Evidence of meeting #22 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was information.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Fahd Alhattab  Alumnus, Boys and Girls Clubs of Canada
Steph Guthrie  Feminist Advocate, As an Individual
David Fraser  Partner, McInnes Cooper, As an Individual
Marlene Deboisbriand  Vice-President, Member Services, Boys and Girls Clubs of Canada

11 a.m.


The Chair Conservative Mike Wallace

Ladies and gentlemen, I'm going to call this meeting to order. It's meeting number 22 of the Standing Committee on Justice and Human Rights.

As per the orders of the day and the orders of reference of Monday, April 28, 2014, we are dealing today with Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act.

We have three groups of witnesses here today. Here as an individual, we have Mr. David Fraser, who is partner in the law firm of McInnes Cooper. From the Boys and Girls Club, we have with us Marlene Deboisbriand, the vice-president of member services, and Fahd....

What's your last name, Fahd?

11 a.m.

Fahd Alhattab Alumnus, Boys and Girls Clubs of Canada

It's Alhattab.

11 a.m.


The Chair Conservative Mike Wallace

Fahd Alhattab is here with the Boys and Girls Club.

I want to thank Steph Guthrie for joining us by video conference.

Where are you from, Ms. Guthrie?

11 a.m.

Steph Guthrie Feminist Advocate, As an Individual

I'm hailing from Toronto today.

Hello. Thank you for having me.

11 a.m.


The Chair Conservative Mike Wallace

It's nice to see that the audio system is working.

We'll give each witness group about 10 minutes for their opening statement. Then we'll go around the table with questions for the next couple of hours.

With that, the floor is yours, Mr. Fraser.

11 a.m.

David Fraser Partner, McInnes Cooper, As an Individual

Thank you very much.

Thank you very much for providing me with the opportunity to speak with you and the committee today.

For the purposes of introduction, my name is David Fraser. I'm a partner with the Atlantic Canadian law firm McInnes Cooper, but I do need to emphasize that I'm here speaking as an individual. My comments and opinions shouldn't be attributed to my firm or its clients or other organizations with which I'm associated.

I've been practising Internet and privacy law for over a dozen years now. I've represented a range of clients over the years, including victims of cyberbullying, victims whose intimate images have been posted online, and I have represented and advised service providers.

Most notably, I was part of a team at my firm that took the case of a 15-year-old girl, a victim of cyberbullying, to the Supreme Court of Canada. This was the first time that the court had the opportunity to consider the phenomenon of cyberbullying, and the unanimous court came out very strongly to protect the interests of this victim of sexualized cyberbullying. But I've also advised people who have been accused of cyberbullying, and I hope that this experience from a number of different perspectives will provide this committee with some assistance in its very important task of considering Bill C-13.

First, looking at the bill as a whole, I'm disappointed that Bill C-13 combines two very different but related matters: the dissemination of intimate images on one hand, and law enforcement powers more generally on the other hand. Both aspects raise very important issues that merit close scrutiny, but we're seeing the debate about police powers as overshadowing the discussion about cyberbullying. That said, we do have one bill in front of us and I'm pleased to provide you with my thoughts.

It has been suggested that Bill C-13, if it had been enforced, could have saved Amanda Todd and Rehtaeh Parsons and other young people. That makes a good sound bite, but the world is much more complicated than that. The creation, possession, and dissemination of child pornography is and was a crime. So is the creation, possession, and dissemination of voyeurism images. So is extortion. So is criminal harassment. So is sexual assault. But that said, there is a gap that we should fill, which is the malicious dissemination of intimate images without the consent of the person depicted in them, regardless of the age of the person depicted in the image.

We need to be very careful about how we craft this offence, however. The current reality is that young people and adults, whether we like it not, take photos of themselves and voluntarily share them with intimate partners. Those digital images can easily be spread around without the consent of the person depicted. We want to criminalize the boyfriend who posts pictures of his ex-girlfriend online without her consent, the so-called revenge porn. We want to criminalize the actions of the person who forwards around images of current or former intimate partners. In each of those cases, the individual would know, or ought to have known, whether they had the consent of the person depicted in those images.

