Justice Committee on May 27th, 2014

[The Chair, Conservative, Mike Wallace]

I'm going to call to order this meeting number 26 of the Standing Committee on Justice and Human Rights. As the orders of the day indicate, Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act, is being discussed. We have a number of witnesses.

I am going to go over a few administrative things for the committee before we get started, ladies and gentlemen. First of all, here's what we have, based on the witnesses we've invited here, based on the suggestions from all parties. We have witnesses today and Thursday, and then Tuesday and Thursday of next week. Then I've set aside for the week after that two meetings at this point, Tuesday and Thursday, to deal with the clause by clause because I'm assuming that there may be a few amendments and some discussion on them. It could go faster than that, but we have set aside two meetings. So the clause by clause will start on June 10.

Obviously we can move motions on the fly, but I would really appreciate it if you could provide amendments by Friday, June 6, the week before the June 10 clause by clause so that they can be translated and circulated to committee members. That would be helpful.

I want to let you know that the organization Facebook is on a number of our suggested witness lists. They have indicated they're not that keen on coming. We've tried to schedule them and they get moved around and so on. Then they wanted to be represented by an Internet providers association, which is fine. All parties requested that we see Facebook, but I don't think we'll see them live. I think they'll be here by video conference, but at least they'll be here.

I would like to entertain a motion to re-invite them to make sure they understand that the committee really wants to see them on this issue.

Mr. Dechert.

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

Mr. Chair, you took the words right out of my mouth. I was going to propose such a motion. They were on the NDP list, I believe, and the government list. We know Facebook as an entity and as a social media site was implicated in a number of cases of cyberbullying that we heard about last week, so I think it's very important that we hear from them. We should emphasize in our motion that all parties are requesting this, and we should compel them if necessary.

[The Chair, Conservative, Mike Wallace]

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I'm a bit surprised honestly, because they came and met with a lot of us and voiced their problems with the bill. It would be nice to hear them publicly and see what they propose. They see first-hand what's going on through their own site, and lots of kids are on the site, so I do hope that Facebook understands your message.

[The Chair, Conservative, Mike Wallace]

So we have a motion moved that Facebook be re-invited, that all parties on the committee are interested in seeing them attend one of the remaining witness meetings that we have available, either this Thursday, or Tuesday or Thursday of next week.

I will make sure they get that message this afternoon, if the motion passes.

(Motion agreed to [See Minutes of Proceedings])

Thank you very much.

Now we'll go to our witnesses. Thank you for indulging us in a little committee business. We have the witnesses and we'll do it as the list is presented here in front of us.

Mr. Gilhooly is here as an individual. From the Criminal Lawyers' Association we have Michael Spratt, who is a member of the association and criminal defence counsel. From the Canadian Bar Association, we have Marian Brown, executive member of the criminal justice section, and Gaylene Schellenberg, staff lawyer. And from the Kids' Network Safety Alliance, we have David Butt, who is legal counsel. I have a room full of lawyers today. It's a good thing we're at the justice committee.

Let's start with you, Mr. Gilhooly, as you're the first one on the list. You have 10 minutes.

[Gregory Gilhooly, As an Individual]

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.

[The Chair, Conservative, Mike Wallace]

Thank you very much for that presentation.

From the Criminal Lawyers' Association, we have Mr. Spratt.

Welcome back to the committee. The floor is yours.

[Michael Spratt, Member and Criminal Defence Counsel, Criminal Lawyers' Association]

Thank you. It's always a pleasure to be here.

As you may know, the Criminal Lawyers' Association is a not-for-profit organization comprising more than 1,100 criminal defence counsel from across Canada. One of our objectives is to educate not only our membership but also the public on issues relating to criminal and constitutional law. The CLA has routinely been consulted and invited by various parliamentary committees to share its views on proposed legislation pertaining to these issues. The CLA supports legislation that is fair, modest, constitutional, and supported by the evidence.

To cut to the chase, the CLA is simply unable to support Bill C-13. Quite simply, Bill C-13 is not only overly broad but is also likely unconstitutional.

