Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 22, Evidence - November 26, 2014
OTTAWA, Wednesday, November 26, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act, met this day at 4:15 p.m., in public, to give consideration to the bill; and in camera for the consideration of a draft report on the document entitled Proposals to correct certain anomalies, inconsistencies and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada and to repeal certain provisions that have expired, lapsed or otherwise ceased to have effect.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good day and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
We're meeting today to continue our study of Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act, and the Mutual Legal Assistance in Criminal Matters Act. This is our fifth meeting on this bill.
Before we hear from our first panel of witnesses today, please allow me to issue a brief reminder to all members, our invited witnesses and those watching. First, many of you are already aware of an ongoing and highly publicized case involving the production and distribution of child pornography. This case is subject to a mandatory publication ban that has been ordered by the court to protect the identity of the young individuals involved.
While this ban has no impact on our proceedings based on our privilege of freedom of speech, and although the name of the victim has already been referred to publicly, I, nonetheless, invite everyone to exercise great caution and to not refer to any of the young individuals involved in this case. I would also like to remind everybody that our parliamentary privilege does not provide protection for statements that are made outside of official parliamentary proceedings. Members should be mindful of this when making any comments publicly to the media or when using social media.
Second, I would like to remind everybody of the sub judice convention, which suggests that we should refrain from discussing matters that are currently before the courts. This convention does not restrict the right of Parliament to legislate, but members should, again, exercise caution and not refer unduly or unnecessarily to matters that are before the courts.
In the context of today's proceedings, I would, therefore, ask all participants to exercise restraint by not discussing the specific details of this case and to respect the publication ban on the identities of the young persons involved.
Again, this is going to be very brief. We're going to have to suspend at 4:30 for a vote, and I would encourage all of you to get back to the meeting as quickly as possible so that we can resume and treat our witness with as much respect as possible, given the timelines that we're presented with and the fact that he is most generous with his time in agreeing to wait out our proceedings.
That individual is our first witness today — and we're very pleased to have him with us — Glen Canning, who is appearing by video conference from Halifax. Mr. Canning, welcome, sir. It's very good of you to be here and to adjust your own schedule to accommodate the committee.
I understand you have an opening statement.
Glen Canning, as an individual: I do have an opening statement, yes.
The Chair: Please proceed.
Mr. Canning: Our daughter Rehtaeh's mother can't be here. She had another commitment she couldn't get away from, so I'm going to read something that she has written. I know that the last time I was able to speak to the Senate, I submitted my statement on Bill C-13, so, to be fair, I asked her if this would be okay. What follows is a statement from Leah Parsons:
I fully support Bill C-13 as a parent who has lost a child to suicide. Rehtaeh endured months and months of harassment after a photo of her was taken without her permission while she was intoxicated. The photo was never contained and the devices used to distribute the photo never seized. In most recent months, the males involved in the taking and sharing of the photo have pled guilty. That photo was taken and distributed three years ago, and my daughter lived with that torment for 17 months before ending her life. She was panicked and frightened to start new schools because it followed her.
I feel the police needed all the necessary tools to act immediately when a photo is being shared; the sooner they act, the easier it would be to contain and to end the resulting psychological distress.
Honestly, privacy concerns are not my priority. We are losing too many children to this type of photo-sharing and the harassment that follows. Young people are too vulnerable emotionally to be able to navigate a system that does not act in their interests. Fast and effective methods to address intimate sharing of images is paramount to these cases. I watched helplessly as my child begged for someone to help her, I begged for someone to help her, and that help never came.
I hope Bill C-13 is passed and is passed soon.
Signed, Leah Parsons.
My own statement regarding this matter, just very briefly, there hasn't been much, I guess, change for myself regarding Bill C-13, although it has come to our attention — and quite a lot of people's attention, I believe — that there is serious mistrust in the government. I would ask people to ask the government to deal with that mistrust rather than ask us to do so. We're obviously hurt people, and I know bad cases bring about bad law. I do know that, but we're simply parents struggling to try to make something better. We don't have all the answers, obviously, and it's hard for us to figure out what, in fact, is a legitimate criticism of Bill C-13 and what is simply dislike for the government in power. It's hard to differentiate between what's politics and what isn't.
We are hoping to do something better. We are hoping that the government and all parties involved work in the best interests of Canadians, our children, our rights, privacy rights and Canadian law.
The Chair: Thank you, sir.
[Translation]
Senator Boisvenu: Thank you very much, Mr. Chair. Mr. Canning, are you able to hear the interpretation?
[English]
Mr. Canning: Yes, I am.
[Translation]
Senator Boisvenu: Let me extend our condolences to you, on my behalf and that of all my colleagues in the committee. Losing a daughter under those circumstances must be terrible. You have all my sympathy.
You have probably read Bill C-13. Based on how you see things and based on your experience, does the bill go far enough? Do you think some things are missing that should have been incorporated in the bill?
[English]
Mr. Canning: I believe Bill C-13 goes far enough. From what I can understand, a big roadblock to a lot of law enforcement agencies in Canada is trying to get Internet service providers to provide them with the information they need to do their jobs effectively. It's not a matter of knocking down a door with a search warrant. Some of these crimes may be committed in other provinces. Some of them may be committed within a local district, where it has become a viral situation on the Internet.
In our daughter's case, the photo was shared with hundreds of people, and it happened very quickly. It could have been contained had Bill C-13 been in place, and I believe that because police could have taken effective action right away. They didn't take any action, which is unfortunate in this case. We're hoping to find out why that was, but if police officers could use these kinds of tools, I believe it would have helped our situation, absolutely.
[Translation]
Senator Boisvenu: In most cases, these crimes are committed by young people. If Bill C-13 is properly communicated in high schools, do you think it would be a deterrent against photos being circulated without the consent of the victim or the people involved?
[English]
Mr. Canning: No, I've heard nothing at all about Bill C-13 from any of the high schools I've spoken to, and I don't believe there's any kind of effective publicity going on with regard to Bill C-13 as it affects young people. I think a lot of schools in Canada are definitely engaged with cyberbullying and education about bullying. I think that has brought about a positive step, and it's a good change to see.
As far as Bill C-13 goes, I don't believe there has been any mention of that within any educational system in Canada, as far as I know, other than people saying there are laws coming down that may hold people accountable for what they do.
I think some of the most vicious, vile stuff that happens on the Internet isn't with young people. I believe there are issues of revenge porn. In my daughter's case, there are issues of people contacting me or her mother saying they have our daughter's photo, and they do this to hurt and harm us. It's extremely upsetting when it comes from some anonymous email. What are we supposed to do? We can go to the police and wait months and months. I can trace a phone number; it can show up in our caller ID. Why our IP addresses aren't treated the same way is beyond me.
To answer your question, I believe education is the key when it comes to young people, effective education around issues of cyberbullying and perhaps also around issues like empathy, a sense of compassion and decency.
[Translation]
Senator Boisvenu: Thank you very much. Your testimony is very useful for us.
[English]
Senator Joyal: Thank you for your testimony, Mr. Canning. I would like to pick up where you left off in relation to education.
To your knowledge, was any information provided to your daughter or to students with whom your daughter was sharing school benches about the Internet and how useful it could be but how damaging it could also be? It's like a knife; you can use a knife to cut meat and it's very useful for that purpose, but you can also use it to cut yourself or to threaten another person.
In your opinion, was there any information or presentation of how to use the Internet, how useful it could be but also how dangerous it could be and what kind of framework we should follow in relation to access to the Internet?
Mr. Canning: I think that should be addressed in schools right now. We have handed our children a mass communication device with very little instruction on it. Not many of them know how to use it effectively. Some use it to be very cruel and mean. Others use it to spread wonderful messages and communicate with other young people around the world. It's a tool like any other, just like your example of a knife.
