Justice Committee on June 10th, 2014

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

Simply to say, Mr. Chair, that the government doesn't support this. We believe the recklessness standard is the appropriate standard.

We heard a number of examples from witnesses, including those who were connected to victims, about the recklessness standard. On behalf of UNICEF, a hypothetical is put forward that a person would loan his friend his laptop computer on which he had stored intimate images of his girlfriend. He would tell that individual, “Don't look at those photos, don't do anything with them,” and then the case that he hypothesized was that the individual who had received the use of the laptop computer would then look at the pictures, contrary to the instructions, and distribute the images. That was the example that UNICEF gave as their concern about how it might ensnare young people.

Frankly, we think that is a very clear example of the kind of thing that we're trying to protect here. Recklessness is a well-established mental state in criminal law. We don't believe it criminalizes careless, inadvertent, or negligent behaviour, and as one of our witnesses said, he holds his 10-year-old son to the recklessness standard on a regular basis and he thinks that's appropriate.

On that basis, Mr. Chair, in order to protect the rights of those whose images are distributed on the Internet, we will not be supporting this amendment.

[The Chair, Conservative, Mike Wallace]

Thank you for that.

Our next commenter on PV-2 is Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I would have thought that, because the government would not adopt amendments NDP-1 and PV-1, it would have been more open to amendment PV-2.

The provision could lead to many situations where it would be difficult for crown prosecutors to move these files forward and approve them as indictments. This offence is liable to five years of imprisonment for recklessness. I can already see the debates that will arise from those concepts.

Once again, the government is playing with fire. It will just support defence mechanisms that will clog up the courts, instead of doing what it told victims it wanted to do. I think it's unfortunate this concept will not be removed, as it is probably the most criticized aspect of the first part of Bill C-13.

We will see what will come of this in the near future. I hate to say in two or three years, as that makes me feel so old. At that point, I could say, I told you so.

[The Chair, Conservative, Mike Wallace]

Finally, Mr. Casey....

[Sean Casey, Liberal, Charlottetown, PE]

To be very brief, Mr. Chair, I really think that on matters like this, involving the standards of proof, we ignore the advice of the Canadian Bar Association at our peril.

[The Chair, Conservative, Mike Wallace]

Thank you for that.

Just a reminder, we're on PV-2.

(Amendment negatived [See Minutes of Proceedings])

Madam May, PV-3 is next. I would remind the committee, there's a line conflict with PV-4 and PV-5. If PV-3 is adopted, PV-4 and PV-5 cannot proceed.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

[The Chair, Conservative, Mike Wallace]

You have one minute.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

What I thought I'd like to do, picking up some of what I'm sure Mr. Dechert would appreciate, is that since PV-3, PV-4, and PV-5 speak to the same problem, I'll speak to it as a policy problem. You can take it from me that amendments PV-3, PV-4, and PV-5 speak to this policy problem. I will attempt not to go over a minute, and I won't try to accumulate it to three minutes. That's my intention.

What we have here again, the problem that we've referred to in the previous two attempts on PV-1, PV-2, and also NDP-1, is that the bill is overly broad. The way it's drafted, it could ensnare activities that are not within the scope of the purpose of the bill. So we don't, for instance, want to criminalize journalists if they are publishing an image that's in the public interest, if it's the kind of normal operation of journalists to publish images of, for instance, public figures, celebrities. That's not cyberbullying. We may have other public policy reasons for why we don't like that behaviour, but that's not the intent of the act.

This was identified by the Canadian Bar Association in their brief, that the way that Bill C-13 is currently drafted we could actually create a chill in media that when images are in the public interest they can't be published for fear of cyberbullying. The way in which amendments PV-3, PV-4, and PV-5 are drafted is to ensure that no person shall be convicted of an offence under this section, if they're essentially doing it as part and parcel of what we would consider normal journalism. We may not enjoy seeing those images. Goodness knows, I'd have been happy never to have seen Rob Ford smoking crack in his basement. But that kind of image, not that it was an intimate image.... But you can see the direction of the thought.

We really don't intend under this bill to criminalize journalists, and those amendments fix that.

[The Chair, Conservative, Mike Wallace]

Thank you for that.

Anything on PV-3?

Mr. Dechert.

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

Thank you, Mr. Chair.

The government will not be supporting this amendment. The existing defence of public good in our view would likely cover any situation that this amendment deems to address. As Ms. May will no doubt know, the defence of public good currently appears in two other places in the Criminal Code, in subsection 163(3) with respect to obscenity, and section 162(6) with respect to voyeurism. It's been interpreted to mean necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature, or art, or other objects of general interest.