Bill C-13 purports to be concerned with tackling cyberbullying by stopping the spread of intimate images that are disseminated without the subject's consent. The real tragedy of Bill C-13 is that those provisions are necessary, laudable, and should be proceeded with; however, in reality that aspect takes up only a small percentage of the bill. Bill C-13, in the balance, sacrifices privacy in favour of expanded police powers and liberal disclosure standards.

Bill C-13, along with Bill S-4 and Bill C-31, represents a dangerous and in our opinion unconstitutional pattern of erosion of privacy.

Let me speak of the cyberbullying provisions. They are important, are laudable, should be proceeded with, and are indeed necessary in the modern world that we live in. Largely, I don't have any objection to the small percentage of the bill that deals with those provisions.

Having said that, I would add that there is a legitimate argument that those provisions in and of themselves may be overly broad, in that the standard imposed for the mens rea is “recklessness”. That standard of recklessness may go too far, in that it may make individuals potentially liable who don't know or could not have found out the circumstances to which the images that are the subject of that provision relate. To that extent, the problem with the cyberbullying provision is not necessarily its aim but rather its execution in that one small regard.

The bill's aim is to punish those who transmit intimate photos sent to them, when the person who took those images has an expectation of privacy. That is likely to have significant public support, as it should; however, the scope of the provision is potentially overly broad, because it expands the mens rea element. By making “recklessness” one of the potential mens rea standards for that offence, the provision may catch not only the individual who was the original recipient of the image but also those down the line—the second-hand recipients of that image—who may have no knowledge of the circumstances in which that picture was taken or made.

Some caution comes from Don Stuart, a pre-eminent expert in the field of criminal law. As he points out in Canadian Criminal Law, the fifth edition, there is a risk that the recklessness standard can devolve into a far broader conception of fault than is desirable, and a more nuanced approach would involve defining recklessness as knowledge both of the risk and that that risk was likely.

That provision can be seen in other aspects of the code; for example, in item (a)(ii) of section 229, which deals with murder.

A modified recklessness standard in the cyberbullying provision would target the so-called “revenge porn” conduct, without drawing to the net those who simply pass on the photos without context and may not necessarily be as morally culpable.

If the provision is allowed to remain there without a clearer definition of recklessness, the section may attract some charter scrutiny. At that point, the issue would become one of over-breadth: does that section capture individuals who may not be morally blameworthy, but may nonetheless be captured under the recklessness standard? As I said, this is a minor issue with that aspect of the bill.

More troubling is the “lawful disclosure” aspect of Bill C-13. The bill announces itself as being about cyberbullying and protecting Canadians from online crime, but certainly it far exceeds those parameters.

I will start by saying that of course the most controversial aspects of Bill C-30 have been removed—the mandatory warrantless disclosure of basic subscriber information. However, there are still some serious concerns. I'll deal with two issues.

The first is that there is simply insufficient judicial oversight in obtaining those orders.

Now, the Supreme Court of Canada has recently considered the standard for reasonable suspicion, which is the standard we're dealing with in the legislation, in the case R. v. Chehil. The court made it crystal clear that the standard of reasonable suspicion falls well below the normal requirement of reasonable and probable grounds. That's the normal standard we usually deal with. Specifically, the Supreme Court said that the state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credible-based probability replaces suspicion.

The data, which is the subject matter of the searches contemplated in Bill C-13, contains a great deal of personal information. It's a misnomer to simply call it metadata. That dilutes the importance and impact of that data.

I understand that a pre-eminent expert in this area, Dr. Michael Geist, will be testifying at this committee later this week, and I think he will agree that metadata is deserving of an increased level of protection. And indeed he's not alone in that view. When we look at reports in 2013 from the Information and Privacy Commissioner of Ontario and the Office of the Privacy Commissioner of Canada, both reports reveal the heightened expectation and the intimate information that can be revealed through metadata. I would commend you to read those reports. It's quite shocking what can be discerned about an individual's communications and basic information about the individual through simply an IP address or some of the other metadata that's discussed.

Metadata as a starting point has a heightened expectation of privacy, and that is something that has been echoed by the Supreme Court, which agrees seemingly with Dr. Geist and with the privacy commissioners. In the recent case of Vu, which dealt with metadata found on a personal computer, the Supreme Court of Canada adopted the Criminal Lawyers' Association's submissions—we intervened in that case—finding that ordinarily this information, metadata, can help a user retrace his or her cybernetic steps. In the context of a criminal investigation, however, it can also enable investigators to access intimate details about a user's interests, habits, identities, drawing on a record that the user created unwittingly. Of course, in modern times there's a capacity to store, catalogue, and cross reference this information, revealing more and more.

