Justice Committee on May 27th, 2014

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

Could you give me an example of how the police would know that the data is going to be deleted? How would they know it without their spidey senses?

[Voices]

Oh, oh!

[Marian K. Brown]

Well, they're making a demand of a particular service provider or website that may have automatic deletion of data, so there may be a known time parameter, or there may be a suspicion that the perpetrator will delete it. I don't think that reasonable suspicion is the same as spidey sense, but reasonable suspicion is, in our view, an appropriate level for this type of provision.

But we distinguish between provisions of this bill that appropriately use the reasonable suspicion standard and provisions that will be subject to charter challenge unless they use the “reasonable grounds to believe” standard.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

I do ask both the members of the committee and the witnesses to be respectful of each other in the use of language. Thank you very much.

The next questioner is Madam Boivin from the New Democratic Party.

[Françoise Boivin, NDP, Gatineau, QC]

I have a quick question for you, Mr. Spratt. Would it be possible to obtain your views on key recommendations of amendments—

[Michael Spratt]

Of course.

[Françoise Boivin, NDP, Gatineau, QC]

—and where you think we should specifically make changes, and the wording? We just love it when people do our jobs for us, in a sense. It helps just to be accurate.

I don't necessarily want you to state them right now. You can do it later and provide it to the committee, and we would be very appreciative. If you have them all, well, we'll give you the time to say it.

[The Chair, Conservative, Mike Wallace]

We'd appreciate it if you sent it to the clerk so that all members could have it and it would be translated.

[Françoise Boivin, NDP, Gatineau, QC]

Yes, exactly, and it would be translated. That would be awesome.

Meanwhile, I'll address the Association du Barreau canadien, because I really appreciate the work you've done in trying to look at all the parts of the bill.

The Canadian Bar Association has done some wonderful work here. That said, there are some recommendations I'd like to understand a bit better, including the fifth one, which reads as follows:

The Canadian Bar Association recommends adding to section 162.1: No person who is a provider of telecommunications services, information location tools, or network services shall be convicted of an offence under this section unless that person solicits, counsels, incites or invites another person to commit an offence under this section, regardless of whether or not that other person commits the offence.

Why did you make that recommendation?

[Marian K. Brown]

This recommendation was made after input from our privacy law section regarding the role of online service providers such as search engines and social media websites, which may not have any monitoring of material that is posted or retrieved through their services. So where there is no knowledge, no mens rea on the issue of consent, of whether dissemination of an image was consensual or not, there should be no criminal liability.

However, there are websites that exist for the purpose of revenge porn or other non-consensual dissemination of images. Those websites would likely meet one of the bases of culpability, those being solicits, counsels, incites, or invites—probably invites—and would thus be parties to the offence.

[Françoise Boivin, NDP, Gatineau, QC]

So just to be clear, because I remember one of the witnesses—and I don't remember her name—saying that she had a horrible, horrible page that was, let's say, put on a certain social media.... She approached the social media site, which said that it didn't breach any of their whatevers. How do you classify that in virtue of your fifth recommendation?

[Marian K. Brown]

It's probably still not culpable—

[Françoise Boivin, NDP, Gatineau, QC]

I was afraid you'd say that.

[Marian K. Brown]

—according to the wording that we've provided. Criminal mens rea is a high standard.

[Françoise Boivin, NDP, Gatineau, QC]

I know.

[Marian K. Brown]

The intent to commit a criminal offence is a high standard. The wording of the offence section is not going to solve all the problems that exist with the Internet.

[Françoise Boivin, NDP, Gatineau, QC]

So I'll just suggest that we make them a helper in the whole situation.

[Marian K. Brown]

Good luck with that.

[Françoise Boivin, NDP, Gatineau, QC]

Okay, thank you. That was that for that one.

Number 8, I thought was interesting. It reads:

The Canadian Bar Association recommends creation of a single entity to consider the nation-wide impact of the seizure, retention, and use of personal information by Canadian law enforcement agencies.

Could you elaborate a bit on what exactly you mean by that?

[Marian K. Brown]

Yes. It addresses seizure but also retention of personal information. That falls under the privacy acts of all the provinces, as well as the federal Privacy Act. All police agencies are public bodies that are subject to those privacy acts. So we don't see that it could be anything other than a nationwide and interjurisdictional effort to address the impact of retention and use of personal information by law enforcement agencies.

We're pushing the envelope here but the point is, as I said in my introduction, that as good as you make Bill C-13, it is not going to solve all of the concerns that we face in this confrontation of law and technology.

[Françoise Boivin, NDP, Gatineau, QC]

In recommendation 11 you say:

The Canadian Bar Association recommends that if officers are granted power to make preservation demands, written records should be required to set out the bases upon which demands were made.

How long would those written records be kept for? Who would have access to them? Those are the questions that come to mind.

[Marian K. Brown]

I think that someone who has worked in law enforcement directly could answer that question better. But my understanding is that retention periods for law enforcement files are very long, up to 99 years.

The purpose of this provision is so that there is a justification of this warrantless demand. All of the warrants and production orders, as I've said, have a record of justification in the information to obtain that is filed in the court registry. The preservation demand is the only one of these eight powers for which there is no reporting mechanism. The same issue has been encountered under part VI, the wiretap part of the Criminal Code, with the interceptions in exceptional circumstances that were addressed in the Tse case. One of the shortcomings was the lack of reporting, and that was remedied by an amendment. So I think that is an obvious amendment for this provision.

[Françoise Boivin, NDP, Gatineau, QC]

Thanks.

[The Chair, Conservative, Mike Wallace]

That's it for questions and answers.

Our last questioner from the Conservative Party is Mr. Dechert.

But before I go to him I just want to let the committee know that we normally meet here at La Promenade building, but on Thursday of this week we are meeting at Queen Street. So that's just a heads up for you to remember.

Mr. Dechert, the floor is yours for the next few minutes.

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

Thank you, Mr. Chair.

Ms. Brown, I want to come back to a couple of comments you made about the recommendations of the Canadian Bar Association.

In response to a question from Mr. Jacob you mentioned that one of the recommendations of the Canadian Bar Association was to split the bill into two parts. That was put forward some time ago on the theory that the bill needed full consideration of all parts; it was to enable full consideration of all parts, you said.

Have you reviewed the witnesses that appeared to date?