Thank you, Mr. Chair.
My name is Cara Zwibel, and I'm a lawyer and program director with the Canadian Civil Liberties Association.
The CCLA is a national, non-profit, non-partisan, and non-governmental organization supported by thousands of Canadians from all walks of life. This year CCLA celebrates 50 years of working to protect and promote the rights and freedoms of individuals across Canada.
In our role as a defender of fundamental rights, including freedom of expression, the right to privacy, and the right to be free from unreasonable state intrusion, I am grateful for the opportunity to appear before the committee and raise some of our concerns about aspects of Bill C-13.
My comments today will be focused on two main areas. The first is the creation of the new offence of the non-consensual distribution of intimate images. We believe this new offence as drafted is overly broad and will open the door to capturing lawful activity in a way that may unreasonably violate freedom of expression.
Second, I want to address the new investigative powers included in the bill. Most of Bill C-13 is dedicated to increasing police investigative powers, and in ways that affect not just investigations related to cyberbullying but investigations of any offence under the code. To the extent that some gaps have been identified in the ability of investigators to deal with online crime, such measures are certainly appropriate. However, in our view, the provisions of Bill C-13 do not strike an appropriate balance between investigative necessity and personal privacy rights. They authorize unreasonable intrusions by the state into the personal lives of Canadians. CCLA cannot support the bill without substantial amendments to the investigative powers provisions.
I'll begin with the new offence of non-consensual distribution of intimate images. In starting on this point, I want to acknowledge that cyberbullying is a concern to many Canadians. Indeed, CCLA shares the view that local, provincial, and federal governments have a role to play in addressing this ongoing challenge. There are certainly real harms and a great deal of embarrassment that may flow from the distribution of intimate images. But the criminal law is a blunt instrument, and using it to address the cyberbullying problem may lead to criminalizing the victims as much as the perpetrators.
At the most basic and fundamental level, this new offence criminalizes expression. Even expression that is hurtful, embarrassing, or deeply offensive is protected by the Canadian Charter of Rights and Freedoms, and may only be limited in a manner that is both reasonable and demonstrably justified in a free and democratic society. Restrictions on expression should be narrowly tailored to achieve their intended goals. The goal in this case is a good one. Our concern is that the offence is not narrowly tailored in a way that achieves it.
In our view, the proposed offence is broadly written and limits freedom of expression in a manner that's unreasonable on a number of counts.
First, the offence does not require malicious intent. In light of the ubiquity of intimate images that are floating around in cyberspace, the absence of a malicious intent requirement means that individuals could be held criminally responsible for posting, sharing, or sending an intimate image that is already out there online, perhaps first posted by the individual depicted, and that depicts someone they don't even know.
Second, the definition of what constitutes an intimate image is too broad, and its use of the reasonable expectation of privacy standard will pose difficult challenges to the courts charged with interpreting and applying the law. The concept of a reasonable expectation of privacy, used to give meaning to the right to be free from unreasonable search and seizure under section 8 of the charter, is a complex one. In the context of the section 8 charter jurisprudence, the concern is with privacy interests that individuals have as against the state. The proposed offence, however, deals more with the expectations of privacy that people have vis-à-vis other individuals and society at large. This concept will be much more difficult to interpret and apply when the images at issue were not created by the accused and could have emanated from any number of sources. I've included a bit more information about this in my written submission to the committee.
Third, the CCLA is concerned about the orders that may be imposed on individuals convicted of the new offence, particularly orders that prohibit the offender from using the Internet or other digital network. Such a condition, which under the current wording of the bill may be imposed without terms to limit its scope or duration, is a draconian one. Prohibiting individuals from accessing the Internet may effectively isolate them from friends and family, significantly hamper their ability to access information and communicate with the world around them, and negatively impact the employment prospects and educational opportunities of an offender. CCLA believes this section must be significantly narrowed. As currently drafted, in our view the new offence casts too wide a net, and the recklessness standard that it employs is much too low for an offence that criminalizes such a broad range of expression.
