Justice Committee on May 6th, 2014

[David Fraser]

It may be, and if one wants to accomplish this result, as I said, one could amend PIPEDA, or one could maybe convince the telcos to put in their terms of service that this information will be handed over in bulk, which I don't think Canadians have an appetite for.

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

Your approach is very balanced. I see that you're not against the police powers and the preservation of information as long as the level of intrusion is matched by some amount of supervision. I think that's well reasoned.

I was curious about your comments on, say, an image being given to a third party, and they have no way of knowing.... You said that the standard was reckless, that it was too low. What's your suggestion on what these standards should be?

[David Fraser]

Let me just flip to exactly what I said in my opening statements. I think it needs to be that the person knew or ought to have known that the individual in the images did not consent. I think that in a lot of cases it is the initial sharer of those images, or somebody who knows the victim, where it is in fact most egregious and probably crosses the line into a criminal violation.

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

I guess your comment is that the volume of stuff that's circulating on the Internet.... I mean, that standard of recklessness is far too low because of the sheer volume of what's taking place on the airwaves, I guess.

[David Fraser]

No, I think my conclusion actually comes down to the blameworthiness of the conduct.

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

The guilty mind.

[David Fraser]

The guilty mind: somebody who knew, somebody who was in fact betraying a trust. That in my mind reaches a level of criminal culpability.

Somebody who has no idea, and no reason to know? You don't criminalize that sort of conduct.

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

That's fair enough.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions.

Thank you for those answers.

Our next questioner is Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I am going to let Ms. Guthrie get into the discussion. We would not want Toronto people to get bored.

I seem to remember reading some comments from you on the burden of proof in terms of consent. They want to amend section 162 by adding subsection 162.1(1), which reads as follows:

Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty:

What interests me in that section is the burden of proof. Normally, the Crown has to provide all the evidence of an offence. I seem to remember reading something to the effect that the accused would have the burden of establishing that he obtained consent and that he took the trouble to find out if the person in question consented or not. Should that be specified in an amendment?

[The Chair, Conservative, Mike Wallace]

The floor is yours, Ms. Guthrie.

[Steph Guthrie]

It was once my position that if the accused cannot furnish proof that they had consent to share the image publicly, they should then be subject to whatever legislation is designed. I would say that since I wrote that, my position has changed, and I'm of the same mind as Mr. Fraser on this issue.

I do think the “being reckless” clause is a little bit dangerous; the best way to design this legislation would be to rephrase it to something along the lines of “known or ought to have known” or “a reasonable person would assume” that the person did not give their consent to that conduct.

The reason is that you want to include people, for example, who might share an image from a website that is specifically created and marketed to share non-consensual images. Sad to say, there is quite a market for this. If someone visits a website that has marketed itself as a place where you can find images of people who didn't consent to the images being shared, well, if you share from that website, even if you don't have direct knowledge of the subject's consent, you ought to know that they didn't consent.

So the wording that Mr. Fraser outlined is what I would now suggest.

[Françoise Boivin, NDP, Gatineau, QC]

It should be amended, in that sense.

Thank you, Ms. Guthrie.

I will go back to you, Mr. Fraser.

Could you specify the type of amendment you would like to see to section 487.0195(1), when it is done without authorization or voluntarily? Should people have to be informed in those cases only?

It reminds me of the time when our committee was studying Bill C-55 about electronic surveillance. Perhaps other members of the committee will remember. The Supreme Court said that there was a deficiency in the Criminal Code in that respect because people never knew when they had been subject to electronic surveillance.

What is being said today is all well and good, but a number of cases will not result in charges at all. Information may be circulating anyway. Should there be specific provisions for all the cases in which charges have been laid? In those cases, we would end up knowing because the Crown would be forced to disclose the information. What kinds of provisions should we include in Bill C-13 to make sure that people are informed, within a reasonable timeframe, that they have been under electronic surveillance? If I remember correctly, I think that a period of 90 days was considered.

Should there be an automatic notification so that people find out that their information has been circulated, whether or not it came after a warrant?

[David Fraser]

Thanks very much for the question.

I agree that in virtually every circumstance in which government or law enforcement agencies obtain the information about an individual when that individual is not informed at the time, they should be informed within six months—six months seems to me a reasonable interval of time—unless the law enforcement agency or government agency can convince a judge that providing that notice at that time would in fact impede a current, ongoing investigation.

I'm not as concerned about cases in which this information is disclosed and obtained by law enforcement and then charges result. That ends up seeing the light of day, in a courtroom or otherwise, and so there is accountability and transparency in that case.

What I am concerned about, and think Canadians should know, is how often information about Canadians is obtained, with or without a warrant, that never in fact leads to charges. That kind of situation could lead, if we take a close look at it, to their maybe getting information more often than they should. Maybe they're getting information about a huge number of people, such that in fact it amounts to fishing expeditions whereby they're going to catch a couple of bad guys, but it's too much.

I think it's critical that everybody around this table, everybody in this room, but also every Canadian have the information in order to properly understand what's going on, so that we can have a proper debate on it. We've seen very adamant and strong positions over the last couple of years. We've had Bill C-30, we've had the revelations about the Canada Border Services Agency, this 1.2 million—we've seen the amount of ink that's been spilled in the interest of these topics. But at no time does everybody actually have the information in front of them to properly understand. It just becomes fodder for arguments based on doctrinaire positions.

If we knew and if individuals knew, then we could actually have a much more informed and better discussion about it, leading to better laws, leading to appropriate oversight, leading to appropriate police powers in all of these circumstances.

I'm a very strong advocate of transparency, and that includes not just aggregate numbers, but individual notification.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner is Mr. Wilks.

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

Thank you very much, Chair, and thanks to the witnesses for being here.

I want to focus my questions in on the authority or the police powers as they exist today as opposed to what Bill C-13 will bring to police powers. I use my knowledge and my background with the RCMP. Having been so fortunate to be an affidavit for and the author for a part VI, I can tell you, and you are probably aware, that it's not a fun ordeal to go through.

Let's take it right back to the start of an investigation. We can use either a sex crime or a drug crime by way of example, because those are the two that normally are going to go down the road of an intercept, historically.

If I go to Bell, Rogers, Shaw, Telus—whoever it is—as a police officer, would you agree that the first thing I don't want to do is jeopardize the investigation? Would you agree that I don't want to jeopardize the investigation?

[David Fraser]

I would expect that as a law enforcement officer you do not want to jeopardize your investigation.

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

That's correct. So let's take it to the next step.

Although I would suggest that most police officers, including me, are not quite familiar with PIPEDA, we're quite familiar with how far we can or can't go. We do know that if I go to you, let's say, and you're with a telecommunications provider, I can say that I'm investigating so-and-so and I know that you have in your possession information that may assist us with that investigation.

I can tell you from personal experience that I never asked for the information. What I did ask was that you not destroy it or not move it. But under the lack of legislation that we have right now, you can't; it's basically voluntary. That's what it is.

So when we start talking about voluntarily providing information, the reality is that there's nothing in place right now to assist the police to better clarify or better insulate them and the telcos from the ability to preserve information. There's just nothing there.

[David Fraser]

Absolutely; I agree. There is no authority to compel somebody to preserve that information.

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

So it's done voluntarily.

[David Fraser]

That's my understanding.

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

So this legislation now, with form 5001, 002, and 003, goes from reasonable grounds to suspect, which the preservation order says “I want you to hold on to the information until I come back with a warrant”.

[David Fraser]

Absolutely.

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

Right. There's nothing wrong with that.

[David Fraser]

No.