Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 20 - Evidence for February 9, 2011
OTTAWA, Wednesday, February 9, 2011
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-22, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service, met this day at 4:17 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to the Standing Senate Committee on Legal and Constitutional Affairs. Today we are beginning our study of Bill C-22.
[Translation]
It is a pleasure for us to welcome someone who has almost become a regular witness in our committee, the Honourable Robert Nicholson, Minister of Justice and Attorney General of Canada. He is accompanied by Ms. Kane, Director General and Senior General Counsel, Criminal Law Policy Section at the Department of Justice, and Normand Wong, Counsel, Criminal Law Policy Section.
[English]
Welcome to you all. Minister, it is always a privilege for us to receive you, and we are grateful to you for being here. I think you have an opening statement.
Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: It is a privilege to be here. I am pleased to speak about Bill C-22, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service.
[Translation]
Bill C-22 will enhance Canada's capacity to better protect children from sexual exploitation. It will do so in a number of ways.
[English]
First, it will strengthen our ability to detect potential child pornography offences. Second, reports generated by this bill will help block child pornography sites through the project Cleanfeed Canada. Third, this bill will facilitate the identification, apprehension and prosecution of child pornography offenders. Finally, and most important, this act will help to identify the victims so that they may be rescued from sexual predators.
Child pornography is an especially terrible form of child abuse. Those who create and distribute it are continually and brutally victimizing these children over and over again. Sadly, the images on the Internet depicting the sexual abuse of children are on the rise. The images are becoming more and more violent, and the children violated in the process are younger than ever.
Online sexual exploitation of children is a global problem and is in need of global solutions. I am encouraged by the actions of the international community and the development of a number of treaties that address this pressing issue, including the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, which Canada has ratified.
There is also the Council of Europe Convention on Cybercrime, which addresses child pornography and other related crimes committed online in an attempt to foster international cooperation to combat these heinous crimes against children.
To this end, as you know, our government has also introduced Bill C-51, Investigative Powers for the 21st Century Act, which would allow Canada to ratify the cybercrime treaty. In addition, Bill C-51 would further enhance Canada's child protection regime by providing police with the modern tools they need to investigate Internet-based crimes.
Together, this bill and Bill C-51 will help ensure that Canada remains a leader in the fight against child sexual exploitation and other forms of Internet crime. This bill builds upon and seeks to complement our existing comprehensive Criminal Code prohibitions against child pornography. Its focus is on child pornography on the Internet and those who provide Internet services to the public, for two reasons: First, the growth in crimes over the last decade or so is largely due to the widespread adoption of the Internet; and second, those persons and entities that provide Internet services to the public are uniquely placed to discover incidents occurring over their networks or to have such incidents brought to their attention by users.
Much has been said in relation to the scope of this bill, and I would like to use this opportunity to clarify a couple of things.
I would like to stress that this legislation covers more than just ISPs. The term ISP, or Internet service provider, usually refers to those who provide access to the Internet — in other words, the wires and signals that go into our homes. The scope of this bill goes beyond that. It applies to everyone who provides an Internet service to the public. As defined in the bill, this would include ISPs and other access providers, as well as anyone who provides electronic mail services, such as Web-based mail, and anyone who hosts Internet content, such as social networking sites.
Furthermore, this bill would apply not only to persons who provide Internet services as their main business activity but also to those who provide complementary Internet services to the public, such as cyber cafes, hotels and public libraries.
Another misconception is that this bill would apply to the general public, including individual users who post material on the Internet. This is not true. This bill would apply only to those who provide Internet services to the public.
While this could include sole proprietorships providing Internet services to the public in smaller communities, it would not impose reporting duties on the public at large, unlike the mandatory reporting obligations found in child protection legislation in some provinces. Of course, individuals who commit a child pornography offence are already liable for prosecution under the Criminal Code.
This bill will impose new duties on those who provide Internet services to the public. Their first duty will be to report to a designated agency any Internet address brought to their attention that points to a website where child pornography may be found. To be clear, they will be required to report only the Internet address because an Internet address is all that is required for the designated agency to fulfil its duties under this bill.
Upon receipt of the report, the designated agency would first determine whether the Internet address information actually leads to child pornography as defined by the Criminal Code. Second, it would determine the actual geographic location of the Web servers hosting the material. Once it has confirmed its assessment of the illegal nature of the material and its location, the designated agency would refer the report to the appropriate law enforcement agency for action.
The second duty imposed by this bill would be to notify police when the service provider has reason to believe that a child pornography offence has been committed using its Internet service. For example, if an email provider, while conducting routine maintenance of its mail servers, discovers that the mailbox of one of its users contains child pornography, the email provider would be required to notify police that it has reason to believe that a child pornography offence has been committed using its system. It would also be required to provide police with the facts supporting that belief.
In addition to notifying the police, the service provider would be obligated to preserve the evidence for 21 days. This would provide police with a reasonable period of time to obtain a judicial order for production of the evidence without fear that the evidence might be deleted in the interim.
With the enactment and proclamation into force of Bill C-51, police would also be able to seek a preservation order that would extend evidence safekeeping for an additional 90 days. The service provider who notified the police would also be required to destroy any information that would not be retained in the ordinary course of business after the expiry of 21 days, unless otherwise extended by a court order.
Any persons making a report or a notification under this bill would also be required not to disclose the fact that they made such a report or notification. This is to avoid disclosures that could undermine criminal investigations.
Another feature of Bill C-22 is that it has been designed to work in concert with provincial and other jurisdictions that have already introduced legislation with regard to mandatory reporting of child pornography. The bill has been tailored to limit the possibility of duplicate reporting for those who may already be required to report child pornography. Clause 9 makes it clear that it is only the reporting obligations under clause 2 of this bill that will be satisfied if a report is made in accordance with a provincial or other jurisdiction.
It is important to note that the bill before you was crafted in accordance with the following overarching principle: that legislation should not create new consumers of child pornography or otherwise contribute to the further dissemination of the material. That is why our bill explicitly states that it does not authorize or require people to seek out child pornography. It means that providers of Internet services will not be required to monitor their networks in order to find child pornography or otherwise investigate the activities of their users. Neither will they be required to verify an Internet address in order to confirm its content.
The last two features of the bill that I would like to address are the offences and the penalties.
Failure to comply with the duties under this bill would constitute an offence punishable by summary conviction with a graduated penalty scheme. For individuals — and by that we mean sole proprietorships — the penalty would range from a fine of $1,000 for a first offence, $5,000 for a second offence and, for subsequent offences, the possibility of a $10,000 fine or six months in jail or both. For corporations and other entities, maximum fines would range from $10,000 on a first offence to $50,000 for a second offence and $100,000 for a third and subsequent offences. The two- tier penalty scheme recognizes the diverse landscape of Canada's Internet service provider community, which ranges from large multinational corporations to sole proprietorships.
Of course, these penalties are in addition to the penalties imposed under the Criminal Code for the commission of child pornography offences. It is important to understand that. While the mandatory reporting of child pornography by those who provide Internet services is addressed in this bill, the substantive or actual child pornography offences are, as I have indicated, in the Criminal Code.
This bill is about sending a message to those who provide Internet services to the public that they have a social, moral and now a legal duty to report this heinous material when they encounter it. We believe that the penalties contained in this bill strike the right balance between this aim and the focus of this bill, which is compliance. While Canada's major Internet service providers already voluntarily report child pornography when they encounter it, we want to create an even playing field that will ensure that all providers of Internet services in Canada report child pornography so that we can further the goal of better protecting our children.
Those are the major elements of this bill, and I hope I can count on your support for these important measures.
The Chair: Thank you, minister. Colleagues, as usual, as with all ministers, Mr. Nicholson's time with us is limited, so I will ask for concise questions.
Senator Wallace: Thank you, Minister Nicholson. Certainly no one would dispute the importance and the significance of this bill in our society. That is beyond question.
This is perhaps an obvious question, but I want to make sure it is covered. Is there, in the Criminal Code today, any existing provision that would create this type of offence, or is it absolutely necessary that this new bill be enacted to cover these circumstances?
Mr. Nicholson: It is absolutely necessary for this bill to be enacted to cover those circumstances, Senator Wallace.
Senator Wallace: It is not a circumstance of trying to provide more clarity.
Mr. Nicholson: It is the next step. In the spring of 1993, we introduced the first bill to make the possession of child pornography a crime, and this bill is the next step in our attempts to better protect children.
Senator Wallace: Minister, you mentioned that preparation of Bill C-22 was done in concert with what is happening in other international jurisdictions and with some of the provinces in the country.
Mr. Nicholson: Yes.
Senator Wallace: In preparing this, did your department consult with the provinces and territories? If so, what was their response?
Mr. Nicholson: I raised this matter, along with others, when I met with my provincial and territorial counterparts. When I have met with international attorneys general and justice ministers, I have indicated that this is the route we would be pursuing. I had nothing but positive feedback about our efforts to better protect children.
Senator Wallace: Finally, similarly, in preparing the bill, did your department consult with Internet service providers to get their reaction to it? If so, what was the response?