But we need to be cautious. We shouldn't inadvertently criminalize behaviour that's not blameworthy. Someone finds a picture online of someone naked—I understand there are pictures of naked people on the Internet—and forwards it to a friend. That person knows nothing about the circumstances in which the photo was taken. It could be a professional model. The photo could have been posted by the person in the photo herself. There's no way to tell whether consent was obtained, whether there was any expectation of privacy at the time that the image was created, and the individual, in this case the accused, would have no way of determining this, would have no way of contacting the person in the image to find out. So the real challenge arises when addressing third parties who do not know the person depicted in the image, nor do they have knowledge of those circumstances in order to figure it out.

The provisions in the bill use a recklessness standard, which in my view is too low. Recklessness applies where a person should have looked into it but decided to be wilfully blind. However, given the huge number of images online, it's not possible to look into it. This is especially important for online service providers, who have no way of knowing and no way of finding out the circumstances under which an image was taken or uploaded. We need to be especially attentive to crafting the law so that it will survive a challenge in the courts, and recklessness poses a risk of having a law struck down or making criminals out of people who are not truly blameworthy.

Turning now to the part of the bill related to police powers, the first one that I'd like to speak about is transmission data. Bill C-13 creates a production order for transmission data and warrants for transmission data recorders. It has been said that the purpose of the transmission data provisions of the bill is to extend the current police powers—which are coupled with judicial oversight, I'm very pleased to see—related to telephone information and move that over to the Internet age, the idea being without significantly altering the status quo, simply altering or modernizing what's already an existing police power.

While this may be a very reasonable objective, this must be done also very carefully, because transmission data in the Internet age is very different from transmission data in the traditional plain old telephone system. With conventional telephony, transmission data refers to the number called from, the number called to, whether the call was connected, and how long that call lasted.

In the Internet context, the amount of information that's included in the kind of out-of-band signalling information and what it reveals is dramatically different. It would include the IP address of the originating computer, the destination computer, information about the browser that's being used, information about the computer that's being used, information about the URL, the address being accessed, which can actually disclose content, even though the definition of transmission data is intended to exclude that.

It will also tell you what kind of communications are being done. Is it an e-mail communication? Is it an instant message? Is it peer-to-peer file sharing or otherwise? So it provides much more insight into actually what is going on than just phone number information.

An interception of transmission data would tell law enforcement agencies whether the target of surveillance was visiting a search engine, an encyclopedia site, a poker site, or a medical site. Furthermore, the data would provide greater insight into the likely physical location of the surveillance target. This is a dramatic expansion of the information that's provided and available, compared to traditional telephone communications.

As anybody in this room knows, I expect, the way we use computers today is dramatically different from the way we used telephones 15 years ago. We use them as spellcheckers. We use them to find out facts. We use them for a much wider range of activities. With the disclosure of greater information through these transmission data orders, you're revealing much more about an individual. Even though the definition excludes content, just the transmission data tells you a lot more about really what's going on.

I would suggest this can be fixed by either raising the standard from reasonable grounds to suspect to reasonable grounds to believe with respect to this data, or re-crafting the definition of transmission data, so we're sure that we are, in fact, paralleling what is intended, which is to take the telephony tool and move that into the modern Internet age.

I would also note that in all of these orders—again, I'm pleased that they're subject to judicial oversight and judicial approval—there is no mechanism in these for notifying the individual after the fact that their information has been accessed, which I think is something that happens with respect to wiretap orders. Certainly it happens with respect to search warrants. I believe that should be extended into this environment as well for these sorts of production orders.

Finally, I would touch very briefly on the issue of service provider immunity that's touched on within this statute. I find this to be gravely problematic. I think it's a very cleverly crafted provision. We're told that this is simply for greater certainty, but it goes beyond that. Everything we know suggests otherwise.

