Justice Committee on May 1st, 2014

[Françoise Boivin, NDP, Gatineau, QC]

So it's only a partial element. I know you're not responsible for the titles of bills, but when I read

...“Protecting Canadians from Online Crime Act”...

in virtue of that very limited scope of distribution of an intimate image.... I mean, it's protecting, but it's not really doing everything to protect Canadians from cyberbullying. It's a limited aspect of cyberbullying, if I'm correct.

[Normand Wong]

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

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

[The Chair, Conservative, Mike Wallace]

Thanks for those questions, Madam Boivin. Thanks for those answers, Mr. Wong.

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

[Patrick Brown, Conservative, Barrie, ON]

Thank you, Mr. Chair.

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

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

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

[Normand Wong]

I'm sorry, I missed your last question since I was looking for.... But I am ready for the first question.

[The Chair, Conservative, Mike Wallace]

Well, let's answer the first one, and I'll allow him to ask you the second one.

[Normand Wong]

The provision on restitution in section 738 of the Criminal Code was amended. This provision will allow a person whose intimate image was posted on the Internet to apply to a court for the costs related to the removal of that image. If those costs aren't easily ascertainable, then the court can also order reasonable compensation for the removal of those intimate images.

[The Chair, Conservative, Mike Wallace]

Your second question.

[Patrick Brown, Conservative, Barrie, ON]

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

[Normand Wong]

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

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

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

[Patrick Brown, Conservative, Barrie, ON]

Yes, you did.

You touched upon the modernization of the code. One comment that's generally used in the context of the bill is that there already are a lot of tools within the Criminal Code and that the police already have a number of tools of their own. Could you comment on how the modernization and updating of the code helps in relation to terrorism, money laundering, and cable theft?

[Normand Wong]

You're picking up on some of the things that were mentioned by the media. In relation to terrorism there are some amendments to make the existing provisions consistent with other existing provisions.

Currently, from the Criminal Code, you can get the wiretap authorizations for up to a year in relation to organized crime or terrorism offences. So that timeframe was added to the number recorder warrant, which is being converted into the transmission data recorder warrant and the tracking warrant to make those consistent. That was done primarily because the tracking warrant and number recorder warrant currently are usually always obtained at the same time a wiretap authorization is obtained. Making the timeframes consistent means that the police don't have to constantly go back to the court every 60 days to make it go in line with the wiretap authorization.

In relation to cable theft, as the minister has mentioned, the theft of cable or telecommunications has been an offence in the Criminal Code since the 1970s. The only thing that we changed here is modernizing it, tinkering with the language to make it consistent with other similar or related provisions so that the courts would be able to interpret the scope of those provisions similarly and how they apply to persons who may commit those offences.

[Patrick Brown, Conservative, Barrie, ON]

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Brown.

Thank you, Mr. Wong.

Our next questioner is from the Liberal Party, Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

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

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

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

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

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

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

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

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

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

[The Chair, Conservative, Mike Wallace]

You still have time if you want it, Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

As part of these hearings, we're going to have a witness testify who I know you're familiar with. Dr. Michael Geist is the Canada research chair in Internet and e-commerce law. I'd like to get your reaction to this comment:

...organizations will be permitted to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law. This applies [to] both past breaches or violations as well as potential future violations. Moreover, the disclosure occurs in secret without the knowledge of the affected person (who therefore cannot challenge the disclosure since they are not aware it is happening).

Your response, please.

[Donald Piragoff]

I believe Mr. Geist's comments are in relation to Bill S-4, and I cannot comment on Bill S-4. It's not my area of expertise nor the Department of Justice's expertise. That is a bill of the Minister of Industry.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Casey.

Thank you for those answers.

The last questioner, for a couple of minutes, is Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair. I'll be quick.

Ladies and gentlemen, I wonder if you could tell us anything that you know about the investigation of the Amanda Todd case. I think we were all relieved to hear recently that someone's been charged, and I realize it's a matter before the courts, but my question is about the investigative powers.

I saw one report that suggested that information on the identity of the person who was intimidating Amanda Todd came through an American ISP provider, and then someone was identified in the Netherlands.

Can you tell us anything about the provisions in this bill that would enhance the police's ability to investigate that type of crime in the future? Obviously, we all wish this crime could have been prevented in the first place. Is there something that the Americans have that we don't have that this will fix? Can you comment on that?

Secondly, how will the provisions of this bill allow authorities to prevent in future the kind of intimidation that Amanda Todd suffered?

[Donald Piragoff]

Thank you.

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

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

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

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

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

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

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

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

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

[The Chair, Conservative, Mike Wallace]

Thank you very much for those answers.

Thank you for the question.

We are out of time.

Just so that the committee knows, next week we have four witnesses for our very first meeting on this. Two of them will be by video conference in the room that is available to us at 1 Wellington, so we'll be at 1 Wellington next week. Then on Thursday we will be back, I believe, on the Hill here with the Minister again for estimates, and then we'll be back to this study the week after that.

Thank you, by the way, to all the parties for providing their names, and we're working on putting the program together.

Thanks very much.

The meeting is adjourned.