Status of Women Committee on Oct. 5th, 2016

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you very much.

Kendra, I really value the point that you brought up with regard to the Canadian Human Rights Act. You said that it was repealed in 2013 and that it could be advantageous to bring that back.

Now, one thing that was also done in 2013 was the introduction of an anti-cyber-bullying law that came into effect in 2015. That was Bill C-13. It was overturned by the courts because it was said to violate the privacy of Canadians.

If we were to look at bringing back something like the Human Rights Act, which was repealed in 2013, or we were to look at pursuing anti-cyber-bullying legislation, how do we balance the privacy of individuals, the freedom of speech that individuals have under our Canadian Charter of Rights and Freedoms, with the protection of victims? How do we go about balancing that as legislators?

[Kendra Milne]

I don't think there's an easy answer. I think when human rights come into conflict with each other, whether they be privacy and free speech with the right to be safe, or equality rights with the right to not experience discrimination, it's a really challenging thing. I can say, for example, that the provisions in the Canadian Human Rights Act were not new provisions; they were there for quite a while. B.C. has very similar provisions in its human rights act, but B.C., of course, doesn't have the jurisdiction over federal communications and telecommunications, so these don't apply.

The key is that we can learn lessons from some of the legislative attempts, particularly in Nova Scotia, where legislation came through very quickly and likely was overly broad. Taking the time to really think through and consult on how to balance those rights is key.

When it comes to the human rights process, I think that process has built within itself the ability to balance those rights. In the human rights process, the complainant establishes a case of discrimination, and the respondent has an opportunity to justify it. That justification can involve things like their charter rights that are at stake, religious freedoms, and things like that. So it has within itself its own balancing process.

What cannot happen is this idea of just legislatively deciding that one trumps the other without any consideration of the individual situation. First of all, that really erodes women's protections, but it also sends a terrible message about how we prioritize what often is quite hateful speech over their fundamental rights.

[The Chair, Conservative, Marilyn Gladu]

I'm sorry, but that's your time.

We'll go now to Ms. Moore. Welcome. You have seven minutes.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Thank you, Madam Chair.

Mr. Adam, I have a few questions for you.

Many things happen online on a regular basis that women never report. For example, when they sign up for a dating site, they might receive nude photos that they absolutely did not seek out and be approached in all kinds of ways. They might also be asked to send nude pictures of themselves. That is similar to harassment. Yet these things are never reported. Most people know it would be absolutely crazy to report them because, unfortunately, they are exposed to this kind of thing several times in a year. They have to simply block those messages and erase everything.

In your opinion, does the fact that such behaviour is never punished, that nothing happens, not in a way contribute to an escalation of violence in such cases?

The first instances of behaviour that verges on violence or is violent are almost never punished. So the escalation of violence continues. In general, the intensity of such behaviours increases gradually, without any consequences. There might be consequences at some point, but things would have already gone very far before they are reported, investigated and consequences imposed.

[C/Supt Jeffery Adam]

There are several parts in there. First, it's not just cybercrime but also that type of event, which, I believe, is systemically under-reported. I can't speak to why that is other than from my own personal experience, which is that the victim often feels re-victimized through the criminal justice process. Reporting it and entering into the criminal justice system is seen as very intimidating. Of course, that's not what the person needs at that time.

There are enough provisions within the Criminal Code of Canada for us to deal with this type of event once we become aware of it. The trick is to become aware. For the cybercrime issue—just purely cybercrime—there is no central reporting. There is no way for us at this time to capture if an event such as threats or harassment occurred online or offline. We need to make those changes in both the StatsCan system and our own records management systems to get a picture of what is happening that is reported. There is some motion towards putting in and asking for support from government on a centralized deconfliction apparatus—a national cybercrime coordination centre—that would allow single-stop reporting either online or in person, so that we would at least have an idea of what is happening.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

That kind of thing can happen once a week easily, especially in the case of young girls. Complaints occur with some frequency, but you are saying that they are under-reported.