It says that you will not be liable for handing over any data that you're not prohibited by law from handing over, and if you do so you're civilly immune. Now, only the criminal law and other regulations create prohibitions against handing over information, but you can hand over information when you're not legally prohibited and still incur civil liability. Civil liability is there for a reason. I may not be legally prohibited from accidentally driving my car into yours, but if I do that, you're entitled to damages from that. I should be paying for the harm that is caused.

If there were an immunity provision that said you could not sue me if I did something that was not legally prohibited, that would be squelched. That would go away. So this provision, I believe, should be removed. It can't be fixed and will only encourage overreaching by law enforcement.

In conclusion, while we don't have Bill S-4, the digital privacy act, in front of us, that fits together with the immunity provisions. I'm concerned that the two taken together will extend the amount of information not only available to law enforcement but will extend the information available to other civil litigants and others. Although I understand it's not within the jurisdiction of this committee, I flag the fact that Bill C-13 and Bill S-4 do, in fact, fit together, and somebody should look at that interrelationship.

Thank you very much for this opportunity to speak with you today. The cyberbullying provisions are an important step forward and will, if properly tweaked, address this very serious problem. The rest of the bill needs to be very closely examined to ensure that it does what it is supposed to do and nothing more. It should be about providing the police with appropriate tools, with adequate thresholds and accountability, and judicial oversight, but not redrawing the line with respect to personal privacy.

I very much look forward to discussing this issue with you further. Thank you.

11:10 a.m.


The Chair Conservative Mike Wallace

Thank you, Mr. Fraser. Thank you for those comments. There will be questions, I'm sure, afterwards.

Next we will go to the Boys and Girls Clubs of Canada and Madam Deboisbriand.

The floor is yours. You can share your time however you wish.

11:10 a.m.

Marlene Deboisbriand Vice-President, Member Services, Boys and Girls Clubs of Canada

I'm going to hand my time over to Fahd, who is a youth from one of our clubs.

11:10 a.m.


The Chair Conservative Mike Wallace

The time is yours. You have 10 minutes.

11:10 a.m.

Alumnus, Boys and Girls Clubs of Canada

Fahd Alhattab

Fantastic. Thanks for having me, guys.

I'll give you some quick background about myself. My name is Fahd. I'm an Ottawa native. I've been here for about 16 years now. I like to say that I grew up at the Boys and Girls Club. I've been going there for about 10 years as a kid, and I started volunteering. Today I work there as both a volunteer and as a staff member. Thank you for having me here today at committee to speak about Bill C-13, the protecting Canadians from online crime act.

As some of you might know, the Boys and Girls Clubs of Canada are leading providers of quality programs for the healthy development of children and youth. Our association has 99 clubs and reaches over 200,000 children and their families in over 650 community service locations across Canada. So we're vast, and we really work with a lot of youth and really understand the issues that they're facing and the issues that we need to address.

Let me start off by saying that we very much welcome the action to address the harms of cyberbullying. We're concerned about the far-reaching consequences of cyberbullying and think that Bill C-13 is proposing to address one of the harmful manifestations of cyberbullying and the non-consensual sharing of intimate images.

Currently, young people who share intimate images of minors, and sometimes their own peers, are being charged with child pornography. We think this legislation is obviously more appropriate as a response than the use of criminal pornography charges. In this sense, we say thank you. This is a very positive step that Bill C-13 is taking forward.

We understand that Bill C-13 has also raised concerns on the respect of privacy. Young people deserve to be protected from cyberbullying, but they also deserve to be protected and respected for their privacy. Now, we're no experts on privacy, so our only recommendation on that is to encourage you to listen, obviously, to any concerns that are brought up, any considerations that are brought up, by the experts who are dealing with privacy, to make sure that we're protecting youth from cyberbullying but we're also protecting our children and youth and their privacy rights.

I have three main points that I'm going to bring up. Hopefully you can follow my train of thought; sometimes I ramble.