The Supreme Court's comments about the heightened privacy inherent in this type of data is simply incompatible with the proposed reasonable suspicion standard that's found in Bill C-13. That incongruity exposes this proposed legislation to charter scrutiny, and in my opinion supports a conclusion that there's not only charter scrutiny here but indeed charter infirmity. There's simply no principled and justifiable reason that the new warrant provisions contained in Bill C-13 should not be based on the traditionally and judicially approved standard of reasonable and probably grounds.

Next, moving to the issue of the incentives for non-judicially supervised disclosure, Bill C-13 will also likely lead to an increased request for a telecommunications company to disclose information without court oversight and the corresponding protections. Privacy in this regard should be strengthened and not abandoned. Falling back on section 25 in the current Criminal Code is no answer to this problem. If you read section 25 carefully, you will see that section 25 requires reasonable grounds, and no comfort can be found in the appeal legislation as it offers no protection.

Of course as we see with that existing provision in Bill C-13, it broadens the scope of disclosure. No longer will the requesting organization be under an obligation to actually be enforcing or administering an act. The room for those requests is greatly increased. And indeed we see codification of the civil and criminal immunity which isn't in section 25, and as I said, section 25 requires reasonable grounds, which is completely absent in this section.

The real concern is that the expansion of police power and limiting liability for the party agreeing to disclose will result in increased police fishing expeditions, and of course we have seen from some reports some very alarming information about current practices in that regard.

Indeed, it would have been preferable to have discrete legislation on both the cyberbullying and on the lawful access legislation. However, given the current formulation of Bill C-13, the CLA recommends that the standards for obtaining those warrants be strengthened and brought in line with what the current Supreme Court case law would suggest is appropriate. No one wants to see evidence excluded. No one wants to get it wrong at the outset, and years later find out that the constitutionally suspect legislation was passed, evidence was excluded, and prosecutions were jeopardized because things weren't done right the first time. The provisions respecting the voluntary disclosure should be reconsidered to ensure both fairness, respect of privacy, and ultimately, constitutionality.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Spratt, for that presentation.

Our next presenter is from the Canadian Bar Association.

I'm assuming that Ms. Brown is leading that off, but you're both welcome to speak. Or is it Ms. Schellenberg?

[Gaylene Schellenberg, Staff Lawyer, Law Reform, Canadian Bar Association]

I'll just introduce the CBA briefly.

Thank you for the invitation to present the Canadian Bar Association's views on Bill C-13 to you today.

The CBA is a national association of over 37,500 lawyers, students, notaries, and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice, and it's that aspect of our mandate that brings us to you today.

Our submission on Bill C-13 was a joint effort, a team led by our national criminal justice section with input from our privacy and access to information law section, our competition law section, as well as our children's law committee.

With me is Marian Brown, an executive member of our national criminal justice section. That section's membership represents a balance of crown and defence lawyers from all parts of the country. Ms. Brown has practised criminal law in B.C. as crown attorney, as defence counsel, and as counsel for an oversight agency investigating police for over 18 years. She'll now address the substance of our submission and respond to your questions.

Thank you.

[Marian K. Brown, Executive Member, Criminal Justice Section, Canadian Bar Association]

Thank you, Ms. Schellenberg.

We hope that our input today will assist you in understanding how the draft provisions would function, if they're implemented, and of course in understanding what constitutional or charter issues may arise.

We are proposing numerous amendments that all have one of two main goals. Our first goal is to ensure that only truly intentional cyberbullying is prosecuted, and our second is to ensure that privacy interests are protected when data is seized.

Our written submission provides many details that we will not be able to cover today. What I will do now is give highlights of our recommendations on cyberbullying, on lawful access, and on the Competition Act.

First with respect to cyberbullying, as you know, the bill criminalizes a particular form of cyberbullying, which is the non-consensual distribution of intimate images. Distribution of sexual images of children is already prohibited by the child pornography provisions by the code, but the new section 162.1 proposed in Bill C-13 criminalizes non-consensual distribution of anyone's intimate images, not just young people's. In the CBA's view, this new offence is better suited to dealing with youth cyberbullying than using the child pornography provisions for youth conduct.

