Justice Committee on May 29th, 2014

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

Thank you, Mr. Chair.

Ms. O'Sullivan, when we broke, I was about to ask you about striking the right balance between addressing the needs and concerns of victims, while also protecting civil liberties. As you know, we're all struggling with this here. Where do you draw the line between the release of what some people, some civil libertarians, may say is private information and being able to work quickly enough to save the lives of vulnerable people?

On Tuesday at this committee we heard from Mr. Gilhooly, who is both a lawyer and a victim himself. He is a brave man, and he has come forward to tell his story about how he was victimized by Graham James.

I asked him that same question, and he said, “my hope is that we're going to err on the side of giving the police the appropriate tools to intervene”, and that in instances in Bill C-13 where there is no egregious violation of privacy rights that comes into play, “We, as victims...don't want to see rights trampled, but the tie has to go to the victim here”. Let me go on for just a minute also because I want you to know what the other side said. The Criminal Lawyers' Association said that a “tie doesn't go to the victim”. It said, “The tie should go to the charter, which is the supreme law”.

Would you agree that the government has a difficult task in finding the right balance between civil liberties and the protection of Canadians and victims? Would you agree that instances where there is no egregious violation of privacy rights, the tie must go to the victim? What's your view on that?

[Sue O'Sullivan]

I'd like to start with the comment that, first of all, I think it's so necessary that we respect all the opinions that are involved in this conversation and the need, as you say, to strike that balance. I'd also like to acknowledge particularly that there have been many victims' families, particularly on the cyber issue, who have spoken quite publicly about their leadership, about their bravery, and about their leadership in terms of ensuring that we in this country have this conversation—this very important conversation—about that balance.

This conversation is not unique to this bill. This is something that we constantly have to be looking at, but in my opinion, the tools that are in this bill are needed to ensure that law enforcement can conduct that investigation. My understanding is simply that there is information that comes in specific to an investigation. They then ask the telecom provider to preserve that information and they then get judicial authorization to access that information. So I think that does.... I mean, when you talk about checks and balances, I certainly think that judicial authorization is an appropriate check and balance.

So as we move forward—and I did in my comments talk about technology and its impact—this won't be the end of these conversations. It is a conversation that I think not just parliamentarians and governments continue to have, but that Canadians need to have, because it is involving us in that very public discussion that allows us, as Canadians, to really ensure.... In a way, it's another method of oversight that Canadians are having this very important conversation. But in my opinion, these tools are needed to assist law enforcement in ensuring that we have the ability to gather and preserve that evidence.

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

Ms. McDonald, what's your response?

[Lianna McDonald]

Well, as I think as we stated at the outset, we certainly believe that this bill finds that right balance. From our agency's perspective, we've relied heavily on looking at what has been put forward. We have a very thorough report from the CCSO cybercrime working group. It's our understanding that there have been years of consultations on this issue, so we have had a lot of the right stakeholders around the table over the years, working through some of these sensitive areas. Again, we believe that this bill finds that right balance and it's time to take some action.

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

Have I more time? Okay.

I have a quick point for Ms. O'Sullivan. You were formerly a police officer.

[Sue O'Sullivan]

Yes, I was.

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

One of the comments that's been made about this bill is that the person whose information is being disclosed should be notified at the time the request is made. As a police officer, what do you think would happen to that data if that were to happen? Would it be destroyed? Would it be deleted?

[Sue O'Sullivan]

First of all, I have been out of policing for five years, and I know that you had an expert panel of law enforcement here, so I would certainly defer to law enforcement to speak to the specifics of that. It is really within their purview, but at the end of the day, I think the right questions are being asked. As I say, I know that Chief Chu and several from senior law enforcement were speaking to that.

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

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Now, from the Liberal Party, we have Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Chair.

Mr. Geist, in the opening of his round of questioning Mr. Dechert took quite a rip at you, and you didn't get a chance to respond. You can use some of my seven minutes to do that if you wish.

[Dr. Michael Geist]

Thanks for that.

My only response was going to be that we're in agreement. We both agree victims, especially in the cyberbullying context, need to have recourse and need to have appropriate tools.

My only point in raising the issue was that victims of privacy breaches are of all ages and from all different walks of life. In fact in many instances these happen while people are blissfully unaware of what is taking place.

I would argue that, in the context of this bill, given that cyberbullying contains what is very clearly a significant privacy element, we shouldn't be killing privacy in order to save it, from a cyberbullying perspective. There are better ways to address what at the end of the day are a couple of very specific kinds of concerns at a time when frankly there's a fair amount of agreement on a lot of the provisions found in the bill.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

I want to focus in on the non-consensual distribution of customer information with immunity and without a warrant. Several of you have addressed it.

Mr. Geist, a couple of things you said in your opening statement were about the telephone companies, and if I can, I want to drill down a little bit on that. One of the things you said, with respect to transparency reports, was that telephone companies indicate there are actually some government rules that prohibit that.