First, I want to talk about the importance of consulting with some of the youth that we work with. Bringing in legislation is great, but sometimes we have a different view on how the world of the Internet works for us and how it works for them. Second, to coordinate efforts across Canada, I'll be talking a bit more about the different legislation that's happening in different provinces. Unfortunately, the Internet doesn't really have borders. We have to take that into consideration. We also have to look at restorative justice versus criminal punishments.

I'll start with the first point, the consultation with youth. Young people are more connected. You all know this, and those of you who have kids. Young people are more connected that any generation before them. A recent study conducted by MediaSmarts actually polled 5,000 youth from grades 4 to 11 in the provinces and territories and found that youth in Canada have a universal access to the Internet: 99% of them have access to the Internet outside of school. We're digital natives. Twenty-four percent of grade four students have their own cellphones and that percentage increases to 85% by grade 11. The reality is they have access to everything and they're using it to socialize with peers. They're using it to find information. They're using it for sports, sexuality, and health. They're testing their boundaries, right? It's natural. It's a natural fit. So with the increased connectivity and the new social norms around electronic communications, young people are vulnerable to cyberbullying.

As David said, a lot of young people are victims of cyberbullying, and this bill will affect them the most. So my recommendation is that it is very important to speak to the youth and really understand where they're coming from and how they see that it will affect them on a very detailed basis.

To the second one, the desire to address cyberbullying has resulted in a patchwork of legislation across Canada. That really creates risks for children and youth confused about their responsibilities and rights, and the legal repercussions of their actions.

The Standing Senate Committee on Human Rights and the CCSO cybercrime working group both recommended that the federal government play a lead role in coordinating efforts to address cyberbullying, in part through a national prevention strategy, legal education, and digital citizenship. Whatever is decided and happens and moves forward, we argue that the leaders need to take charge, coordinate the message, and make sure that the federal government is playing a very strong role.

The government’s new campaign, Stop Hating Online, is fantastic. That's great. Those are the kinds of things we need. Taking the time to partner with organizations like the Boys and Girls Clubs of Canada, which serves 200,000 youth, would be even a bigger step, the next step forward. These campaigns are important. They really help what we're trying to do by educating young people and really moving them forward.

The last one is around restorative justice. We like to think we can educate our youth, but despite our best efforts the kids will break the rules. We were all kids. We work with them, or we have kids—I don't have any yet—but the reality is that's what's going to happen. You can imagine that to punish a sixth grade kid for pressing “send” on a cellphone and sending a picture that he received to a friend.... Giving him a legal punishment of child pornography doesn't seem logical to me. I know that many of you will agree with that.

What we've done is we have restorative justice programs. These foster responsibility in the wrongdoer and ensure accountability and meaningful consequences for the crime. The impulsive sharing of intimate images without consent, with no severe malicious intent, is perfectly suited for this type of intervention.

The Boys and Girls Clubs in British Columbia, Alberta, Yukon, and Ontario have been offering youth restorative justice programs for several years now with great success. In recent years we've actually been referred sexting cases.

The Ontario Provincial Police recently reached out to the Boys and Girls Clubs of Kawartha Lakes, to ask if they would partner with them to respond when youth are accused of sexting. The OPP will refer cases of youth between the ages of 12 to 17. The clubs' restorative justice program has been well established and has a very solid track record.

Similarly, Durham Regional Police Service refers sexting cases to the Boys and Girls Clubs in their area as part of the pre-charge program. The club has seen a few of these cases now, and prepares individual restorative plans for each case, because each case is different for many of the youth in how it ends up unfolding.

Obviously, as we know, education around this plays a big role, and it has involved educating minors about the consequences of sharing these intimate images and how sharing puts the recipient at risk of child pornography charges. As they come to understand this, their actions change and they understand the legal repercussions behind sharing these images.

As I said, a lot of our programs are very refined for the youth and very tailored to the youth, customized to them. The measurement sanctions are dependent on the severity of the offence. A lot of times we see young people who don't have the malicious intent but kind of go with it, and they end up having charges that are not adequate for them.

