Justice Committee on June 12th, 2014

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

Mr. Chair, the government does not support this amendment.

This amendment would effectively reduce the level of judicial scrutiny by reducing the level of proof required to obtain the general production order. It's inconsistent with other provisions of the bill, and as such, would render many of those investigative tools less valuable and less powerful in investigating the crimes we're trying to prevent. As we said earlier, it would reduce privacy safeguards that were carefully built into the general production order. On that basis, we'll be opposing the amendment.

(Amendment negatived)

[The Chair, Conservative, Mike Wallace]

Amendment NDP-11 is next. Because they're consequential to NDP-6, the following amendments have been removed: NDP-11, NDP-12, NDP-13, and NDP-14. Amendment PV-13 is next, and it's identical to PV-14, so it has been removed. Amendment NDP-15 is consequential to NDP-6. Amendment NDP-16 is consequential to NDP-7.1 and identical to PV-14. Amendment PV-14 has been removed because it's identical to NDP-16. Amendment NDP-17 is consequential to NDP-6. Amendment NDP-18 is consequential to NDP-7.1.

We're on amendment NDP-19.

Madam Péclet, the floor is yours.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

It is unfortunate to see that the government is not listening to the concerns of the witnesses. And yet the minister was clear: he was prepared to amend this bill following the testimony and the committee's study. It is unfortunate that the government has rejected all opposition amendments.

The change proposed in our amendment does not alter the nature of the clause. It simply clarifies and adds an element. What is more, it would be good to have the members of the government party listen to the experts on this matter and to vote for our amendment.

[The Chair, Conservative, Mike Wallace]

Thank you very much, Ms. Péclet.

Mr. Dechert.

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

Mr. Chair, the government does not support this amendment.

The law of privilege, as Madam Péclet will know, applies to the content of communications between a lawyer and a client. Such communications can be obtained when a general production order is obtained, hence the clear reference to the possibility for a justice or judge to apply a condition to protect solicitor-client privilege in that context.

Although a judge is technically not prevented from opposing such a condition, it is difficult to find situations in which such a privilege would apply, particularly in respect to preservation orders, as they do not provide for access to any type of data. On that basis we will not be supporting the amendment.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, Mike Wallace]

On amendment NDP-20, we have Madam Péclet.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

I will read amendment NDP-20, which adds a paragraph to clause 20 on page 20:

(1.1) A justice or a judge shall not include in the order any conditions under subsection 1 unless he or she is satisfied that it is in the best interests of the administration of justice to do so.

As the government knows, this amendment is one of those that were proposed by witnesses. Its purpose is simply to improve the making of orders.

It is important that the government make the administration of justice one of its priorities. It should listen to the experts and vote for our amendment. Unfortunately, I already know the government's response, but it would be good if we could have a proper discussion on this amendment.

[The Chair, Conservative, Mike Wallace]

Mr. Dechert.

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

Mr. Chair, the government does not support this amendment.

The purpose of proposed subsection 487.019(1) is to allow for the imposition of conditions on the execution of the preservation or production orders after the decision is made by the judge or justice to issue such orders. The condition that the judge issue a court authorization or a warrant in the best interests of the administration of justice has a very specific meaning in criminal law. It is a condition that is generally to be met before a judge issues specific court authorizations, such as a general warrant or an authorization to intercept private communication. This condition would be unusual after the judge or justice has decided to issue a preservation or production order, and given the issuance is already limited to what a justice or judge considers appropriate, it would not likely add anything in our view. On that basis, we will not be supporting this.

(Amendment negatived)

[The Chair, Conservative, Mike Wallace]

Amendment NDP-21 is consequential to NDP-6, which has been removed, so it's removed.

We're on amendment NDP-21.1. There is a line conflict, but let's deal with it anyway.

Madam Péclet.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

This is an extremely important amendment.

Mr. Chair, pardon me for a moment. I took some notes when the witnesses appeared and I want to refer to them.

We are moving an amendment that reflects the various concerns of the witnesses. Proposed paragraph 487.0191(1)(a), which reads as follows, "(a) notify in writing any person whose information was produced or preserved pursuant to that order or demand; and," was drafted because several witnesses mentioned the problem raised by the part of Bill C-13 that gives police forces new powers without containing oversight and information mechanisms.

People whose information has been shared would never be informed of that disclosure. I should mention to the government that, in R. v. Tse, the Supreme Court of Canada ruled that Criminal Code section 184.4 respecting wiretapping was unconstitutional because it allowed officers to intercept telephone communications without a warrant.

The criterion of urgency was not a problem. That is not what the Supreme Court found unconstitutional, but there had to be a mechanism for oversight and notice. According to the Court, the fact that the police could intercept telephone communications without a warrant and without an accountability mechanism was unconstitutional and violated section 8 of the Canadian Charter of Rights and Freedoms.

