Justice Committee on June 3rd, 2014

[Marvin Bernstein]

No, but he disseminating the image to a friend and there could be some sense—

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

I don't understand. I don't take your point on that.

If you say “There are some images there, don't look at them”, then I assume you've covered yourself off. You're not disseminating them; you've actually told the person not to do anything with that image.

How can you be guilty of disseminating it?

[Marvin Bernstein]

You're transmitting the imagery to the friend.

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

Frankly, sir, I think most authorities, most crown prosecutors, would look beyond that and look to where the real harm is done, where it's distributed widely to other third parties.

I'll move to Ms. Aftab then, if I can.

Ms. Aftab, are you familiar with section 25 of the Criminal Code?

[Dr. Parry Aftab]

I am not.

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

Okay.

Section 25 provides—

[Dr. Parry Aftab]

I'm a U.S. lawyer, so you'll have to forgive me.

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

Okay, that's fair enough.

I'd encourage you to take a look at it because you're concerned about the immunity provision. Section 25 already provides that, and has for many years. Anyone who cooperates with law enforcement in a lawful investigation of an offence, or a potential offence, is provided immunity.

Are you familiar with the case law under section 25?

[Dr. Parry Aftab]

I'm not. If I may say though, if 25 indicates—

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

I think time is short. If you're not—

[Dr. Parry Aftab]

—that it's a lawful investigation, I think that's the turning point. I don't think that C-13 requires that it's a lawful investigation.

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

The point here, Ms. Aftab, and you've clearly stated that you're not familiar with the law, is that section 25 and the case law under section 25 already provide that immunity to the telecom providers.

So, to your point about immunity, all this is doing is codifying what is already the law, and so you should probably be familiar with that. You obviously read the contract that you have with Rogers, and other telecom providers. You know that it already allows them...you've already granted, through that contract provision, the right to disclose your basic subscriber information, your name and address, when you entered into that contract.

[The Chair, Conservative, Mike Wallace]

Questions and answers.

Our next question—

[Dr. Parry Aftab]

Should I respond to that?

[The Chair, Conservative, Mike Wallace]

The time is up. I'm sorry. Maybe in another round of questions you can do it. That's the political way of doing it.

Mr. Casey, the floor is yours.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

I'm going to give you chance to respond, Ms. Aftab. But just before I do, at the same time that this committee is meeting, the committee on access to information and ethics is meeting. The witness before that committee is the new Privacy Commissioner. The new Privacy Commissioner, while we have been meeting here, has stated his opinion that he feels that this bill should be split. For those of you who were calling for a splitting of the bill, now you have the national Privacy Commissioner sharing your viewpoint.

I may come back to you, Ms. Shariff, and Mr. Anderson, on that point.

Ms. Aftab, there is something that you didn't get a chance to respond to, with regard to Mr. Dechert. Go ahead.

[Dr. Parry Aftab]

Thank you very much.

I just want to clarify that I'm an expert on cyberbullying; we've been doing it for 19 years. I'm a U.S. Lawyer in New York and New Jersey, and I'm not familiar with all aspects of criminal law here, although I have seen the responses of the Canadian Bar Association and others.

If indeed the existing law says it's part of an existing valid criminal prosecution, that test, from what I've been able to read, is not in C-13. If it were part of a valid criminal process and an investigation, I don't have a problem with existing law, but that change is what concerns me. It's the arbitrariness of what this is.

I'm not a legal expert here, but based upon just what you said, I see that there is a substitive difference between the two.

Maybe I should be taking Shaheen's legal literacy program so that I know a little bit more about this.

It's a concern to me that there doesn't appear to be a standard. That language is not in this bill. If it were, I might be more comfortable with it.

[Sean Casey, Liberal, Charlottetown, PE]

Ms. Aftab, Mr. Dechert wasn't being entirely fair with you. There is a reasonableness standard contained in section 25 of the code that is nonexistent in the immunity provision that the government is seeking to bring in. There is a change and it's—

[Dr. Parry Aftab]

So, there are standards.

Any kind of standards don't exist under C-13.

[Sean Casey, Liberal, Charlottetown, PE]

I want to come back to you on your comments with respect to the relationship between the customer and the telephone companies.

When we asked the minister about the non-consensual distribution of customer information without a warrant, he said, essentially there's no role for the government to play, that it's a matter of contract between the customer and the telephone companies.

I have two questions for you.

First, do you agree that this should be purely contractual? Does government have a role to play?

Second, is there not a marketing opportunity here for the telephone companies, for one company to differentiate themselves from another by saying, “Regardless of what the government asks for, regardless of what immunity they give us, we respect your information, and that makes us different from our competitors”?

Your comments....

[Dr. Parry Aftab]

Yes, I wonder if there's any support that the telcos are responsible for this provision within the law. They're the ones who benefit. I find it unusual that they haven't commented on this themselves. I think that there is a matter of contract, and I checked the Rogers agreement, and it doesn't say they have the ability to turn over my information except under laws that require so.

So this is voluntary. It's not required in the way C-30 had been, so I think there would be a violation. If I enter into a commercial contract with a commercial provider, I don't think the government should be involved in giving one side a way out without giving me a way out of paying for my service or anything else.

Also, I indicated that it's a great marketing opportunity, and I hope if this is indeed televised, that Telus and Rogers and all of the rest are going to understand that, although the discussion of privacy has been very complicated in this bill, and there's lots of media and lots of things going on, I don't know how many normal grassroots Canadians understand some of the things going on.

Perhaps we haven't done a good enough job of explaining it and we get overly complicated, but if you turn to somebody in P.E.I. or Alberta and ask if he or she is going to use a telco that's going to voluntarily give away information without these standards, I think the answer is going to be no. If somebody says, “We'll stick with your contract, even though it's voluntary. We're not going to go down that road,” I think they're going to get a lot more customers right now. They'll certainly get me.

[The Chair, Conservative, Mike Wallace]

You have one more minute.

[Sean Casey, Liberal, Charlottetown, PE]

I want to take advantage of your American experience. There are two things I want to ask.

First, given what's happened with regards to Edward Snowden, compare the discussion around privacy rights in general in the U.S. to Canada. You heard Mr. Anderson talk about transparency reports. Given your work with Facebook and Google, what can you tell us in terms of best practices, whether they should be voluntary or legislated, with regards to transparency reporting?

[Dr. Parry Aftab]

Okay. Best practices are absolutely crucial if they're giving away information. Google and Facebook will not voluntarily do any of this because they're going to face liability in the States or someplace else in the world. So I think you have to have accountability, data, and records. It's not a “Gee, bud, would you send this information over?” I think we have to do it the right way, and there needs to be standards, policies, and procedures so that we don't have the situation that we have in the United States.

[The Chair, Conservative, Mike Wallace]

Thank you very much. Thank you for those questions and answers.

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