To summarize, let's protect the privacy of our children at the same time as we protect them from cyberbullying.

Let's consult with youth about the importance of this bill and how it affects them, and how we can ensure it protects them.

Let's coordinate our efforts across Canada to make sure that everyone is receiving the same understanding, and understand that the Internet does not have borders.

Let's take a restorative justice approach instead of a criminal offence approach.

Thank you.

11:20 a.m.


The Chair Conservative Mike Wallace

Thank you, sir.

Very good. Thank you for those comments. There will be questions in the next round.

Our final speaker for today is Ms. Guthrie, from Toronto, on video conference.

The floor is yours.

11:20 a.m.

Feminist Advocate, As an Individual

Steph Guthrie

Thank you for having me here today.

I'd like to thank my fellow witnesses, who both had really eloquent and valuable things to say.

My name is Steph Guthrie. I am a freelance feminist and digital strategist. For the last year I have been speaking and writing at length about the issue that Bill C-13 claims to tackle.

While the bill's name in the press is the “cyberbullying” bill, the more specific problem that I think is addressed by components of Bill C-13 is actually known as “revenge porn” more specifically, a term that I hate for both its inaccuracy and its sexualized sensationalism. Whatever you call it, though, we're talking about sharing sexually explicit images without the consent of the person or persons depicted. While some such cases might involve hacking, in many cases the subject actually consented to share the images with one person for private use, such as a sexual partner, and that person then violates their trust and shares the image with others, despite the subject's in most cases obviously implied expectation of discretion.

The crux of the harm that is inflicted here is the violation of informed consent. If I share an image with another person privately, that consent is not transferable. Had I known that the other person might later share the image with others, I would be unlikely to consent to letting that person access the image in the first place. So any consent I provide to a person accessing that image is pretty clearly contingent on them keeping it to themselves.

For me, informed consent is an integral part of privacy. Indeed, in her influential privacy by design framework, Ontario Privacy Commissioner Ann Cavoukian cites freely given and specific consent as a vital element of digital privacy. Cavoukian's principle can be applied to non-consensual intimate image sharing, which—let's be honest—is a really clunky and cumbersome way of describing what is ultimately cybersexual assault. A survivor of cybersexual assault did not provide specific consent for their image to be shared with others. The perpetrator simply treated their consent as transferable to any other use, any other disclosure.

As I'm sure some other speakers over the course of considering this bill will share with you, the results of this are devastating. It does mostly happen to women, although men are not immune, and it destroys their lives. The images follow them into their job interviews, on their first dates, and to the laundromat. In some cases the perpetrator of the cybersexual assault incites violence or stalking against the survivor, publishing their personal information and the dates and times of their professional engagements, encouraging their “fans” to make an appearance.

In any case, the assault constricts the survivor's ability to live life normally and comfortably because they are constantly living with the idea that the people they encounter in their day-to-day lives may know intimate things about them that they didn't consent to share. Even if the survivor knows they did nothing wrong, they still must deal with the judgments, misperceptions, and intrusions of others. For many survivors, their ability to move freely, safely, and happily in this world is limited.

I am fortunate to not yet have been attacked and tormented in this way, but I could be. It's common for authorities and the media to malign people who send so-called sexts as teenagers with poor judgment and poor impulse control. But that doesn't line up with reality. According to a Harris Poll in 2012, a full 40%—that's not a majority, but it was the largest percentage—of people who send these images are in the 18 to 34 age range; and 20% of all adults sext. In fact, a McAfee survey puts that number closer to 50%. I'm willing to bet that a lot more than 50% of us have trusted a romantic or sexual partner only to learn later that our trust was misplaced.

Cybersexual assaults can and do happen to a lot of us. When Rehtaeh Parsons died by suicide after months and months of torment from her peers and indifference from authorities following her own sexual assault, first in the flesh, then online, I heard Prime Minister Stephen Harper say: “...we've got to stop using just the term bullying to describe some of these things....What we are dealing with in some of these circumstances is simply criminal activity.”