The difference is, when it came to our daughter's case, if someone stabbed her, there are laws in effect that allow law enforcement to effectively go after the perpetrator, especially if you're fearful they will stab someone else. In our daughter's case, it was one little cut at a time, and there was nothing in place at all to stop those cuts from happening, nothing that we could have done, other than, of course, the things that we did, such as changing the cellphone number and Internet access, things like that. We did a lot of monitoring, too, but the issue was and still is that this image was out there being shared through text messaging, and she didn't have an opportunity to get back on her feet. She tried four different high schools, and everyone in the school knew her and the story and had that image. Nothing was done to stop it or to help her. It literally was not a stab but one cut at a time until it took its toll.
Senator Frum: Mr. Canning, thank you very much. I'm sorry for your loss as well.
You said in an interview with the CBC, I believe, that one of the things people are afraid of here is a loss of privacy, and you talked about that fear being misplaced. Could you explain what you mean by that?
Mr. Canning: I think it's misplaced because a lot of people think when they go on the Internet that what they do is private. But anyone who uses the Internet goes through an Internet service provider; it could be Bell, TELUS or Eastlink here in Eastern Canada. Every time you go on there, those corporations and companies track your information and use it. Even when you access the Internet to go on Facebook or Twitter or to do Google searches, everything you do is being tracked. It's being used, marketed, sold, bought and traded. There is no privacy on the Internet, and that's what I mean when I say it's misplaced. People go on the Internet and act as if they're in the privacy of their bedroom, but they're not. It's actually a very public forum, more public than people realize.
When a law like Bill C-13 comes down that would allow law enforcement to access people's information, people need to understand that that information most likely isn't private in the first place. I do believe that a lot of people may think about privacy, but they're not thinking of the bigger picture here, which is protecting people on the Internet. There are a lot of vile, vicious people online, and believe me, I know that from first-hand accounts, as do a lot of other people.
There are not very effective tools in place. Any police department will tell you that. Many of the first responses they have to people who come to them with harassment crimes, they will simply say, ''Stay off the Internet.'' They have no idea what to do. If they did know what to do, they don't have the tools to do it with.
As far as privacy online goes, people are kidding themselves and not paying attention if they believe that when they go on the Internet, what they're doing is private. It just isn't. It's an open, public forum.
The Chair: Thank you, Mr. Canning. I apologize again. We're going to have to suspend, and we will be resuming as quickly as we can to accommodate you.
Members, I encourage you to come back to the meeting as quickly as you can after the vote.
(The committee suspended.)
(The committee resumed.)
The Chair: Members, our witness, Mr. Canning, is continuing to provide answers to questions that members may have, and I'm looking to members for questions. I can pose one, Mr. Canning.
The Canadian Bar Association appeared before us last week, and one of the recommendations they were making was about the recklessness standard in terms of criminal intent and their concern about individuals being caught by that standard who may not be aware of the circumstances, whether it was consensual or not, those kinds of issues that they expressed concern about. But I think that there are others who have a different view of that, and I'm just wondering if you have an opinion with respect to that element of the legislation.
Mr. Canning: For criminal intent, I can reflect on that with the personal experience that I have, and I hope that's all right. I believe the intent was to shame and harm. Whether or not the people doing that actually knew it was against the law, I don't know. So I don't know if they had a belief that, ''I'm going to break the law here to do something.'' Again, I think that would come back to education about the law, particularly with young people.
As far as adults, who, for example, use revenge porn, they most certainly have an intent to harm people and to cause someone extreme embarrassment and humiliation, and it is nothing short of criminal harassment in my mind.
But the Canadian Bar Association, regarding intent, criminal intent and issues of consent, would probably be better able to comment on that than I would. I can only go with what I've experienced right now, and from what I've experienced, the intent was certainly to cause someone extreme damage.
The Chair: The materials that Justice provided to the committee indicated it would capture those who recognize that there is risk that the person did not consent but who proceed to share the image anyway. Anyway, I won't go any further with my own views on this, but I'll call on Senator Joyal.
Senator Joyal: Mr. Canning, when your daughter got her computer, did you provide the money for that, or how did she get a computer?
Mr. Canning: She got a computer when she started junior high. It was a small laptop computer, and we bought it for her.
Senator Joyal: At that time, did you have a discussion or some kind of information provided to her that she had to be careful of what she would be putting in that computer in terms of images or comments or writing?
Mr. Canning: I have her computer. I have her files at home. I have everything that's on there. Most of the stuff she did, prior to her being assaulted, was images of fluffy animals and funny memes, songs from people, but there was nothing ever malicious or bad on there. Quite a few times, Rehtaeh would come to us and say, ''This person has said this to me or done this to me,'' and we would go through the process of blocking her. We also mentioned to her — and I've done this to her numerous times — that the only people who are part of her social network on the Internet are to be people she actually physically knows, not strangers somewhere. I do know that, when she got older, that changed, and she started to get friends of friends of friends of people. That's just the world of social media, I guess. But Rehtaeh never, ever used her social media or Internet or cellphone to harm anybody or to cause anyone distress or to commit any crime.
Senator Joyal: Were you also concerned, being aware that sometimes kids or teenagers use the Internet, as you know very well, to bully others or to harass others, that she should be careful in relation to that kind of situation in that she would have to report it to you or teachers or somebody with responsibility?
Mr. Canning: Absolutely. We didn't have any problem with that. Rehtaeh always had a good trust relationship with us, and it was such a relationship that she knew if she came to us with a problem or an issue online, we would not turn around and punish her for doing so.
I do know that there are good statistics out there, recently released — I can't give you information on them now — that say that two thirds of Canadian youth will not tell their parents they're being cyberbullied if they believe their parents will stop their access to social media through the computer or take away their cellphone. It's a form of trust, I guess. If someone is being harmed online, they're not committing something bad. What happens online should be free for everyone to use as they see. It's the people who are using it to commit crimes online. That always has to be our focus and what we target.
Rehtaeh had Internet access. Following her assault, we changed Facebook and Twitter accounts for her, we monitored, reported stuff when it happened to the police. Sadly, to no real avail, while she was alive. But we did everything we could to keep her safe, at the same time recognizing that she's a victim; she's not a perpetrator. Cutting off access, I believe, would have been far more harmful than anything else because, given the way children and teenagers communicate with each other today, I would have prevented her from communicating with the good people she did have in her life. I also believe that if I had done so she would have never come to me and told me she had a problem or issue again. I think I would have been part of the harm rather than trying to be part of the help.
Senator Batters: Mr. Canning, thank you so much for being with us today, and thank you for being patient through our vote. I also want to thank you for all of the work that you have done in your daughter's memory. Unfortunately, you and I share a commonality in that I lost my husband to suicide five years ago, and so I understand to some degree the pain that you have been through. I hope you find that what you're doing in your daughter's memory will help you in the constant struggle that it is, especially in those early years after you lose someone.
The first comment I wanted to make is that in speaking to some people in my hometown of Regina, Saskatchewan, about this particular bill, I've had some people tell me that the word ''cyberbullying'' almost kind of downplays what this situation is. It's really more like cyberassault, because it's so serious what this type of activity is doing to teenagers, young adults, even adults, as you pointed out, with things like revenge porn and that type of thing. It's more like an assault. It is not someone kicking sand in someone's face. It's not a minor transgression. It's a serious situation we have, as you unfortunately have experienced.
I would like you, if you could, to please tell us about the work you've done to help other children who might be in your daughter's circumstances.
