Evidence of meeting #26 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was privacy.
A recording is available from Parliament.
12:05 p.m.
Conservative
The Chair Conservative Mike Wallace
Thank you very much.
Our next questioner is from the Conservative Party.
Monsieur Goguen.
12:05 p.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Thank you, Mr. Chair.
Thank you to all the witnesses. That is certainly a probing and in-depth analysis of this legislation. It's pretty clear that the debate is about balancing the protection of the public and, of course, the protection of privacy.
Everyone knows that on the Internet now everything acts lightning fast, so the balance, of course, has to be tempered with the ability to react rapidly. Of course getting information for a warrant takes so much time that it's often not possible to get the information before it's deleted, and therefore that hampers the police.
I came across a very interesting article. This was in the Canwest News Service. I'm not accustomed to reading out these things, but this is very telling. It was from March 12, 2009 and it's basically an article based on data that has been gathered by Cybertip.ca—which, of course, the federal government subsidizes—and it's much in tune with what Mr. Butt does. I'm sure you're aware of this organization.
The article says the following:
Canada's first statistical portrait of Internet child-luring tells a story of police who are losing the battle to catch cyberspace predators, and judges who are unlikely to jail the few who end up in court.
Statistics Canada reported Thursday that two out of...three cases are never solved, and the vast majority of luring is never reported in the first place.
Even when the suspects are charged and the perpetrators convicted, courts are more likely than not to spare them jail time, said the data-collection agency.
The first analysis of the seven-year-old Criminal Code offence concluded that the police track record in solving the borderless crime is worsening as technology advances—and children are, increasingly, living their lives online and offering up personal information that makes them easy prey.
The numbers are as follows: Cybertip.ca received a total of 21,000 tips about online child exploitation between its launch in 2002 and January 2008. Ninety per cent of the tips were about child pornography; eight per cent of the tips were about online child luring; one per cent of the tips were about child exploitation through prostitution; and one per cent were about child sex tourism.
So let's talk about the tie. Should the balance not go in favour of the police, who are trying to obtain information to protect children by using minimal intrusions into privacy, or should it go to the privacy of the people who are offending?
12:10 p.m.
Conservative
12:10 p.m.
Counsel, Kids' Internet Safety Alliance - KINSA
I'd like to cast the question a little bit differently. I think this bill is a win-win because it has extensive judicial oversight that minimizes and regulates intrusiveness of the police. The very narrow area in which Internet service subscribers can voluntarily turn over will be defined by the courts. For example, we're waiting for the case of Spencer to come out of the Supreme Court of Canada. If the Supreme Court of Canada says “no subscriber information”, guess what? You don't have to amend this bill. You can't give it any more.
12:10 p.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Every law goes through a cycle. The cases interpret the law, and of course the bill to jurisprudence.
The last time I checked we weren't living in a police state.
12:10 p.m.
Counsel, Kids' Internet Safety Alliance - KINSA
The courts are very much alive as to what you can turn over voluntarily, and all the rest requires prior judicial authorization, so I think that's a win-win. I don't think it's a tie and you pick a winner. I think that our privacy has robust protections in this bill, all of which are supervised by the court, and of course the provisions that enable law enforcement to move more effectively address those very serious criminal misconduct issues that you've identified.
12:10 p.m.
As an Individual
Just to pick up on that, when we talk about a tie going one way or the other, we're not talking about one side having charter rights and one side not having charter rights. Remember, Rehtaeh Parsons had charter rights to live a secure life. The criminal gets involved in the situation with or without rights.
We're talking about a delicate balancing of all rights, and victims have rights, too. That's one of the things that are increasingly coming up now as legislation is introduced: Victims are a part of this process as much as perpetrators are. Those victims have rights, and those victims' charter rights deserve to be heard, respected, and considered in the legislation that you are considering at all times.
12:10 p.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
In fact, when victims are victimized, their privacy is invaded as well, so there is a trade-off there. It's much in tune with what Mr. Butt is saying that it's a bit of a win-win. You should be able to shelter yourself from criminal activity under the auspices of privacy, surely.
That's all I have, Mr. Chair.
12:10 p.m.
Conservative
The Chair Conservative Mike Wallace
Okay, thank you very much.
Our next questioner, from the New Democratic Party, is Madame Péclet.
May 27th, 2014 / 12:10 p.m.
NDP
Ève Péclet NDP La Pointe-de-l'Île, QC
Thank you kindly, Mr. Chair.
Thank you very much to all of the witnesses.
Before I start, I want to make it clear that this is not about police officers and it's not about the courts. It's about having the best legislation.
Thank you very much for all your input. You're all brilliant minds and as a young person with a bachelor's degree from law school at the University of Montreal, I hope that I'm going to be as brilliant as all of you when I grow up.