While I join my fellow witness in favouring a restorative justice approach, at the time I was already a vocal advocate for legislation to tackle cybersexual assault, and was accustomed to hearing political and legal decision-makers blame the victim for it. So I was cautiously optimistic at Prime Minister Harper's remarks.

Then I realized, as many Canadians realized, that most of Bill C-13 is not really about what happened to Rehtaeh Parsons. Buried within Bill C-13 is a set of decent Criminal Code amendments to tackle cybersexual assault. Though I do see some minor issues with those amendments, which my fellow witnesses have already covered off quite well, and I can certainly refer to them in greater length during the Q and A, I do think that the base for good cybersexual assault legislation is there in Bill C-13. But you have to dig pretty hard to find it amid the many other sweeping amendments that more closely resemble the lawful access provisions found in Bill C-30 back in 2012. That was the time when Canadians were told that opposition to the bill was tantamount to supporting child pornographers.

While some of the more egregious elements of the former Bill C-30 have been removed from this latest incarnation—and I'm glad to see that—it still significantly expands the state's capacity for surveilling Canadians without the pesky oversight of our court system.

One of the most troubling provisions in Bill C-30 was that it mandated the disclosure of user information to police without a search warrant. The newly designed provision in Bill C-13 very cleverly softens this, instead stating that police can request information, and the person or organization to whom they direct their request can voluntarily comply. However, the very next provision in Bill C-13 removes all civil liability for anyone who discloses another person's information to police upon request. This granting of immunity removes much of the incentive for an Internet service provider, or anyone else, to deny the request.

As law enforcement officers and prominent figures of power and authority in our lives, it is also debatable the extent to which a person might feel compelled to provide the information to a police officer, even if technically they are volunteering to do so.

In the last week, a steady stream of damning media reports have indicated that the practice of voluntarily disclosing user information to police is already in full swing among Canadian telecommunications companies, with the state making over a million requests for user information in the course of a year—and that was back in 2011—all without warrants, i.e., without due process. All were quite obviously without users' consent.

Perhaps most of Bill C-13 isn't really about cybersexual assault, but I find it interesting that it violates some of the same privacy principles, such as freely given and specific consent. Most of us do not and would not give free and specific consent for the state to access any, and potentially all, of our data by way of our Internet service providers if we had any meaningful choice in the matter.

The consent we give is to our Internet service providers. If the police want our information because they suspect we are engaged in criminal activity, well, most of us would assume that is what search warrants are for.

Bill C-13 enshrines the idea of transferable consent in law, immunizing anyone who shares our information and violates our privacy without adequate legal justification for doing so.

While obviously different in many ways, the limitations on personal freedom imposed by Bill C-13 bear some striking similarities to those imposed by cybersexual assault. The state could be following us into our job interviews, on our first dates, or to the laundromat. The bill's provisions will restrict Canadians' ability to live life normally and comfortably because they are constantly living with the idea that the state, when they encounter it, may know intimate things about them that they didn't consent to share. Even if they know they have done nothing wrong, they must still deal with the judgments, misperceptions, and intrusions of the state.

For many Canadians, if Bill C-13 passes as written, our ability to move freely, safely, and happily in this world will be limited. That's why it pains me to say that after a year of arguing for legislation that criminalizes cybersexual assault, I cannot support this legislation as written. We should separate the components of Bill C-13 that deal directly with cybersexual assault from those that do not and debate them as different pieces of legislation. They are different issues.

Not only would this be in the best interest of Canadians, but I believe it would do greater justice to survivors of cybersexual assault than amalgamating their cause with another one that serves the state's pursuit of power more than it serves Canadians.

Thank you.

11:30 a.m.


The Chair Conservative Mike Wallace

Thank you, Ms. Guthrie, for those comments.

We are going now to the question and answer period.

Colleagues, because we have a video conference, it would be helpful if you let us know who your question is directed to or whether you want everyone to respond.

Our first questioner, from the New Democratic Party, is Madame Boivin.

