Justice Committee on May 6th, 2014

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

I'm short on time, so let me get to the next point because I think it's more important.

Let's go into the digital world. Somebody like Amanda Todd unfortunately gives up a picture to somebody, consensually probably, but she was tricked—

[David Fraser]

Coerced: I wouldn't call that consensual.

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

She's a young person. She doesn't know who she's dealing with over the Internet. She gives an intimate image. At that point in time, she steps forward and expresses her concern. She says that she gave somebody an image and that she's not sure what they're going to do about.

Under Bill C-13, the courts are provided with the power to essentially impose an injunction against further use of that image and to order the destruction of that image. How can you do that if you don't know who has that image? She goes to the police. The police go to her ISP provider and say, “Can you tell us where that message came from?” If the ISP provider discloses the information without a warrant, you think that they should be civilly liable for doing so if it turns out that the individual who took that image hadn't committed an offence at that point and maybe wasn't intending to commit an offence? Why should they have civil liability for doing something that surely we can agree is in the public good?

My concern is, what's the greater public good in this situation, the preservation of harm to that young woman or the preservation of the privacy of the individual who has her intimate image?

[The Chair, Conservative, Mike Wallace]

You have two minutes to answer the question.

[David Fraser]

Okay. That will be a challenge.

You're comparing apples to oranges in this scenario. They're very, very different situations. You're also asking me to comment on a very specific example when in fact that police officer would have reasonable and probable grounds to go to a judge or a justice of the peace and get a production order that would make that whole question about immunity moot.

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

I'm going to interrupt you there. Time is of the essence. We all know that with the Internet, at the blink of an eye, that image could be disseminated to millions of people. The police may not have time to go to the judge to get that warrant, but they want to find out where that individual is so that they can go to that individual and say, “Do not send this image anywhere.”

[David Fraser]

There are judges available by telephone 24/7 in this country. If you believe...unless it's an emergency. Every telecommunications providers will give information when it's clearly identified to be an emergency exigent circumstance—kidnapping, all the imminent threats to life—so if you can convince them of that, that's fine. Absolutely. And they should hand it over.

But everybody does need to think, in terms of their actions, whether they're cooperating with law enforcement or cooperating with somebody else, whether other legal interests are implicated. Certainly the only person who would be suing in that circumstance would be the suspect. Are they likely to sue? That's probably part of the calculus they would make in deciding that, and that's probably part of the calculus that a number of Canadian telcos have made in deciding whether or not they're going to hand over information about their customers without a warrant. Really, somebody who's accused of child pornography is going to have to go to court and sue us: what's the likelihood of that happening? But I don't think we should take that principle and extend it to everybody.

Certainly if the police were to say they were really interested in what reporters are talking to people on the Hill, so they ask every telco to give them all the calling records of every member of Parliament, they can lawfully ask for that, and perhaps the telcos can lawfully hand that over, but should they be absolutely immune from being complicit in that sort of behaviour? I don't think so. So it's a matter of degrees in a lot of these cases.

[The Chair, Conservative, Mike Wallace]

That's your time. You'll have another slot if you want one.

Madam Boivin, from the New Democratic Party, five minutes.

[Françoise Boivin, NDP, Gatineau, QC]

I find Mr. Dechert's questions interesting.

I think people are afraid that there may be a kind of laissez-faire, a free-for-all, because things move very quickly, because information is accessible, because you can use your Z30 in a flash and get access to all kinds of information. At some stage, it may become a bit of a mess because you can now get warrants in ways that are very different from when I started practicing 30 years ago. You can get warrants in any number of ways. Mr. Dechert's concerns, which are leading him to widen the scope of some matters, do not seem very well founded to me.

However, one thing he said got an immediate reaction from me. Clearly, Bill C-13 has been sold to us as a reaction to the tragic events that ended with the deaths of Amanda Todd, Rehtaeh Parsons, Jamie Hubley and so on. The people from the Boys and Girls Clubs of Canada could certainly provide us with a number of tragic cases.