Mr. Nicholson: They consult widely when they help me and my colleagues put these bills together. I have met with Internet service providers myself over the last number of years. As you can see in my notes, I complimented them for their cooperation in this particular area. One of them indicated to me that he and his colleagues believe they have a moral responsibility to report this, and I said I appreciate that very much. We have to take it one step further. We need to have a legal responsibility to report this, and not just for the major Internet service providers but for those several hundred other providers. It has to apply to everyone. Frankly, it is not enough that there is as a moral obligation; there must be a legal one as well. This bill addresses that.
Senator Wallace: I found it interesting that the bill imposes that obligation on the providers if they are advised or become aware of the existence of this child pornography material, but it does not require them to monitor their system. Rather, if they are aware of it, then they have a duty.
Mr. Nicholson: It has two parts. If it is brought to their attention that there may be the possibility of this, the bill says that they are under an obligation to report that to a designated agency. If they discover it themselves, then they are obligated to turn that over to the police. It is a two-part process. If it is brought to their attention, it is the designated agency. If they discover it themselves, then they are required to turn it over to the police.
Senator Wallace: Thank you.
Senator Stratton: Minister, welcome. The obligation is on the part of the provider to report if found or discovered. Is the reason they do not monitor that of privacy concerns? In other words, an Internet provider could go through and check. Why would we not do that?
Mr. Nicholson: Why would we not impose on them the obligation to investigate?
Senator Stratton: Yes.
Mr. Nicholson: The idea that people who have nothing to do with this are having their sites investigated by Internet service providers would be more problematic, so we have been very clear that where it is brought to the Internet service providers' attention or they have discovered it, that is when the obligation kicks in. We are not having a complementary sort of police force out there among the hundreds of Internet service providers investigating and possibly invading privacy.
Senator Stratton: It is an invasion of privacy.
Mr. Nicholson: Yes, there is no question about that.
Senator Baker: Minister, I congratulate you on the general thrust of the principle of the bill; and I congratulate your officials, Ms. Kane and Mr. Wong, for the amount of time they have spent on this subject.
My questions relate to specific technical questions that jump out at me when I read the wording of the bill. I would like to go to clause 5 of the bill first. Clause 5 basically imposes a responsibility on a person — "person" meaning the Internet provider, or it could be an individual — when they have reasonable grounds to believe that an offence is taking place. The scheme that you have outlined in this bill is that they would maintain this information for 21 days, after which they would destroy it unless they would normally keep it, unless it is required during that 21-day period for a judicial order. What kind of judicial order are you contemplating?
Mr. Nicholson: This would be an application by the police typically before a justice of the peace for a production order or possibly, as I indicated in my brief, to extend the preservation orders so that the evidence is not lost.
Senator Baker: The production order you are referring to, and I want to get technical for a second, would be section 487.012 of the Criminal Code.
Mr. Nicholson: I thought it was 487.013, but, senator, I defer to you on technical matters.
Senator Baker: It is section 487.012. The production order that you are seeking is reasonable grounds to believe.
Mr. Nicholson: Yes.
Senator Baker: It is the same as a search warrant, which is reasonable grounds to believe. That is the Criminal Code.
The wording of this bill says, "to preserve the computer data by a judicial order made under any other Act of Parliament or the legislature of a province." We all know of the many instances where our laws say, "notwithstanding any other Act of Parliament," or the section you just referred to, 487.012, which says, "this Act or any other Act of Parliament."
However, this bill says "a judicial order made under any other Act of Parliament." Why would you use that wording and not have "under this Act or any other Act of Parliament"? The act we are talking about is the Criminal Code, not this particular bill.
Mr. Nicholson: I will turn that over to the officials. Senator, it is designed to work in conjunction with the provincial legislation that would require an individual, a company or a sole proprietorship to turn that evidence over to a provincial agency. Therefore, it might be a provincial agency that has the information.
Given that, we want this bill to be as complementary to that as possible to avoid duplication. We make it clear. For instance, in the province of Manitoba, you are required to turn that over to a designated agency. In so doing, you are in compliance with this law even though you do not turn it over to the designated agency in this bill. We want to make it clear that we are not trying to set a trap for people. I hope that is of help.
The Chair: Minister, you did say you would turn to the officials for more detail. However, Ms. Kane and another of your officials will be able to stay on after you leave. I think Mr. Wong has to go with you.
If you do not mind, Senator Baker, questions for officials can be put forward then. Let us use the time we have with the minister for questions aimed directly at him. Is that all right with you?
Senator Baker: Madam Chair, I have no questions about the principles of the bill. I have just questions about its workings, which I would assume we are very interested in. Therefore, I presume you are saying we will have an opportunity to pose those questions after the minister leaves.
The Chair: We will, and you can ask the minister anything you want. I will just ask the officials to hold their contributions for now.
Mr. Nicholson: Whatever you like, Madam Chair.
Senator Baker: The minister did not answer my question at all, as you know, Madam Chair. He skittered around it and did not answer the question, probably because it cannot be answered. The bill probably needs to be amended.
Mr. Nicholson: Why did you ask it, then, senator?
Senator Baker: Let me address the 21-day period. Five or six months ago, we had a ruling from the Supreme Court of Canada on the adequacy of warrants issued regarding the Internet on the subject of child pornography. The warrant was struck down for its insufficiency.
Here we are imposing a 21-day period for the destruction of the evidence, unless a judicial order, which would be a production order or a search warrant that must be sufficient and meet the new test of the Supreme Court of Canada, is sought and approved within 21 days.
I will go on to my next question and put the questions that jumped out at me.
My next question concerns the idea that "A prosecution for an offence under this Act cannot be commenced more than two years after the time when the act or omission giving rise to the prosecution occurred." Look at the Fisheries Act, the Environmental Protection Act or any of these acts. Look at the Elections Act. It is 10 years. The Income Tax Act, in subsection 244(4) says 8 years. Look at our standard acts. This could say two years. Yes, the Fisheries Act says two years, but it is from the time that the department became aware that an offence had been committed, which could be five years after. That would then trigger the two years.
Why would we be so restrictive in the application of this proposed act as far as the limitation period is concerned? These are technical questions, minister. I do not know whether you could answer them.
Mr. Nicholson: I think I can, senator, because you mentioned similar statutes. You could have mentioned the Criminal Code. That is very close.
Senator Baker: Six months.
Mr. Nicholson: Six months, yes. That is what I am saying. Under summary conviction — and this is a summary conviction offence — the limitation period is six months under the Criminal Code. I was the one working with my department who said it is not enough and it should be extended beyond that. They said it is not quite the same as what they are doing in the Criminal Code, because that is six months. However, I said let us make it longer than in the Criminal Code, just for the reasons you said.
Senator Baker: I knew you would say that.
Mr. Nicholson: Let us extends it to two years. Therefore, I am very pleased; I am glad you picked up on that. Otherwise it would be the standard six months, but I said it was not good enough and that we should go for the whole two years.
Senator Baker: I prefer to question the officials, to be quite honest.
Senator Runciman: That was a very interesting exchange. Senator Baker asked a question he knew the minister could not answer. Then he asked a question for which he already knew the answer the minister would provide.
The Chair: It is all for the elucidation of the matter.
Senator Runciman: Thank you for being here, minister. I think there is widespread support for this initiative on both sides of the Senate Chamber. That was indicated by Senator Munson in his speech yesterday on this proposed legislation.
Clause 2 notes that ISPs are required to report to the designated agency the location where child pornography "may be available to the public." If the material is not available to the public, does that relieve them of their obligation? I am wondering why it was worded that way rather than requiring them to report if child pornography is present at that location. Does that wording introduce an element of ambiguity?
Mr. Nicholson: I am not sure that it would, senator. I believe that the overall purpose is to direct it among those people providing a public service. The whole idea is that the person who is producing child pornography and keeping it to himself has committed an offence under the Criminal Code. If he passes that off to friends, it is a Criminal Code offence. However, this is directed specifically at those agencies that provide a service to the public. That is the way it is worded because that is who it is directed at. Otherwise, again, there is a whole list of Criminal Code provisions that are already contained within the act.
Senator Runciman: I wondered whether it opened a door for possible problems in the future. We will have to wait and see, I guess.
You mentioned meeting with some of the ISP folks and talking about moral responsibility versus legal responsibility. I was looking at the 2009 report from the Federal Ombudsman for Victims of Crime, which indicates that ISPs were refusing to cooperate in 30 per cent to 40 per cent of the cases. I think that is a clear indication of why I believe you felt you had to act with this bill.
I think I understand why you have taken this course, but I think it would be helpful if you spoke to it. You did not consider the option of authorizing a judicial order, and the police felt that it would create problems. I am wondering whether you might speak to that.
Mr. Nicholson: I am sorry, senator, but I am not following you. They have to get a production order; they have to make an application for preservation of information.
Senator Runciman: Yes, involving lengthy affidavits in support of the request. I thought you might want to speak to that because it has been raised as a question.
