to questions now. Members have five minutes each.

Madame Boivin from the NDP will be the first to ask questions.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I would like to thank our colleague, Ms. Fry, for presenting Bill C-273, which would amend the Criminal Code. It deals with cyberbullying.

I would like to publicly say that I appreciate the work you are doing. For our colleague, Dany Morin, from Chicoutimi—Le Fjord, the entire multi-faceted issue of cyberbullying is also extremely important. As you said in your presentation, it is not necessarily the easiest thing to resolve. I do not think that Bill C-273 will stop cyberbullying, but it is certainly a step in the right direction.

In the letter you distributed on January 30, 2013, to support your bill, you said that the bill was going to be studied by the committee. You alluded to comments made by our colleague, Mr. Goguen, the Parliamentary Secretary to the Minister of Justice. According to him, it was perhaps…

a little narrow in scope.

You claim you are quite ready to amend your bill. But with respect to the provisions you mentioned earlier, I would like to know if you actually intend to amend it. Things are going to unfold quite quickly here. There is today's meeting and the one on Wednesday, during which we will meet with representatives from the department, and then we will start the clause-by-clause review. So I would like to take advantage of your being here as a witness to ask whether you intend to include section 423 of the Criminal Code, on bullying, in your bill, as well as sections 403, 264, 266, 271 and 346.

What do you intend to do?

[Hedy Fry, Liberal, Vancouver Centre, BC]

I am very open to amendments.

What I'm trying to identify here is that there's a time when cyberbullying crosses that line from simply calling you names to moving into these areas that are identified in the Criminal Code as criminal activity and that apply to every other means of communication except the computer. I think this levels the playing field; it says all modes of communication are equal.

I would prefer if someone on the committee—and I understand that my colleague, Irwin Cotler from the Liberal Party, is going to bring forward amendments that would cover those areas that were suggested by the parliamentary secretary. I'm very open to that. I would prefer that the committee bring forward the amendments rather than me. If no one does, I will bring in those amendments.

[Françoise Boivin, NDP, Gatineau, QC]

Have you verified if it is within the scope of your bill, so that we don't defer it? Either we adopt the bill without the amendments or.... I wouldn't want to see it start

…"chirer", as we say in French, the fact that amendments were presented that then create problems.

Have you made any verification to determine whether it properly respected the scope of the bill?

[Hedy Fry, Liberal, Vancouver Centre, BC]

Yes, I would suggest it is within the scope of the bill, as the parliamentary secretary said. After we heard his speech, we went to the Library of Parliament and asked them to clarify. The intent of the bill was to expand measures within the Criminal Code to cover computers and to clarify those measures, and then those measures will all fall within the scope of the bill. In theory, when cyberbullying crosses the line from bullying into criminal activity, we are applying and expanding this to this mode of communication that's been left out.

[Françoise Boivin, NDP, Gatineau, QC]

May I ask why you didn't think of adding those when you created the bill? They seem pretty obvious to me.

[Hedy Fry, Liberal, Vancouver Centre, BC]

This bill was brought forward about five years ago and kept falling off the table as we ran into different elections.

The point is that at that time I had worked with groups such as the Canadian Teachers' Federation, academics, and others. We looked at that point. We felt if we broadened it too much it might run the risk of not moving forward.

Again, the arguments have been made since my bill came out in the public eye that it would improve the bill. I'm glad to see it improved.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Mr. Wilks, from the Conservative Party, you have five minutes.

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

Thank you, Mr. Chair.

Thank you, Ms. Fry, for your testimony today.

I want to go over a couple of things under section 264 and then section 298, but more specifically section 299 of the code. I'd like your comments on that.

In paragraph 264(2)(b) it says “repeatedly communicating with, either directly or indirectly, the other person or anyone known to them”. There's no definition in the Criminal Code of communicating, so it's an open-ended definition. It could already mean that it could be a computer, the Internet, Twitter, Facebook, or whatever it is, because communicating is not defined.

Further to that, under section 299—and you referred to section 298, with regard to defamatory libel, but section 299 is publishing—it says:

A person publishes a libel when he

That probably needs to be amended to be “he or she”.

(a) exhibits it in public;

(b) causes it to be read or seen; or

(c) shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by the person whom it defames or by any other person.

Without the definition of communication, to me it would imply that this does mean the Internet, Facebook, or Twitter, because there is no definition of communication.

Can I get your response to that?

[Hedy Fry, Liberal, Vancouver Centre, BC]

Yes. Currently under the Criminal Code, police and other people investigating any criminal libel, defamation, or criminal harassment, etc., are able to go to a telephone company—because there is a section that discusses other methods of communication—and ask them to disclose where it came from, even if the person doing it has no listed number, and they're bound to do that.

Newspapers can say exactly who wrote the letter and sent it to the newspaper. There are ways of tracking it.