The New Democratic Party is therefore moving paragraph 487.0191(1)(a), under which the Deputy Minister of Public Safety, for example, would notify people whose personal information has been shared with other organizations during an investigation or electronic surveillance. Paragraph 487.0191(1)(b) provides that it must be certified to the court that granted the order or demand, in a manner prescribed by regulations made by the Governor in Council, that the person has been so notified. This simply enables the court that has heard such a case, for example, to consider all the evidence that has been presented to it.

I believe this is important. The Supreme Court has previously held that the lack of oversight and the failure to inform people are unconstitutional. I simply want to emphasize that it is extremely important to know that the Privacy Commissioner and all the witnesses who appeared before the committee said this kind of notice mechanism was imperative. The administration of justice requires this kind of mechanism. I believe that, in the opinion of the Canadian public, the government must do everything in its power to ensure that the courts do not invalidate this bill.

Unfortunately, I want to stress that we have previously spoken to the government about this. Cyberbullying victims do not deserve to have their cases drag on before the courts for months and years because the government has not done everything in its power to pass legislation that can stand up in court. The victims do not deserve that.

That is why I urge the government to adopt this amendment if it is truly concerned about the interests and protection of victims. That may ensure that the bill is not overturned or challenged and is consistent with the Canadian Charter of Rights and Freedoms, with victims' rights, and that there is a fair balance.

I would point out that even the parents of cyberbullying victims said this. There has to be a balance between respect for people's privacy and that of cyberbullying victims. This bill should not be challenged in court for months on end, thus preventing victims from obtaining justice.

[The Chair, Conservative, Mike Wallace]

Thank you, Ms. Péclet.

Mr. Dechert.

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

Mr. Chair, the government does not support this amendment.

In our view, notification jeopardizes investigations and often results in the deletion and destruction of evidence. We also believe that the minister requested to make this notification in this case. It's not the appropriate authority to do that, and on that basis, we will not be supporting the amendment.

[The Chair, Conservative, Mike Wallace]

We'll vote on the amendment.

(Amendment negatived [See Minutes of Proceedings])

Amendment NDP-22 is now removed as it's consequential to NDP-6. The same applies to amendment NDP-23. We're still on clause 20, of course.

We're on amendment PV-15. Ms. May, just so you know, there's a line conflict with amendments NDP-24, LIB-1, NDP-25, so there are other issues if this one happens to pass.

The floor is yours, Ms. May.

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

Thank you, Mr. Chair.

At this point, we're at page 24 of the bill and my amendment seeks to delete lines 14 to 24.

The reasons for this, Mr. Chair, relate to the immunity for voluntary disclosure. This has been one of the most controversial parts of this bill. This is one of the very strong reasons that so many of us in the opposition wanted the bill split, so that we could deal with the legitimate concerns about cyberbullying without creating what is a loophole so big you could drive truckloads of personal data through it without anybody noticing.

What this allows for, of course, is immunity for those who are holding personal information to voluntarily disclose it. The level at which this is already occurring that we know about is the revelation that the 1.2 million requests to telecom companies for private customer information in just one year alone, 2011, affected 750,000 user accounts. That was voluntary disclosure. This bill will, of course, absolutely confirm and increase the risk of such voluntary disclosures of personal information. It also expands the nature of public officers to whom this information may be disclosed.

It isn't at all about combatting cyberbullying. It is something of a different character altogether in the guise of protecting children from Internet crime and predators. It's a clever disguise, but behind the disguise is Big Brother. This should be removed. It's inconsistent with the government's claims that it cares about court oversight.

I strongly urge my friends on the other side to give this amendment a chance, to vote in favour of it, to make it clear to the Canadian public that this Conservative administration is actually interested in cyberbullying, not in gathering up personal information on spec.

[The Chair, Conservative, Mike Wallace]

Thank you very much, Madam May.

I'm assuming Mr. Dechert has a response.

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

Mr. Chair, I'm sure Madam May has followed the testimony at this committee quite closely, and she will know that the point was made on many occasions that this provision simply codifies the existing jurisprudence on this point. With respect to section 25 of the Criminal Code, the motion proposes to delete an existing clarification that voluntary assistance under the common law is not displaced by the creation of production orders and that such voluntary assistance is protected from civil and criminal liability.

In our view, deletion of this provision may undermine the comfort of the public in providing necessary voluntary assistance to police when they are engaged in the protection of the public.

You'll recall, Mr. Chair, that a number of witnesses, including those who have served as corporate counsel to media organizations, provided their opinion that in the absence of such a provision, they would be less likely to advise their clients to cooperate with law enforcement, and that is contrary to the purpose of this bill and this legislation.

Policing is not, as you know, Mr. Chair, done in a vacuum, and voluntary support to law enforcement from the public is essential to ensuring public safety, in our view. Canadians who assist the police on a voluntary basis should be assured that they will not incur liability in providing such assistance.

On that basis, we will be opposing this amendment.

[The Chair, Conservative, Mike Wallace]

Thank you.

(Amendment negatived [See Minutes of Proceedings])

Amendment NDP-24 is removed as it's consequential to the decision on NDP-6.

We are now on to LIB-1, which is in conflict with NDP-25, which is next. If LIB-1 is adopted, NDP-25 will not proceed.

