Justice Committee on May 1st, 2014

[Sean Casey, Liberal, Charlottetown, PE]

So, what would proposed subsection 487.0195(2) do, if that's the case?

[Peter MacKay, Conservative, Central Nova, NS]

Well, it is basically a re-enactment of the existing section, which has been renumbered primarily to accommodate the new preservation of production orders that are found in this bill. Its purpose is also to spell out, more clearly than in the previous version, that a person assisting police would be able to benefit from the protection that's offered by the Criminal Code. So, for those who voluntarily provide this type of information to assist law enforcement—if it's reasonable in the circumstances, if it's in compliance with the law, which it must be, including contract law and law that is governed by the protection of information that was provided—this is a re-enactment of that existing section. So, it is there for emphasis. I think, in simple parlance, because of the technical complexity of this bill and the very legitimate concerns that people have about the protection of their privacy, it bears that emphasis.

[Sean Casey, Liberal, Charlottetown, PE]

So, Minister, would you agree that Bill C-13 codifies an immunity for telephone companies from class action lawsuits when they cooperate with warrantless, but lawful, demands for documents?

[Peter MacKay, Conservative, Central Nova, NS]

If it is deemed lawful, then they should be immune from prosecution. But, to be clear, Mr. Casey, this bill would not create any new protection from any criminal or civil liability for anyone who would voluntarily assist law enforcement. It simply clarifies existing provisions and protections.

[Sean Casey, Liberal, Charlottetown, PE]

In the circumstances that I just described, the circumstances where you have a warrantless but lawful request made by law enforcement to a telephone company, do you agree that in those circumstances the telephone companies have no obligation to disclose to their subscribers that they have given this information to authorities without a warrant, albeit lawfully?

[Peter MacKay, Conservative, Central Nova, NS]

That really is an issue that is covered under the PIPEDA. It is really, as well, potentially an issue of contract law between the individual and the service provider, the company. But the provision provides protection for those who are voluntarily assisting police in an investigation, where such assistance is not otherwise prohibited by law. So, the element of protection, if you will, or immunity has to respect the common law provision of voluntary disclosure as well as any existing contractual obligations that may exist. It must be done in a way that complies with section 25 and this other section that you're referring to, 487.

[Sean Casey, Liberal, Charlottetown, PE]

While we're on the subject of PIPEDA, you're undoubtedly aware, Mr. Minister, that presently before the Senate is BIll S-4, which proposes some changes to PIPEDA and will actually relate to the section that we are presently discussing.

[Peter MacKay, Conservative, Central Nova, NS]

Bill S-4 amends PIPEDA. It's currently before the Senate and—

[Sean Casey, Liberal, Charlottetown, PE]

Let me finish my question, if you would, please.

One of the things that Bill S-4 would do is to expand the parties to whom telcos can, on a secret and warrantless basis, provide information. Right now, the only people that telcos can provide this information to are law enforcement authorities. This will broaden it, is that right?

[Peter MacKay, Conservative, Central Nova, NS]

I would not necessarily agree with that. Persons who disclose personal information without a warrant must do so in accordance with PIPEDA, and the Criminal Code does not compel unwarranted disclosure of personal information. What paragraph 7.(3)(c.1) of PIPEDA talks about is an order by a government institution or part of a government institution that has made a request for the information, and has “identified its lawful authority to obtain the information”.... There are repeated references to the necessity for lawful authority.

[Sean Casey, Liberal, Charlottetown, PE]

I don't dispute that—

[The Chair, Conservative, Mike Wallace]

Very quickly.

[Sean Casey, Liberal, Charlottetown, PE]

—but perhaps I haven't framed....

Here's what I'm putting to you, Mr. Minister. Right now, the only people who can avail themselves of the warrantless powers of voluntary disclosure are those in law enforcement agencies. Bill S-4 would allow anyone who's investigating any breach of contract from any organization, whether private, public, government or not, to avail themselves of that power.

[Peter MacKay, Conservative, Central Nova, NS]

I come back to the fact that it has to be done in compliance with the criminal law, it has to be done in accordance with PIPEDA.

[Sean Casey, Liberal, Charlottetown, PE]

We agree on that.

[Peter MacKay, Conservative, Central Nova, NS]

I'm not here to discuss Bill S-4. Even if I were, we don't have that legislation in front of us here. So I'm not going to get into the provisions of a bill that we're not here to discuss.

[Sean Casey, Liberal, Charlottetown, PE]

They fit together.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Casey, for those questions. Thank you, Minister, for those answers.

Our next questioner is from the Conservative Party, Monsieur Goguen.

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

Thank you, Mr. Chair.

Thank you, Minister, and the officials for coming to testify today.

I think most Canadians share with you the urgency of putting in place this important piece of legislation. I think of victims like Rehtaeh Parsons, from your home province of Nova Scotia. Her family and many other Canadian families would certainly agree that something has to be done about a faceless bully on the Internet.

In the context of cybercrime, of course, the preservation of evidence is always first and foremost. Without it there can be no prosecution and no conviction of those who are perpetrating the harm. We know that the working group on cyberbullying strongly recommended that the federal government enact investigative tools and procedures enabling law enforcement to keep pace with modern technology.

We've talked about some authority and some provisions that were already in place, but there are obviously new provisions. Could you highlight for us what the new data preservation scheme would be, Minister?

Thank you.

[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.

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

Thank you, Minister.

To take up on something Madam Boivin was saying, by and large the most essential parts of this bill have been well accepted by Canadians. It's pretty obvious that putting nude photos on the Internet and distributing them without somebody's consent is certainly something that's wrong and should be curtailed.

Some of the provisions that have attracted some media attention relate, for instance, to cable theft, which quite frankly I thought would have been covered already in the Criminal Code. Could you comment exactly why this has been added into this bill, cable theft being an example that comes to mind?

[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.

[The Chair, Conservative, Mike Wallace]

Thank you for those answers, Minister.

Our next questioners are from the New Democratic Party.

Mr. Jacob, I'll let you know when you've used up three minutes because I understand you'd like to share your time.

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

Thank you, Mr. Chair.

Mr. Minister, thank you for being here this afternoon.

I would like to share my time with Ms. Boivin, as the chair indicated.

My first question has to do with clause 27 of the bill, which deviates from traditional common law and sets out that the prosecution may compel the spouse of the person accused of distributing intimate images to testify.

Is that provision still necessary? Is it redundant, given that Bill C-32, Victims Bill of Rights Act states that the prosecution may compel the spouse of the accused to testify in the case of any offence?

[Peter MacKay, Conservative, Central Nova, NS]

That is a good question. I would like to clarify that Bill C-32 on the Victims Bill of Rights has not yet been passed; it is currently being studied by the committee. I introduced this bill so that we can ensure that all the evidence is before the court in the case of prosecutions.