Thanks very much for having me. I consider it an honour to be here, and I have spent the past several weeks reading up on what the committee's been up to. I must say that as a citizen I'm encouraged by the way the committee is dealing with this as a political issue and not as a partisan issue.
It is sometimes trite to say that everything we deal with is politics, because it is, and the political process involves give and take and back and forth, with the result of reaching an end that serves everyone. Partisanship is something else when you are serving another end. To the extent that the written materials, the transcripts, indicate that this committee has been working in a political fashion and not a partisan fashion, I think that is to everyone's credit here.
Just for a quick introduction, I guess I am probably best known, unfortunately, as a victim of one of Canada's better known pedophiles, Graham James. I was in an approximately three-and-a-half-year relationship with Graham, and I came to the justice system as a victim when I decided to come forward with my story. I lived the tension that goes on in this room, because I'm also a lawyer. I'm a graduate of Princeton and then the University of Toronto Law School. I started my legal career at Torys as a corporate lawyer. I've served as general counsel at several companies. I'll get into that later when we start talking about the motivations that a company and legal departments may or may not have to voluntarily give over information.
Suffice it to say that going through law school as a victim was an interesting process. Sometimes we can get caught up in academic and very intellectual arguments when it comes to trying to parse exactly what can and can't go wrong with a piece of legislation. That's the proper process. You play things out to determine whether or not you are dealing with something that will fundamentally infringe someone else's rights. There is that delicate balance at play all the time.
I am not a “lock them up and throw away the key” type, but I must say at the outset that I commend the current government and this committee for the steps they seem to be taking to bring forth legislation of the type that we see before us in Bill C-13.
For full disclosure, I am a Liberal by political partisanship. I was a member of the Manitoba executive back when I was working with Canwest. I was a speech writer for David Matas, one of Canada's leading human rights lawyers. I consider myself lucky to have served the Liberal Party and lucky to have served David Matas, which may make some of the comments I'm going to make today in that context seem surprising, because I clearly live the tension—and you can probably see it as I rock back and forth in my chair—that there is the academic focus on preservation of individual rights and one's privacy, and there is the reality we face in our streets that there are monsters out there. When we sit down to write legislation or to take a look at legislation, we don't often consider the fact that there are monsters amongst us. I am living testimony to the fact that there are monsters amongst us. I have looked into the eye of the devil and have fortunately come out the other side.
I can say that we as a society sometimes, in my view, err in terms of ensuring that the rights of the individual are not sufficiently protected. I like to come at the issue from an approach that is opposite to what some of the people I assume will be speaking after me might take. I believe we have the wherewithal as a society to police behaviour and to ensure that our protectors are at all times acting in our best interests, and that if we ever find that the police or the state is going too far, that we as a society will take steps to correct the overreaching powers of the state.
I do not believe that anyone at any time need be afraid of legislating appropriate tools to protect children, to protect us, or to aid our police in trying to create a better society for all of us. If we make a mistake, we can always go back and correct it. We don't have to ratchet ourselves back at the outset in each and every instance to play against every hypothetical or every theoretical.
We live in a day where technology is changing. We are addressing cyberbullying here when we take a look at this bill, but we're clearly addressing more than simply cyberbullying. We are faced with any number of amendments to bring the Criminal Code into the now.
And to the extent that the police chiefs had issues with the tools at their disposal, my understanding in reading the transcript is that they made that clear to the committee earlier this month.
To the extent that victims welcome new legislation to protect others against things they have gone through, we heard from victims earlier this month as I read in the transcripts. I thought that Amanda Todd's mother was particularly brave in coming forward with her statement that she didn't want Amanda's name to be used as an excuse or an inroad to take away other's privacy rights. But at the same time, she was advocating tougher tools for the police. You can't have it spelled out any more clearly for you than the fact that there is a delicate dynamic: the balance is going to tip one way or the other eventually.
My concern as a victim is that the police have enough tools at their disposal to adequately protect us. My concern as a lawyer is that privacy rights and personal rights aren't trampled on. My reading of the bill here is that, but for a few tweaks, it's a very good step in the right direction. To the extent that your questioning of the police chiefs guided you in a way that gives you better tools and shows you how to craft the legislation properly, I think you're headed in the right direction.
I found it interesting in reading the transcript that, I guess, David Fraser came in. David is a leading practitioner in the field of privacy law. To say that I agree with everything he said I think would be an overstatement, but he is a bright man and he gave, I thought, excellent testimony to you to take under consideration.
What I found most fascinating, though, was when you move from the theoretical of David's testimony and into the practical examples that Mr. Dechert gave. You could see a breakdown in how theory didn't really mesh with what was going on in the real world. At one point when considering what appears to be one of the more controversial aspects in the legislation—the giving of information on the voluntary request when you're not otherwise prohibited from doing so—Mr. Dechert gave the example of a service provider who faces an emergency and you don't have time to get the warrant. The lawyer's answer was, “I would hope that the service provider would do the right thing.”
The unfortunate reality as a corporate lawyer who heads up a legal group is that you can hope all you want, but what the internal legal department is going to be saying is that there's not a chance unless we are clear that you are able to do that.
And so the interesting phenomenon we have in that one provision that seems to be taking up a lot of your time—although I'm focusing on it in the outset—is that the language appears to be a recasting of what is already present in the common law. Why does it have to be there? It's lawyer candy to say that if it's already the law, you don't need it to be the law. Well, there's clearly a problem, because you do need to remind people of their rights and their ability to do the right thing at the right time.
The way that the provision is crafted, it's simply there to remind corporate lawyers like me that you have the ability to do the right thing, and if you do the right thing you're not going to face repercussions from doing it.
I think there could be a slight tweaking of the language. To get technical for a bit—and I don't want to take too much of your time—there's the not prohibited language. The provision is cast so that you're able to give up information that you're not otherwise prohibited from giving up. Perhaps if you changed the concept from not otherwise prohibited or not prohibited to lawful—you're lawfully able to give up—that would be a slight tweaking.
But for that, I think you've got in front of you a bundle of proposed legislation that gives the police adequate opportunity to do the right thing in our society going forward. They need the tools. They've clearly shown a request for appropriate tools. The victims have spoken, and along the way in trying to balance rights and access and tools you're going to offend everybody.
So my hope is that you just continue to go ahead and do the right thing: offend all of us, but make sure that the crimes don't happen on a go-forward basis.