We heard from the minister on this topic. I asked him directly about transparency reports or the provision of information by telcos regarding how often they are disclosing information without consent and without a warrant, and whether they have an obligation to talk to their customers about it. The answer I got was that it's contractual between the customer and the telco.

I'd like you, if you would, to help me understand this. If the telcos are saying the government prevents them from providing greater transparency, and the government is saying that's between them and their customer, what are we to believe, and where do we go?

[Dr. Michael Geist]

I think we need to do a couple of things. Earlier this year all the major telcos were asked in a letter sent out by many in the privacy community in Canada to disclose some of their practices. We need to recognize that they all declined to do so citing Solicitor General rules, and generally saying that if the government told them to make these kinds of transparency disclosures they would, but otherwise they felt inhibited from doing so even on an aggregate basis.

Their current position is that they are not moving forward with that. We could have the government say it thinks this kind of aggregated information is important even on an aggregate basis. I'd note that, even with respect to individuals, Mr. Dechert, in his last question suggested that somehow those seeking notification are looking for immediate notification as law enforcement is actively engaged in its investigation. I do not believe that's what I said or what many other people have said.

We have said that a customer ought to have the right at some point in time to be notified if their information has been disclosed—deciding when an appropriate time would be is, I think, a matter of some importance and some debate—but I haven't heard anybody suggest there should be a disclosure to that underlying customer if it would cause or imperil the investigation itself.

[Sean Casey, Liberal, Charlottetown, PE]

Several of you talked about immunity, and that's been the subject of much conversation in other committee hearings as well. I don't know if you're going to be able to help me with this. This question is for Mr. Geist and for Mr. Turk as well.

Why is it there? Was it at the behest of the telephone companies? What motivated the insertion of the immunity—especially when the government says that it doesn't mean anything and that it was already there—into this bill? I'd like to hear from both of you on that, please.

[James L. Turk]

I don't know the motivation behind it. I suspect the primary interest of the telcos and Internet service providers is that it may pre-empt class action suits against them. They have relatively little vulnerability.

I think a more important aspect of its inclusion, which I tried to address, is that it essentially offers an incentive for the ISPs to think of their relationship with the government, not of their obligations to their subscribers.

[Dr. Michael Geist]

Sure, and I certainly agree with what Mr. Turk had to say. I think it likely is that potential liability coming around to class action, but at the same time, I would suggest that if we take a look in totality around the privacy policy issues, both with this bill and with Bill S-4, those actually suggest that the government is promoting and pushing towards more voluntary warrantless disclosure. We see it with an expansion of that kind of provision within Bill S-4, and we see it here now providing immunity regarding the disclosures that do take place.

What it does is send a signal, I think, to those who collect information, telecom companies and others, that we are going to create and we are moving towards a framework that will encourage that voluntary cooperation, that voluntary disclosure, without the courts.

We've heard, I think consistently, from other members on the panel that this bill is striking the right balance. They say that consistently with the proviso that the court is involved. Let's recognize that, in these circumstances, the court is not involved when these voluntary disclosures take place.

[The Chair, Conservative, Mike Wallace]

That's your time, Mr. Casey. Thank you very much.

Our next questioner from the Conservative Party is Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

I'll try to move quickly. I have very limited time.

Ms. St. Germain, I think you talked about the recklessness standard. We had another witness come on Tuesday, Mr. Butt, and here's what he said at committee:

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.

I take it you would agree with the assessment he made on Tuesday.

[Monique St. Germain]

The recklessness standard, when it's interpreted in a criminal context, involves a subjective element. The person who commits the offence has to actually recognize that there's a risk in what they're doing, which is a little bit different from just being careless. That's a much lesser standard, so yes.

[Kyle Seeback, Conservative, Brampton West, ON]

You would agree, then, with what he had to say in his analysis.

[Monique St. Germain]

Yes.

[Kyle Seeback, Conservative, Brampton West, ON]

Great. Thank you.

Mr. Turk, I want to talk to you about your concern with respect to the standard of reasonable grounds to suspect versus reasonable grounds to believe with respect to transmission data. We keep hearing that this is about metadata, and I'm going to respectfully disagree. I think transmission data is a narrower category of metadata. You get less information than you would with metadata, with transmission data.

You're saying that this is lowering the standard. In other circumstances, it's the reasonable grounds to believe. But if you want to get a telephone recorder, which will give you the information of where a phone call originated from, who the phone call went to, and how long the phone call took place, that's subsection 492.2(1) of the Criminal Code, and to get that, it is reasonable grounds to suspect.

So it's not lowering the standard. In fact it's the same standard. People are saying, as you are saying, that the big problem is that on an email you can find out that they emailed a doctor, and therefore you're getting personal information, and that should be at a higher standard. Well, you get that from a phone call too. All you have to do is look up on Canada 411 what that phone number was.

So actually the standard isn't changing. It's the exact same.

[James L. Turk]

I think you're the first person I've run into who has suggested that the kind of information one can get from land-line phone records is equivalent to what one gets through Internet metadata.

[Kyle Seeback, Conservative, Brampton West, ON]

But it's not metadata. It's—