11:30 a.m.


Françoise Boivin NDP Gatineau, QC

Thank you, Mr. Chair.

My thanks to all the witnesses here for coming to help us hopefully improve Bill C-13.

But I would like to tell Mr. Fraser and Ms. Guthrie from the outset that we share your opinion that it would have been preferable to divide the bill. The representatives from the Boys and Girls Clubs of Canada are saying the same thing. We introduced a motion in the House to divide the bill, listing exactly the same sections that the Boys and Girls Clubs of Canada mentioned in their brief. Unfortunately, we were not successful.

Everyone has their own expertise and there are people who have extremely specialized expertise in privacy, in electronic surveillance, in all kinds of areas. Unfortunately, we have to get down to the task and look at all the provisions.

I do not want to rain on your parade, but we tried and the government said no. That being said,

you raised some quite interesting points in connection with some of my concerns. I might like us to talk about them in a little more depth.

I do not want to ignore what the representatives of the Boys and Girls Clubs of Canada said. I heard their message. We had a meeting about it too. Actually, that was where the idea of dividing the bill came up. Most people do not see a lot of problems in the first part, but they see huge ones in the second part.

Mr. Fraser, you talked about the burden of proof. The burden of proof, to me, is the difference between reasonable grounds to suspect and reasonable and probable grounds to believe. Those terms are a little more familiar for those who have practiced criminal law.

For the benefit of the committee, could you highlight the distinction between the two? I do not know if you have read the minister's response. He seems to feel that a burden of proof based on reasonable and probable grounds to suspect is already well accepted by the courts.

I will ask you the same question, Ms. Guthrie.

Mr. Fraser, could you also spell out for me your position on immunity. I am not sure I completely grasped it.

Section 487.0195(1) says as long as it is “not prohibited by law ”. What specifically does that refer to? Does it affect the Charter? If I have the right to privacy, does the fact of distributing private information about me go against that? So would that immunity not exist?

Could you spell out for us a little more clearly and precisely the hidden cases in which immunity would not apply, if there are any? I would like to see whether the risk that most privacy experts have told us about in section 487.0195(1) is as great as they say.

If any other witness has an opinion that they would like to share with us on this matter, please feel free to do so.

11:35 a.m.

Partner, McInnes Cooper, As an Individual

David Fraser

Thank you very much, and thanks for asking me those two particular questions.

In our Canadian criminal law, there are a number of circumstances where law enforcement agents can go to a justice of the peace or a judge and they have to satisfy whatever that burden of proof is in order to get some sort of compulsory instrument, which can be a wiretap order, or it could be a search warrant or a production order.

There are different thresholds for those. It generally depends upon the intrusiveness of the measure. Something like a search warrant to enter your house—for law enforcement agents to be authorized to, for example, break down your door—they have to have a very high standard of understanding. They're doing this on good information, very reliable information that they have reasonable grounds to believe—not just suspect, not just think—that a crime has been, is being, or will be committed and that the order is necessary in order to get that information.

In other sorts of compulsory processes, the standard is going to be lower on the understanding that the nature of the information being obtained is less intrusive. There's a difference between going into somebody's bedroom and going into their safety deposit box at a bank, for example. It recognizes that discretion.

What I was suggesting with respect to this transmission data recorder is to recognize that if it's fine, and the courts have upheld reasonable grounds to suspect, for telephony metadata, telephony signalling data, I don't think, because of the different nature of the information, that this reasonable grounds to suspect is appropriate.

As well, it might not actually survive court scrutiny because of the nature of the information that's being disclosed. It's never, in these sorts of circumstances, simply a matter of black and white. You end up in shades of grey.

The second question that you asked and I'm grateful for was the question related to immunity, and particularly you flagged the issue with respect to the charter. It takes two to tango in this sort of circumstance where the law enforcement officer would go to the telecommunications service provider and ask for the information. Under the Criminal Code, it's fine. Police can ask for anything; whether they're lawfully entitled to compel it, they can ask for anything from anybody. They're asking for the telecommunications service provider to voluntarily hand over that information.