Mr. Canning: I've spoken with numerous high schools throughout Ontario. Even last week I was in Toronto. I spoke to six student bodies there. I spoke last Friday at a white ribbon campaign speaking out against violence against women in Toronto. I spoke at Queen's University; St. Lawrence College in Kingston, Ontario; Ottawa City Hall; Concordia; Mount Saint Vincent in Halifax. I've done a lot of talks, and I think it's very positive.
I get a lot of feedback. A lot of it comes from young people who make promises and say they're going to be committed to trying not to do something or to try to speak up for victims. The message I try to deliver is that being silent is part of the problem. It's not a neutral position to have when it comes to these issues.
A lot of teenagers — and I can give examples from last week — if you see the expression on their face, when they came up after a talk and they want to say a few words to me, and they're basically going through a lot, like my daughter, the look on their face, that is not bullying. You're right; that is assault. It's a look of absolute pain and anguish.
It was very upsetting last week when one girl came up and said she had thought of ending her life because of what's happening to her. That's how bad this can get. I asked her, ''Who have you told?'' And she said, ''Just you.'' It puts you in a situation where you are, okay, this issue really needs to be talked about in our schools. It was a triggering thing for her, but in a good way. Not talking about it, she would have continued suffering alone and perhaps that could have had tragic consequences.
I do believe in my heart that there are a lot of very good young people in this country. They just need guidance. They need a little bit of inspiration and support. They will do the right thing. There are examples of cyberabuse going on in schools where other students have come to the defence of someone who stuck up for them. There's a good example in Newmarket, where a girl was being harassed and tormented on Facebook and all the girls in her school came to her defence and started writing wonderful things on her page. Those are good examples to use.
A lot of good stuff has been done. I believe most of it has happened in school. I did a talk at Ottawa City Hall last spring, and there were some young men there from the Longfields-Davidson Heights Secondary School in Ottawa. The teacher brought 10 or 12 of his students there, and they talked a lot about my daughter and the issues she went through, and it had a big effect on them. He wrote me saying it did. And then the summer came and not much happened, but when the fall came he sent me an email saying that you have to come to our school and talk. You won't believe what these young men did. They created a campaign in their high school about sticking up for others, sticking up for people who are weaker than you, not to be neutral in situations, because when you do that you're siding with the tormentor. They created posters about violence against women and put them around their high school.
This happens because the conversation happens. I know those may be the best examples I can have, but in all honesty what they did in that high school was, to me, breathtaking. I was just floored they did this, and it's because a conversation started. I do believe change in Canada will happen in our schools. We have to understand they have a powerful communication tool. We have to start talking to them about using it for what is good and effective.
I'm very sorry to hear about your husband.
Senator Batters: Thank you.
[Translation]
Senator Dagenais: Thank you, Mr. Canning. Clearly, I sympathize with you. Cyberbullying is a form of harassment, embarrassment, wilfulness and malicious intent. According to what you said just now, you agree that cyberbullying should be considered a crime. Is that correct?
[English]
Mr. Canning: Absolutely. I believe in certain circumstances it is done to hurt people and to harm people. If I did stuff as an adult that some of these young people are doing to each other, the police would respond to it almost immediately. They would respond to it believing this was a crime, this was a criminal case.
You can't treat other people like that. When young people do it, I understand there may be a disconnect. They're thinking what they're doing is harmless, but that's where education comes in. If you're educated in such a way they know this is harmful and hurtful, they should be responsible for it.
I'm not suggesting we criminalize everything that happens online or criminalize people who are, frankly, just insulting. But for young people who are facing a lot of this abuse online, the way it seems to be right now with law enforcement is they were just told to stay offline. I have lots of examples of that. Some people have been tormented almost to the point where they're ready to end their lives, and the police will say, ''Stay off the Internet and Facebook and stop using your cellphone.'' That response seems to me to be part of the problem. Why should they have to do things like that? They can say, well, it's to protect them. Why don't we keep our children out of playgrounds because we're worried a pedophile might be there? Why don't women stay in late at night because there are rapists? Those aren't answers to the crimes that happen. They're simply victim blaming.
To your statement, sir, yes, I do believe there is a line that's crossed with any young person, and once that line has been crossed, what they've done is a crime. I believe the young men who did this to my daughter are criminals. I believe their intent was to cause her so much extreme anxiety, depression, embarrassment and humiliation. I don't believe their intent was to end her life, but that is exactly what happened, and that was what was brought up in the courtroom as well by the judge: '' You may not have intended to hurt someone by taking this image and spreading it all over the school, but don't kid yourself into thinking her life didn't end because you did that.''
I think part of our problem here is the word ''bullying.'' This is not the bullying I had when I was a teenager — not even close. I got beat up when I was a teenager. I went home, I'm safe. Today you can go home and there's a video of you getting beat up on YouTube with 1,000 people telling you to go kill yourself. Sadly, that has a terrible impact on children. Something has got to be done. I believe what has to be done though is not to tell the victims that they're part of the problem. They are not part of the problem. The problem is people who are ill-intended when they use social media.
Senator Jaffer: Thank you very much for appearing today and for your presentation. It's very difficult to speak to you because we all feel responsible for what's happened to your daughter, but I'm the Chair of the Human Rights Committee and we did a cyberbullying study. You said there are not boundaries. When we were younger, there was a boundary. When we left school, the bullying stopped. We had the security of our home, when we went home. Here, it's 24 hours, non-stop.
One thing that kept coming up was that if the providers of this service, if there was a way to immediately remove the image, then at least the pain would stop. I wanted to know what you felt about that, if there was a way to stop the image from being circulated on and on and getting a bigger and bigger audience. I'd like your point of view on that.
Mr. Canning: Yes. I believe that comes down to effective law enforcement and also education within law enforcement. What happened with our daughter was obviously child porn now, with these two recent cases in the courts in Halifax. Initially the police told us that that image being spread around was not their problem. They said it was a community issue, not a police matter, so they did nothing to hold anyone accountable for it whatsoever. There's a big loophole, obviously, in the law in Canada; either that or there's a big disconnect between law enforcement and the law.
If there were proper measures in place with the proper law enforcement response in Rehtaeh's case, I can give you the example of that. They could have gone and found out who had the image, got their cellphone and found out who the carrier was and they could have immediately found out who it was sent to and stopped it from happening.
There was a recent case in Auburn Drive High School in Dartmouth, Nova Scotia, where a young man had an image of a girl and he sent it to someone else. It became known to the girl that that had happened. She went to the principal. He seized the cellphones right away, called the police, they came and they actually took his cellphone and looked at who he had sent it to and went after their cellphones as well. That is the kind of response this type of thing needs.
Now if it's sent outside the school district or all of a sudden it has gone through hundreds of people, then you'll need the immediate help of the cellphone carrier. This is the number, this is the information that was sent, and we need to know who it was sent to right away. To say, ''Let's put a warrant in for this and wait eight weeks,'' sorry, but in this day and age with these kinds of tools, you might as well not even respond at all. The damage will be done and it can't be undone. You can't un-ring that kind of bell.
Senator Jaffer: I hear you. That's what we were hearing and that we want the pain to stop immediately. One of the things after this bill is maybe to look at providing resources so that there's education, principals are aware that they have to act fast, as well as the police, but also working with the service providers to stop the image from being sent all over. That would be one way of stopping the pain, would you agree?
Mr. Canning: I agree, absolutely. It would nice, of course, if we could do that without it having to be a law, if some of our service providers would have stepped up and if you sign a contract with us and you use this for any kind of illegal means, or even have it in an initial contract, have it in there. If the police come to us and believe you've committed a crime with this service we're providing for you, we will cooperate with them fully and 100 per cent.