In our view, replacing the well-established defence of public good with a new statutory defence of public information or public interest would simply add confusion and remove clarity from the law. On that basis, we will be opposing the amendment.

[The Chair, Conservative, Mike Wallace]

Anything else on PV-3?

(Amendment negatived [See Minutes of Proceedings])

Now, those were line conflicts, not conflicts of the whole clause, so PV-4 and PV-5 are still on the floor.

On PV-4, Ms. May, anything further?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I consider I've spoken to all three, Mr. Chair.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, Mike Wallace]

On PV-5....

(Amendment negatived [See Minutes of Proceedings])

On PV-6, Madam May....

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

This amendment deals with the problem that, again, the way in which the bill is drafted fails to take into account the fact that the world of Internet means that some of those people who could be caught up in this bill have no possible way in which they would know of the content. Specifically, Internet service providers could be found culpable under this act when they simply are neutral service providers. They may in fact provide a search engine that indexes content on various websites. They don't know what's on it. They're not existing for the purpose of disseminating intimate images without consent. We think this criminal liability on neutral service providers.... This was certainly the view, I want to emphasize, of the Canadian Bar Association, which believes that this provision is actually so unreasonable that it wouldn't survive a charter challenge or charter scrutiny. You certainly can't find moral culpability or mens rea on the part of Internet service providers who could get caught up under this section.

So my amendment number 6 attempts to deal with that problem by following the advice that the bar association made at page 8 of their brief, that no person who is a provider of telecommunications services, information tools, and so on, shall be convicted of an offence under this section.

[The Chair, Conservative, Mike Wallace]

Thank you, Ms. May.

Ms. Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Chair, if you will allow it, I would like to ask my colleague a question about her amendment PV-6.

When she talks about telecommunications services providers, am I to understand that this group does not include Facebook?

I understand that the amendment creates subsection 5, but I am wondering about something. Is this not establishing something of a right?

For instance, I am thinking of the comment made by Rehtaeh Parsons' father. He said before the committee that they had tried to have an image removed from its location, but that Facebook representatives told them the image did not violate the service's community standards.

Is this amendment not too narrow? I am trying to understand it better.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I thank my colleague for her question.

[The Chair, Conservative, Mike Wallace]

Yes, the floor is yours.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

The goal of my amendment is to protect Internet companies against crime. However, tools must also be provided to protect young people like Rehtaeh Parsons.

It seems to me that what we want to do is not criminalize the organization, the Internet service provider of a social media site like Facebook, but have the tools to ensure that Facebook removes images if required to do so. The way proposed section 162.1 now reads, it's not a question that they won't act, but it's a question that their very existence in disseminating images could result in criminal sanctions. That's why my amendment is exactly taken from the bar association brief. I do appreciate the opportunity to clarify. I think we absolutely have to have the tools. On social media sites, the criminality isn't placing the image there, not in the functionality of a service provider for social media sites.

[The Chair, Conservative, Mike Wallace]

Mr. Dechert.

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

This government does not support this amendment. In our view the proposed new offence does not expose Internet service providers to liability unless they meet all of the elements of the proposed offence. I'll remind Madam May that the elements include that, in addition to the transmission being non-consensual, the prosecutor must prove that the accused knew that the image was an intimate image, that it depicted nudity or sexual activity, that it was taken in private, and that it was an image in which the depicted person had a reasonable expectation of privacy.

I can't imagine, Mr. Chair, how a telecom provider, an ISP provider, would know all of those things if they weren't somehow implicated in trying to use that image for the exact purposes that we're trying to protect people against in this bill. So on that basis, we would not be supporting the amendment.

[The Chair, Conservative, Mike Wallace]

Okay, thank you for that.

(Amendment negatived [See Minutes of Proceedings])

Madam May, PV-7....

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

This amendment goes to the issue of the lifetime punishments for certain offenders. Again this is a concern that was raised in evidence from the bar association, but my own concern is the absolute prohibition on the Internet for prolonged periods of time. A blanket prohibition to be lawful shouldn't exceed five years. The reason for this is that access to the Internet is not a trivial access in our society. Actually a lifetime barrier from using the Internet could, for instance, preclude that individual from ever applying for jobs if the job application site is an Internet-based site.

I'm all in favour of punishments that suit the crime and making sure that someone who's cyberbullying is properly and appropriately punished, but surely we should have some exemptions. So that's why this amendment speaks to “subject to any conditions or exemptions that the court considers to be necessary to avoid causing undue prejudice to the interests of the offender”. I think that explains it.

[The Chair, Conservative, Mike Wallace]

Thank you very much, Ms. May.

Are there any comments?

Mr. Dechert.