Justice Committee on June 10th, 2014

[Some hon. members]

Oh, oh!

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

It was the very least I could do.

[The Chair, Conservative, Mike Wallace]

Okay, we will go back to the business at hand. Is everybody okay and ready? If I make an error, make sure you point it out to me.

The short title we postponed to the end of the discussion.

On clause 2 there are no amendments put forward. Shall clause 2 carry?

(Clause 2 agreed to on division)

(On clause 3)

On clause 3, we have a whole slew of amendments. We're starting with NDP-1. Just to let you know, there is a line conflict with PV-1 and PV-2. Parti vert —I'm guessing that's what PV stands for. If NDP-1 is adopted, PV-1 and PV-2 cannot proceed.

I'm assuming the floor is yours, Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

We did propose an amendment to clause 3 of the bill, which aims to replace lines 20 to 23 of subsection 162.1(1) of the Criminal Code. The amended provision begins as follows: “Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person...”. The rest of the paragraph would be replaced with the following: “with the intent of injuring, embarrassing, intimidating or harassing that person, is guilty”.

The reason for the amendment is very simple. A number of people have talked about this, but the representatives of the Canadian Bar Associations presented the most compelling argument. They talked about the notion covered under clause 3 of Bill C-13, which states the following: “...knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty”.

According to them, it would be preferable to refocus on the notion of mens rea, or criminal intent.

That is more or less what various ministers called for at the federal-provincial-territorial conference. They wanted an offence to be created for the distribution of the image. In some sad events that have taken place in Canada, the image was mainly used to intimidate, harass, harm or embarrass.

I think the legislation would be clearer, and it would be easier for law enforcement officers and crown prosecutors to issue an indictments if clause 3 did not create a legal uncertainty.

[The Chair, Conservative, Mike Wallace]

Thank you.

Are there any other comments to this amendment?

Mr. Dechert.

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

Thank you, Mr. Chair.

The government opposes this amendment. In our view, adding the specific intent element here would make the offence more difficult to prove, as it would require the prosecutor to also prove the intent of the accused. We heard testimony from a number of victims, especially about people distributing these images recklessly, and we believe that is the appropriate standard. In several cases we heard from the parents of several of the individuals who unfortunately are no longer with us.

It is not at all clear to me and to the government that with this change in the definition that there would be the ability to get a conviction in those particular cases. So on that basis, in order to protect the rights of the persons whose images are being distributed in a case where there is a reasonable expectation of privacy and the individual is reckless as to whether or not this would embarrass and harass the individual who is depicted in the image.... We think that it would be quite a significant watering down of what we're intending to do here and on that basis we'll be opposing this motion.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you.

Ms. May has her hand up. I need unanimous consent of the committee to let Ms. May speak to each amendment. She can speak to her own, but not to others. She's not part of this committee.

[Françoise Boivin, NDP, Gatineau, QC]

That's all right with me.

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

Mr. Chair, I could make a suggestion. Because of the volume of amendments we have to deal with and the volume of provisions we have to deal with today and on Thursday, I would suggest that Ms. May perhaps be given an appropriate period of time to introduce all of her amendments.

[The Chair, Conservative, Mike Wallace]

We do that by clause. She gets to do it as the clause comes up.

Do you want Ms. May to speak to this amendment or not? If I don't get unanimous consent I'm not allowing it because she's not a committee member.

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

Then we don't—

[Françoise Boivin, NDP, Gatineau, QC]

It's not as if she's going to get 30 minutes to speak. Since she has a couple of amendments that are going to fall or just—

[The Chair, Conservative, Mike Wallace]

This particular one does not.

[Françoise Boivin, NDP, Gatineau, QC]

Didn't you say that two and three had an impact...?

[The Chair, Conservative, Mike Wallace]

On line conflict it does, but that doesn't mean it.... If this....

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

[Inaudible—Editor]...clarification.

[The Chair, Conservative, Mike Wallace]

You are next.

On amendment NDP-1, all those in favour?

(Amendment negatived [See Minutes of Proceedings])

Now, for the Parti vert, Madam May, the floor is yours.

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

Thank you, Mr. Chair.

Because it seems to me that perhaps some members of committee have in the last number of months forgotten why it is I'm here, I just seek to remind you that this wasn't my idea. This process is not a process I sought. I'm summoned here based on a recommendation and in fact a motion that was passed by this committee, and an identical motion that has occurred in 20 other committees.