I'd like to move now to discuss the new investigative powers contained in the bill, as these give rise to a number of very serious concerns, particularly in light of information that has recently emerged about the extent to which government institutions are already requesting and receiving personal information from telecommunication service providers and Internet service providers without prior judicial authorization and without the knowledge or consent of their customers.
We are pleased to see that many of the more intrusive provisions from prior incarnations of lawful access legislation have been dropped. But we remain concerned about several aspects in the bill, and in particular the immunity provision found in proposed subsections 487.0195(1) and (2). This proposed section purports to grant immunity from any criminal or civil liability to any person who preserves data or provides a document to law enforcement when there is no legal prohibition on doing so.
On its face, this provision appears to be redundant. It simply states that an individual will not incur liability for doing something that is not prohibited by law. The minister has made statements indicating that this section does not do anything new and is simply there for greater clarity. I've also followed the committee's hearings on this issue and understand that many committee members continue to believe that this provision is totally innocuous.
I have to take issue with this characterization and want to caution the committee against allowing this provision to go forward. Contrary to the statements that have been made, the immunity provision could have far-reaching implications and is deeply problematic.
In particular, it seeks to exploit some of the confusion and ambiguity around the legality of disclosing personal information to law enforcement without a warrant. It also seeks to take advantage of the ambiguity in existing privacy legislation and of the evolving nature of what constitutes a reasonable expectation of privacy in light of increasingly advanced and privacy-invasive technologies.
For example, currently our federal private sector privacy legislation, the Personal Information Protection and Electronic Documents Act or PIPEDA, requires that corporations that collect personal information in the course of their commercial activities not disclose that information without the knowledge and consent of the individual. There are a number of significant exceptions to this rule, many of which are drafted in extremely broad terms and include providing information to government agencies, including law enforcement officials, in a wide variety of circumstances. There remain differing interpretations of the permissible scope of these exceptions, and in light of this ambiguity, corporations may choose to take a more cautious and privacy-protective approach to customer data out of fear of liability.
In our view, that cautious approach is appropriate, given that law enforcement has the expertise and ability necessary to seek out a search warrant. The immunity provision is in our view a blatant attempt to incentivize private corporations to cooperate with law enforcement, even when doing so poses a genuine risk to customer privacy and may not serve any compelling state objective. This provision should be removed from the bill.
A number of the new investigative powers included in Bill C-13 allow for the preservation of data and the production of documents based on the low standard of “reasonable grounds to suspect”. This standard has been found by our courts to be appropriate in contexts in which the reasonable expectation of privacy is relatively low. Bill C-13, however, uses this standard to authorize warrants for transmission and tracking data.
Contrary to statements that have been made that this is akin to phone book information, that is simply not the case. This kind of data can be highly invasive and can provide a detailed and intimate profile of an individual. Many studies have suggested that in some cases, the information that can be gleaned from this kind of data is greater than that gleaned from actually monitoring the content of communications.
I know my time is short. I want to point out also some implications that result from changes to the definition of a tracking device and a transmission recorder.
These definitions have been changed to include software. This means that provisions that authorize the use of a tracking device or transmission recorder effectively allow for the installation of malware. Police are being given the power to remotely hack into computers, mobile devices, or cars in order to track location or record metadata. In some cases, this is done on the lower standard of “reasonable grounds to suspect”, which in our view is inappropriate.
I've addressed the concerns around the change to the definition of public officer in my written submission.
Finally, I want to address concerns around the absence of transparency and accountability mechanisms related to some of the new powers created by Bill C-13.
The new production order powers may result in the disclosure of significant amounts of personal information to law enforcement and a range of others. The bill includes a provision for keeping confidential the existence of these orders throughout the duration, subject to judicial authorization. We understand the need for confidentiality during investigations. The concern is that once an investigation is over, once the investigative integrity no longer requires that this information be kept confidential, there should be proactive disclosure of the fact that an individual's data has been disclosed.