That's not the case right now. We're going to have to do something else. A law that will effectively address that is what my hope would be. My biggest fear and concern is a roadblock in trying to help someone go through what our daughter went through and that roadblock, seriously, is time. Time has to be as fast as the Internet. It literally does, or crimes online are there and gone and the damage is done and it can't be undone.
Senator McInnis: Thank you very much, Mr. Canning, for what you're doing. I've heard you interviewed several times nationally, and you're certainly compassionate and committed and a good communicator.
A great number of Canadians are concerned about cyberbullying. We believe this bill is a good bill, but this bill is not the be-all and end-all. What you've been doing is part of what the solution will be. I'm wondering — and Senator Jaffer alluded to this and she and I have spoken about this — there has to be a way, perhaps a national strategy, I'm not sure, where we can coordinate the efforts of many individuals who are involved in this. That's not just the three levels of government and the various agencies, the school boards and the education, but the police and all individuals. It seems to me we can have a scattergun approach or we can have an organized, coordinated approach. Senator Jaffer and I are going to work on this after this bill is completed.
Could I have your comments on that? As you've said, you've been around the universities. You're one person and you can gain and garner a lot of attention and you've done a wonderful job. But if you were putting a strategy in place or a system in place, what would you do to make sure that we, to the best of our ability, eliminate this terrible harm that's taking place, particularly with our youth?
Mr. Canning: I think the best thing we can do is to engage our youth, talk to them, give them resources, give them some inspiration, let them know the harm it can cause and let them know the harm being a bystander causes. It comes down to the simplest things. I know our youth in Canada are just fantastic. The majority of them are incredible young people, and we should be very proud of that. I think anything we do to address this, it has to be there, and it shouldn't be coming in with a hammer and saying, ''This is the law.'' We should be talking to them about not breaking it in the first place.
I don't think there's any hesitation on the part of the majority of young people to do the right thing and stick up for each other. I really don't. They just need to know what to do. In my daughter's case there were young people in her school who went to teachers, had no idea what to do, they were trying to help her but they just didn't know what to do, and it comes right down to that: They had no idea of what they were supposed to do. Going in there and letting them know, ''Here's what you can do, you can go on this person's page, you can do this, you can go to the police, and you can go to their parents. You can do all kinds of things.'' The most important thing, though, is making sure that whatever it is they do it can't be nothing. This indifference that happens to victims in suffering and in high schools, it's atrocious.
I know young people get engaged. I know that because I've spoken to a lot of them, and a lot of the teachers come back and say that these kids got together and they formed a club, a group, they starting signing cards saying, ''I won't be a bystander.'' Things like that happen just from talking.
If it's just from me talking, I imagine if we had our government with an effective educational program go into high schools and junior highs in Canada, talk to people about the power of social media and how good it can be and then talk to them about how bad it can be as well and what they need to do. While we're doing that we can also talk to them about other issues young people seem to have a disconnect with, like consent.
I do think, sir, that the best way to address this problem in Canada is to go into high schools and start talking to young people about it. I think this whole problem will begin and end there.
The Chair: Mr. Canning, we'll have to end it on that very helpful note. The committee appreciates your appearance here today, your testimony and your patience as well. Thank you, sir.
On our next panel of witnesses, we have from the London Anti-Bullying Coalition, Corina Morrison, Co-founder and Executive Director; and Linda Steel, Member, Board of Directors. From the Kids Internet Safety Alliance, we have Paul Gillespie, President and Chief Executive Officer. From Boost Child Abuse Prevention & Intervention, we have Karyn Kennedy, Executive Director. And as an individual, we have David Fraser, Partner, McInnes Cooper.
Ms. Steel and Ms. Morrison both have brief opening statements. Ms. Morrison, shall we begin with you?
Corina Morrison, Co-founder and Executive Director, London Anti-Bullying Coalition: Thank you very much. The London Anti-Bullying Coalition was founded 11 years ago, and the York Region Anti-Bullying Coalition was founded five years ago. Our coalitions have directly advocated on behalf of over 500 families whose children were and are being victimized and the systems that are supposed to help and protect them.
This binder is full of their heartbreaking stories. Our phones keep ringing and the emails keep coming. We are connected to seven other anti-bullying coalitions across the province and countless community partners across Canada. Previously, we have been invited to give input federally, provincially and locally.
We agree with and fully support all points A through F on the Bill C-13 summary and are sincerely pleased to see progress in those areas; and we support the bill. However, children are hurting both physically and emotionally. Children are dying, and children have been asked repeatedly to fix themselves. This must stop. We have been asked, ''Will Bill C-13 make this stop?''
The Senate Human Rights Committee report, which is cited in our invitation as one of the foundational documents for Bill C-13, speaks largely to the rights of the child under the UN convention that came into force in Canada in 1992. The intent of the report was to stop cyberbullying and protect our children.
Linda Steel, Member, Board of Directors, London Anti-Bullying Coalition: Our students are experiencing stalking, harassment, sexual assault, collusion, coercion, et cetera. There is nothing in Bill C-13 that addresses the 12 to 17 age group that we deal with. The rights of the child are found nowhere in this bill. These are our initial questions and concerns.
While Bill C-13 amends the Criminal Code and three other acts, we don't see how it protects our youth because it does not amend the Youth Criminal Justice Act. There is no mention of child protection, bullying or cyberbullying in Bill C-13. There is no official definition of ''cyberbullying.'' As there is no requirement for the collection, retention and tracking of bullying or cyberbullying incidents, how will we or anyone know if the steps taken are effective? Where does Bill C-13 reflect the intent or recommendations made in the report of the Senate Human Rights Committee in 2012? How are articles 16 and 19 of the UN Convention on the Rights of the Child reflected in Bill C-13? How does Bill C-13 affect Bill C-32, the Canadian victims bill of rights, also currently under debate, and vice versa?
According to the Canadian Coalition for the Rights of Children, children endure more violence, exploitation and abuse than adults in Canada; and Canada ranks low for intergenerational fairness because of its low level of support for children. We are looking for real protection for our children and real assistance for the victims, including while the crime is occurring, meaning real accountability for the adults responsible for child safety at all levels.
As long as there is more than one person living in a house or similar setting with a computer, under this bill the police cannot charge anyone because they have no way of knowing who actually hit the send button when distributing hurtful, harmful bullying criminal messages. If, for example, the responsible adults in the house were held legally accountable, real change might occur. Despite the positive steps Bill C-13 proposes, in many areas the police will still be unable to act or enforce against an unknown perpetrator.
We applaud the development of Bill C-13 and hope you will continue in this direction. Mostly, we applaud the Senate Human Rights Committee report and believe those recommendations should be implemented as soon as possible, particularly a national strategy to ensure consistency across the province. Unless the recommendations are acted on, we, while supporting Bill C-13, would have to say no, this alone will not stop the hurt and damage to our children. Our children need more and they need better.
Again, thank you sincerely for this opportunity to speak. We would like to be part of the solution.
David Fraser, Partner, McInnes Cooper, as an individual: Thank you very much for providing me with the opportunity to speak with you today. I'm grateful. I'm also grateful for your care and attention in your deliberations.
For the purposes of introduction, my name is David Fraser. I am a partner with the Atlantic Canadian law firm McInnes Cooper, but I need to emphasize that I am here speaking as a private individual and not on behalf of the firm, its clients or anybody else with whom it is associated. I have been practising Internet and privacy law for over a dozen years now. I have represented a range of clients over the years, including victims of cyberbullying, victims whose intimate images have been distributed online without their consent, and I have represented and advised service providers. Most notably, I was part of a team at my firm that took the case of a 15-year-old victim of cyberbullying to the Supreme Court of Canada, pro bono. This was the first time the court had the opportunity to consider the phenomenon of cyberbullying, and the unanimous court came out strongly to protect the interests of the victim of sexualized cyberbullying.
