Justice Committee on June 3rd, 2014

[The Chair, Conservative, Mike Wallace]

Thank you very much, WiredSafety, for that presentation.

Our final presenter this morning is Professor Shariff from McGill University.

The floor is yours for 10 minutes.

[Prof. Shaheen Shariff, Associate Professor, Faculty of Education and Associate Member Law Faculty, McGill University, As an Individual]

Thank you very much.

Thank you for this opportunity to present to your committee.

Parry Aftab is always a hard act to follow. I learned that at the UN.

[Voices]

Oh, oh!

[Prof. Shaheen Shariff]

I will try to keep you interested after that.

My submission today relates to three aspects of Bill C-13 that I will address in the following order. I want to discuss the non-consensual distribution provision; the clauses relating to lawful access that have already been mentioned; and clause 12, the hate propaganda provision, which I support.

On the non-consensual distribution provision, Bill C-13 has been widely referred to publicly as legislation that is urgent and essential to reduce cyberbullying. It's been argued, as we've heard, that in the wake of tragic teen suicides, something has to be done to stop the non-consensual distribution of intimate and demeaning sexual images. These online activities amongst teens and university students have surfaced as the most insidious and harmful aspect of this phenomenon. Most often they target teenage girls and young women who are most vulnerable to offline sexual abuse, rape, and other forms of sexual violence, which are videotaped or photographed and distributed online without consent.

Clearly, in light of the suicides and the abuse, there needs to be regulations and consequences. But I have some significant concerns that this non-consensual distribution clause and Bill C-13, when taken together with the lawful access provisions, will miss their mark in reducing cyberbullying and sexting among teens, so I'll outline a number of points.

First of all, the provisions are largely focused on kids who receive contradictory messages from adult society. One thing that we seem to have forgotten when we think about legislating cyber-bulling is the fact that it is adult society that creates the norms of social communication. The norms of social communication have crept towards increased tolerance for sexism, misogyny, rape culture, and homophobia. Popular culture developed by adults, especially online marketing, comedy, and reality shows, place physical appearance, social conformity, objectification of women, sarcasm, and demeaning humour on the highest pedestals of socially accepted behaviour. So what do we expect our kids to do? And then we come down and blame them for copying what adults do in society.

I agree with UNICEF that we need to look at prosecution as a last resort. Even though the non-consensual distribution provision does take away from having to apply child pornography laws, which are designed to protect children against them, there are still questions about the sentencing, how the Youth Criminal Justice Act will be applied, and a range of other concerns.

Children receive confusing messages on the legal boundaries and rape culture, for example. Children confront difficult challenges at both ends. On the one hand, they must prove their strength in a digital and online social network where even friends can demean them publicly and excuse themselves by saying, “Just joking” when under peer pressure they might impulsively react or post comments and photographs they would ignore in different circumstances. Teenage girls are especially vulnerable when they decide to assert their sexuality like female celebrity idols, but end up being publicly humiliated through slut shaming when images sent in trust are distributed without consent. This is not going to be the panacea to addressing some of these issues because it's complex.

One of the areas that we found in our research is that young people confuse fun and have difficulty defining the lines between fun and criminal intent. Youth have difficulty defining the line at which their insults and comments become harmful and illegal, in terms of criminal threats, criminal harassment, sexual harassment, ownership of photographs, and public versus private spaces. It is often a competition about who can post the most absurd insults to entertain friends, and the person who's victimized is actually dehumanized. They totally forget about the person at the end of the vitriol, and thus establishing mens rea intent, criminal intent, under the non-consensual clause might be more complex than meets the eye, except in extreme cases.

We need to address the roots of discrimination. It is important to note that the posted content in the forms of abuse both on- and off-line have become more vitriolic, and it is these roots that the law needs to address, not the symptomatic online behaviours by young people. The hate propaganda provisions begin to address this.

There are blurred lines between public and private spaces and content ownership for young people. They told us they have difficulty recognizing the difference between public and private online spaces, the ownership of photographs and videos, because they have grown up immersed in online environments where these lines are blurred. This again could hamper effective application of the non-consensual provisions. These findings suggest that rather than blaming kids for their apparently odd behaviours, we should look at the influence of adult society and adult role models and give them stability and clear boundaries that can guide their moral and social compasses, not harsh laws.