Mr. Nicholson: Again, I think that is the process to go through. We must ensure that the evidence does not get lost in the normal course of business and that there is an opportunity for police to move ahead. As I indicated, one of the bills I have before Parliament, Investigative Powers for the 21st Century, provides that in such applications the period can be extended beyond the 21 days if that is necessary.
We want to have a reasonable period of time for them to act, and we felt this was a reasonable period of time.
Senator Runciman: I agree, and I would like to emphasize that it is especially dangerous in child exploitation cases where time is of the essence. I think that is another positive point for this bill.
If the bill is enacted, how quickly do you envision the system being operational?
Mr. Nicholson: I am interested in getting it as part of the laws of this country as quickly as possible. As you know, senator, from your time in provincial politics, we let provincial and territorial authorities know that this is coming on stream because it is necessary for law enforcement agencies and Crown attorneys across this country to be aware that this new law is in place. In terms of the prosecution, I should be clear that it is the Director of Public Prosecutions who would be doing this, so we would be informing that office of these changes. We will get them in place as quickly as possible.
Senator Runciman: How do you approach industry awareness?
Mr. Nicholson: I believe there is keen awareness of this. Getting back to your previous comments about Internet service providers, about 10 ISPs provide about 90 per cent of the Internet services in this country. In fairness to them, the problems in this area do not come from the largest Internet service providers. They are very careful. Again, they are very clear that they have this moral responsibility to turn this information over. That being said, in this day and age, the word will get out quickly about moral obligation, and hopefully you are doing it anyway, but if you have not been, now it is the law in this country that you must turn over this information to the appropriate authorities.
Senator Runciman: Have any concerns been expressed by any of the provincial jurisdictions?
Mr. Nicholson: They were pleased. As I said, I have raised in international fora as well that this is the direction we are going. In addition, we need Bill C-51, Investigative Powers for the 21st Century, to sign on to the ratification of the Convention on Cybercrime. Again, this has widespread international support, as well as national support.
[Translation]
Senator Boisvenu: Clearly, for this type of bill, as for all types of bills that protect children from this type of criminal activity, the general public will agree with what you are proposing, particularly since we know perfectly well that Internet crime aimed at children is the most underhanded kind of crime. And based on statistics, it is the one that is progressing the most. I think it is mandatory that we have the cooperation of the major Internet service providers, and we need a legal basis in order to compel their cooperation, in good faith or on a mandatory basis.
I have two technical questions for you, and I know that your time is precious. For example, Manitoba has already introduced a similar bill. What effect will our bill have on the province of Manitoba? Will Manitoba have to amend its bill? Will Manitoba have to set its bill aside and use the federal bill?
[English]
Mr. Nicholson: That is a good question, senator. This bill is designed to be complementary. In your analysis of the line-by-line consideration, you will see that there is recognition that an Internet service provider may already be required to turn over that information, and that requirement within provincial legislation satisfies the federal legislation.
That being said, your point is quite correct as to the extent of this problem. It has been reported to me, and it is public knowledge, that between 2003 and 2007, the number of child images of child pornography, child sexual exploitation, quadrupled. I found that astounding. It is astounding as well that at any given time around the world there are 750,000 pedophiles online.
I see this bill complementing the province of Manitoba. Several provinces have enacted laws but not proclaimed them into effect. Nova Scotia has one as well that is in place now. I see this as complementary. We are all in this together to try to do as much as we can to protect our children. This is complementary in all aspects of it.
[Translation]
Senator Boisvenu: I find one aspect of Manitoba's approach interesting: the inclusion of "juvenile" pornography — I would almost say child pornography — because ultimately the word "juvenile" in the French expression seems to me to trivialize this kind of crime. Perhaps we should use the term "child pornography" rather than "juvenile pornography." Manitoba has included this term in the definition of abuse inflicted on children. Is that not an option that should be considered in amending the Criminal Code?
I am not a lawyer, and you may perhaps tell me that has already been done, but should we not amend the Criminal Code by including these types of Internet activities in the definition of the abuse done to children?
[English]
Mr. Nicholson: "Child pornography" is a term that has been tested before the courts. It is the term that is used in international circles and, indeed, international treaties. The United Nations protocol on this mentions specifically "child pornography." Sometimes I am asked if we could use the term "child sexual exploitation." The term "child pornography" is larger than that. I want to be consistent with what we already have in the Criminal Code. Inasmuch as this is complementary to what is in place now in the Criminal Code and builds on that, it is important to use the same terminology. We do not want to be back in court litigating what the new term means when we have a very good idea what "child pornography" includes. It is a term that is used not just within Canada but around the world in international treaties, so I think we should be consistent on that point.
[Translation]
Senator Boisvenu: Is the same term being used in English and in French? Because you said that the term used in English is "child pornography."
The Chair: It is almost that. In English, we say "child" and in French we say "juvénile," which suggests young people who may be a little older, but these are the standard terms used in the legislation. What can we do?
Senator Boisvenu: Amend them.
[English]
Mr. Nicholson: The definition applies to everyone under the age of 18. That is what we are talking about. Whether you refer to them as juveniles or children, it is the same group of people in either language.
[Translation]
Senator Carignan: Minister, I have a few technical questions, but I am going to ask them later, after you leave, because I do not want to waste your precious time on technical matters.
I am taking this opportunity to thank you and to congratulate you on this initiative, which is extremely important for the protection of children.
This problem of child pornography on the Internet, as you explained, is undergoing virtually exponential, even algorithmic, growth, I would say. It is extremely widespread. A bill of this nature will help the people responsible for the protection of society, that is to say police officers, judges and governments, protect those who are the most defenceless in our society, those under 18 years of age, children. Thank you on their behalf.
As regards the publicity for this new act, I know it is hard for the Department of Justice to engage in publicity from time to time to explain penalties. It is even quite rare to see any message stating that a new penalty has been adopted and that you should therefore be careful.
In this particular case, however, in view of the fact that there are a lot of small Internet service providers and several tens of millions of Internet users in Canada, have you considered a major publicity campaign to inform the public of this new offence? That would be done to achieve a deterrent effect. If a person was using the Internet for child pornography purposes and learned that the Internet service provider had an obligation to report him when it saw what he is doing, that might have an extremely significant deterrent effect.
This is perhaps a bill that would require a very broad information campaign by the government. Is that something you have considered?
[English]
Mr. Nicholson: There are ongoing campaigns about the reporting of child pornography. Cybertip.ca is a good example of the efforts that are made to try to get the public aware and to make it as user friendly as possible for people to get that information.
We do our part to publicize what we are talking about in these bills. I hope there will be quite a bit of press coverage for this bill when it receives Royal Assent. We are all part of that, senator, but I appreciate any suggestions you have on that, and I thank you for your interest. You have a long-standing interest in these issues.
There are organizations funded in part by the federal government, as well as provincial and social agencies; Crime Stoppers is a good example of that sort of thing. This will be out on the Internet. It will certainly be on the departmental websites. We will do our best to publicize this as much as possible.
We will be underlining for these people and ISPs that they are to do what they are supposed to be doing in any case: Do what is right to help protect children. As you said, this is the next important step. It has not been easy on the road to this area. However, we have made a lot of progress since 1993.
[Translation]
Senator Carignan: It seems to me this bill in particular might require a specific publicity campaign. Do not hesitate to ask Minister Flaherty for additional funding in the next budget; I will support you.
[English]
Mr. Nicholson: I will be encouraging my colleagues in the House of Commons. They have access to all media distributions to their constituents. I have encouraged them, not only on this bill but on all our crime-related bills, to make sure the contents of these bills get out. That will be one of them.
I will pitch to them that they are uniquely placed to get the message out across the country. For any ten-percenters or anything like that I can help out with, we will certainly be there to do that.
Senator Joyal: I still have some questions arising from the reading of clause 6 of the bill, which says, "Nothing in this Act requires or authorizes a person to seek out child pornography." In other words, there is no obligation. Also, there is no authorization, which means that if you do it, you are not in compliance with something you should do.
I do not really understand the meaning of those two words in the context of the bill. The bill in clauses 2 and 3 is conditional. Both clauses say, "If a person." They do not say, "when a person"; they say, "if."
I am puzzled that clause 6 is in the bill. I wonder whether we really need that clause to make the bill more efficient.
Mr. Nicholson: I think we want to be clear. I have been clear all along on this: We do not want people who provide services to be invading the privacy of other individuals. If it comes to their attention or they discover that there is child pornography, we have the procedures in place. However, we are not authorizing ISPs to go into people's computer just to be investigating people at large unless there is some reason to do that and there is some judicial oversight. That is all we are saying, senator.
I get the judicial oversight; I have no problem with that. However, I have a problem with the idea that we could be going into each other's private Internet carrier zones and investigating on our own. I think most people would as well.
Senator Joyal: Do you need to put that in this bill? It is the prevailing common law, which protects people's privacy. Do we need to reaffirm that principle the way it is stated in clause 6?