12:10 p.m.
Some hon. members
Oh, oh!
12:10 p.m.
NDP
Ève Péclet NDP La Pointe-de-l'Île, QC
I just want to say that I consider myself a youth and that I understand all that is going on right now with the Internet, and that I could be a victim of it. I just take it to heart the need to have the best legislation for the victims, because I've known victims of cyberbullying. I want to have the best legislation for all Canadians and for victims. That said, thank you very much and I'm going to start.
In the bill we're talking about peace officers. Peace officers not only include police services and policing but also public officers and administrators of federal acts. From questioning the witnesses from the association of police officers at the last committee meeting, it was clear that a peace officer does cover policing broadly and police services, so they don't need to include public officers and administrators of federal acts.
Why would we give extensive powers to, let's say, administrators at the Canada Revenue Agency? Does that mean that these people would have access to our information for another type of infraction?
We're talking about peace officers wanting to prosecute cyberbullies. Why include administrators of federal acts, why include public officers like mayors, etc.? Why?
My question would be for Mr. Butt and Mr. Gilhooly. Don't you think that only police officers cover peace officers broadly? Why do we need to include administrators of federal acts in Bill C-13?
12:15 p.m.
Counsel, Kids' Internet Safety Alliance - KINSA
It's a very good question that I had not turned my mind to before you asked it. I think that based on my experience these Internet child exploitation investigations are complicated. We do a lot of training of police officers and it's important that people who are using these tools be appropriately trained.
I can't speak to what the Canada Revenue Agency does, as that's not my field of expertise. My expectation is that any law enforcement officer utilizing this should be appropriately designated and have appropriate training.
My experience is with police officers and I believe that's the core. If it extends beyond to people in other fields who don't have the training, there's a greater risk of inadvertent misuse. Then I would agree with you that it's a risk.
My experience is limited to police officers, though, so I can't comment on the extent to which those other people might have the expertise needed.
12:15 p.m.
As an Individual
Fortunately enough, the way the legislation is crafted, that too is subject to judicial oversight. There would have to be reason for the other type of administrator to be involved in the searching and uncovering of the information, the production of the information down the road.
My guess, without having drafted the legislation, is that it's there as a historical holdover from those who had similar powers before the technology came in and the technological aspect entered into the code. But again, there will be that judicial oversight, but for that provision we spoke of regarding voluntary....
12:15 p.m.
Executive Member, Criminal Justice Section, Canadian Bar Association
I did turn my mind to this briefly in preparation.
As you likely know, those definitions of peace officer and public officer appear in section 2 of the Criminal Code. You have to be cautious because they apply throughout the code in hundreds of sections. When you look at the eight powers that are proposed under the lawful access provisions of Bill C-13, as I've said, seven of those are judicial authorizations. They require “informations to obtain”, these documents of dozens or hundreds of pages of justification. In reality, people who are not professional investigators are not able to meet that standard. But the one section that perhaps is amenable to use for other officials is the preservation demand, which is simply to preserve data without seizing it. That's the one provision that may be amenable to use by a broad range of officials.
Now just as a final note about the definitions, if you look at section 2 of the Criminal Code under “public official”, expecting that person to be is some kind of bureaucrat, in fact you will find that members of the RCMP fall under that part of the definition. So you have to be very careful about the effect of that definition throughout the Criminal Code.
12:20 p.m.
Conservative
12:20 p.m.
Member and Criminal Defence Counsel, Criminal Lawyers' Association
For once no, I think.
12:20 p.m.
Voices
Oh, oh!
12:20 p.m.
NDP
Ève Péclet NDP La Pointe-de-l'Île, QC
Okay, great.
My colleague asked a question about the fact that these investigations would be going on and the person whose data would be provided to police officers would maybe never know about it—and there's no destruction order, too.
Maybe Mr. Spratt and Ms. Brown would like to answer my colleague's question and comment about this.
12:20 p.m.
Member and Criminal Defence Counsel, Criminal Lawyers' Association
I think that's a troubling aspect. It's not just the collection of the information; it's also the retention of the information. As we've seen, with the more information you have, the more information you're able to store with modern tools. There's cross-referencing and checking, so that information can actually be mined to a large extent, which increases the potential privacy implications.
12:20 p.m.
Executive Member, Criminal Justice Section, Canadian Bar Association
We addressed that exact issue in our written submission. It's quite true that there isn't a specific provision for eventual destruction of copied electronic data. The older provisions of the code cover return or destruction of physical objects that are seized. But copies of data, we agree, are inadequately addressed with respect to retention and eventual destruction.
12:20 p.m.
Conservative
The Chair Conservative Mike Wallace
Thank you very much for those questions and those answers.
Our next questioner is from the Conservative Party, Mr. Seeback.