Justice Committee on May 1st, 2014

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

Could the prosecution also force the spouse to disclose communications made during the marriage?

[Peter MacKay, Conservative, Central Nova, NS]

I think your question about private communications is not covered or contemplated. We're talking about evidence that they would offer specific to the criminal offence that would be of value and relevance to the charge, whatever that charge might be. So private communications between spouses I don't believe are compellable under this particular section.

[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]

The short answer is yes, mais oui. I would note as well that we are the last of the G-7 countries not to have done so, and so I would consider this part of the enabling effort and encouragement for Canada to do so. We want to be on a par or at least equal to those countries. It's not enough to just sign. This demonstrates real action.

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

I will turn things over to Ms. Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Pierre.

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

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

[Peter MacKay, Conservative, Central Nova, NS]

In principle, I don't have difficulty with this. You're referring, I believe, and please correct me, to all forms of hate propaganda—

[Françoise Boivin, NDP, Gatineau, QC]

Yes.

[Peter MacKay, Conservative, Central Nova, NS]

—and anything that would perpetrate identifiable persons as a cause for hate or inciting violence, so in principle—

[Françoise Boivin, NDP, Gatineau, QC]

Then it would be in compliance with what has been adopted by the House of Commons anyway, Bill C-279, which is sleeping in the Senate right now like a lot of other bills.

[Peter MacKay, Conservative, Central Nova, NS]

That is correct, so hopefully this might awaken them from their slumber.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Minister.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Minister, I want to thank you very much for taking the balance of the full hour with us.

Our last questioner from the Conservative Party is Mr. Wilks.

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

Thank you very much, Mr. Chair, and thank you, Minister, for being here.

I want to go back if I may, Minister, to what Mr. Casey was speaking to because I must say I get a little perplexed when I hear the word “warrantless” and “police” in the same sentence because it's just not true.

Is there volunteer information provided that police ask for, and if it subscribes within the law; yes, that's exactly what's happened. It's volunteered.

The other thing I want to say, Minister, was as an author to a Part VI investigation, I completely agree with you that oversight is ramped up significantly as the investigation goes on, right to a Supreme Court justice.

One of the things I wanted to ask about was about proposed section 487.0194, which falls into proposed subsections 487.0195(1) and (2), and that is with regard to the preservation demand, form 5.001; the information to obtain a preservation order, 5.002; followed by the preservation order itself, 5.003.

Could you tell the committee how those correlate to 487.0194 and what they are meant to do for the police because we used to use a preservation order, all the time, prior to getting the warrant.

[Peter MacKay, Conservative, Central Nova, NS]

In that 30-second question you have really demonstrated, for all present and all tuning in, the complexity of this and the onerous requirements on police to not only understand the law but also to carry out their duties in a way that complies with not only the Criminal Code but other legislation including PIPEDA. I'll try to answer your question, and if I might say so it's great to have a practitioner here who will be taking part in this important examination of the bill. I commend you for that, Mr. Wilks.

What is a preservation demand? As you know, this is a legally binding request from law enforcement to be able to go out and seek to gather evidence, to seek to have that evidence prevented from disappearing, in the virtual context of the Internet we're talking about here. The new aspect of this, where you can ask at a minimum standard that evidence not be deleted, is what we're attempting to put in place here. To give the police the ability to say that until we're able to gather this evidence, you, the holder of this evidence, cannot make it disappear. Whether intentionally or otherwise, you cannot prevent us from taking a look at that important evidence that we feel will further our investigation. It may exonerate, which is another very real possibility in the examination of evidence.

What we're attempting to do here doesn't give authority to access the actual information. It simply says that we want you to preserve it, to hold onto it until such time, in most instances you can get that higher threshold of judicial oversight, that says now you can go in and look at the actual content of what may be there.

In old-fashioned terms, it's to prevent somebody from interfering with a crime scene. I believe it's meant to ensure that the data will exist when the police come back with the proper judicial authority to go further. It's non-renewable, so it puts a limit on the time in which police have to act, which is fair, and if authorities don't return within a certain amount of time, then the owner, the possessor of that material, has the right to do with it what they please. In fact, very often it may be erased or deleted.

Disclosure of historical information, court order, third-party involvement—all of this is covered, and it is on that standard of “reasonable grounds to believe”, which you are very familiar with.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thanks for those questions, Mr. Wilks.

Thank you, Minister, and thank you for spending the time.

The officials are going to stay until 1 o'clock for us. I don't know if they knew that or not, but there are some questions for officials only.

I'm going to suspend for about 30 seconds so the Minister can leave.

Thank you very much for your participation today.

[The Chair, Conservative, Mike Wallace]

I'm going to call this meeting back to order.

First of all, let me start with an apology. I always make the mistake of calling officials “staff”. I spent 13 years in municipal politics, and we called our officials staff. I'm still not used to calling the bureaucratic level “officials” here; I still call them staff so I apologize for that. I know I went right in to the minister so I didn't get a chance to introduce you before because I wanted to save time.

Mr. Piragoff is here. He is the senior assistant deputy minister in the Department of Justice. Mr. Wong is also here from the criminal law policy section, as is Madame Audcent, who is a senior counsel. We have some questions for you, and we're going to start with Madame Boivin from the New Democratic Party.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

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

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

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

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

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

What do you say to those people?

[Normand Wong, Counsel, Criminal Law Policy Section, Department of Justice]

Thanks for the question, Madame Boivin.

First of all, the offence is constructed in a way that the offence happens if intimate image is distributed without the consent of a person, or if the distributor is reckless as to whether or not that person consented to the distribution of that image.

[Françoise Boivin, NDP, Gatineau, QC]

What does reckless mean exactly?

[Normand Wong]

Reckless is not inadvertent; it's not by mistake or because you weren't paying attention. Recklessness is a subjective mental element in the criminal law, and it's where someone recognizes a substantial risk and proceeds anyway. For example, if someone finds a picture of their classmate online and they know this person to be a virtuous person and they've known them for many years and they know they probably would never have consented to the posting or distribution of this image, but they decided to re-post it anyway or to sent it to friends, that's recklessness, where there's a substantial risk of knowledge, but the person decides to proceed anyway.

[Françoise Boivin, NDP, Gatineau, QC]

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

[Normand Wong]

Again, this offence was constructed or modelled very much in the manner of the voyeurism offence. When you think of a voyeuristic picture, it could just be a nude picture of a person. On its face, it's not illegal. Unless intimate images are child pornography, on their face they are just legal pornography. If a service provider like Facebook or Google or whoever was dealing with this one, an ISP in Canada—Bell Canada or Rogers—found a picture like this, they would have no way of knowing it's an intimate image. There is a mechanism in the law that allows a person to make an application to a court for a judge to determine that it's an intimate image, and that judge can order that the image taken down if the image resides on servers in Canada.

[Françoise Boivin, NDP, Gatineau, QC]

Am I wrong to say then that

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

[Normand Wong]

It is limited. It's limited not only in relation to the definition of what constitutes an intimate image; it's limited in terms of the scope of who it might capture, too. It's not intended to capture the service providers who provide our telecommunications services.