Justice Committee on June 10th, 2014

[Daniel Therrien]

I am not at this point.

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

Well, I'm sure your officials are. It was made up of experts representing each of the attorneys general of each of the provinces and territories. In June 2013 they issued a report entitled “Cyberbullying and the Non-consensual Distribution of Intimate Images”. They said the following:

Cyberbullying occurs in cyberspace, and the electronic evidence needed to obtain convictions of cyberbullying must be obtained from Internet service providers, content hosts and other social media services. The ability to preserve and obtain such evidence is crucial to every online investigation, and currently Canada’s investigative powers are not robust enough to address the demands of cyber investigations. In this regard, Canada lags far behind its international partners.

They made a number of recommendations about investigative powers in recommendation four of the cybercrime working group. Are you familiar with recommendation four or any of the recommendations of the cybercrime working group?

[Daniel Therrien]

Not at this point.

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

I can tell you that it includes data preservation demands and orders, new production orders to trace a specified communication, new warrants and production orders for transmission data, and other amendments to existing offences as well as investigative powers that will assist in the investigation of cyberbullying and other crimes that implicate electronic evidence.

We are implementing the cybercrime working group report. These are experts from each of the provincial attorneys general saying this is what's needed in our Criminal Code to properly investigate cybercrimes like cyberbullying. Without these, they say the cyberbullying provision of non-consensual distribution of intimate images would be a toothless power.

Do you agree or disagree with them?

[The Chair, Conservative, Mike Wallace]

A fairly quick answer.

[Daniel Therrien]

I would repeat that we are in favour of legislation modernizing techniques. My understanding is that the group in question, although they were recommending to modernize legislation on transmission of data, preservation of data, etc., did not make any specific recommendations on the legal thresholds, for instance, for accessing data. That is a key point that I think warrants further review.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Mr. Casey, from the Liberal Party....

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

Mr. Commissioner, I think it's been made pretty clear to you that the government has no intent of splitting the bill as you and many other witnesses have suggested, and certainly, that last line of questioning would confirm the government's attitude on that.

You, sir, sent a letter to the committee yesterday and said that if the government isn't inclined to split the bill, that one of the things they should do is to incorporate a statutory review on a regular basis. I know that you've had the opportunity to have a look at the amendment proposed by the Liberal Party that suggests that very thing.

What advice do you have for me or for the committee with respect to that amendment, given that it appears to be entirely consistent with what you wrote to the committee yesterday?

[Daniel Therrien]

I actually have not seen the exact language of the motion, but absolutely, as we said in our submission filed before the committee yesterday, we are of the view that if Parliament decides not to divide the bill, which would be ideal from our perspective, the next best thing would be to adopt a clause that would require a parliamentary review of the new statute after a period of time. We suggest five years. I don't know what your motion calls for.

Certainly, when legislation was amended in other countries, in Europe, for instance, government authorities found, after similar legislation was adopted, that there were amendments to be made after the fact, that certain lessons had been learned, and that it would be useful to have a clause requiring a parliamentary review after a certain period, so that these lessons are learned and are the subject of parliamentary debate and possibly amendments after a certain number of years.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

The amendment that's been put forward calls for a comprehensive review of the provisions after three years.

Would you find that unreasonable?

[Daniel Therrien]

That is not unreasonable at all.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

You referred in your opening remarks, and also in your letter of yesterday, to the lack of transparency reporting by telecommunications companies, which is something we've talked about a fair bit at committee. We’ve heard that it's actually the norm among Internet providers and that Facebook has a robust transparency reporting requirement. You said that there are no requirements in the bill to report on the extent of the use of any new powers.

Again, the Liberal Party has proposed an amendment to the bill to require that a person engaged in providing telecommunication service to the public shall respect the requests made by peace officers to voluntarily preserve data—this is the data for which they are going to be given an immunity—and that they submit an annual report to the minister, if you will, a transparency report.

I would like your view on that proposed amendment, sir.

[Daniel Therrien]

We would agree that a requirement to report would be a useful addition to the legislation. We have referred in our submission to an example of a report on electronic surveillance that has been around for quite a while, since 1977 I understand. We think that kind of report would be very useful. It is quite detailed on the types of crimes for which it is used, and the types of methods used that would enhance transparency significantly.

[Sean Casey, Liberal, Charlottetown, PE]

Again, Mr. Commissioner, we very much appreciate your comments and your point of view on the immunity that's proposed in section 487.0195. This is something we've talked to a lot of witnesses about.

One thing that has confused me, even after all the debate and all the evidence we've heard, is that we still haven't found one person, one organization, who said that this immunity is something they were asking for. But to your point earlier, we haven't heard from telecommunications companies in spite of all the time we've spent.

With respect to the immunity granted for the non-consensual distribution of subscriber information without a warrant, your recommendation is that this immunity not go forward, that it be deleted or clarified or changed. Do I have that right?

[Daniel Therrien]

Yes.

[Sean Casey, Liberal, Charlottetown, PE]

What would be the impact if it were deleted? As you know, we've proposed an amendment to delete that immunity.

We have heard from the minister and we've heard in questions from the Conservatives that the immunity doesn't really mean much. It's already in the code, which begs the question as to why they put it there in the first place.

What would happen if it were simply struck, as we've suggested?

[Daniel Therrien]

One of our concerns with the amendment to the immunity clause through Bill C-13 is that it takes away a current requirement that immunity exists in the course of investigations, and that is no longer the case in the clause being proposed to you. To us, that is a concern.

Certainly, to broaden the immunity clause sends a strong signal to telecommunications companies, to enhance the kind of voluntary disclosure that is currently occurring. To us, that has serious privacy implications.

If the purpose of the clause is essentially to codify what existed, the status quo so to speak, then why is it needed? If it is adopted, it does seem to send a signal to enhance, to augment voluntary disclosure—something we are concerned with for privacy reasons.

[The Chair, Conservative, Mike Wallace]

You have one more minute, Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Can you help solve this mystery? We have not had a telecommunications company or a telecommunications industry association appear before the committee. We have not had anyone who has said they have asked for this immunity.

Can you help us understand who wanted this? To your knowledge, is this something the telecommunications companies, which we haven't heard from, were asking for?

[Daniel Therrien]

I'm still new to the job. I don't know, but perhaps one of my colleagues can answer that question.

[Patricia Kosseim]

No, I don't think we have any personal knowledge of their position or who actually requested that the immunity clause be amended in this way.

[Sean Casey, Liberal, Charlottetown, PE]

Nor do we.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thanks for those answers.

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

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

Thank you, Mr. Therrien, for giving us your views on this, which are important. We've heard lots of competing views on this legislation, particularly with respect to transmission data, the scope of what's included in transmission data, and of course what the standard should be to access transmission data. I think that's what you get when you do an in-depth study like this. You get those competing views and those competing voices.

When you talk about transmission data, what you said in your opening statement was that—and I'm paraphrasing to an extent—transmission data equals personal data. That's why you believe it should be only accessed at the higher threshold of reasonable grounds to believe, right?

[Daniel Therrien]

Yes.