Mr. Nicholson: Sometimes it is good to make it clear. I actually did get this question. I indicated to you that when I met with Internet service providers and others they said, "We do not have the resources to start investigating. That is for the police." I got that push back on it. I told them that is not what we are all about. I made it clear that if the information comes to them or they discover it themselves, then they will be under an obligation. However, it is not taking them to the next step that they are in the business of investigating. That is for law enforcement with judicial supervision.
It was good to put that in to make that clear. Otherwise, we might have someone come here and ask what this bill is requiring them to do. You will be able to tell them they are not in the business of investigation but in the business of reporting.
Senator Joyal: That is what clause 2 and 3 mention. However, again, I do not see that as really essential for the purpose of the bill.
Is anyone authorized to seek out child pornography?
Mr. Nicholson: No, they are not. It is actually a Criminal Code offence. I want to be absolutely clear that it is an offense to be in the business of downloading or assembling child pornography. There is nothing here authorizing you to do that. If it comes to your attention, turn it over to the appropriate authorities. I think it is good to make these things clear.
Senator Joyal: I am wrestling with that idea because I think other legislation protects the privacy of citizens and governs the mastering of Internet providers. In this case, especially with that clause, we seem to put it as an obligation, in one way. It is not "when" but "if." I think there is a distinction between those two words in the beginning of clauses 2 and 3.
Then we seem to say, "Well, if it is only by chance that you come to be aware of it, then you have to report." That does not seem to go as far as one would expect; suddenly we will turn out to the police forces or to the authorities that you will be defining in the regulations that child pornography is accessible on the Internet.
Mr. Nicholson: Again, I have been told by Internet service providers that they come across child pornography on occasion. We want to have a procedure in place that is not a moral requirement but a legal one. In addition, when it is reported to them by one of their customers, we want to have a legal obligation as to what they are to do with that.
Again, the assembling or the investigation of this is left to police forces with judicial oversight. I do not want someone assembling this to come to court and say, "I was assembling this child pornography for the last two years to help build a case against others." That is not what this law is about. This bill is very specific.
It covers both areas. We send out the message to everybody that they are not in the business of downloading, assembling or possessing this child pornography but rather in the business of reporting it.
Senator Joyal: Why did you put a 21-day limit for the notification in clause 4?
Mr. Nicholson: I believe it is a reasonable period of time, senator. As I indicated, I have before Parliament provisions to extend that to 90 days. Again, as I said to Senator Baker, it is reasonable, and we have to put something down; we can argue about whether it should be higher or lower, but we have to come out with what we believe is reasonable. Time is of the essence; I want people to act quickly because we are talking about victims here. I do not want this to be open-ended. I want some urgency to it.
If evidence or indications are turned over to the police authorities, I want the police to move on this and to make it a priority. It is not just a question of the images but also of whom they are of. They are of children. We want the police to move as quickly as possible on that. That is why we chose 21 days.
Senator Joyal: I would have expected a longer period rather than a shorter one in that case.
Mr. Nicholson: It actually occurred to me to make it shorter. I want them to move on this and for it to be a priority. Again, we have to try to balance that. If it was two weeks, that is too quick. I think 21 days is a reasonable period of time. If law enforcement agencies are advised of child pornography, they need to move on that because there are victims involved here.
Senator Joyal: Why did you put the obligation under the conditional instead of the factual knowledge of the situation in clauses 2 and 3? Why did you put "if" instead of "when" a person is advised? Why did you put it as a conditional obligation and not "the moment you are aware of it"?
Mr. Nicholson: I was informed by drafters that it means the same thing, senator.
Senator Joyal: In my opinion, there is a difference between a conditional and the time that you were aware. In one, it puts the emphasis on the possibility of the occurrence, while the other one is that when the occurrence is there, you have the obligation. There is a nuance between the two, Mr. Minister.
Mr. Nicholson: You may believe there is a nuance, but the advice was given to me that it could be phrased either way, and this covers it.
Senator Joyal: I am trying to understand the philosophy of the bill.
Mr. Nicholson: The philosophy of the bill is to protect children. That is what it is all about.
Senator Joyal: I agree with you. We are not here to do commercials.
Mr. Nicholson: You said you do not understand the philosophy of the bill. That is the philosophy of the bill.
Senator Joyal: We are all here for the good of Canadians, Mr. Minister. You know that. We have a text in front of us, and we are trying to understand the legal implications of the bill. That is what I am trying to understand.
Mr. Nicholson: You might ask the drafters, but it was indicated to me that that is what it means. We could have used "when" or "if," but they basically mean the same thing.
Senator Lang: I would make an observation about the mandatory reporting and the reason for it. In his speech at second reading in December, Senator Runciman spoke of a case that had come to the public's attention where I believe 57 men were charged. It was an international case, and 25 of those individuals were in Canada. That is almost 50 per cent. That certainly substantiates the minister's comments about the increase in the numbers of people involved in this and how horrific this is.
I would disagree with my colleague across the floor about the 21 days. I agree with the minister. Maybe it should be shorter, because time is of the essence if this comes to the attention of the reporters to see if we can get these children away from these grievous acts that are being committed. In the case Senator Runciman talked about, one child was four years old.
I would like to take the same liberty as my previous colleague in speaking to the bill. I have two questions, and I will put them together in the matter of time. One is about reporting to a designated agency. Perhaps you could expand on what that designated agency will be and how it will be structured. How does that relate to the provinces and what they have, going back to Senator Boisvenu's previous question about Manitoba?
The other question I have is about the Internet providers. If they are not monitoring and not opening people's mail, how does something come to their attention? I am asking a practical question. I can understand if they are in someone's mail, but if not, is someone phoning them? How does this work to make this a practical situation where you get this mandatory reporting?
Mr. Nicholson: First, with respect to the designated agency, we will designate that agency once the bill receives Royal Assent. There are organizations that essentially do this kind of work right now. Cybertip is a good example of that. It works in conjunction with others across the country. Again, we will designate that when the time comes.
I have been told this happens already. Internet service providers have told me that someone will come to them and say, "There is this website here that I found on my computer, and you are my Internet service provider."
Senator Lang: A third party reports.
Mr. Nicholson: Yes, a third party, and they are under an obligation to turn that over to the designated agency. There are a host of different ways. It just comes to their attention, or they discover it during some routine work, but not invading people's privacy. My understanding is that it has come to their attention, and they do report it now. We are taking it one step further and saying they must report it.
[Translation]
Senator Chaput: Minister, my question concerns Internet service providers. Let us take the example of an Internet service provider that believes there has been a child pornography offence. It reports it to the police, but that in fact is not the case. It has therefore made a mistake. I assume that can happen.
Will it be held legally liable? And if that is the case, will it have access to legal protection, as is the case for our police officers when the situation arises?
[English]
Mr. Nicholson: It is always a question of the reasonableness of the actions of an individual. You will notice that clause 5 says that a person must not disclose the fact that he or she has made this report. There are a couple of aspects to that, so that damage is not done to an individual who may be found innocent. Clause 7 says that there cannot be a civil proceeding against the person for making a report in good faith or making a notification. Between that and the requirement not to disclose it so that everybody does not point the finger at that individual, those are safeguards.
[Translation]
Senator Chaput: Usually, when child pornography is reported, you can be summoned to testify. If you are summoned to testify, will your identity also be protected since you have been cooperating with the police?
[English]
Mr. Nicholson: They would be providing basically the address that had been turned over, and then the investigation would take place as it takes place now.
Cybertip, for instance, and I gave that as an example, is very careful to make sure the information is treated confidentially and in a proper manner, but it would follow the usual criminal investigation. Again, we would hope that everyone would cooperate to the extent they can.
[Translation]
Senator Chaput: When a child pornography offence is reported, can a person be summoned to testify?
If they are summoned to testify, will their identity also be protected since they are cooperating with the police?
[English]
Mr. Nicholson: Again, I believe they are complementary, but we do not want to have a situation where people who acted in good faith according to the federal criminal legislation find themselves otherwise tied up in court. It is a reasonable application of the criminal law power.
[Translation]
Senator Rivest: Clause 7 does not repeal or confer any immunity in respect of the provisions, for example, of Quebec's Civil Code. Civil liability remains. If one person has harmed another person, the Civil Code applies. A federal act cannot erase liability under the Civil Code.
[English]
Mr. Nicholson: In what way would you say? If they are distributing child pornography?
[Translation]
Senator Rivest: If a Canada Post employee has knowledge of a child pornography distribution scheme, does a system apply to Canada Post that is similar to the one proposed in the bill for Internet service providers?
[English]
Mr. Nicholson: If anyone knowingly is distributing child pornography, then they will be caught, either by this section or by the existing Criminal Code provisions. This bill is very specific. This is why I was saying earlier that this bill actual complements the existing provisions of the Criminal Code. For the people who possess it, distribute it and people who produce child pornography, it is covered in the Criminal Code. This bill is correcting a situation that was not really covered in the Criminal Code; it is in addition to those provisions that already exist.
