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.