Mr. Speaker, I rise to speak to Bill C-13, the protecting Canadians from online crime act.
I would like to use this opportunity to speak to some of the misconceptions about this important piece of legislation. Much has been reported in the media about Bill C-13 proposing an expansive new power that would allow police to collect and obtain evidence without a court order. Further, it has been reported that this new provision would encourage telephone and Internet companies to provide as much information as they want, because they would be protected from criminal and civil liability.
In all honesty, I am not sure where to start when addressing these assertions because they are misleading and inaccurate. The much maligned provision in question is the proposed section 487.0195 of the Criminal Code. This proposed section has been portrayed by some as a convenient way for the police to sidestep court authorization requirements by requesting, from organizations, for example banks, telecommunication service providers, et cetera, voluntary disclosure or voluntary preservation of documents or data.
I want to be clear at the outset that this provision is included in Bill C-13 for greater certainty only. As is the case for similar types of provisions used sporadically throughout the Criminal Code, proposed section 487.0195 is intended to clarify Parliament's intent relating to a provision and to assist the courts in interpreting the law. To be clear, proposed section 487.0195 would not provide the police with any new powers.
Under the law today, and under the law prior to the creation of production orders in 2004, police, as part of their general policing duties of common law, have always been permitted to obtain information voluntarily from a third party without a court order. In 2004, production orders were included in the Criminal Code to allow police to obtain a court order that would compel a third party to provide information in situations where the third party could not or would not do so voluntarily.
I say “could not or would not” here because companies have obligations regarding the protection of information. Companies that collect the personal information of Canadians have to store it, use it, and disclose it in accordance with privacy legislation, such as the Personal Information Protection and Electronic Documents Act. In addition, they may have other relevant obligations not to disclose information, for example, pursuant to their contractual agreements with the customers.
It may also be of interest to note that most privacy legislation is crafted in a permissive manner when it comes to disclosures. This means that the legislation spells out when a company can voluntarily disclose information. In other words, the legislation permits the disclosure of personal information in certain circumstances but never requires it.
This is a very important point, because there have been concerns expressed that section 487.0195 is somehow creating a new power requiring companies to provide access to information. It is not a new power, it is merely a re-enactment of an existing “for greater certainty” clause, nor does it contain any requirement to co-operate with a request. Police can ask for the voluntary disclosure of information, but the third party is free to refuse to disclose it until a judicial warrant or order has been issued. The initial version of this “for greater certainty” provision was enacted in 2004 as section 487.014 of the Criminal Code. It was created to make it clear that there was no need for the police to obtain production orders when persons were providing their assistance on a voluntary basis as long as there was no prohibition against the person doing so.
To put it another way, the primary purpose of this provision was, and still is under the proposed section 487.0195, to clarify that police do not need a judicial protection order every time they ask a person for information.
To sum up on these points, section 487.0195 is not new to the Criminal Code. It has existed since 2004. It is not a power. By its very definition, it can only clarify what already exists in the law, and cannot be the source of new legal authority.
The explicit protections from criminal and civil liability now found in subsection 487.0195(2) of this “for greater certainty” provision have also been mis-characterized as a “get out of jail free” card or as a provision that will open up the flood gates and allow the free flow of information between the private sector and the state.
It is true that Bill C-13 proposes to amend the law to explicitly refer to the protections from civil and criminal liability when a person chooses to provide voluntary assistance to the police. However, this amendment would not be a major change to the law as it presently stands. The Criminal Code currently provides this protection under section 25, which is cross-referenced in the current version of this section, section 47.014. The cross-reference to section 25 in the law currently and the new text proposed in Bill C-13 are both designed to clarify that a person who discloses information could not be sued or prosecuted for voluntarily providing information that they are not prohibited from disclosing.
It should be noted, however, that the considerable case law interpreting the scope of the existing protections under section 25 is consistent in that it only protects conduct that is reasonable in the circumstances. This is not a blanket protection for assisting police. A telephone company that voluntarily provides information to police that they are legally obligated to protect, including under contract, could not avail itself of these protections.
To be clear, whether Parliament again legislates in this area or not, this protection already exists through the court's interpretation of section 25 of the Criminal Code. Including language in the bill that explicitly indicates more clearly the existing protections from civil and criminal liability in the current law is not a proposal for substantive change. It would make the provision more transparent and understandable on its face. This is not a significant development of the law in this area, nor is there any hidden agenda.
This provision is not expected to have a large impact on current practices. All it does is clarify and make more transparent the current protections. This clarification may help new companies that are just entering into co-operation with law enforcement for the first time to more easily be able to understand the scope of the law in this area. They would not have to hire lawyers to research the jurisprudence to understand how the protections afforded by current section 25 of the Criminal Code would apply in this context.
I will take a moment to speak about the other minor changes that are proposed for this section. Bill C-13 proposes to incorporate a reference to preservation demands and preservation orders into the section, to clarify that a person may also voluntarily preserve data, so long as doing so is not otherwise prohibited.
Bill C-13 also proposes to remove a reference to the public officer “enforcing this or any other Act of Parliament” from the current section 487.014 to ensure that the provision is not misinterpreted as precluding voluntary co-operation in the context of general policing duties that do not directly relate to the enforcement of a statute. Such common law police duties include contacting the next-of-kin of an accident victim, returning stolen property to its owner, or contacting the homeowner in the case of a break-in.
Police are better able to keep society safe and to investigate criminal activity when persons, groups, and organizations are willing to assist them. The purpose of the current Criminal Code section 487.014 and the proposed section 497.0195 of Bill C-13 is to ensure that police and the public can continue to work co-operatively. In the context of this provision, the proposed legislation does not provide the police with any new powers. The bill proposes small revisions to the current law, to make clearer in what circumstances the police do not require production orders if a third party voluntarily assists in a police investigation by voluntarily providing information.
I would add that the type of mis-characterization of the bill that we have witnessed by some commentators distracts from fruitful debate on the subject. This is an important bill, not only for what it provides Canadians in the form of increased protections on the issue of cyberbullying, but also because it provides police with an investigative tool box for modern technology that protects and respects people's privacy.
Canada's international partners have been using these kinds of updated tools for over a decade. These new and modernized investigative tools will not only give police access to the information and evidence they need to apprehend Internet criminals, but they will also assist police in addressing crimes generally in today's advanced telecommunications environment, where smart phones and computers are ubiquitous and telecommunications technologies are constantly evolving.
These tools have been carefully tailored to balanced the interests of the state in collecting vital evidence relating to the commission of a crime with personal privacy interests that Canadians value so profoundly.
Each tool was calibrated to reflect its relative level of invasiveness against the privacy interest in the information it is used to obtain. Although many of our international partners have had access to these types of tools for well over a decade, the extra time Canada has taken to enact these updates has allowed us to learn from the successes and failures of others, and I am confident that the investigative toolbox that Bill C-13 would provide police has incorporated the most sophisticated privacy protections for Canadians.