The floor is yours, Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Chair, many of the comments I have with respect to this amendment would be along the lines of what you just heard from Ms. May on her last amendment.

I can't begin to tell you how disappointed I am with the response of the government on the last one. I thought they cared about what Carol Todd said. This amendment is entirely consistent with what Carol Todd said. I thought they cared about what the Privacy Commissioner said. After all, they fiercely supported his appointment. This amendment is entirely consistent with what the Privacy Commissioner said.

Not a single telecommunications company has asked for civil and criminal immunity, not a one. In fact, of every witness who appeared before this committee who was asked what motivated the insertion of this immunity against class action lawsuits, nobody could identify a single party who asked for immunity, no one.

It strikes me as a wee bit odd that yesterday we were sitting here and talking about whether or not transgendered persons should be protected, whether that clause should be put in, the amendment that was proposed by Mr. Garrison. The response from the government was that they didn't hear from any witnesses who asked for it. That very same argument can be made with respect to this immunity. We didn't hear from a single witness who said they want this in the bill.

Contrary to what Mr. Dechert said in his last submission, and contrary to many of the questions he's been putting to witnesses, this does change the law. Section 25 of the Criminal Code has a reasonableness standard when there is voluntary production of documents to police authorities. That reasonableness standard, as we have heard from several witnesses, has been removed with this immunity. What this immunity does is it allows people to act unreasonably. It gives them immunity for acting unreasonably in their cooperation with authorities. That's what this does.

We heard from several witnesses with respect to the joint impact of this provision with Bill S-4. When you take Bill S-4 and this provision together, what it means is that it is not just public officers, it's not just peace officers, it's anyone. Anyone in a contractual dispute can now get private information without consent, without disclosure.

We know now, although not because there is any transparency reporting, that this is widely used.

The purpose of this amendment is to prevent the widening and expansion of the non-consensual distribution of subscriber information. As far as I'm concerned, that is one of the most important changes that can possibly be made to this bill. We heard it time and time again. I would certainly hope that the government would respect the evidence that has come forward to this committee. A monopoly on good ideas doesn't exist on the other side of this room.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

Mr. Dechert.

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

Mr. Chair, I don't wish to add a significant amount to the record on this since we did discuss it in the previous amendment. All those same arguments apply.

I'll just correct my friend Mr. Casey. He may have missed a meeting, but he will remember that Mr. Canning, the father of Rehtaeh Parsons; Mr. Allan Hubley, the father of Jamie Hubley; Mr. Kempton whose granddaughter died in similar circumstances; Mr. Gilhooly, who was a victim of Graham James; and David Butt, the lawyer for the Kids Internet Safety Alliance and himself a former federal crown prosecutor and litigant before the Supreme Court of Canada, all said likewise, as did the Canadian Centre for Child Protection. Each of the victims' rights organizations that appeared before the committee and Canada's victims ombudsman.... I'm sure he'll have an opportunity to read that testimony again in the next few minutes, but that is the case, and on that basis, we will not be supporting this amendment.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Dechert.

Mr. Casey, the floor is yours.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Dechert is quite right: I don't need to reread the testimony. He is correct that those individuals did speak in favour of the immunity.

The point I sought to make is that the parties who will benefit from the immunity, those who hold the records, those who are being given the immunity, those who are being shielded from class action lawsuits and criminal liability, have not asked for this, not one. We did not hear from one witness who will benefit from the immunity, not one.

[The Chair, Conservative, Mike Wallace]

Thank you.

(Amendment negatived [See Minutes of Proceedings])

We're on amendment NDP-25. It is very similar.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you very much, Mr. Chair.

Our amendment concerns the immunity granted under subsection 487.0195(2). We are offering the government a slightly better alternative.

It is important to note that one form of immunity is provided in electronic surveillance cases. That immunity is very reasonable and is already being used by the people concerned. There should be some consistency in the Criminal Code to ensure that the immunity enjoyed by peace officers, telecommunications companies and all people concerned in electronic surveillance matters is the same as that already provided for under the Criminal Code. It would be quite reasonable for that to be the case.

It is true that many witnesses are in favour of immunity in this area, but they are not necessarily in favour of virtually unconditional immunity as is provided for here. I am 99.9% certain that no witness said unconditional immunity was desirable. That much is clear. The government cannot tell me the contrary.

I have just provided a quick overview of the testimony of the federal ombudsman for victims of crime, and she never argued in favour of the kind of unconditional immunity the government is now trying to grant to telecommunications companies.

Why could the government not go halfway and grant those companies the same immunity in electronic surveillance cases as is already provided in the Criminal Code? I already know Mr. Dechert's response. He will tell us that section 25 of the code already codifies that immunity. Section 487.14 also codifies immunity. Why then add a new immunity that is inconsistent with the logic of the two sections already in the Criminal Code? We must be consistent.

It would be reasonable to accept amendment NDP-25 so that immunity in electronic surveillance cases is the same as that provided with respect to information sharing.