I hope that this experience from a number of different perspectives will provide this committee with some assistance in its important task of considering Bill C-13. As has been said before, we need to find the ''sweet spot'' in this legislation, and I think Bill C-13 is a little off the mark. I hope that I can point this out and provide some assistance. In my view, some small tweaks will create a law that will withstand an attack under the Charter.
I will first speak about the provisions related to the non-consensual distribution of intimate images. It has been suggested that Bill C-13, if it had it been in force, could have saved Amanda Todd and Rehtaeh Parsons. While that's something to be hopeful for, the world is much more complicated than that. In both cases, possession and dissemination of child pornography was already a crime, and so are the creation, possession and dissemination of voyeurism images, extortion and criminal harassment. That being said, there is an important gap in the criminal code that we must fill, which is the malicious dissemination of intimate images without the consent of the person depicted in them, regardless of the age of the victim. We need to be very careful about how we craft this offence. The current reality is that young people and adults, whether we like it or not, take photos of themselves and voluntarily share them with intimate partners. These digital images can easily be spread around without the consent of the person depicted.
We want to criminalize, at least I want to criminalize, the boyfriend who posts pictures of his ex-girlfriend online without her consent, which is the so-called revenge porn. I want to criminalize the actions of a person who forwards images of current or former intimate partners. In each of those cases, the individual would know or ought to know whether they had the consent of the person depicted in the image. But we need to be careful not to inadvertently criminalize behaviour that is not blameworthy. Someone finds a picture online of someone naked and forwards it to a friend. That person knows nothing about the circumstances in which the photo was taken. It could be a professional model. The photo might have been posted by the person himself or herself. There is no way to tell whether, in those circumstances, consent was obtained and whether there was any expectation of privacy at the time the photo was taken. The individual has no way of determining this. The provisions in the bill use a recklessness standard, which in my view is too low. Recklessness applies where a person should have looked into it but decided to be wilfully blind. However, as with much content online, it is not possible to look into it.
We need to be especially attentive to crafting the law so that it will survive a challenge in the courts. My fear is that ''recklessness'' poses the risk of having the law struck down or making criminals out of people who are not truly blameworthy. I want to avoid a situation where charges are laid and the case is ultimately thrown out because of a law that will not survive a Charter challenge.
The bulk of Bill C-13 deals with police powers, and I would like to speak of those next. It's also been suggested that the new police powers in Bill C-13 could have been used to prosecute the tormentors of Amanda Todd and Rehtaeh Parsons. In both those cases, it's my view that the police failed to fully use the existing powers they had at their disposal to adequately investigate the crimes to which they were subjected.
Bill C-13 creates a production order for transmission data, the new section 487.016, and a warrant for transmission data recorders, section 492.2. It's been said that the purpose of the transmission data provisions of the bill is to extend the current police powers — that are coupled with judicial oversight, I'll emphasize — related to telephony information into the Internet age, without significantly extending the status quo, which is why it's argued a reasonable suspicion is the appropriate threshold.
The discussion has missed the point that transmission data is significantly different from traditional telephony signalling data. With conventional telephony, ''transmission data'' refers to the number called, the number called from, the number called to, whether the call was completed and the duration of the call. In the Internet context, the amount of information and what it reveals is dramatically different. This would include the IP address of the originating computer, information about the computer, the browser, the Internet communications protocol, whether it's voice over IP, whether it's browser session, or whether its chat. An interception of transmission data would tell law enforcement agencies whether the target of surveillance was visiting a search engine, an encyclopedia, a medical site, their doctor's website or otherwise. This is a dramatic expansion of the information provided compared with traditional telephone communications.
People use computers right now very differently than they use telephones, and the use of a computer shows much more information about the individual. My concern is that because of the amount of information and what it tells you about the person, even if you exclude content, the reasonable suspicion ground, in my view, will not survive a Charter challenge. It needs to be reasonable grounds to believe, in order to be successful in the Charter. I think that that opinion is supported by the recent Spencer decision that has been the subject of much discussion in this committee.
Finally, I would like to note two points. One is that any use of this power, I believe, should require law enforcement to ultimately notify the individual whose information has been obtained, after six months or when it no longer would interfere with the lawful investigation. Individuals, in the same way that we have for intercept orders, should be applied in this circumstance. I believe that the immunity provisions do no good, and I would be happy to discuss those at length.
Paul Gillespie, President and Chief Executive Officer, Kids Internet Safety Alliance: Thank you, Mr. Chair, senators, ladies and gentlemen. I would like to thank you for the opportunity to address this committee. My name is Paul Gillespie. I'm the former Toronto police officer who was the officer in charge of the Child Exploitation Section, widely considered as world leaders in the field of Internet crimes against children. I'm now the president of the Kids Internet Safety Alliance, or KINSA, which is a registered charity with an expanding global footprint that rescues children from harm.
KINSA's vision is to set all children free from online exploitation. Internationally, KINSA works with law enforcement and other partners to deliver training and build capacity among police in developing nations to help them find and rescue children. KINSA has empowered over 400 police officers and prosecutors in 26 countries to rescue 121 children to date, 10 in Canada. KINSA graduates have delivered Internet safety presentations to 10,000 police officers and 25,000 civilians worldwide. Nationally, KINSA has launched nobodystandsalone.com, with funding from the Ontario Ministry of Education and private industry, providing tools and tips for teens and young people to unmask cyberbullies and stop them in their tracks. We have built resources for teens, parents and educators on the facts about cyberbullying, and we are giving them proven strategies for how to deal with these issues.
I would like to read an article written by KINSA legal counsel David Butt, a Toronto area lawyer who is a regular contributor to op-eds in The Globe and Mail and then follow up with a few thoughts of my own.
Precisely what pre-existing privacy rights does Bill C-13 take away? The answer is precisely none. Bill C-13 updates the complex Criminal Code search warrant provision for the digital age, but the bill does not expand police powers to obtain information without a prior court order. Any suggestion that Bill C-13 authorizes more invasive warrantless cybersnooping is urban myth. Bill C-13 does, however, encourage the voluntary handing over to police of information that can already lawfully be handed over without a court order. So we need to ask what can already be lawfully handed over to the police without getting a court order in advance? The answer is very little, and even that is closely supervised by the courts afterwards.
Internet service providers hold or have access to reams of data about our individual surfing habits because we access the Internet through ISPs. What then can the police ask ISPs to provide voluntarily about our personal profile, our Internet profile? Again very little — just a subscriber's name and address. That is all. Almost all ISPs responsibly prohibit use of their services to commit crimes. They responsibly assist legitimate Internet child abuse investigations by voluntarily providing a subscriber's name and address upon appropriate police request. So Canadians can rest assured that police can ask for voluntary disclosure of very little, and courts will closely supervise any such disclosure.
Unless you are an assassin's target, disclosing your name and address is a negligible compromise of privacy. We routinely publish names and addresses in multiple directories. But still, why should the police ask for them without a court order? A short illustration shows why. Thirteen year-old Sally is cyberbullied anonymously on her social media page by Billy Dude. Sally and her parents are distraught and want immediate action and call the police to identify who is behind the Internet handle Billy Dude. How long would it take the police to get voluntary disclosure of the subscriber information from both the social media host and the ISP? Mere minutes. However, if judge's orders are required, two are needed, first, for the social media host and then for the ISP. Each request must be drafted by police and judicially approved and then wait its turn in the company's overflowing inbox of similar orders. The total time to get the subscriber name and address that way is routinely 60 days. Subscriber name and address do not end the investigation. They only begin it by giving the police a lead, somewhere to look. From there, the police must still prepare a detailed warrant justifying access to any of Billy Dude's Internet activity. Sixty days of cyberbullying is lifetime of agony for a young teenager. Why should Sally and her parents wait 60 days for an investigation to merely begin, when, with the negligible privacy compromise of subscriber information provided voluntarily, the investigation can begin in minutes?