In terms of Bill C-13, the million-dollar question is the one Amanda Todd's mother asked: would Bill C-13 have saved Amanda's life? Her answer was yes because she is an optimist. I would like to be able to say yes too as she did, but we will have the opportunity to talk to her about it again next week.

However, as Mr. Dechert said,

she came forward.

In my opinion, government members are making a mistake to think that, if Bill C-13 is passed, young people who find themselves involved in something tragic on the Internet will automatically call the police. Some of them may perhaps think that they will be able to get back the photo that they had sent in return to someone who sent them a cute photo. But that person could be the biggest pedophile on the face of the earth. I think that we are putting too much stock in Bill C-13's ability to do that. I do not think that is going to happen; it will be

business as usual.

How will our police forces react in terms of education? Are they going to be patrolling various places? Will there be an Internet police? Will they be looking for things like that? Are they going to do the things that have to be done, as they do when they drive through our neighbourhoods with their patrol cars? Are they going to be patrolling websites too? Just because Bill C-13 has been passed, I am not sure that kids are going to say—

let's call the cops.

[Marlene Deboisbriand]

I think you are right. If Bill C-13 is passed, it does not mean that kids will instinctively call the police. Most of them will not even know about it, actually. That is how kids are.

However, I feel guilty answering that way, because if one young person does something to prevent a tragic situation like the ones we have seen, the ones you have mentioned, that is something important to hold onto. That is why, in the brief we submitted, we indicated that we are not opposed to it. You cannot be against it, but, at the same time, we must not tell ourselves that it will be a magic solution that is going to put an end to the situations we are familiar with. Thinking that would be a little much.

[Françoise Boivin, NDP, Gatineau, QC]

Okay, go for it.

[Fahd Alhattab]

In two seconds, I think there would need to be follow-up action to build—

[Françoise Boivin, NDP, Gatineau, QC]

Education, for instance, or making sure that the—

[Fahd Alhattab]

Who's going to let the kids know? I'm a youth worker—I'm at the Boys and Girls Club—and I find out that one of the kids I'm working with is having trouble. If I'm educated about Bill C-13, I'd say, “Okay, let's talk to Mom and Dad about what we're going to do”. If I'm a teacher or a coach, and I hear about it—and we hear sometimes, and we see, and we don't always know what next step to take.

[Françoise Boivin, NDP, Gatineau, QC]

They don't always know either. Sometimes they feel ashamed, or they're not too sure what they want to do. They feel like they've done something wrong. It might not be so easy.

There will be a need for much more than Bill C-13.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Our next questioner is Mr. Dechert, for no more than five minutes.

Mr. Casey, there will be about three minutes left, if you want the last question.

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

Thank you, Mr. Chair.

Mr. Fraser, do you act in your private practice for ISP providers or other Internet-based entities?

[David Fraser]

I do.

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

If the police were to ask one of them in a situation where, say, a young woman had provided an intimate image to someone consensually, but then became concerned, because of other text messages between the two, that the person who had the image might then post it somewhere on the Internet...and she doesn't know who that person is or where they are.

Let's say Rogers is her Internet service provider and you are acting for Rogers. If the police ask Rogers to give up the information that would allow them to find out the identity of the person who has that image, what would you advise your client to do?

[David Fraser]

It's always difficult to talk about hypotheticals with only a limited set of facts.

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

I understand.

[David Fraser]

In the scenario you have described, the image is just about to be widely propagated, causing—

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

She may suspect it is.

[David Fraser]

It is believed to be.

It highlights that it is a very difficult situation. Probably civil liability wouldn't be top of mind.

Let's just say it's an anonymous Internet service provider rather than naming any particular names. They probably don't want to be dragged into a scenario where they can't speak for themselves.

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

They have a contract with their customer. They also have the common law protection of providing information where there's a suspicion that a crime might be about to occur.