We're recommending some amendments that would more closely restrict the new offence to situations of truly intentional bullying. We echo Mr. Spratt's concern about the current wording of proposed section 162.1, which includes the alternative of recklessness. That could, in our view, criminalize conduct that is merely careless, and carelessness is an aspect of youth behaviour. Prosecuting someone who does not have the knowledge or intent required for a criminal offence would be a violation of section 7 of the charter.

In our written submission, at page 5 of the English version, we give an example of an adult distribution of images that would constitute reckless or careless conduct, but which is probably not the aim of this legislation. Because there are scenarios in which carelessness or reckless distribution under the current wording could incur criminal liability, we're recommending two specific changes to the wording.

Our recommendation 2, which appears at page 6 of the English version, is that the following phrase should be added to the offence section: “with intent to annoy, embarrass, intimidate or harass that person”. It's a much more specific formulation of intent. Our recommendation 4, at page 7 of the English version, is that the offence section be amended to remove the words “being reckless as to whether or not that person gave their consent”.

So we would take out the alternative of recklessness. In our view, those two amendments would ensure that only the distribution of images with a malicious intent would be prosecuted and would ensure that young people are not prosecuted for their merely careless or thoughtless distribution of images.

I'll turn now to our key submissions regarding lawful access. Seven of the eight main lawful access powers in this bill rest with the judiciary; that is to say that seven of those eight powers consist of judicial orders or warrants. The one exception is the preservation demand by an officer, whereby data is not seized without judicial authorization but is simply ordered to be held, so that it cannot be deleted, for a period of time.

So there is no warrantless seizure provision under this proposed regime, but the CBA recognizes that the issue of privacy in data is much broader than these particular Criminal Code seizure provisions. As we've heard from other presenters, perhaps the greatest concern is about law enforcement's obtaining data through the cooperation of service providers without the use of any of the eight powers that are covered in Bill C-13. Obtaining data outside of the Criminal Code purports to be authorized under PIPEDA, the electronic documents act, and other privacy statutes.

We feel it's important to comment that even if the lawful access provisions in Bill C-13 are made perfect, this will not eliminate arguments that PIPEDA and the other privacy acts perhaps should be more strictly applied. Even the very best drafted Criminal Code provisions will not diminish the arguments that voluntary cooperation between service providers and law enforcement should be more closely monitored.

Because of that bigger picture, two of the CBA's recommendations are quite broad. Our recommendation 8, at page 12 of our written submission, is that a single entity be created to monitor the impact of the seizure, retention, and use of personal information by Canadian law enforcement agencies.

Our recommendation 17, at page 24 of the English version of our written submission, is that the federal government conduct an independent comprehensive review of privacy interests in the context of electronic investigations.

Those sound very broad, but we're in a new world here. We're at a perfect storm of legal change and technological change, and it's no wonder that we're having difficulty with it.

Given the bill that you have to work with today, in our written submission we make several specific recommendations for amendments. We believe that three amendments in particular are key to avoiding violations of privacy interests under section 8 of the charter.

Our recommendation 9, at page 14 of the English version of our written submission, is that the officers' preservation demand, which is section 487.012—the only power without judicial authorization—should be limited to exigent circumstances, where data would otherwise be lost or destroyed before a judicial authorization can be obtained.

Our recommendation 14, at page 19 of the English version, is that the threshold for a transmission data production order—and that's section 487.017—should be raised from “reasonable grounds to suspect” to “reasonable grounds to believe” because transmission data may reveal private conduct.

Similarly, our recommendation 15, at page 20 of the English version, is that the threshold for a transmission data recorder warrant, section 492.2, also should be raised from “reasonable grounds to suspect” to “reasonable grounds to believe”, again because transmission data may reveal private conduct.

I'm going to say a few more words about transmission data. Our understanding is that it's not the same thing as metadata, which we understand to be data left by web browsing that can be located on a personal computer that is seized under a search warrant. We understand transmission data, as defined in this bill, to include not the contents of the communication, but only its origin and destination, direction, duration, time and date, size, and the protocol and type of the communication. That limited definition is very important because intercepting the contents of a private communication actually is a criminal offence under section 184 of the Criminal Code, unless a wiretap authorization is in place.