The bill has three key parts: criminalization of the distribution of intimate images; reduced warrant requirements for access to some data; and immunity of telcos who voluntarily hand it over to law enforcement. First, in my mind, respectfully, it is a no-brainer, especially after recent high-profile cases and sentencing for those who have distributed images.
The answer to the critics has three parts: a) Explain how, at the early stages of investigations, it is necessary to get started with a lower standard. Otherwise, investigations are caught in a Catch-22, where you can't do an investigation unless you've already done it. b) Lower standards are already in use every day, such as reasonable suspicion to investigatively detain people, and these strategies are proven to work. c) The practical effect of requiring a warrant is a strong protection. Police have to actually write stuff down that they know judges will read and defence lawyers will get and then can use to cross-examine them. So the process itself provides very strong protections to citizen, regardless of the standard the judge applies. Simply put, a judge is never going to knowingly sign off on a bad warrant.
Companies can only provide what is already lawful to provide, so the immunity provisions do not weaken privacy protections one little bit. I, therefore, think that this legislation is reasoned and balanced. Thank you.
Karyn Kennedy, Executive Director, Boost Child Abuse Prevention & Intervention: Good afternoon, distinguished senators, ladies and gentlemen. Thank you for this opportunity to speak to Bill C-13, the Protecting Canadians from Online Crime Bill. I am the executive director of Boost Child Abuse Prevention & Intervention and the Child and Youth Advocacy Centre in Toronto. Boost has worked, for the past three decades, with child and youth victims of abuse and violence and opened Toronto's first Child and Youth Advocacy Centre in the fall of 2013. We work closely with police, child protection, prosecutors and other professionals to respond to cases of child abuse and violence. We are also a member of the Internet child exploitation strategy in Ontario and coordinate treatment for all child and youth victims of online sexual exploitation and cyberbullying across Ontario. Over the past two years, we have seen a significant increase in the number of cases involving Internet child exploitation and cyberbullying. This is an issue we're extremely concerned about and have had many discussions with our colleagues at the Canadian Centre for Child Protection in Winnipeg about, collaborating on prevention and intervention efforts across the country.
We understand from our police partners at our Child and Youth Advocacy Centre, our ICE strategy partners and Ontario Crown attorneys, with whom our staff work closely in preparing and supporting child and youth victims in court proceedings, that the bill, in particular section 162.1, relating to the non-consensual distribution of intimate images, will fill a gap in the Criminal Code relating to the distribution of images that are not otherwise captured in current and related Criminal Code offences. To the extent that this additional offence assists our criminal justice partners in investigating and prosecuting crimes against the children and youth we see at Boost, we greatly welcome these changes.
We also welcome the proposed amendments and additions in the bill that assist police in preserving evidence and obtaining needed orders or warrants during the investigations of crimes against children. Anything that assists our partners in the criminal justice system to accurately identify and appropriately arrest and charge the perpetrators who commit these offences against children and youth is encouraged. We are deeply concerned with the prevalence of crimes where intimate images are circulated on the Internet and with the significant and lasting trauma that these acts cause. We know all too well how, in some instances, the trauma is overwhelming and results in tragedy and even death. Holding these perpetrators responsible and accountable is necessary as one approach to deterring these crimes. It also sends a strong message to the community that these crimes will not be tolerated.
We understand that many others have already made submissions regarding how the proposed changes to the Criminal Code will affect the privacy rights of individuals in Canada. We don't intend to provide testimony that has already been presented, but I would like to highlight some aspects of the bill.
I have reviewed the submissions of witnesses made to the committee earlier this month, particularly on November 5 and 6, and I want to reinforce some of the points made, including those by the Honourable Minister Peter MacKay.
Cyberbullying of children and youth, as well as adults, cannot be prevented or addressed by legislation alone. It takes a larger response in homes, schools, communities, provinces and across the country. We believe this bill has already begun to increase the dialogue about, and the awareness of, the impact of cyberbullying on victims and their families. We're hopeful that this will help young people to reflect further on the possible consequences of their actions and, in that way, be preventive or, at least, a deterrent in reducing some possible future offences. As part of our school-based prevention programs for students in grades 6 through 8, we discuss the possible criminal consequences for youth aged 12 and over who engage in non-consensual acts, and we will certainly include a discussion of this new offence in our programming.
Indeed, as part of the larger response to cyberbullying and other child abuse, prevention programming must continue to be supported in schools and in the community and must be geared not only towards potential victims but also, just as important, to potential witnesses, bystanders and perpetrators. I would also like to echo some of the comments made by Greg Gilhooly to this committee on November 6 about the need to continue dedicated funding to children's advocacy centres that are developing across the country. Child and youth advocacy centres, counselling and court support programs continue to be needed for children and youth who are victims of abuse and violence, including cyber offences. We hope that the federal and provincial governments will continue to support the efforts of organizations like ours to provide these necessary adjuncts to the legislation.
In closing, I would like to reiterate the comments of my colleague Lianna McDonald, from the Canadian Centre for Child Protection, in stating that it is absolutely essential that we do a better job of protecting children and youth from the horrors that they face when falling victim to a crime of this type. We have to do more, and this bill moves us forward in that direction. We believe that the bill is necessary and strikes an appropriate balance between addressing the need to protect and assist victims and the privacy of Canadians. We are strongly in support of the legislation that will help those who work with vulnerable victims of online crime. Thank you.
The Chair: Thank you all. We will begin the questions with the committee's deputy chair, Senator Baker.
Senator Baker: Thank you to the witnesses here today. You've given us a lot to think about and some new ideas regarding this legislation.
In my limited time, I'd like to question Mr. David Fraser, who is a partner of McInnes Cooper. I've read some of the cases that he's litigated, and I must say that McInnes Cooper should feel very proud to have you, Mr. Fraser, as a part of their firm. You've done a great job over the years as a lawyer, and I thought you would be much older than you are.
However, we have a difficulty here in opinion. I read a lot of judgments in criminal law, and a lot of them don't just deal with the Internet. They deal with criminal law, drugs, the Controlled Drugs and Substances Act and so on, and what I've learned over the years is that the phrase ''reasonable suspicion'' carries with it a level that's higher than just a plain suspicion.
The Supreme Court of Canada in Spencer didn't deal with ''reasonable suspicion.'' It dealt with a letter that was written to the police to obtain information because, as you know, under PIPEDA, that's all you need to do if there's a police investigation. That was the substance of that decision. The Supreme Court of Canada, however, at paragraph 47 referenced searches needing judicial authorization. They used the example of a dog sniff because that is a search. A dog sniff is done on a reasonable suspicion. A police officer hauls you over on the side of the road — there are many cases — and has a reasonable suspicion, puts the person in handcuffs, lets him call a lawyer if they wish, calls in the dog. That is a full search, according to the Supreme Court of Canada. The full search is based on reasonable suspicion.
I look at 487.012 of the Criminal Code today, and at the warrants that were issued in the Senate, for example, on people like Mr. Duffy, based on a judge's belief that the officer had a suspicion.
Could you explain to me why we're coming at this from such a different view? I look at reasonable suspicion as a fairly high standard, and why then are you so adamant? The other lawyers, who are perhaps not as experienced as you in the law in this area, have told us the same thing.