I've just run here from the committee that was looking at Bill C-22, where I had to provide clause-by-clause amendments in order to ensure that I not be precluded from the rights that I have on paper in O'Brien and Bosc. But for those motions passed, which I imagine came to us from the PMO, since they were identical in content in 20 different committees.... But for those, I could present my amendments as substantive amendments at report stage. That's why I'm here, and that's why I get to speak to every one of my amendments. I appreciate the opportunity.

I'm very taken with what the Canadian Bar Association has said about the current drafting. That's why my amendment is identical to that of the NDP. It's the language recommended to us. Madam Boivin and I share a number of things. Our birthdays are right next door to each other, and on top of that, we are both lawyers. The advice of the Canadian Bar Association is not something to be dismissed out of hand.

The concept of criminal responsibility involves mens rea. It involves an intent. The way the bill has been drafted it's so broad that in the example used as a hypothetical by the Canadian Bar Association, someone could be found criminally responsible for having lent somebody else their laptop, someone who, in a series of events, opens files and ends up incidentally sharing images with no intent on the part of the person who owns that laptop. The Internet age opens up numerous possibilities for inadvertence—not with negligence and not with intent—so when the term cyberbullying is a very clear term with an intent to hurt others, that has to carry through with intention to the various aspects of criminality. That's why my first amendment, Green Party-1, is an amendment that seeks to ensure we don't inadvertently ensnare completely innocent people in criminal liability.

[The Chair, Conservative, Mike Wallace]

Are there further questions on PV-1?

Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I just want to urge the government once again to think about this issue before rejecting this extremely important amendment out of hand.

Victim representatives have appeared before our committee. They said it was extremely important for this part to be adopted, but also for this part to be able to withstand scrutiny in court. The danger we are seeing in this, and we are not just trying to be

a pain in the butt of the Conservatives. It has been deemed by specialists so floue, so grey, so not clear, and so easy to contour, that I'm afraid all the work the government thinks it's doing on cyberbullying will be completely wiped out, just because of....

As a lawyer, I can see so many ways of getting out of clause 3 of this legislation that it's unreal that the government doesn't take a moment to reflect and realize the importance of maybe addressing the real issue, which is distributing intimate images for the reason of really harassing, intimidating, embarrassing, and annoying. Those are words that say what this says. When I look at the case of Rehtaeh Parsons, and when I see the case of Amanda Todd, I can see that you have no problem seeing exactly that in those cases.

It's a big danger. I think it's a big red light for the government to maybe not be too bullheaded and insist that it has to be their own words or no words at all. Honestly, for all the victims, I think it's something that I truly believe in. If we want to do our work well, at least on that part, we have to make sure that we're not giving ammunition to people to play lawyers in front of the courts.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Mr. Dechert.

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

Thank you, Mr. Chair.

The government, I can assure Madam Boivin, has considered this very carefully and very significantly, and as with her previous amendment, which is very similar to this one, our purpose is to protect the privacy of the person depicted in that intimate image. We believe this amendment would provide a narrower protection to those people, and we believe it would place an additional burden on the crown to prove the intent of the accused. On that basis we will not be supporting this motion.

[The Chair, Conservative, Mike Wallace]

Seeing no further discussion, the question is on PV-1

(Amendment negatived [See Minutes of Proceedings])

Madam May, on PV-2....

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

Thank you, Mr. Chair.

Looking at this amendment, we're still on page 1 under clause 3, revising proposed section 162.1. What my amendment does is remove the words—this is relating to consent—“or being reckless as to whether or not that person gave their consent to that conduct”. Again, this speaks to advice from the Canadian Bar Association that there's an unreasonable onus being created here on the person who receives an image to ascertain consent before sharing the image.

The purpose of the bill is to criminalize those people who are using images for the purpose of bullying someone. If you don't know who is in the image, the chances are you're not aware of their identity, so how can you be a cyberbully if you've received their image? The burden in the current Internet age to determine consent is really quite an unreasonable onus, and the advice from the Canadian Bar Association's brief was to remove this language. That's what my amendment PV-2 tries to do.

[The Chair, Conservative, Mike Wallace]

Thank you.

Is there further comment?

Mr. Dechert.