This has not been very successful. In the case of Amanda Todd, for instance, even though the police were trying to track the criminal harassment and the person who criminally harassed, they didn't have all the powers to do it. That's why the police boards are supporting my bill. They feel they don't have the correct tools. While the law is vague in mentioning what it means by communications here, it is also quite specific in certain areas of communications. But it's not specific with regard to the computer. Therefore, you have to go to ISPs and ask them to disclose, and this has been very difficult to do.

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

Furthermore, with regard to section 2 of the charter, and specific to paragraph 2(b)—and for those who have a code, it is on page 1806—it refers to Regina v. Keegstra, in 1990. The ruling at the time was:

...the level of protection to which expression may be entitled will vary with the nature of the expression. The further that expression is from the core values of this right [as with the offence of defamation] the greater will be the ability to justify the state's restrictive action.

That was also followed with Regina v. Lucas.

Is there a concern by you, or have you thought about the possibility, that the Canadian constitutional perspective with regard to paragraph 2(b) may be prone to being overreached?

[Hedy Fry, Liberal, Vancouver Centre, BC]

No. We've seen very clearly how the courts have interpreted the difference between freedom of speech that crosses the line to hate and that causes harm. Right now, if you print an article in the newspaper that is libellous to me, I can seek justice in the courts because there is a limit to freedom of speech in a free and democratic society.

In fact, I have just come back from Vienna, where the Organization for Security and Cooperation in Europe was defending the right to freedom of speech. But it did add that when freedom of speech crosses into hate or becomes libellous, etc., there are ways in which courts can define this so that it will not cause harm. It was very clear that everyone was concerned that every other method of communication in many western European countries and democracies is clearly defined, but under the digital world it isn't. People were talking about finding a way to look at how we define that kind of extraordinary freedom within the digital world because of its very anonymity.

That was a very interesting discussion; it took a whole half day for people to get around it. We had huge media experts and legal experts there who were talking about freedom of speech in a democratic society and about its absolutism, when it reaches a point where it crosses a particular line.

I would hate to see freedom of speech and freedom of expression in any way curtailed in our society, but I do think that when people commit suicide as a result of it or it spreads into these criminal areas, which you cannot now do using normal means of communication....

We have one area of communication that's brand new and that no one has really defined and sewn down and tacked onto.... Basically, the digital world is working in a free and open environment.

[The Chair, Conservative, Mike Wallace]

Thank you, Ms. Fry.

Thank you, Mr. Wilks, and welcome to a permanent position on this committee. Thank you for your contribution.

Now, Mr. Casey from the Liberal Party.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chairman.

Welcome, Dr. Fry.

My first question relates to your motivation behind the bill. I haven't been around here very long, but the private members' legislation that's been introduced in my time generally is motivated by a desire to make some sort of a public statement or to create public awareness, or by a desire to plug a loophole. If that's your motivation, would you anticipate more prosecutions or convictions as a result of this bill?

The third category would be a response to a specific incident. I suppose in this case it could be the Amanda Todd case.

Could you expand a bit on your motivation and whether it falls under one of those categories, or is the grand goal actually something else?

[Hedy Fry, Liberal, Vancouver Centre, BC]

Actually, I'm hoping we won't see more prosecution as a result of this bill. I'm hoping that in some ways it can be a deterrent. If people believe there is a line they can cross from bullying into criminal activity, they might stop to think.

This came to my attention way back when I was a physician and I saw people who were depressed or who had been harassed through the computer. It's happening more and more now that we have social media. I had to help them with suicidal ideation and the decision that they wanted to die because they couldn't stand it anymore. This particular type of harassment followed them wherever they went and they could never escape it. I think that is one of the things that prompted me to do it.

Then, of course, the Canadian Teachers' Federation came to me and talked about the extreme rise in cyberbullying and the inability of the schools to even deal with this issue because they can't pinpoint who it is. Then there was the Canadian police board and the many academics I asked about this question—psychologists, etc., and people who are criminal lawyers and who deal with the Criminal Code—who felt there was this grey area that covered the issue of digital media and that did not clarify certain things. So I'm seeking to clarify, really, with my bill.

[Sean Casey, Liberal, Charlottetown, PE]

You said in your opening remarks that you see this as necessary, but it shouldn't be seen as a strategy, and that a strategy is needed. What, in your view, would be the key elements of a bullying/cyberbullying/anti-bullying strategy?

[Hedy Fry, Liberal, Vancouver Centre, BC]

The first key element of a strategy would be prevention. So it would be public awareness. It would be all of those things that we see people currently beginning to do. It has to be coordinated, in that various levels of government have various jurisdictions over certain of the pieces that are needed to put this puzzle together. So it has to be pan-Canadian, pan-governmental, and there have to be NGOs and academics and schools, etc., that will move into this so that it isn't one jurisdiction only. But I'd like to see, first and foremost, public awareness of the problem and the danger that bullying as a whole carries with it, as well as the sort of grey area of cyberbullying.