The Chair: I have a couple of questions, minister, and the first one goes back to Senator Lang's question about the designated agency. This agency will have some heavy responsibilities, notably to make the initial judgment about whether something is child pornography. That is the kind of thing we would entrust to the police or the Crown prosecutors in other circumstances. Why would we be turning the responsibility of judging whether a crime has been committed over to someone else?
Mr. Nicholson: Many of the instances will not be a crime at all. It is like any time you get tips on any activity. I am sure you would hear from law enforcement agencies that they do not want to be flooded with these and set up a separate investigative unit for this specific purpose apart from what they already do in the area of child pornography. I think a designated agency, for example, Cybertip — though I am not making any designations — works well for getting and finding these things. It will be helpful. Law enforcement agencies will find this is a great help to them.
The Chair: Do you envisage a single designated agency, or will it vary according to provincial circumstances?
Mr. Nicholson: I cannot think past the bill's being passed. However, if you are making a recommendation for more than one designated agency, I appreciate that input on that. I do not want to get ahead of myself. I will not say why, other than to say I want to get the bill passed and then we will proceed.
The Chair: You are asking us to pass it. Understandably, we would like to know as much as we can about what it means.
Mr. Nicholson: I use the example of Cybertip, which is a national organization based in Winnipeg.
We will have just as much commitment as you and everybody else who has an interested in this to making sure there is a process in place that works well across the country.
The Chair: You will be designating the agency.
Mr. Nicholson: Yes.
The Chair: You will be designating its role, functions, activities, security measures, reports, notifications, et cetera, by regulation. When will we see those regulations?
Mr. Nicholson: As soon as possible. I take it one step at a time. I do not make presumptions. We need to get the bill passed, and we will work on it as quickly as possible. I and everyone has a stake in getting this into law and ensuring it is up and running.
The Chair: I assume the act will not come into force until everything is up and running.
Mr. Nicholson: We need to have the regulations to get it up and running.
The Chair: Is there a possibility that we might be able to see the draft regulations before the bill goes into force?
Mr. Nicholson: Regulations that go before the Treasury Board are pre-published in any case, senator.
The Chair: All we have to do is watch the Canada Gazette; is that what you mean?
We have two very quick interventions from Senators Runciman and Baker, unless what you want to talk about is a true point of order, Senator Baker.
Senator Baker: I wanted to apologize to the minister. I checked after I told him he was wrong, that it was section 487.013. He said that was the production order. I checked and found out he is absolutely correct. His memory is better than mine, and I congratulate him on that.
Mr. Nicholson: Thank you, senator.
Senator Runciman: This has to do with the chair's question, as well as Senator Lang's, about the designated organization. I want to know the role it plays. I was not clear on that. Senator Joyal referenced clause 6, which does not apply to the designated agency, I gather. If that agency is to ensure there is merit to the concern, I assume its people will have some kind of ability to seek out the sites in question.
Mr. Nicholson: Those under the special agency would be designated special constables in any case, and that would give them the required authority, senator.
The Chair: As special constables, you said.
Mr. Nicholson: Yes.
The Chair: Thank you very much, minister.
Senator Lang: One further question, if I could. It is on the offence and punishment clause, which is clause 10, and the series of fines according to the offences. Perhaps you could just clarify for us how you came to that determination. Why was the third offence not more?
Mr. Nicholson: That is $100,000. For an individual, it is a $10,000 fine or six months in jail, so it seems to line up with other provisions of the Criminal Code. These are the not the people who produce, possess or make child pornography. These penalties are for those to whose attention it has come that it is out there. We want them to take action. This is not for the person who makes it or possesses it.
[Translation]
The Chair: Senator Boisvenu, can your question be put to the officials?
Senator Boisvenu: I do not believe so. We do not have the opportunity to hear from the minister very often; we therefore have to take advantage of it.
My question is further to that of Senator Lang. When you say six months in jail, does that concern the site administrator? Let us suppose that Bell Canada does not report an offence. Who will be charged?
[English]
Mr. Nicholson: That is why there is a two-part penalties scheme. A company or an Internet service provider that does not do this will look at a fine, senator. What else can we do — jail all the stockholders and directors? It becomes a challenge.
The Chair: Minister, I will try for the third time to thank you very much. We look forward to seeing you again in the near future on other bills. In the meantime we are very grateful for the help you have been able to provide on this bill, and we will continue our study of it with considerable interest.
Mr. Nicholson: Thank you very much.
The Chair: Colleagues, we will wait a few moments while the minister leaves and another civil servant comes forward. We will continue our proceedings. We are fortunate to have been able to hang on to Mr. Wong for a few more minutes, and of course we still have Ms. Kane. We are also joined by Mr. Jean-François Noël, Counsel, Criminal Law Policy Section.
I will go to Senator Baker first, because he had put a question for which he hoped for a response from you.
Senator Baker: Perhaps I could ask it of Mr. Wong, who has been on this file for many years — I suppose a decade or so, at least.
The bill refers to a judicial order made under any other act of Parliament, which excludes the Criminal Code by the very reading of it. Can you point to any other section of the Criminal Code that refers to a judicial order or a warrant made under any other act? All those sections say "under this Act or any other Act of Parliament." Why were the words "this Act" left out?
Normand Wong, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you for the question. First, this act will not be part of the Criminal Code. It will be a stand-alone act, so it has to refer to other acts.
Senator Baker: I see.
Mr. Wong: Second, the nomenclature was decided by the drafters because it is new in the sense that this act will be subject to other acts, and they could be provincial acts or federal acts. It was the type of nomenclature they threw together to try to satisfy that need.
Senator Baker: I thought it was an amendment to the Criminal Code, but it is not. You are absolutely right.
My second question is as a matter of interest. The words "as soon as feasible" appear in three or four different place. Does "as soon as feasible" mean as soon as practicable but not as soon as possible, to your knowledge?
Mr. Wong: Since we have not had a revised version of the Criminal Code for many years, from time to time, they try to standardize language. As soon as feasible is akin to as soon as practicable, and not as soon as possible.
Senator Baker: That is what I thought. In view of Senator Lang's question, why would you not have made the offences hybrid in nature? If you came across an instance where an Internet service provider had been providing a service of a source that changed every two and three years but dates back 20 years, you cannot lay a charge under this act unless the offence to which it relates took place in the previous two years. In other words, you cannot go back any further than that. If a portion were indictable, if there were a choice, then it would be timeless. If it is an indictable offence, you can prosecute it if it is 50 years old. Why decide on just summary conviction?
Mr. Wong: Part of the philosophy behind this bill is to encourage service providers to report. As the minister said, we know that most of the major ISPs, or all of them, which covers most Canadians, already do this, so it is not a heavy- handed approach. The sort of situation that you are describing, where there is evidence that a service provider has been facilitating the distribution of child pornography for years, is prosecutable under the Criminal Code, and we could put those people in prison for five or ten years.
Senator Baker: You could prosecute it under proposed act as well.
Mr. Wong: We could, but the bill really is meant to encourage service providers to do their civic and moral duty to report. There are already provisions in the Criminal Code that cover the type of activity you are describing. This is in addition to that, to ensure as the minister said that whenever they come across this material, if a tip is provided to them by one of their subscribers or they find it in the course of their regular business, they either report to the designated agency or they inform police.
Senator Baker: Why must they destroy it after 21 days?
Mr. Wong: That is a privacy safeguard that was included. We consulted extensively with police to ensure that the 21-day period was sufficient for them to obtain either a search warrant or a production order. If the police have not gone back to the ISP before the end of the 21-day period, they are likely never to go back.
Senator Baker: You mean if they did not go back to them with a judicial order.
Mr. Wong: Right.
Senator Baker: A search warrant or production order demands reasonable grounds to believe that an offence has been committed or reasonable grounds to believe that there is a suspicion it could be committed. You think they can get that within 21 days?
Mr. Wong: Yes. In terms of the notification requirement under clause 3 now — some of you might have it under clause 4, because it was the old bill, but it is under clause 3 now — they are required to notify police if they have reasonable grounds to believe that a child pornography offence has been committed on their system. That is what they have to convey to police, and the facts supporting that. We have been told by prosecutors and police that that is a sufficient amount of information to obtain a search warrant or a production order.
The Chair: For the record, there has been a little bit of confusion about the numbering of clauses in this bill. That is because the Department of Justice binder, the clause-by-clause binder sent to us, contained the original text of the bill as presented to the House of Commons. It was amended both in committee and at third reading in the House of Commons. What we now have as the authoritative bill sent to from us the House of Commons is the printed version as passed by the House of Commons on December 3 last year. I think we all have that, but we also all have other things floating around. The December 3 version is the authoritative one.
Senator Baker: Is there a reason why you decided to put a limitation of two years in the manner in which you put it? You have said here in the bill that, "A prosecution for an offence under this Act cannot be commenced more than two years after the time when the act or omission giving rise to the prosecution occurred." Why decide on that wording when you know full well that the wording "when the department became aware of the act" is more common, and certainly in recent legislation that we passed in this committee, in the Senate, there were longer periods of time, if you are going to rely on just when it took place. Why have this lower threshold that would allow the people who are guilty of the offence to get off just because it is after two years when it was committed? The prosecution commenced — that is the laying of the charge. You commence a prosecution by laying an information. The laying of the information would have to take place within a two-year period of the actual taking place of the event.
Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: We are calling on providers either to make the tip to the agency or to report to the police. From the time they report to the police, the charge would have to be laid within two years. That is an ample period of time for the police to do their investigation and follow up with appropriate charges.
Senator Baker: I am sorry; it says "when the act or omission giving rise to the prosecution occurred." Are you saying that that does not mean when the actual act took place but when the police were notified that an act took place a year or two or three ago?
The Chair: Or were not notified.
Ms. Kane: What do you consider the act to be? The act of transmitting the child pornography through the Internet is the act that they are reporting. They are reporting that they have discovered what may be child pornography on an Internet site. A tipster makes the tip to an agency, or the person realizes that it actually is child pornography and reports it to the police.
Senator Baker: The wording is "when the act . . . occurred." I presume, Ms. Kane, that that means when the actual offence took place, and the prosecution must be commenced, as you say, by the laying of an information.
Ms. Kane: Perhaps I am not understanding your question. Are you suggesting it should be a longer period of time?
Senator Baker: No.
The Chair: May I? For purposes of clarification, although Senator Baker usually reads these things with a better eye than I do, I understand that clause of this bill to be referring to an offence that consists of failing to report a notification, failing to report that you have received a tip or that you have found child pornography, not the actual transmission of the child pornography. Sometimes things are posted on the Internet and they stay there for a long time.
Am I right that the two-year limit would apply to Internet service providers that have done something they are not supposed to do or not done something they are supposed to do in terms of reporting or destroying information under this bill?
Ms. Kane: That is correct. That is the act that this bill gets at. Any other offences in relation to child pornography are covered in the Criminal Code, so it is exactly that. The other thing we would note is that the words are the same as those used in the limitation period for summary conviction offences in the Criminal Code.
The Chair: Senator Baker, having sat still for my interruption, would you mind letting Senator Carignan have a supplementary?
Senator Baker: You can go to the other senators now, Madam Chair. That is fine.
The Chair: You will have more, I am sure.
[Translation]
Senator Carignan: When we talk about limitation periods, we have to identify the starting point of that limitation period. If the time limit is two years, we have to identify the starting point. The clause states: "more than two years after the time when the act or omission giving rise to the prosecution occurred." Clause 3, under which it would be an offence not to advise, states that it must advise "as soon as feasible."
What is the starting point of the two-year limitation period when you have to advise as soon as feasible?
[English]
Mr. Wong: I can comment on that, although it may not actually answer the questions that are being asked. We have dealt with ISPs a lot in crafting these bills, and Senator Baker knows that we also dealt with them when we were working with production orders in Bill C-46 back in 2004.
ISPs routinely clear their systems. Some of the major ISPs might save their information for a year. Most of them archive information after six months or destroy it. The business cycles of smaller ISPs are even shorter, and they might get rid of their information after 30 days. Extending the limitation period to two years was seen as more than sufficient, because the evidence would not be there in any event.
Two years might seem like a short time period if you are talking about extending it to five years, but, from our research, two years or five years would make no difference, because the information would not be there.
We have things like the preservation order to ensure that the smaller ISPs, which do not have the same business practices as the larger ones, will save that information rather than getting rid of it in the regular course of business.
[Translation]
Senator Carignan: Perhaps you did not understand my question. In view of the fact that the offence consists in failing to advise as soon as feasible, what limitation period will be considered feasible in order to mark the starting point of that two-year limitation period? You are telling me six months. When I read the clause, I do not see six months.
You made the effort to consult the businesses, the service providers. They said, "We preserve data for six months to a year." A feasible limitation period should therefore be six or eight months. However, the starting point of a limitation period, from an enforcement standpoint, will be extremely hard to determine.
[English]
Mr. Wong: In my defence, I did start off by saying I may not be answering your question.
In relation to when the time delay starts, it is when the police find out, and police will generally find out only if there is another ongoing investigation, and that is when the timeline would start. As I said, going back two years in their data is problematic, because it probably does not exist.
In essence, I think the answer to the question is that it is really not relevant, because it depends upon when the police find out. If the police have two years worth of data, they will be very lucky and might be able to pinpoint a time when the service provider should have known. However, many other things go into determining that an ISP knew and did not report. There are complications about the existence of the data and also about the Crown proving that an ISP had the knowledge and should have reported it. There are complicating factors other than just when the time delay starts.
Madam chair, before you move on, I really have to leave.
The Chair: You were able to give us a bit more time than we expected, and we are glad of that.
Mr. Wong: If there are other specific technical questions related to production or something like that, I would be happy to stay for a few more minutes. If there are not, I must leave.
The Chair: Mr. Wong, if necessary, we can also write you a letter, but of course your colleagues would be able to transmit to you any questions we put to them that only you could answer. The caveat to that, if that does happen, is that we will need a rapid response.
Mr. Wong: That is fine.
The Chair: Thank you for staying on.
Mr. Wong: My sincerest apologies that I have to depart.
Senator Baker: You have done a good job.
Senator Wallace: I have a couple of questions concerning clause 2. I will not read the entire clause, but it says:
If a person is advised, in the course of providing an Internet service to the public . . . where child pornography may be available to the public, the person must report . . . .
The qualifier is, "If a person is advised," and some of the materials I have read refer to the situation where someone has made the person aware, has notified that person. It could be an individual or it could be a corporation that provides the service.
Are you comfortable that the words "is advised" mean the same as "or otherwise becomes aware"? If in conducting its business the Internet service provider becomes aware of this child pornography, are we clear that the obligation to report would apply in addition to the situation where it actually took a third-party notification? Do you understand the distinction?
Ms. Kane: Yes.
Senator Wallace: That is the question. Would the words "or otherwise becomes aware" add anything further to the words "is advised," or is it covered it by the way you have it now?
Ms. Kane: It is our view that "is advised" does cover "or otherwise becomes aware." They are advised because of their own discovery or advised by someone else — it comes to their attention.
That is what we are trying to capture in "is advised." If the committee thinks better wording would convey that, we are certainly open to considering that.
Senator Wallace: At this point I simply wanted to be comfortable that you had put your mind to that point. Your conclusion is that the words "is advised" would cover the circumstances of "or otherwise becomes aware," correct?
Ms. Kane: Right.
Senator Wallace: My second point relates again to clause 2. It refers to:
. . . a person is advised, in the course of providing an Internet service to the public, of an Internet Protocol address or a Uniform Resource Locator where child pornography may be available to the public . . . .
Again, this is in relation to a person providing the Internet service. I want to be comfortable that "an Internet Protocol address or a Uniform Resource Locater" would not be limited necessarily to the operation of an Internet service provider; in other words, it would apply to anyone. Is it the intention that it would apply to any other provider out there if either of those addresses or locaters were present?
Jean-François Noël, Counsel, Criminal Law Policy Section, Department of Justice Canada: Yes, it would. It is certainly not limited to the operations of that particular service provider or provider of Internet services. Clause 2 is different from clause 3. Clause 2 really deals with child pornography that could be available to the public on a website. We are looking at an address that points to a website where child pornography may be available. The obligation here is for the provider to pass on that address to an agency that will then do a triage to determine where it is and whether it is really child pornography and whether it should be passed to law enforcement for investigation.
In clause 3, you have reason to believe that an offence has been committed using your system. You are in a different place, and that is why we go to the police rather than going to an agency.
There could be situations where you could move from one scenario to the other. However, clause 2 is about an address that points to a website where child pornography may be available, whether it is on a website that is hosted by that particular provider or not.
The Chair: Would "person" include "personne morale"?
Mr. Noël: Yes.
The Chair: It is not just the poor operator who answers the phone at two in the morning who gets lumped with the heavy fines for failure to act. The employer is also liable, is it not?
Mr. Noël: Yes.
The Chair: Thank you.
Senator Wallace: That is a good point. We normally think of "person" as an individual, but the corporation would be responsible for the acts of its employees, yes.
There was a comment earlier about the need to educate Internet service providers about this bill's implications if it is passed. When I think of clause 2, I can think of employees of a corporation that is an Internet service provider being concerned that the system they are responsible for not be abused, and they would certainly realize the need to report something if they came upon something that would run afoul of the bill.
However, the employees of these Internet service providers would have to be aware of their obligation. If in doing their work they see anything out there — they just happen upon it but it has nothing to do with their business or with their Internet service — they have a legal obligation to report, once they become aware of something. That legal obligation would impact them personally, but also, as Senator Fraser has drawn out, it would impact the corporation for which they work. Proper notification and educational materials to explain that are needed. That is critical.
Mr. Noël: We used the words "in the course of providing an Internet service to the public" to be very clear. We mention "a person" because it could be what we call a sole proprietorship, which is a very small operation or community. Someone decides to provide Internet access to their community for free or whatever. Then they are a person, not a corporation. Regardless, they are providing an Internet service. That is why we are always talking about "a person." It is in the course of providing an Internet service to the public.