The telecommunications service provider really doesn't care about the charter in terms of informing their decision-making. The charter applies to the police officers. It applies to whether or not the evidence that's gathered will be admissible in court, but the telecommunications company isn't involved.

So they're going to ask themselves a couple of questions. Am I legally able to hand this over? Am I legally prohibited from handing this over? And is there any civil liability that I could incur?

So one of the challenges we have is this. We don't have it in front of us, but Bill S-4 is going to amend PIPEDA, the Personal Information Protection and Electronic Documents Act, and in particular paragraph 7(3)(c.1), which is currently being reviewed by the Supreme Court of Canada with respect to whether or not, and under what circumstances, Internet service providers can hand over customer information on a non-warranted, non-judicially authorized request.

I understand that certain Canadian telecommunications companies do hand over that sort of information without a warrant. Their decision-making has been guided by the reading of an extremely ambiguous portion of that act, which allows a company—because we know the police can ask anything—to disclose information without consent to a law enforcement agency if they say—it's not under oath, it's not verified—that it relates to an investigation of a contravention of the laws of Canada or province, or a breach of an agreement, and they've identified their lawful authority to obtain the information.

So what the Supreme Court of Canada is considering is this question of lawful authority. Some telcos and police agencies take the view that simply policing duties is lawful authority to obtain the information. Others take the view that it's not sufficient. Lawful authority needs to be something else, something that is compulsory.

Some telcos err on the side of caution. Some err on the side of handing over information to the police agencies. But when they're asking themselves whether or not they should do that, in the background is also whether or not they could be sued for it. Handing over information where they're legally not compelled to, but there's a privacy law and a privacy interest at stake, could amount to something called an intrusion upon seclusion, which the Ontario Court of Appeal said you're entitled to damages for if that happens.

So I think what's happening here is that this provision has been put in here in order to make sure, in order to take that out of the equation—

11:35 a.m.


The Chair Conservative Mike Wallace

Mr. Fraser, the question and answer period is only five minutes long.

11:35 a.m.

Partner, McInnes Cooper, As an Individual

David Fraser

My apologies.

11:35 a.m.


The Chair Conservative Mike Wallace

I'm sure there will be another question for you to follow up with for the rest of your answer.

11:35 a.m.

Partner, McInnes Cooper, As an Individual

David Fraser

My apologies. I'm used to lecturing at a law school.

11:35 a.m.


The Chair Conservative Mike Wallace

Mr. Dechert.

11:40 a.m.


Bob Dechert Conservative Mississauga—Erindale, ON

Thank you, Mr. Chair.

Thank you to each of our guests for being here today and sharing their expertise with us.

Mr. Fraser, I'd like to start with you. You mentioned in your opening remarks that you were pleased to see the creation of a Criminal Code offence for the non-consensual distribution of intimate images. Then you gave us your views on some of the investigative powers that are covered in Bill C-13.

Are you familiar with the report of the cybercrime working group, which is made up of experts from each province and territory? Are you familiar with their recommendations?

Do you agree with their recommendations with respect to police investigative powers?

11:40 a.m.

Partner, McInnes Cooper, As an Individual

David Fraser

I do, by and large. As long as it's coupled with the appropriate judicial oversight, I think the police should have the appropriate tools to investigate crimes whether they happen online or offline.

11:40 a.m.


Bob Dechert Conservative Mississauga—Erindale, ON

Are you familiar with the facts of the Amanda Todd case?

11:40 a.m.

Partner, McInnes Cooper, As an Individual

11:40 a.m.


Bob Dechert Conservative Mississauga—Erindale, ON

We know that the matter is before the courts, and we don't have all the information. However, we do know that an individual who is resident in the Netherlands has been charged. We have heard that the information that led to that person's arrest and the subsequent charges was provided by U.S. authorities.

Are you familiar with U.S. authorities' powers in terms of investigation of these kinds of crimes?