Justice Committee on May 6th, 2014

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

I just get a little confused when I start hearing about the 1.2 million pieces of data that are voluntarily...yet there is no other avenue for the police to do an investigation. There's just nothing. So this actually clarifies their ability to request the preservation of data as opposed to the voluntary preservation of data. It gives them some legitimacy to be able to go to the courts and say, “Listen, we followed the rules,” because more often than not what happens—and agree or disagree—when you get to court there's a lot of presumption that goes on because there's lack of data for the police to be able to utilize and present.

So I just don't understand where we're concerned that what's going to be put in Bill C-13 would be any worse than what we have now.

[David Fraser]

I'm not saying I'm concerned about the preservation powers.

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

So when you refer to the 1.2 million pieces of data with regard to voluntary between what you're assuming is mostly law enforcement of one frame or another from a telco, what is your concern to which Bill C-13 would preserve?

[David Fraser]

I believe I've said a number of times I'm not concerned at all about the preservation. I think it's important to not confuse the preservation with the providing of the information. From what I understand, that 1.2 million has nothing to do with preservation. It has to do with information that has been provided.

I think we're all hampered by not knowing really what that 1.2 million represents. It represents some that were with a production order, some that were with an intercept order—

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

So would you agree that we're confusing the issue with the actual bill that's before us?

[David Fraser]

Certainly I think that there is a lot going on in this bill, and it might be easy to confuse the different pieces of it. Certainly there's a lot to be said for looking at each of them very closely.

A preservation order is of a different nature from a production order. I don't think there's any doubt. The preservation order is for any law enforcement officer who's authorized under the legislation to require somebody to just keep that information. I have a concern that it could be coupled with any conditions in the discretion of the officer, but to set that aside, it is different from an authorization to intercept, which is different from an authorization to require somebody to provide related transmission data, tracking data, and all those other things.

Just so I'm clear, and just so I'm well understood, hopefully, I don't have an issue with a preservation demand in and of itself. I think that it in fact is a deficit in our current system that should be addressed.

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

Would you agree that as the level of the investigation escalates, we go from reasonable and probable grounds to suspect, to reasonable and probable grounds to believe?

[The Chair, Conservative, Mike Wallace]

That's your last question, Mr. Wilks.

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

And is it in an order that you are comfortable with?

[David Fraser]

It goes in a continuum and it's very circumstance-specific, but that continuum would relate, in my mind, not just to the progression of the investigation but to the intrusiveness of the measures.

[The Chair, Conservative, Mike Wallace]

Thank you very much. Thank you for those questions and those answers.

Our next questioner from the New Democratic Party is Madame Péclet.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you, Mr. Chair.

I feel that this discussion shows how great the need is to divide this bill. To this point, I have not heard much about cyberbullying, but rather about access to information and some pretty technical things that, unfortunately, have nothing to do with what young people are experiencing at the moment and what people in the trenches perhaps need.

My first question is a technical one and it goes to all three witnesses. Should we establish the age at which a person could consent to images being distributed? At the moment, there is no such indication in this bill.

[The Chair, Conservative, Mike Wallace]

All three have been asked; perhaps we can start with the Boys and Girls Club.

[Marlene Deboisbriand]

Yes, we believe that there should be an age of consent.

What should that age be? In our opinion, that should be discussed with young people to get more informed opinion, to really get to know the different opinions they have, to really find out their perception of their own intentions and how the legislation could affect them. Determining an age of consent is important for us. It should be decided after having a conversation with young people.

[The Chair, Conservative, Mike Wallace]

Madam Guthrie, would you like to respond?

[Steph Guthrie]

I'd like to clarify whether the age limit pertains more to the cybersexual assault component or to the state surveillance of personal information components.

[The Chair, Conservative, Mike Wallace]

Go ahead, Ève, do you want to clarify that?

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

At what age would a victim be legally able to consent to the distribution of her or his personal images?

[Steph Guthrie]

Right. That's a very good question and an important one to consider.

I echo the representatives from the Boys and Girls Club in feeling that youth need to be consulted about this.

As a reasonable place to start, we can look at what ages youth are able to consent to sexual activity more generally in Canada. That would be where I would recommend starting the discussion, but I do think it would need to involve other discussions with youth.

I do think that in most cases the youth are not consenting to have the image shared publicly. I don't think you would see very many cases where young people are saying “But I'm old enough to have this shared with my entire school without my knowledge”. It is important to discuss an age limit, but I don't think in reality it would come into play very much in the way this crime actually plays out.

[The Chair, Conservative, Mike Wallace]

Mr. Fraser, have you any comment?

[David Fraser]

I would echo those sentiments, and would only add that when it comes to somebody who is under the age of 18, those images would be child pornography images as well, which brings into play other legal tools for dealing with not just non-consensual but otherwise dissemination of those images.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

My second question goes to Ms. Deboisbriand from the Boys and Girls Clubs of Canada.

In your presentation, you mentioned focusing on restorative justice. You also said that the key to that kind of strategy is education.

For the benefit of all the MPs here, could you talk about your experiences in the trenches, the experiences young people are having and what provisions on restorative justice you would like to see? It may not be included in Bill C-13, but it could be included in a future government initiative.

[Marlene Deboisbriand]

Thank you for the question.

Let us talk about education first.

Most kids under 17 or 18 do not really understand the impact of their actions when the changes happen very quickly. We mentioned differences between the provinces in our brief. For example, we have the BGCC National Youth Council. Those kids are sending each other text messages every day. There are no differences across the country, no provincial or territorial borders.

There has to be a system of education through which kids can fully understand the impact of their actions and the consequences, in terms of sharing intimate images, and so on. For us, it starts with education.

In clubs that have a restorative justice system, it works on an individual basis. We sit down with the kids and try to see to what extent they are aware of their actions. Is he or she aware of the impact of the actions on the victim? Are they aware that the victims may not have consented to sharing the photos? A lot of questions are asked in that first interview.

We draw up a plan of what to do with the kid. The plan really is individual and it depends on the answers to all the questions. It might be to ask the kid to go to schools to talk about the experience, to explain how he or she dealt with the experience and what the consequences were. There can be broader reparations, such as hours of community work, likely with organizations that deal with challenges of this kind. It really is tailored and planned out to meet the needs of the client, the young person who has been accused.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and those answers.

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

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

Mr. Fraser, I just want to quickly go back to something. Where you're saying you have a problem with reasonable grounds to suspect is with respect to transmission data, and not in a preservation order. Is that where you have the problems?