This raises a concern about the current lack of public legal education, because that will have an impact on the implementation of the non-consensual provisions. As far back as the 1980s, Chief Justice Bora Laskin of the Supreme Court of Canada observed an urgent need at that time for public legal education. We are not much further ahead. Implementing this new legislation without adequate public legal knowledge is risky because ignorance often results in reactive and harsher responses.

Our research indicates that there remains significant public ignorance about the differences between positivist laws like the Criminal Code and substantive human rights and constitutional frameworks that provide the balance between free expression, safety, privacy, protection, and regulation. This is the balance the government must strive to aim for. The balance, is repeat, is between free expression, safety, privacy, protection, and regulation.

Without sufficient knowledge about human rights and fundamental constitutional principles of our Canadian Charter of Rights and Freedoms, school administrators, teachers, counsellors, and parents may overreact and be too quick to lay charges or call for charges under these provisions.

We've heard that we need to engage youth in contributing to policy. I'm not sure whether this committee has heard from young people, but it is essential that we give them ownership and agency in contributing to law and policy, as research shows a drop in violence when kids take ownership. The non-consensual distribution clause might be quite confusing for young people who are grappling with defining the lines between flirty fun on Snapchat and harm from non-consensual distribution.

They should have a say in the new law that will affect them so strongly. Without legal literacy they are not likely to understand the ramifications of non-consensual provisions. So we really need to pay attention to the fact that there needs to be legal literacy among adults, among the public, and also among children.

Perpetrators are often victims and, therefore, the non-consensual clause might have the opposite effect if young people who were victims of cyberbullying and react as perpetrators are charged under this law.

As I explained to the Senate Standing Committee on Human Rights a couple of years ago, I am concerned about the impact of reactive legislation on children and youth who are simply testing social boundaries and that includes the perpetrators.

Am I done? I've got one minute, okay. I'm sorry.

On the lawful access provisions—I'm not going to repeat—I have the similar concerns that were raised earlier and I agree with many who testified here that the lawful access provisions should be rejected, or at minimum separated from the remainder of the bill.

If I may suggest, there are many unanswered questions but the committee should pause and ask themselves questions about how well the social online norms and perspectives of young people are understood by prosecutors, judges, law enforcement officers, teachers, and principals. What assumptions about youth will law enforcement, prosecutors, and judges bring to their application of the foregoing sections if they are not well informed about research or about the nuances and complexities of the evolving social norms and societal influences on children and teens? So, along with this legislation, we need to bring in the supports that bring in legal literacy and knowledge for the legal community about how the children are challenged in communicating online.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, Professor. Thank you for that presentation.

Now we go to the question and answer round table that we have. Our first questioner is Madame Boivin from the New Democratic Party.

The floor is yours.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

My thanks to the witnesses who have appeared before us. Your presentations on your respective areas were extremely interesting.

It ties in significantly with what we have been hearing since we began this study. Of course, I would have liked more time to explore the matter more.

Professor Shariff, you began your presentation by talking about clause 12 of the bill, which deals with hate propaganda. You did not really have the time to talk about it fully.

Section 13 of the Canadian Human Rights Act has been repealed. So clause 12 of the bill is the only protection against hate propaganda we in Canada have left. Some categories that were not there before have been added, which is not a bad thing. So I would like to know your opinion in that regard.

Before you begin your answer, I want to thank Mr. Bernstein. UNICEF Canada did an extraordinary job on the brief you presented and the recommendations you have provided us with.

I particularly appreciate and I think your colleagues on the panel probably agree with your recommendations for section 162 to maybe put more on the mens rea, on the intent, and to clarify this. So it didn't fall on deaf ears, and we'll probably discuss in the committee certain amendments on that aspect.

The other question I have is for Mr. Anderson of OpenMedia on hate crime. I hope I can join you in saying that I trust the government, but if we were able—and here I use a big “if”—to amend the bill to add some safeguards, remove the immunity that seems to bother a lot of people and maybe have some type of

…accountability. In other words, we have to force the authorities that have obtained the information to report on it, somewhat like the way it is done with electronic surveillance under the appropriate section of the Criminal Code.

If we could establish those safeguards—

do you think the bill would be more palatable? And how do you rate Bill C-13 versus Bill C-30? The floor is yours.

[The Chair, Conservative, Mike Wallace]

Professor, you have a couple of minutes on the hate crime piece, and then I'll go for a couple of minutes to Mr. Anderson for his response.