Bill C-13 cannot entail monitoring of the content of private communications.

I don't want to overlook the so-called immunity section, but unfortunately our working group did not discuss it in detail or make written recommendations about it. You've heard from other speakers about the terms of that section. All we can recommend is that you look closely and comparatively at the proposed section 487.0195, the existing section, which is old number 487.0114, combined with section 25 of the code, and you may wish for comparative purposes to also look at the immunity provision that exists for people who voluntarily assist with wiretap orders, which is section 188.2 of the Criminal Code. You'll see in that section that there is full civil immunity only for people who assist where there is either a judicial authorization or an interception in exigent circumstances. It's a more limited option for immunity.

[The Chair, Conservative, Mike Wallace]

Wrap it up, please.

[Marian K. Brown]

I will.

I just want to make a very brief comment about the Competition Act provisions, which are generally overlooked. We do have a recommendation that clause 29, creating a new section 14.1 of the Competition Act, should be deleted. The section would import Criminal Code preservation orders and production orders into the non-criminal reviews of the Competition Bureau. We maintain that Parliament's original attempt with the Competition Act was to have two distinct processes: one for criminal investigations and one for administrative review, and criminal procedure should not be imported into the administrative review process.

[The Chair, Conservative, Mike Wallace]

Thank you for that presentation from the Canadian Bar Association.

Our final speaker this morning is from the Kids' Internet Safety Alliance.

Mr. Butt, the floor is yours for 10 minutes.

[David Butt, Counsel, Kids' Internet Safety Alliance - KINSA]

Thank you very much. It's a great pleasure for KINSA to be asked to present.

Just briefly, KINSA, the Kids' Internet Safety Alliance, is a Canadian not-for-profit with a global footprint whose mission is to save and protect children everywhere around the world from Internet-based child exploitation.

My background is as counsel to KINSA. Before that I was a founding board member who served on the board for a number of years. In my non-volunteer life, I'm a criminal lawyer, and have been for 25 years. Right about now, I'm at the point where I've spent about half the time prosecuting and half on the defence side, so I've been on both sides. I'm currently in private practice.

A significant component of my practice is representing victims of crime when they require independent counsel to advance their interests in criminal prosecutions. A third aspect of my practice, and it's a three-cornered practice, is representing police officers in all manner of professional discipline and review and policing issues that arise. So I like to say I've touched all the bases in the criminal justice system in my 25 years. Coincidentally, this past year I've also just reached 25 cases that I've litigated in the Supreme Court of Canada. Unfortunately, on the last one I got my butt kicked—

[Some hon. members]

Oh, oh!

[David Butt]

—and I can say that with my last name. I know what it's like to litigate these issues constitutionally.

So speaking on behalf of KINSA, I bring that practical perspective of a front-line criminal lawyer and ask the question, how does this stuff work? For me, looking at it from both sides, here's the key. I think Greg has really hit the nail on the head that you're going to have the tension between privacy and effective law enforcement. There are three ways to respond, and two of them are wrong and one of them is right—and I say, you have the third way, which is right, in this bill.

The first way that's wrong is to not give police powers because you're afraid to give them powers. That would be wrong because I think the Canadian community rightly expects that police will be able to conduct sophisticated and effective investigations in a digital world. I think that's a baseline expectation.

The other thing to do wrong is to ignore privacy. I think that Canadians expect that while police are conducting effective digital investigations they will be according appropriate respect to privacy. So another wrong way is to just ignore the privacy piece.

The right way is to ask the this question: let's have vibrant police powers to investigate digitally, coupled with significant judicial oversight to control those police powers independently. That's the sweet spot that I say this bill hits. That's my measure of success in a bill: does it enable the police to act effectively, but does it also give another branch of government, the judiciary, the appropriate tools to oversee? If you've got both of those, you've got the right mix, and I say you've got the right mix here.

Let me just talk to a couple of specific things people have mentioned this morning that I take a different view on, because of that basic view I take of the bill.