Secondly, I'd like to see preventative programs move forward and become real, in society and within schools, etc., based on the jurisdiction under which it falls.

Thirdly, I would like to see us look at how we could deal with the victims of this kind of bullying, or of bullying of any kind. I'm going to think that the victims have a two-pronged hat. Many studies and psychologists and academics have found that in fact people who bully are themselves victims. In other words, they began to be bulliers because of a sense of powerlessness, because at some point in their life they were bullied, were made to feel small, made to feel inferior, made to feel that they were powerless. Bullying is about power, so they tried to take power over others whom they saw to be weaker than they were. We need to deal with that component of it.

Then, of course, there is the problem of victims who are prone to suicidal ideation or who are prone to harm as a result. So there would be civil areas that we would look at, as well as criminal areas. In any strategy, I'd like to see a way of enforcing the strategy and a way of prosecuting those who have crossed the line into criminal activity, and some sort of way of getting society to be rehabilitated with regard to understanding how we use tools of communication in a totally different way.

[The Chair, Conservative, Mike Wallace]

Sorry, Mr. Casey, that is your time, but thank you very much.

Our next questioner from the Conservative Party is Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you, Ms. Fry.

You touched on the question of freedom of speech, and that's what I'd like to deal with.

I note that your bill is going to address cyberbullying by amending three offences, and of course you know them well: criminal harassment, section 264; defamatory libel, section 298; and false messages, section 372, as well as indecent phone calls, of course, covered by section 372. The criminal harassment and defamatory libel provisions would be amended by clarifying that these sections apply to conduct engaged in through the use of a computer. You've heard Mr. Wilks' questions. It's probably already covered in the Criminal Code, but, in any event, the Internet would be included. Of course, there's a more substantive change in section 372, to the extent that the scope of enumerated offences would include, by definition, computer system use or electronic communications.

There are a couple of learned professors who take issue with the criminalization of cyberbullying. They're Professor Lyrissa Lidsky and Andrea Pinzon Garcia of the University of Florida, Levin College of Law. They argue that criminalization of cyberbullying poses a threat to freedom of speech. I'm wondering if you could expand on your ideas on this. From a Canadian perspective, do you think that criminal cyberbullying laws are overreaching in such a way that they offend the charter?

[Hedy Fry, Liberal, Vancouver Centre, BC]

No. I answered that question from Mr. Wilks earlier about the charter. I think in every democratic society we have to find that balance between having freedom of speech or freedom of expression and inflicting serious and severe harm. That's where the Criminal Code has defined certain elements on which freedom of speech infringes, things like hate speech. We know clearly that there's a definition of hate speech, and we know clearly that there is a definition of criminal activity using speech or communications within which to exercise that. So no one, especially people like me.... I'm a Liberal, and I very much believe in the charter, and I very much believe in and agree with freedom of speech and freedom of expression.

As I said earlier on, I like to think that if you ask 10 doctors for a diagnosis, you'll probably get 14. I like to think that if you ask 20 academics for an opinion on anything, you will probably get about 40 opinions. So we all know that it's something in which an opinion is an opinion is an opinion. I have consulted with many academics who have given me another opinion.

I notice on your list of people who are going to be witnesses that in fact a couple of them will tell you why. The police are also saying that they need tools, and that it's very unclear under the law, because the law isn't clarifying this issue with regard to what tools they have and do not have. Nobody is suggesting that police should have the freedom to investigate anything or everything, but they really wanted clarification themselves, because they need to have certain tools in certain areas. The case of Amanda Todd was one example in which they didn't have the tools they needed to deal with the issue of criminal harassment. It wasn't bullying; it wasn't the people who were saying things about her; it was a person criminally harassing her, and they were not able to get to the bottom of that.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

You'd agree, I trust, that we guard our constitutional rights very jealously, and we obviously wouldn't wade into unchartered waters and erode our constitutional rights if there were other methods to do this.

You'd agree with that, I would take it.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Yes, but I would like to point out to you that the same charter would apply not only to a computer, or a computer as a means of communication, but also to a newspaper. It would apply to a television. It would apply to a telegram, a personal letter, a telephone call.

It does clarify those things, very clearly, without infringing on the charter, as you've seen before, on any of those means of communication. The one that is not clarified is a computer.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

When I was recently in my riding, I was talking to Constable Butler, an RCMP officer who is dedicated to the high schools. He deals day in, day out with cyberbullying, and I talked to him about your bill. He reviewed it and said, listen, a lot of this stuff is already covered in the Criminal Code, and quite frankly this is overkill. If anyone took and read the fine print of the Internet agreements.... If it were determined that anyone was bullying by the Internet, it would be very, very simple to cut off the service of the person who was bullying. And you can well imagine in the world of a young person, whose life revolves completely around the Internet, how their world would be crushed.

Wouldn't that be a more effective way of stopping cyberbullying, where most of these elements are already in the Criminal Code, without infringing on the right of freedom?