Mr. Fraser: My concern about this does connect with Spencer, although Spencer, as you said, did not deal with this exact situation. The threshold that should be utilized in determining whether or not judicial authorization should be granted based on reasonable suspicion, or reasonable belief, needs to be based on the sensitivity of the information at issue. Certainly a police dog sniff is different than rummaging through your car. What I'm concerned about —
Senator Baker: It can put you in jail.
Mr. Fraser: A police dog can't, but the police dog will then lead to reasonable grounds to believe they can give you the ability to physically go rummaging through. My concern is we have an existing warrant that allows for telephony information, based on reasonable suspicion, which has been upheld. My concern is your Internet browsing history is not your phone call log. The two are quite different. The sensitivity and degree of the information that can possibly be disclosed shouldn't be based on just a reasonable suspicion that a crime has been committed. I believe it should be based on reasonable grounds to believe.
The reason I believe Spencer supports this is because the court stated that information about an individual's activities online are at the sensitive end of the scale in the face of Crown prosecutors, police and others, including the Government of Canada, that said we're just talking about phone book information, it is manifestly not sensitive, which was based on a fundamental misapprehension of the nature of the information.
Senator Baker: Yes, but you are getting the IP address. The IP address could be several people using that particular address.
Mr. Fraser: Or it could be one, yes.
Senator Baker: You know from your past experience of the law, what normally transpires is that the police get a computer and then they get a warrant to examine the contents of the computer.
Mr. Fraser: Yes.
Senator Baker: And to examine the contents of the computer, it's the standard you're talking about. How do you transpose that standard at the end down to the beginning of the process to the IP address?
Mr. Fraser: Because we're not talking about just the IP address when we're talking about Internet transmission data. We are talking about IP address, websites visited, URLs, information about voice over IP calls. There is a much larger basket of information subsumed in that definition. I believe it could be repaired in one of two ways, and I'm pleased to provide any insight that I can.
One way is to make sure we restrict the definition of telephony information so that you are dealing with the analogue, since we're in the digital age, of the telephone calling information and so we are in fact comparing apples to apples. It might be McIntosh apples compared to Granny Smith, but they are apples to apples, or you are dealing with a category of information that is more sensitive than just telephony signalling information, reasonable grounds to believe. One thing that is notable, as I understand, is that in most of the high-profile cyberbullying cases that included what I believe are criminal offences in Canada, the police had reasonable grounds to believe in those cases. It wasn't just a mere suspicion.
Senator McInnis: Thank all of you for coming. We've had some wonderful witnesses and we've heard numerous points of view, as you can appreciate. Listening to those witnesses and completing some research surrounding the issues that Bill C-13 evokes, I have come to the resolve that to have effective law enforcement and the protection of privacy, there will always be tension between the two.
Canadians rightly expect that the police will be able to conduct sophisticated investigations, and Canadians certainly expect that the police, when doing these investigations, will have the requisite respect for privacy. Orders, after all, are approved by the judiciary.
Do you agree with this tempered process? Do you agree that law enforcement must have the required training and to the extent possible that transparency, even audits, which has been suggested by some of the law enforcement that have been here representing 95 per cent of law enforcement officers in the country? Can I have your comments on that?
Mr. Fraser: To me?
Senator McInnis: Both of you, and Mr. Gillespie perhaps.
Mr. Fraser: I agree with that completely. Training and awareness are absolutely critical. We heard Mr. Canning talking about raising awareness in a number of different areas, but based on his experience in law enforcement and the tragic case he was dealing with first-hand, I don't think there was sufficient awareness among the law enforcement agencies he was dealing with who were referring to these things as community matters. We were talking about a crime, and it might have been a lack of sensitivity to the issues that meant it wasn't recognized as a crime at that time.
It took a lot of advocacy from parents. Parents shouldn't have to fight with police to get a response when dealing with a situation like this. I think training and awareness probably would have done wonders, and I'm optimistic that awareness has been raised about this critical issue affecting so many young people and adults. That awareness will lead to better results by giving police not only appropriate tools, which is something we're talking about here, but also the ability and skills to use them appropriately in order to deal with these issues.
Mr. Gillespie: First of all, regarding lawful access to information, how we use it, I first heard that term in 1996 when I was in our holdup squad and we had this exact issue, and here we are 18 years later. I will leave it at that. It is very frustrating. I would say for those officers — I read most of previous testimony — that said there could be audits or create some new standards to be able to ensure that there's compliance and people are acting in good faith, absolutely. No problem with that whatsoever.
With law enforcement, I absolutely appreciate Mr. Fraser's comments with regard to trying to make police more sensitive or aware or why didn't they know about this. It's hard keeping up with technology. I think everybody would agree with that. We're just getting our heads around Facebook right now and did not realize that most of our kids are on Snapchat, and I can name five others. Facebook is a thing of the past. It's hard to do that, especially if you're a front-line officer or a smaller organization being called out to do 900 different things and now there are 901. There is a happy medium, and I am all for holding law enforcement more accountable. Everything we do in this process should be able to be reviewed judicially and before an open court. However, we need instant access under certain circumstances, and I think Bill C-13 gives us reasonable access.
Senator McInnis: Mr. Fraser, with respect to the transmission of intimate images, you have said that it is the individuals who know the victims where it is most hurtful and crosses a line into criminality, whereas someone down the line with no reason to know the facts around the sharing of the image should not be criminalized.
Do you not agree that to the victim, there is really no tolerance down the line? Are we not coming to the point in this society, particularly with youth, that they will learn you just don't hit ''send''?
Mr. Fraser: I appreciate the sentiments and the concern behind that. Where I'm coming from is that we're looking to create an offence that appropriately deals with this mischief. It deals with it in a way that will be ultimately upheld by the courts. The courts have in the past struck down legislation as a violation of the Charter that interferes with or criminalizes behaviour that isn't commensurately culpable.
Somebody may not know the circumstances around the creation of an image. Many pictures of naked people on the Internet are there because they're professional websites or otherwise. Somebody may not know the circumstances behind the image; it could be a model or it could be revenge porn. They just don't know if they don't have the measure, the level of culpability. I'm recalling what Mr. Canning said in the previous panel with respect to the offence being done principally to hurt, embarrass, harm and harass people; and that's culpable. That is criminal, in my view, or should be criminal. I'm hopeful that will be the result of these deliberations.
Senator Jaffer: Thank you very much for all your presentations. It certainly keeps us reflecting on the issues that you have raised. I appreciate the London Anti-Bullying Coalition recognizing the Senate's report on cyberbullying and saying it was foundational. We appreciate your compliments.
Mr. Fraser, I'm struggling with this. Having listened to many young people in the other hearing, it seems the issue is time. When Mr. Gillespie says 60 days, I have a little panic attack. When images put anywhere become public, the child starts hurting. It is children we are worried about. For me, I want that image removed right away. How do we achieve that?
Mr. Fraser: One way to achieve that is to amend Bill C-13 to make a process so that these things happen more quickly and to provide adequate resources. One thing needs to be noted: All the orders for the production of any information in this bill require judicial authorization, whether it's suspicion or belief. Any law enforcement officer will have to go through the process in order to get a warrant, essentially a production order.
The voluntary disclosure that's been spoken of is in fact unlawful. The Spencer decision makes it clear. Under PIPEDA, the common-law power of the police to request the information is unlawful and can't be disclosed. In fact, it won't be admissible in court. So it's up to the Parliament of Canada to put in place a mechanism that would provide, in situations of child exploitation or otherwise, an expedited process to make sure these things happen. Bill C-13 doesn't fix that.
Senator Jaffer: What would that mechanism look like? I'm truly struggling with that. I agree there needs to be a mechanism. You have a lot of experience. What would that look like?
