Justice Committee on May 6th, 2014

[David Fraser]

I'm not a U.S. lawyer, but I have certainly been involved in cases in which U.S. authorities have been involved.

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

For example, we were told by the Department of Justice officials last week that U.S. authorities have preservation powers with respect to Internet data. They have had that power for 15 years or more. That power does not exist currently in the Canadian Criminal Code. Do you think it should exist in the Canadian Criminal Code?

[David Fraser]

I do. The only condition I would add to it...or “condition” isn't the right word. As it's written in Bill C-13, it allows a law enforcement officer who requires the preservation of that data to impose any conditions that officer deems fit, which gives too broad and open-ended a level of discretion to the law enforcement officer.

If they want to couple that with a gag order or something else like that, that should come from a judge, in my view.

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

But in terms of preservation orders, do they not need to meet a higher threshold with respect to disclosure of that information?

[David Fraser]

Ultimately it's a matter of asking them to preserve the information so the law enforcement agency has the time and the opportunity to get the appropriate warrant, and it makes perfect sense.

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

Okay.

If we had another case like Amanda Todd.... And my understanding is that this individual tricked her into providing an intimate image. He then went back to her with the threat that if she didn't provide even more revealing intimate images, he would post the first image to a Facebook site. He knew through her Facebook site online who her friends were, where she went to school, etc.

Without the provisions that Bill C-13 is seeking to add to the Criminal Code, how would a police officer, had Amanda Todd or somebody like her been able to come forward after the first image was provided but before the subsequent intimidation, have been able to find that individual and prevent him from posting the first image and threatening her and forcing her to provide any subsequent images?

[David Fraser]

Specifically you're asking about that in the absence of the availability to order preservation.

I'm in agreement with the preservation powers in the bill. Currently, it's my understanding, most telcos do voluntarily cooperate. I know I've been involved in civil matters where we have required or have requested the preservation of information in order to then get a subsequent court order to identify an individual, including in the case we took to the Supreme Court of Canada, and the telcos were cooperative.

Information online—these log files—tends to expire after 30, 60, 90, or 180 days, so if you can get that order within that interval of time, you're generally okay. It's when you end up with a longer and more open-ended investigation that it's more critical. But I do agree that it's an important tool to have, and it's not a particularly intrusive one as long as it's not coupled with a broad discretion to put conditions on it.

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

You mentioned that the Internet data that is provided in these sorts of situations includes information often about the whereabouts, the exact location, of the individual, especially when they are using a mobile device.

Do you think it's important that the police have that power in order to try to apprehend the person who is threatening to use those images for an illegal purpose?

[David Fraser]

In my view, the police should be able to obtain just about any information other than privileged information, as long as it's coupled with the appropriate judicial authorization. Absolutely.

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

So that information that includes the location of the individual can be disclosed, Bill C-13 actually raises the threshold to reasonable grounds to believe—is that correct?—in what's called a tracking warrant.

[David Fraser]

There are a whole bunch of moving parts, but without looking at it, I would agree.

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

Do you think that's reasonable?

[David Fraser]

I believe so. Yes, I do.

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

What other powers do you think the police need in order to properly investigate these kinds of cases? If you disagree with any of the cybercrime working group suggestions, maybe you could highlight those for us.

[David Fraser]

I don't have them in front of me, but I do believe that the general production order power, a general warrant power, and specific wiretap orders generally will cover off most information that's necessary in these circumstances. Then we have these additional ones with respect to the installation of tracking devices and things like that. But really, the tracking device does nothing for most cybercrime. That relates to crime that takes place in three dimensions in the real world.

But I do expect that this does cover off most of the investigative tools that are necessary, and as I said in my opening statement, I'm glad that they are all coupled with judicial oversight. The only question for tweaking is that in some cases, given the nature of the information, is reasonable grounds to suspect, compared with reasonable grounds to believe, the appropriate threshold?

[The Chair, Conservative, Mike Wallace]

This your last question.

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

Okay.

Let's compare a non-Internet type of traditional sexual assault crime versus the cyberbullying situation. If a person sees somebody attempting to, or reasonably suspects that somebody is about to, commit a sexual assault, do they have the right to disclose that information to the police?

[David Fraser]

So if it's somebody walking down the street and—

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

Let's say it was in a private residence. You saw somebody in that private residence doing something that you thought would lead to a criminal sexual assault.

[David Fraser]

I would pick up the phone and call 911.

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

Fair enough. And would you suffer any liability if you were wrong?

[David Fraser]

No.

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

So what's different about the potential for a cybersexual assault, as Ms. Guthrie frames it, if you see something, and you have information that you believe may lead to this kind of an assault? Should you be held civilly liable if you're wrong, even though you could possibly—

[The Chair, Conservative, Mike Wallace]

Mr. Fraser, you don't have to answer that question. He's used up his time.

I was generous with both, and I'm going to be generous with our Liberal colleague here with the same amount of time. There is lots of opportunity to ask that question to follow up on the question that was just asked.

With that, thank you for those questions and answers.

From the Liberal Party, Mr. Casey, the floor is yours.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

Thanks to all the witnesses.

Mr. Alhattab and Madam Guthrie, I particularly appreciated your comments with respect to restorative justice. I do think that's something that should appear much more on the agenda.

I share Mr. Fraser's view that the major problems with this legislation relate to the reincarnation of Bill C-30. Ms. Guthrie spoke to that at some length as well.

Mr. Fraser, I want to focus in on the section that you referenced, proposed section 487.0195, and on the warrantless, secret, non-consensual, voluntary disclosure of information. You spent some time talking about the types of information that are available on a reduced legal standard. I know that when you listed that information you weren't talking about the stuff that can be obtained without a warrant.

Just for the benefit of everyone here, what is available without a warrant? What can be lawfully voluntarily disclosed by telephone companies under the protection of PIPEDA?