If there was suddenly a police service that had to manage one complaint per week from all women under the age of 40, it seems obvious that there would not be enough resources to do so. They would be completely overwhelmed and could not even take all the depositions, even regarding emails that are sent and so forth.

Would it be possible to make the system much more efficient so that cases are processed quickly?

[C/Supt Jeffery Adam]

You're exactly right that we would be completely inundated and don't have the capacity to deal with it. So then I look back to how cyber has evolved. What is missing is good security digital hygiene practices by everybody. Where I'm going on this is prevention.

As I mentioned in my opening remarks, if people are comfortable in their homes and don't have those threat cues and are not aware of the danger they're in or who they're dealing with, we end up with somebody who could be victimized and may be victimized. Where do we have very good education systems and products for our citizens on securing themselves and keeping themselves out of trouble, where their sensory input isn't telling them they're in trouble? We do not have that as strongly as we need it.

As I mentioned about strategy, one of our elements is deterrence. There is a drug abuse resistance education program that we give to the schools. If we turn “drug” into “digital”, we should be able to roll out the same type of idea to the kids. Start them off young, keep them out of sexting environments, and keep them aware that the Internet is not a forgettable place. You are there permanently. Nobody understands, when they're in their kitchen in their fuzzy slippers having coffee, that what they say online is ineradicable. It's there. It's very difficult, if not impossible, to remove everything.

It's the education, the prevention, that we need to get in front of so that, when somebody starts seeing this trend towards violence, they can stop it early.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Also, are there any tools that could be used with young men who might go too far in their comments? Are there tools that could be used to help them change quickly and truly understand how far they can go in an online message or to clearly indicate what is the line that must not be crossed?

[C/Supt Jeffery Adam]

It would be the same education process that we would use to reduce victimization and exploitation of those young people. The trick would be to raise the awareness of everyone of the courtesy rules, of comportment, etc. on the Internet, and then you hopefully could stop some of that experimentation as it goes on when the kids start feeling their wings on the Internet.

[The Chair, Conservative, Marilyn Gladu]

Ms. Moore, I'm sorry, but your time is up.

We'll go now to Mr. Fraser for seven minutes.

[Sean Fraser, Liberal, Central Nova, NS]

Thank you very much.

I found both of your presentations fascinating.

I'll start with you, Ms. Milne. I was very interested when you discussed the Human Rights Act and the need to have victim-centred justice, which the criminal system seems to be lacking, quite frankly. I'm wondering if you think shifting things towards sort of a Human Rights Act paradigm would encourage more women to come forward with complaints about sexual cyber-violence.

[Kendra Milne]

I think it absolutely would. I guess I'm not sure that I think it should be shifting away from the criminal law towards human rights. I think both of those avenues should be available to women. I think there's lots of research that suggests that sometimes women have very valid reasons for not approaching the police, whether it's because they are re-victimized through that process, or that the process doesn't focus on them, or that it does not have adequate victim supports. There are all sorts of reasons why. I think having alternatives that women have more control over is key.

I can speak only from the B.C. experience, but it's a fundamental problem there, because there is no legal aid to cover the human rights system. The federal system is a little bit different because there's the Human Rights Commission, but if the shift is to broaden the human rights protections in this area, the system obviously has to be meaningfully accessible to women. That requires their having legal assistance to approach that system.

[Sean Fraser, Liberal, Central Nova, NS]

Excellent. I assume you would recommend that we formally extend access to legal aid for people pursuing human rights claims for issues like cyber-violence.

[Kendra Milne]

Absolutely. I think it's crucial to all sorts of violence against women, including harassment in the workplace and all sorts of things.

[Sean Fraser, Liberal, Central Nova, NS]

Excellent. I find that the criminal standard of “beyond a reasonable doubt” makes it discouraging for someone to prove under that standard that something may have happened online, especially when law enforcement hasn't caught up to the technology. However, if you had a perfect world and you could design the system from scratch within a human rights or civil context, should we stick to the balance of probabilities in the civil context, or is there a different threshold we should be using?