[Prof. Shaheen Shariff]

Thank you very much, Mr. Chair.

I wasn't going to say a lot on it other than to say that the provision in Bill C-13 should be accepted because without it, the discriminatory reroutes of cyberbullying that often perpetrate hatred and division due to people's ethic origin, age, sex, mental or physical disability, or religion will continue to be unjustifiably excluded from the protection of federal law.

I have to say at this point that I also support a submission by my colleagues, professors Jane Bailey, Wayne MacKay, and Faye Mishna. It was a written submission, and I don't know if they presented it at this committee. I was supposed to join them. They have noted that it is particularly important in light of the unfortunate repeal of section 13 of the Canadian Human Rights Act last year. This provision is also essential given the gap in the Canadian public's knowledge of substantive human rights. As I mentioned, there is a need for legal literacy, and so I commend the committee—or at least on this aspect.

[Françoise Boivin, NDP, Gatineau, QC]

The drafters. Thank you.

[The Chair, Conservative, Mike Wallace]

Mr. Anderson, you have a question.

[Stephen Anderson]

I think one difference between Bill C-30 and Bill C-13 is that, thankfully, Bill C-30 mandated warrantless disclosure, whereas this bill doesn't mandate it, but it pretty much in practice means the same thing through the immunity clause.

In terms of accountability, I don't see a lot of difference there. There's very little in terms of accountability or oversight that I can see. I don't understand why there isn't any in here. I don't see why we would not add mandating subscriber notifications. I don't understand why we can't all agree that it's a good thing—record keeping of personal information requests so that we actually can look later and see what's happening and have a kind of data-driven process going forward, and a regular release of transparency reports by both government officials and telecom companies.

I would say that while there's been some progress and learning between Bill C-30 and Bill C-13 on the accountability and oversight side, I haven't seen much movement. I'm hoping that there can be some reforms made in that area. I would love to know if someone could explain why we wouldn't do that.

[The Chair, Conservative, Mike Wallace]

Thank you, madam, for those questions and answer.

Our next questioner from the Conservative Party is Mr. Dechert. Mr. Dechert, you're on the floor.

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

Thank you, Mr. Chair, and thank you to each of our guests for being here today.

Mr. Bernstein, I'd like to start with you. You mentioned your concern about how this legislation could impact young people under the age of 18. Is there anything in this bill that would prohibit or restrict the application of the Youth Criminal Justice Act?

[Marvin Bernstein]

No. I think that what we were trying to convey as well is the...

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

But you would agree that all the protections of the Youth Criminal Justice Act in dealing with persons under the age of 18 continue to apply, whether it's a charge under the non-consensual distribution of intimate images provision or any other provision?

[Marvin Bernstein]

Those provisions under the Youth Criminal Justice Act would continue to apply. I think the point that we were trying to emphasize is that there is a way of strengthening some of the provisions in Bill C-13, so that we don't inadvertently catch certain young people or certain individuals for perhaps some careless behaviours where there isn't the—

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

The standard is recklessness, not carelessness. Correct?

[Marvin Bernstein]

Recklessness, but it—

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

Do you see a distinction between those two terms?

[Marvin Bernstein]

Well, I see that the recklessness standard, as we have indicated in our brief, could create certain problems where there isn't the clear intent to bully. We identify a couple of case examples, such as where an individual provides a laptop to a friend and there may be some embedded sexual imagery, perhaps of a girlfriend. There's no intent to bully the girlfriend, and there may have been some caution given to the friend who borrows the laptop about not accessing any of these files and then the friend goes ahead and accesses the files.

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

In that case where they've been warned not to access those images, but they do anyway and distribute them widely, you don't think there should be any restriction on doing that? You don't think that the distribution of intimate images without the consent provision should apply in that case?

[Marvin Bernstein]

I'm saying that in terms of the boyfriend, this is not something that's being done for any revenge or attempt to be punitive towards the girlfriend.

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

Isn't that reckless, though? I mean are you suggesting that if I borrow somebody's laptop and the owner of the laptop says, “Look, there are some images on there. Don't look at them, don't do anything with them”, but then I do it anyways and I distribute them widely on the Internet, you don't think that I should be responsible for that action?

[Marvin Bernstein]

I'm not talking about the recipient. I'm talking about the boyfriend. The boyfriend who is transmitting the images by virtue of a laptop—

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

But why would he be charged if he's not the one that distributed the image?