Justice Committee on May 6th, 2014

[David Fraser]

In this scenario—again, I can only speak for myself—I believe there is a real harm attached to the dissemination of these sorts of images. I've seen first-hand the harm that they can do to a young person, and I've seen what they can do to an adult. My inclination would be to provide that information. That would be my impulse. I would know there might be possibly some risk in doing that, but for me, given the severity of what's going on, this is a non-trivial matter, and my inclination would be to hand over that information.

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

In that circumstance, you would agree that the ISP provider should not bear any civil liability if it turns out that they were incorrect; there was no crime committed or about to be committed.

[David Fraser]

I wouldn't grant them immunity.

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

You wouldn't grant them immunity.

[David Fraser]

No. I would say that they acted in good faith and they wouldn't be liable, but I wouldn't grant them immunity.

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

That would expose them to a lawsuit, would it not?

[David Fraser]

Certainly. Walking down the street exposes one to a lawsuit.

There is a difference between not being liable and having immunity. Immunity is a blanket, saying that no matter what you do, nobody can raise an issue.

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

Are you concerned that some ISP provider might say, “If I might be subject to a lawsuit that would cost my company thousands of dollars”—I'm a lawyer, you're a lawyer, and we all know how much legal advice costs in this country and how much it costs to go to trial—“then unless I'm pretty darned certain that an offence is about to happen and a great harm could occur, I'm not going to give up the information. I'm going to require the police to get a warrant.” In that decision, in that blink of time before a police officer could get a warrant, it's possible that image could be posted and harm could be done to that individual.

Would you agree with that?

[David Fraser]

Certainly at any moment there are going to be a whole bunch of considerations. But where I'm coming from, and I want to make sure that I'm clear, is that the reason you have the possibility of liability is because somebody else's interest is at stake and somebody else could be harmed. At that decision point, I want for the Internet service provider, whoever they are, to not only be thinking of the cop who is standing there, or who is on the other end of a phone, and the victim, but also to be thinking about their customers.

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

But they have a contract with the customer, do they not?

[The Chair, Conservative, Mike Wallace]

That's it, Bob—

[David Fraser]

Well certainly, and they need to think about that. But this amendment would gut any liability that might exist contractually. So I think proper decisions are made when you have all the different interests in your mind.

[The Chair, Conservative, Mike Wallace]

I appreciate those questions and answers.

Our final questioner, for a couple minutes, is Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

I want to go back to you, Mr. Fraser. On Thursday we had the minister and some officials come before the committee. They were either reticent or outright refused to talk about the relationship between Bill S-4 and Bill C-13.

Why should the minister, why should his officials, and why should we care about the relationship between Bill S-4 and Bill C-13?

[David Fraser]

The legislation is intimately connected. The three-quarters of this bill that we have in front of us relates to, in most cases, telecommunication service providers handing over information to the police and the circumstances under which the police can request it and demand it, and then this immunity that actually bestows on those telecommunication providers rights.

That's one-half of a coin, where the other half is regulated by PIPEDA, the Personal Information Protection and Electronic Documents Act. So you have two forces at play, and they are in fact intertwined. So hopefully, when Bill S-4 is being reviewed, they will, in fact.... Although, from what I understand, the minister and the justice officials were not willing to talk about that.

At every part of the PIPEDA review process, which Bill S-4 is the culmination of, Department of Justice lawyers were there acting on behalf of public safety and acting on behalf of others, particularly when it came to the provisions in subsection 7(3), and I would really hate.... Because they interlock together, if you look at this gear in isolation from that gear, you're not going to see how they actually play together, and that needs to be subject to some thorough discussion.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Thank you to our witnesses today. It was an excellent discussion of Bill C-13 and the issues this committee is facing.

On Thursday of this week, we have the minister and officials coming to talk about the main estimates, and then we'll be back dealing with Bill C-13 likely into the first week, at least, of June, and then we'll be doing clause-by-clause. So just keep an eye on it. That's the timeframe.

With that, I'll adjourn.