First, in regard to the recklessness standard, appellate courts have written pages and pages on the definition of recklessness. At the risk of oversimplifying this, it is not carelessness. Carelessness is inadvertent conduct. You don't even turn your mind to the risk. Recklessness is you turn your mind to the risk and you go ahead anyway. How can it be wrong to say to even a teenager, you turned your mind to the risk that you were distributing somebody's inappropriate intimate images, and you went ahead anyway. That's a standard I hold my 10-year-old to. If they never thought of it, fair enough. That's why I agree, we can't have a carelessness standard. But a recklessness standard, you turned your mind to the possibility and you went ahead anyway. Recklessness, in my view, in the context of the distribution of these intimate images, is an appropriate standard.

Second, in regard to reasonable suspicion, our Supreme Court of Canada said in 2004 that the police can exercise powers based on reasonable suspicion. So let's not have any misconception that reasonable suspicion is somehow constitutionally problematic. Police officers, as found in cases like R. v. Mann, can detain people based on a reasonable suspicion.

So, if I as a uniformed officer can grab you and hold you based on a reasonable suspicion, why can't I ask a judge to approve the seizure of minimal data that will simply give you enough to get a proper warrant to do the investigation? It's not carrying the whole investigation; it's only getting you in the door so that you can then get a warrant. So I say reasonable suspicion is appropriate in these circumstances, and it's limited to certain things.

As for anything that goes to the content of the conversation, as I read this bill, you have to get a full-on warrant with reasonable grounds. If transmission data, as I read it in this bill, is simply stuff that will allow you to identify where you need to go to get a warrant, I say that's fine. And if the experts on transmission data say that's a broader problem, I defer to the experts

The other thing is that those who have objected to transmission data and to reasonable suspicion, I say, haven't taken into account the protections that you have wisely built in. For example, if I get a reasonable suspicion-based production order as a company, I don't have to comply. I can go to a judge and I say, “This is way too broad. I'm not going to comply.” The judge can hear and can weigh it. There's no downside other than emasculating the police getting the data they need. So that's a crucial aspect that will address any concerns about over-breadth.

As for the immunity provision, it says that you're okay if you turn over stuff you are already able to turn over. As Greg so rightly said, “Why do we even need it?” It's a reminder to foster industry cooperation. Who is going to decide what is okay to turn over? It's not up to the police. It's not up to the companies. Guess what? It's up to the courts. They're the protectors of the Constitution. They're the ones who say what you can lawfully turn over.

There's a very interesting point that I think hasn't yet come into the conversation: what do the courts say? Based on a case called Ward, out of Ontario, and the Spencer case that was heard in December in the Supreme Court, which is probably coming out soon, the courts say right now that all you can ask for is basic subscriber name and address information. It has to be in the context of a specific investigation, narrowly tailored. It cannot be a fishing expedition. And it has to take into account what the acceptable-use policies of the provider of that information are. Most responsible corporate citizens have acceptable-use policies that say, “We're not going to let you use our service to hide from criminal activity.”

So the courts look at all of those things, and what you can ask for lawfully in a criminal context is very narrow. So on that provision that says you're okay giving up what's already lawful to give up, I would point out the following, first, it's redundant; second, it sends a great message of cooperation; and third, the courts have already defined it narrowly, because what may lawfully be given up is up to the courts. For all those reasons, I say, you're on the right track.

Thanks.

[The Chair, Conservative, Mike Wallace]

Thank you for that presentation.

We'll now go to questions and answers.

Our first questioner is from the New Democratic Party. It's Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

It's interesting to see so much diversity of opinion, which is not making our job any easier.

Rather than debate with you myself, I will let you debate one another. That will probably make things a bit more interesting.

I get the sense that the two people in the middle are somewhat of the same mind as I am, and that the two at the far ends—not to suggest that your views are as far out as your seats, of course—have a different opinion.

Mr. Spratt and Mr. Brown, I'd like to hear how you respond to Mr. Butt's arguments on the issues of recklessness and reasonable suspicion and on the immunity provision. How do you respond to what he just said? His comments would suggest that the bill is reasonable. I'd like to hear both of your takes on that.

I have a concern about Bill C-13 that no one has brought up. The whole matter of warrants makes us think that people's personal information will be passed around without their ever knowing about it. I haven't seen any amendment or provision being proposed to address that. I'd like to hear your thoughts on that issue.