Mr. Fraser: It would look similar to the production order provisions in the legislation. It would allow a judge to sign off in an expedited, short-form process, requiring it to be handed over within 24 hours, with a limited subset of information — the sort of information that would allow a police officer to know where. The example we heard about previously was from one phone to another and another to get that sort of information. It would allow something called ''contact chaining.'' One order would say that you don't have to come back to get another order to get the next hop in the chain. Properly crafted, Parliament could create such an order, which would be tremendously helpful to law enforcement. It probably would strike the right balance; but it's not in Bill C-13, unfortunately.
Mr. Gillespie: May I respond quickly? The way this occurs under these circumstances in the United States, Great Britain and Australia is that a senior officer from an organization, such as a police force, or a civilian sworn to a certain level has the authority to sign that order. It doesn't have to go to a judge or justice, which takes too long. That order is kept and filed with the court, and people can be cross-examined. This is how the United States, Australia and Great Britain have done it. For what it's worth, it seems to satisfy both ways.
Senator Batters: Mr. Gillespie, I appreciate all the work you've done on this issue with the Internet child exploitation group in Toronto. I have some familiarity with the group in Saskatchewan. I know the important work they do and the never ending struggle to keep up with the technology that you illustrated so well to us. It changes on a daily basis. Facebook is what the parents now use, and the kids are on to new things, like Instagram, et cetera.
You mentioned the website Nobody Stands Alone. Could you tell us about that website and what useful information it carries? Perhaps a teenager flips around to CPAC and sees this committee hearing or hears about this from one of their parents. What type of information is provided on that website to help somebody suffering from this terrible scourge of cyberbullying today?
Mr. Gillespie: The website was designed in conjunction with several different youth committees and a team from both Canada and Australia. The people who designed have won awards in Australia as it speaks to and is easy to read for youth. It contains the six steps of what to do if you are bullied and information for parents, students and teachers. It has all sorts of easy-to-read, downloadable things that might attract kids. The pictures on the website and the makeup of the people on the website are reflective of our society. Again, it was basically written by youth for youth.
I could add one thing about the technology. Keep this in mind, please: I have two sons, one who just finished university and one who is starting. The only time they use a laptop or a computer is to do homework or to upload or download their favourite music. They don't use them for anything else. They're all using mobile phones. Any police service in Canada right now will have 200 to 500 cellphones in dire need of forensic examination as they've been brought into crimes. There are backlogs everywhere. As this changes, we have to get our head around computers. This isn't even an issue in Africa or Asia where nobody uses a computer. It's all mobile, lockdown, one to one and it's impossible to get in the middle of them. We have these crimes and we see the end-user and try to stop what happened before.
Again, it's a societal issue. There's been chat about how to solve this with education and awareness, but there has to be not only law enforcement, as they're busy enough, but also other NGOs, like the Kids' Internet Safety Alliance, KINSA, and others, who can bring together experts to do some of the light lifting and come up with solutions to help. In the United Kingdom and Europe, there's much more use for NGOs, because they realize the police need a hand with things. We need to sit down and take the blinders off so we can understand how bad the problem is. Folks, you have no idea how bad the problem is, for what it's worth.
Senator Batters: Thank you for pointing out to us not only that all those things are important to the solution but also that this bill is an important part of the solution. I appreciate the comments you relayed from the legal opinions of David Butt, who talked about this taking away no privacy rights, explaining about the 60 days currently needed, which is a lifetime of agony. Those are very helpful comments.
Ms. Kennedy, thank you for the work that you do. Can you please give us a little more information about why you think this bill is necessary and strikes the appropriate balance?
Ms. Kennedy: I'm not a law enforcement officer, but we work closely with law enforcement, and we hear the same frustrations that my colleagues have expressed about being able to respond quickly. As well, I'm very supportive of the term ''distribution of intimate images'' as opposed to child pornography. We've been trying to get people to stop saying ''child pornography'' for a very long time, because Internet child exploitation is exploitation; it's not child pornography. I think the bill does that.
It also sends a powerful message to the community that this is a crime. This isn't just kids having fun. It's not just kids teasing each other. Many of these begin with an actual sexual assault that's happened somewhere and people have taken pictures. They have shared them; they're out there; and they are very difficult to get back.
We're seeing the problems getting more and more complex with 15- and 16-year-old girls involved in human trafficking talking about being owned by men who are taking their pictures and putting them up on the Internet basically for the purpose of selling them. It's becoming a huge problem, as Paul said. We know only the tip of the iceberg, and we have to do something more than what we're doing now. I think this bill gives us tools to be able to do that, but it's just a start. It's one part of the puzzle. There are many other things that need to be done.
[Translation]
Senator Dagenais: My thanks to the witnesses. Much has been said about the work of the police and it is often suggesting that the police can do nothing. I am one of those people who think the police do not have effective tools and resources, but I feel that Bill C-13 provides one of those good tools.
When I was a police officer with the Sûreté du Québec, a number of years ago, three out of approximately 4,750 police officers were assigned to cyberbullying. In Ontario, the provincial police officers were ahead of us and had five or six officers working on those cases. I hope they have added more officers, because this crime is becoming trendy.
Would you not say that the key issue for police is determining how to acquire better tools to go after these predators more effectively?
[English]
Mr. Gillespie: I missed the first part, but I get the gist of it. I don't think we can hire enough police to get ourselves out of the situation. I don't think we can arrest ourselves out of the situation. I just think we have to work.
Again it's a societal issue, police, law enforcement, private sector, public sector, government, everybody, and just have an honest discussion about the issues, and we have to do business differently. Again, most law enforcement agencies are staffed in the way you have said. You can have an area that would cover a million people and they might have one or two officers assigned to these types of crimes.
The way our law enforcement agencies are made up and the way the pie is divided typically looks at older and more traditional crimes, not accounting for new crimes, and there aren't any growing budgets that will allow for that under most cases and circumstances. To be brutally honest, if your police chief or your commissioner is not personally vested in issues dealing with children or child abuse or these issues, it's just never going to happen, and it is what it is.
Mr. Fraser: I would suggest that most of the tools that are given to law enforcement in this bill are appropriately tailored and do fill in some important gaps. I would emphasize that I do believe at least one of them needs to be tweaked. I do think it does make sense to put in a mechanism for an expedited ability for law enforcement to get access to that information that's been discussed previously related to Internet child exploitation in an expedited fashion, perhaps with a lower threshold, but with adequate checks and balances and everything else. As I mentioned, that's not in Bill C-13, but I guess that's been left for another day.
The Chair: I have a question for Mr. Gillespie, and then I'll have to wrap it up, but we've heard concerns about the recklessness standard. As a former police officer and given your current responsibilities, if that proposed standard is removed from the legislation, would you say it's going to make the legislation itself quite ineffective in terms of the job I think we're all hoping it can accomplish? I'm wondering if your organization, you personally, have any views on that.
Mr. Gillespie: I believe the standard as proposed is just fine. It's adequate. Everything that's done in these investigations and with the help of Bill C-13 will be held to account. The people who make the decisions will be able to be cross-examined and will be able to provide their answers in court. If the defence or lawyers think there is an issue, then that's the proper area. But this needs to be done taking everything into account in the court process, not at the beginning, to make sure they get it right. We can say that with most law enforcement agencies, most crimes. We have to rely on the police to do their best, acting in good faith. When they aren't, absolutely, hold them accountable, but in the judicial process, not at the beginning.
The Chair: I'm afraid that wraps up your time for all of us. We very much appreciate your appearance here today. I'm sure we could have gone on for another hour with questions. This is a larger panel than usual, but there are extenuating circumstances that resulted in that. We thank you all again for being here and contributing to our consideration of this legislation.
Senators, we still have business to deal with. We have the miscellaneous statute law amendment report that we will deal with next.
(The committee continued in camera.)