If a person who works for a large ISP comes home and, for one reason or another, becomes aware of something, he or she is not in the course of providing an Internet service to the public. That person is at home, as an individual; it is a completely different scenario.
These words are important for understanding the scope of obligations put on people.
Senator Wallace: As you are pointing out, individuals providing Internet service may come upon something that does not relate to the service they provide. However, if they see a competitor out there and happen to see something untoward in a competitor's service, they would then have this obligation.
Mr. Noël: If it is in the course of their functions of providing an Internet service to the public, yes.
Senator Wallace: It would indirectly, I guess, in that case.
Mr. Noël: As I said earlier, it is not limited to what is happening on their system.
Senator Wallace: That is my point.
Mr. Noël: It could be one of their users who comes upon what he believes is child pornography. Being concerned about this, his first reaction is to contact his provider of Internet service. However, that does not mean the material he saw is hosted on that particular system.
Senator Wallace: Thank you very much.
Senator Joyal: My question is in relation to clause 6. As you know, Mr. Noël, in this world of computerized information, service providers can have all kinds of checks for information under their system that may be used or commercialized. For instance, if I buy geography books on the Internet, I am registered by the provider that I am a fan of geography books. That information is passed on to geography editors, and suddenly I receive in the mail a notice that I am invited to buy geography books. I do not know where it came from, but it came because they commercialize the information they have access to.
I wonder if clause 6 is still needed, because it seems that we allow Internet providers to include in their services all kinds of capacity to stock information on the habits of any user of the Internet. However, when it comes to child pornography, they would not be authorized, as the bill puts it at clause 6, to seek it out. It seems to me there are two weights in this approach. For instance, if I subscribe to pornographic material where there would be child pornography, then my provider would not be obliged to disclose this information under this bill.
Why did you put clause 6 in the bill? It seems to be a loophole for the providers to close their eyes as much as they can. It is only when someone else rings the bell that they could be caught for not reporting the pornography. I feel that the bill at this point in time stays at the limit of the fence and does not go beyond that.
I am not against the objective of the bill; I am just trying to understand, as Mr. Wong stated well when he explained the philosophy of the bill. That is why I ask, if we are to subscribe to the objective, why we need this, which seems to be a limitation to the bill's objective.
Mr. Noël: As the minister mentioned in his opening remarks, one of the overarching principles behind this bill is that we do not want to create more consumers of child pornography, and we do not want to have this material spread out at a more extensive level than it is already.
The other thing is that this bill, although it is a stand-alone bill, has to function well with what we have in the Criminal Code in relation to child pornography. Right now, no one can access, download or possess. Even the police cannot download for the sake of the investigation. They have to seek proper authority, and they must do things the right way.
Certainly we do not want a provider of Internet service to actively search, seek out or collect child pornography and then use that as a defence for a substantive child pornography offence in the Criminal Code. That just would not work. Right now, not only possessing but even accessing child pornography on the Internet is currently an offence under the Criminal Code. We would not want people to use this bill as carte blanche to seek out child pornography, collect it and then say they were doing it only because they wanted to report it.
If you come across the information, if you are made aware of a website where child pornography may be made available to the public, you report that address, period. If you have reason to believe that an offence has been committed on your system, you notify the police, but you do not seek out the information.
You referred to the loophole or what this could possibly create, but we have to remember that the Internet at present is an unregulated industry. Certainly, as a consumer, as you are, we might be concerned about certain practices and whether certain information is exchanged, and we receive invitations for all sorts of things, and we try to think where it came from, but at present there are no regulations for that matter, and that is outside the scope of this bill, obviously.
This bill is about something very specific. It is about making sure that providers of Internet services, if they are informed of a website where child pornography may be available, will report it to a designated agency who will triage it and do a function that would be overwhelming for police, and then triage in whatever way it needs to be investigated will be sent to police.
In the second scenario, if they have reason to believe an offence has been committed, they notify police immediately so an investigation can take place. This does not provide carte blanche for any vigilante to go out and start accumulating child pornography material.
Senator Joyal: Are you concerned that a citizen or a service provider would accumulate child pornography just for the sake of having as a defence that they were collecting it in order to be able to disclose it eventually?
Mr. Noël: I think it is a legitimate concern, yes.
Senator Joyal: On the other hand, as I was saying to Senator Baker earlier on, the police can lure someone into prostitution, because a police agent can dress up as a hooker and be on the corner of a street and try to catch a person in prostitution.
I have difficulty understanding if a site with child pornography could not be put on the net for the police just to see who will be caught by it and fight child pornography this way.
Why are you really compelled to write clause 6 the way that you write it? It is such a blanket defence, and it seems to me that your objective of not wanting to open the door for someone to collect child pornography under false pretenses could be spelled out differently than the overall open door you have at clause 6.
Ms. Kane: I may not be clarifying anything or I may be repeating, but the purpose of this clause is simply to send two messages. We are not asking the public to go out and look for child pornography on Internet sites, and we are not asking Internet service providers to go and look for it; we are asking them to report it when they are made aware of it.
Senator Joyal: You are not authorizing them.
Ms. Kane: There are two parts to this. We are not asking them to go out and seek it because then they would be committing an offence. We are not asking them to do that. We are asking them to report it when they become aware of it. Clause 6 simply clarifies that we are not putting a broader obligation on individuals or Internet service providers than exists, and we are not, as Mr. Noël has said, providing a defence for those who would seek to hide behind this legislation when they are in possession of that material on their sites.
Senator Joyal: I wonder if for purpose of clarity you could not have divided the bill in a way that you have just spelled it out so there would be no confusion on the fact that here, as I read it, "Nothing in this Act requires or authorizes a person to seek out child pornography."
It seems to me that statement has such a wide scope that you could have redefined it in the way with the limitation that you have just explained to us, and that Mr. Noël has been explaining to us, to prevent its being used as a defence for someone who would have a different purpose really.
Ms. Kane: I think it is conveyed in clause 6 quite clearly — "requires or authorizes"; we are covering off both sides of the concern.
The Chair: May I put a supplementary?
Senator Joyal: Yes, of course.
The Chair: Under other legislation, notably the Criminal Code, do the police have the power to seek out child pornography, and if they do would this bill affect that?
Ms. Kane: The police have a variety of powers and they have section 25.1 of the Criminal Code. Also, in the defences in the child pornography provision, there is the legitimate purpose defence. The defence is for the persons who possess child pornography, and they have to meet the two-pronged test. If they have it for an administration of justice purpose, and it is not causing harm to a person under 18, they would have that defence. Obviously police will have to be in possession of child pornography at a certain point in time to proceed with their investigation.
The Chair: Will this bill affect that?
Ms. Kane: This bill is directed to Internet service providers and other persons who provide an Internet service to the public. I do not think we would characterize the police as being in that role.
The Chair: Forgive me, I am really tramping on your territory now, Senator Joyal, but that clause does not say "a person providing an Internet service," and there is no definition of person, meaning a person providing an Internet service.
It would seem to me, however, that that section applies only to this bill and that the Criminal Code stands alone and would be unaffected, but now that Senator Joyal has rung all my alarm bells, I would like to have that confirmed explicitly.
Ms. Kane: Clause 6 is premised on nothing in this bill. Therefore, if we are looking at this bill as a stand-alone piece of legislation that imposes obligations to report the tip or report the offence, with that obligation in mind, nothing in this bill that imposes those obligations requires or authorizes anyone to seek out child pornography.
The Chair: Can other acts, namely the Criminal Code and justice purposes and all, so authorize?
Ms. Kane: The Criminal Code does not authorize anyone to seek out child pornography; certainly the police are authorized to investigate child pornography in whatever ways they seek to do so.
"Person" is defined, but I think the senator's point is that it was not defined as meaning a person who provides an Internet service to the public. It is just defined as an individual, a corporation and so on.
Senator Joyal: Exactly; it is not limited to a person who provides Internet services. The definition of person is at the top of page 2. It says that "`person' means an individual, a corporation, a partnership or an unincorporated association or organization." It does not refer at all to someone involved in the provision of Internet services.
Ms. Kane: Exactly, except that the obligations in the bill are directed in clause 2 and clause 3. The bill would require someone to report the tip or to report the offence. In that context, it is a person who is providing an Internet service to the public.
Later, clause 6 says, "Nothing in this Act requires or authorizes a person to seek out child pornography." It is with respect to the obligations in this proposed act.
Mr. Noël: In addition to that, as was mentioned by another honourable senator earlier when he was referring to the awareness raising and the publicity, clearly, even though this bill is imposing new obligations and new duties on those who provide Internet service to the public, it may ring a bell with certain consumers, and we would not want this bill to be interpreted by the clients of these Internet service providers to mean that they should seek out child pornography so that they can tip off their providers, who will then be obligated to report.