Thank you. Fill your boots.

[Michael Spratt]

In addressing some of the points that Mr. Butt raised, I think it's a bit of a straw man argument to say that requiring stricter controls somehow emasculates the police. I mean that's simply untrue. Of course, if there are exigent circumstances, the police don't need a warrant. If there are exigent circumstances, the police can enter your house without a warrant. So let's leave that aside. The police can also request that information be preserved. The police have that ability as well.

I think the biggest difference lies in the underappreciation of Mr. Butt's part of the type of information that is to be disclosed. Certainly, privacy commissioners and academics disagree with the narrow view of the type of information that can be disclosed. The Supreme Court has taken a view that this sort of information deserves a heightened level of privacy.

If you look at the report, it's not just simply saying that person X is the person who is operating that computer. That information can be catalogued, can be stored, can be cross-referenced—and that only increases as capacity grows—but that information can, for example, lead to information about which websites you visited and what posts you've made. In one case, it allowed—and this is in the Privacy Commissioner of Canada's report—a determination based on websites visited, sexual preferences, and political affiliations. It's not just who you talk to, it's who they talk to and for how long. The fact that content isn't available is no shield to the criticisms here.

As the Information and Privacy Commissioner of Ontario said, in some respects, and in many cases, metadata is actually more revealing than content. So it's a straw man argument to say that this somehow emasculates the police, and that they can't do their job with the standard that is constitutional. What nobody wants to see—and we have seen a few times in the last little while—is that constitutional issues arise, as in R. v. Vu. In that case, evidence was excluded and prosecutions were affected. Ultimately, the matter didn't make its way through the courts. The extra burden to require reasonable grounds is a requirement in section 25. Section 25, and the protections against voluntary disclosure, make it clear that there have to be reasonable grounds. With the ability to preserve the data, there is no principled reason why a standard of reasonable and probable grounds shouldn't apply with this type of information. The police still have the tools, and privacy is still protected that way.

[The Chair, Conservative, Mike Wallace]

I'll go to Ms. Brown for an answer as well.

You have two minutes.

[Marian K. Brown]

Okay.

We don't see a provision here that concerns metadata from web surfing. To our knowledge, that kind of evidence is obtained by seizing a computer and forensically examining it, and that is well covered by other law outside of this bill.

With respect to the standard of recklessness in the offence provision, the word “knowingly” appears twice in the provision. In criminal law, the word “knowingly” includes wilful blindness, and that is the standard that we would like to see. Wilful blindness occurs when one knows that there was probably no consent to distribution of the image, but one goes ahead anyway. It's a higher standard of knowing that there was probably no consent. The word “knowingly” alone imports that concept of wilful blindness.

With respect to reasonable submission, you've heard from other witnesses how that standard applies to the earlier stages of an investigation where there is a lower expectation of privacy in the data, for example in—we would say—transmission data. We totally agree that the higher standard of reasonable grounds should apply to the later stages of an investigation, and with material for which there is a greater expectation of privacy.

Under these provisions, with respect to the lack of public knowledge of what data is seized, production orders and warrants are all obtained by means of an information to obtain, ITO, the order or warrant. The information to obtain may be dozens of pages long, or hundreds of pages long, and is filed in the court registry. There is a presumption of public access, although there may be a sealing provision for the duration of the investigation. For these judicially authorized measures there is an enormous public record, but we agree that public knowledge of how information is subsequently retained is a problem area. People do not know what happens to their data after an investigation has concluded. There is simply no provision for that in either the existing code or in the amendments.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

Our next questioner, from the Conservative Party, is Mr. Dechert.

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

Thank you, Mr. Chair.

Thank you, each of our witnesses, for being here today.

My time is short, so I'm going to move fairly quickly through these questions.

Mr. Butt, both you and Mr. Gilhooly have, I think, effectively made the case about the so-called indemnity provision. I just wanted to see if I can get you to clarify that. We're talking about proposed subsection 487.0195(2) of the bill.

A lot of people say this opens up new law, or this creates new law, and it gives the ISPs the opportunity to provide much more information than they have in the past and to escape any civil or criminal liability for doing so. Do you think that provision changes the law at all from the current standard, including the case law?

[Gregory Gilhooly]

No.