[Kendra Milne]

No. I think the balance of probabilities for the prima facie case of discrimination has worked well in the human rights system.

[Sean Fraser, Liberal, Central Nova, NS]

On the issue of intersecting grounds of discrimination, you mentioned, for example, that indigenous women may be less inclined for quite a number of reasons to bring a complaint forward in the criminal justice system. I expect that the same would be true of any government-centred approach. There are going to be certain sectors of the population who, for whatever valid reason, may lack trust in government.

Is there a community based system or a restorative process you can think of, or that you would recommend we adopt, to encourage people from a wide variety of backgrounds to come forward with complaints?

[Kendra Milne]

I think the best case scenario for all responses to violence against women would involve the full spectrum of solutions. With respect to online violence, it includes the criminal system and the human rights system. Ideally, it would also include some regulation of service providers so that if it's just a matter of getting a picture taken down or trying to ensure that a block against someone works, then there's the ability to do that within the media platform they are using.

I think there need to be community based women's organizations where, if women choose not to access any of the state systems or systems within a service provider, they can get support and counselling to be able to move on from what's happened to them.

[Sean Fraser, Liberal, Central Nova, NS]

We also heard testimony from prior witnesses during this study who advocated restorative justice that would bring offenders back into the fold and say that maybe there's still some hope that they can remain integrated in society. It would also help bring closure to the victim at the same time.

Are there any existing models we could look to that have had success in promoting that kind of a system?

[Kendra Milne]

I don't know of any models, primarily because they tend to not always be the best models when we're talking about violence, because of the power dynamics at play. It might be possible, though, with online harassment, which is less about the continuation of spousal abuse and relationship violence and more about a stranger trying to shut down a woman's speech or something like that through online harassment. It certainly might be more appropriate in those kinds of situations, but I don't have a particular model to suggest to you.

[Sean Fraser, Liberal, Central Nova, NS]

Thank you very much.

I'm going to shift my line of questioning to the Canadian Association of Chiefs of Police and discuss tools for a moment.

You mentioned the MLATS before and how it can take 18 months. That blows me away. I have some experience with MLATS and letters rogatory, and we were able to act in a matter of weeks in private sector cases.

Why is there such an inordinate delay?

[C/Supt Jeffery Adam]

As one example, if we were to execute a search warrant on a company in the United States or any other signatory, we would have to present our case to our judge and get him to approve it under the prima facie case that there are enough reasonable grounds to believe something has occurred. We then take it to our international systems group, where they liaise with the Department of Justice or the other country of origin, and they try to craft the documentation so it meets the needs of the jurisdiction in which it may be served, which is tricky because there are many different articles.

Then it goes across and is given to the police, or the FBI, or whomever it is they are dealing with. Then it gets presented to another judge, and then execution of the search warrant takes place. Depending on what the request is, it could be 30 days, 40 days, or 50 days just to get that back, depending again....

The time it takes between when we start the process and the time we get the data back can be 18 months. That's not uncommon, sadly.

[Sean Fraser, Liberal, Central Nova, NS]

I have a little less than a minute left, I believe. You mentioned that there's some collaboration with civil society.

My question here can be opened up to both witnesses.

What makes the partnerships between law enforcement and civil society most successful with the support for the victim in the aftermath of a cyber-violence incident?

[C/Supt Jeffery Adam]

I'll use 30 seconds. Law enforcement is a weapon of choice for government to use in order to ensure public safety. That's what our job is. We also include victimization and victim services, etc., but that's not our primary role in society.

When we partner up with our private agencies, we strengthen both sides in dealing with the public safety issue and the victim.

[Kendra Milne]

I would simply add the support of victim services, and particularly services that are targeted to women, or perhaps specialized indigenous services for indigenous women because they have different needs from those of non-indigenous women. We need to ensure that those responses are really targeted. That often comes through civil society and partnering with organizations that already have expertise in dealing with those communities.