For clarity, it is really important that people understand that this proposed act is about Internet service providers being obligated to report information they have found or been notified of. It is not about the public suddenly having carte blanche to seek this information and pass it on to their providers. We must ensure that everyone understands what this bill would do and not do, including around authorizing people to do things that are otherwise dealt with in the Criminal Code.
Senator Joyal: My last question is about clause 10. Could you identify where in the Criminal Code there is a similar penalty for failing to report a criminal offence, there being an obligation to do so? In other words, is this scale unique to this bill or is it parallel to other sections of the code that deal with crimes of comparable seriousness?
Mr. Noël: I do not have at my disposal clear examples that have similar penalty schemes. When drafting this legislation, our concern was to reflect what this bill does. It is all about ensuring that all providers of Internet services in Canada have the same obligation and abide by it.
It is not about sentencing people who produce, distribute or consume child pornography. That is completely different and is covered in the Criminal Code, and penalties must reflect that. The way the penalties are constructed in terms of individuals or sole proprietorships versus corporations also reflects the nature of the business in Canada, as was mentioned by the minister and others.
There are approximately 10 big providers of Internet services in Canada that cover 90 per cent of the Canadian population, but there are 300 to 400 smaller providers of Internet services, some of which may be sole proprietorships, and the way the sentencing provisions have been constructed reflects that reality and provides flexibility to sentence for failure to make a report and not the creation, distribution or consumption of child pornography.
Senator Joyal: To be more specific, if I witness a crime and fail to report it, do I incur a criminal responsibility?
Ms. Kane: If you are a witness to an offence and you fail to report it, you will not be subject to a Criminal Code offence in most cases. There are penalties for leaving the scene of an accident, for example, but if you are asking whether there is an obligation on a citizen to report to the police what they think is a criminal offence, that is a different matter.
Senator Joyal: In that case, what kind of penalty would I face?
Ms. Kane: For leaving the scene of an accident you could face a jail term.
Senator Joyal: What offences in the Criminal Code are of the same importance as those dealt with in this bill?
Ms. Kane: The minister answered that question. He indicated, as has Mr. Noël, that in crafting the penalties scheme we took into account that this is a different approach. This is an obligation to report child pornography on the Internet. We had to compare that obligation and the goals of this bill to deter and to protect with the offences in the Criminal Code that deal with the actual making, distribution and possession of child pornography, all of which carry maximum and minimum penalties of terms in prison. This is a fine scheme.
Also the fine scheme was developed because some of the providers are corporations, and they will not be serving time in jail. The fine will deter them, and it is a significant fine. That is why a fine scheme was developed.
In the Criminal Code we see fines on an increasing scale for some offences. For example, impaired driving has significant fines that are tiered for first, second and subsequent offences, as well as periods in jail. For summary convictions, fines can be imposed, and in other federal statutes there are often large fines. All of that was taken into account when looking at this. This is a novel approach for a federal statute for the reporting obligation. When considering various options for the penalty scheme, my colleagues looked at similar legislation in other jurisdictions as well as provincial legislation.
The Chair: Would you provide to the committee some examples of legislation in other jurisdictions that you consulted in coming to this proposal? While you are at it, could you give us a bit of a cheat sheet on the levels of fines that are imposed for various offences, such as the National Do Not Call List, for example?
One difficulty we sometimes have is trying to fit proposed penalties into the broader framework to see how they compare to penalties at large that are required or permitted in Canada.
I have interrupted you again, Senator Joyal. Please forgive me.
Senator Joyal: That is essentially what I wanted to try to get from the witnesses. That helps us to understand the level of gravity that is attached to the offence of not reporting. That is essentially what I am trying to understand, in the context of the Criminal Code and other federal statutes.
Ms. Kane: That is fair enough. It is difficult to make comparisons, because failure to report some other offence may not be seen to be nearly as serious as failure to report child pornography because of what is at stake.
The Chair: We are not saying you should charge the same thing for breaking a window as for failure to report one of the most abhorrent offences imaginable.
Ms. Kane: We can readily provide examples from the provincial legislation, and we will seek appropriate examples from other federal statutes that impose fine regimes.
[Translation]
Senator Chaput: Clause 4 of the bill refers to the notification that must be given to a police officer:
. . .the person must notify an officer, constable or other person employed for the preservation and maintenance of the public peace of that fact, as soon as feasible and in accordance with the regulations.
How is that defined? Who are those persons?
Mr. Noël: When we were with the drafters preparing the bill, this question arose as to whether we were simply referring to a police officer or to law enforcement, and this is the language the drafters proposed to us, knowing that, in particular, we will have to clarify the notice provided for in clause 3 in the regulations that will accompany this legislation. And we will see whether there is any reason to clarify or limit the scope of that expression.
Obviously, when we refer to the peace officers or police officers who do that work, of a municipality or from one jurisdiction to another, that can reach a level that varies a great deal. The major centres such as Montreal, Vancouver and so on have very specialized units that do this work. They receive reports, sort through them and investigate, whereas in other centres where police departments may perhaps not have that degree of specialization, one may well wonder whether it is enough to call the community police and provide them with the information. We wanted to retain a certain degree of flexibility.
The important thing is for the information to get to the right people and for the investigation to begin. We did not want to limit that, but you are not the first person to ask the question. We will look at this carefully when it comes to developing the regulations to ensure that it is well understood and that it works well.
Senator Chaput: If I understand correctly, if there is any reason to clarify the matter, that would be done through the regulations, which I find logical.
Mr. Noël: In clause 12, specific provision is made under the regulatory power to regulate the notification provided for in clause 3, including to whom it must be given and in what way.
In clause 2, reference is clearly being made to an agency that will do the sorting in order to ensure that the police departments are not inundated with reports, some of which do not hold up or would not result in an investigation.
Clause 3 refers to an Internet service provider that has grounds to believe that an offence has been committed on its system or through the use of its services. We want this to get to the right person and for the investigation to start, but we do not necessarily want to say: "You send this specifically to such and such a unit."
Senator Chaput: In your view, would the regulations apply solely to clause 3 or would they apply to other clauses of the bill?
Mr. Noël: Clause 13 of the bill provides: "13. The Governor in Council may make regulations. . ."
And there you have paragraphs (a), (b), (c), (d), (e) and (f). We have nevertheless identified the things that will have to be provided for by regulation. Earlier Madam Chair mentioned the question of the agency, how it will operate, its role, security measures and so on. Those are things that will have to be provided for in order to ensure that everything is done in the right order.
Senator Chaput: What is the bill's field of application? Does it apply solely to servers and computers in Canada, or does it go further?
Mr. Noël: The first thing is that this applies to any individual or company that provides Internet services to the public and in Canada. The Internet is very big. There are a lot of major players here and outside Canada, but, for a corporation to be required to comply with Canadian legislation, it must be incorporated here and do business here.
A lot of child pornography is circulating. These sites relocate cyclically and very quickly, which makes the work of investigators and police officers very difficult. We are not the only ones. The United States already has an act on the mandatory reporting of child pornography. In the United States, Internet service providers and others — we are talking about a very large group — already have an obligation to report and they do that.
Our act would complement what is already being done in other countries, including the United States, and what is already in place in certain provinces. The minister mentioned Manitoba and Nova Scotia.
Senator Carignan: Clauses 3 and 4 provide that, if a supplier or person sees that their server or equipment has been used for the possession or transmission of child pornography, they must report that fact as soon as feasible. That can be a period that may extend from perhaps one week to six months, depending on the circumstances.
Clause 5 states that it must preserve data for at least 21 days after the day on which the notification is made. There is a period of time between the moment when the provider observes the offence and the moment it provides notification or it has no obligation to preserve data.
Have you considered having an obligation to preserve that starts when the provider observes the offence and might end after 21 days' notification?
Mr. Noël: Obviously, in a case such as this, you would really have to see what the facts are. I imagine that, when you refer to a reasonable period of time or to reporting that is really done as soon as feasible, I do not believe that it would be acceptable for an Internet service provider to use that period of time to dispose of or delete evidence.
Senator Carignan: It might be accidental. It could be that it does not follow the procedures in order to preserve the data and has not established the procedure within its business and does not do it in bad faith.
Mr. Noël: The obligation under clause 4 is an obligation that accompanies that of clause 3. The mechanism is that, if a provider has reasonable grounds to believe that an offence has been committed on its system, it must notify police officers of that fact as soon as feasible because that would obviously be more or less practical.
Senator Carignan: No. What I am saying is that it is not required to notify authorities immediately. However, at least from the moment it observes the offence, it must preserve the data in order to preserve the evidence. Perhaps that is an improvement that should be made.
The Chair: Thank you both.
[English]
The Chair: Thank you both. It has been extremely interesting. Any material you have on how long "les meilleurs délais" has tended to be interpreted as being might also be very helpful, because this raises interesting questions. With that, we liberate you. As usual, we are very grateful.
Colleagues, we will meet again at 10:30 tomorrow morning in this room to continue our study of this bill. Our witnesses will be the Federal Ombudsman for Victims of Crime, the RCMP and Statistics Canada.
(The committee adjourned.)