Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 21, Evidence - November 20, 2014


OTTAWA, Thursday, November 20, 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 10:30 a.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: 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 are 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. As a reminder to those watching, these committee hearings are open to the public and also available via webcast on the parl.gc.ca website. You can find more information on the schedule of witnesses, on that same website, under ''Senate Committees.''

We welcome, from the Canadian Bar Association, Tony Paisana, Executive Member, Criminal Justice Section. He is appearing via video conference from Vancouver, British Columbia. Welcome, sir. Do you have an opening statement?

Tony Paisana, Executive Member, Criminal Justice Section, Canadian Bar Association: Yes, I do. Thank you for the invitation to present the Canadian Bar Association's views on Bill C-13. The CBA is a national association of over 37,500 lawyers, students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice. It's that aspect of our mandate that brings us to you today.

Our submission on Bill C-13 was a joint effort led by our national criminal justice section, with input from our privacy and access to information law section, our competition law section, as well as our children's law committee.

I am an executive member of the national criminal justice section, which represents a balance of both Crown and defence counsel from all parts of the country. Personally, I practise predominantly in criminal defence, in Vancouver, but from time to time I also practise as a Crown lawyer.

We have prepared a 25-page written submission summarizing our views on the two main aspects of Bill C-13. They are the cyberbullying offence on the one hand and the lawful access provisions on the other.

Our submission includes 19 recommendations. In my brief opening statement, I will not be able to comment on all of those recommendations, but they are set out in the submission for your consideration and review.

I hope to focus on two overall themes prevalent in our submission. The first is that we suggest refining the cyberbullying offence, section 162.1, so that it captures only truly intentional cyberbullying conduct, as is the apparent intention of Parliament. Second, we offer suggestions to improve the lawful access provisions to ensure privacy is protected to the maximum extent while still allowing for the effective and responsive investigation of crime.

I will first deal with the proposed cyberbullying offence. The CBA welcomes and supports the inclusion of this offence in the Criminal Code. The section directly criminalizes harmful conduct that was otherwise difficult to capture with older, outdated provisions.

The section also provides a prudent alternative to the child pornography offences, which were sometimes utilized in the cyberbullying context but with, we say, disproportionate effect, at points.

The CBA suggests two narrow but important revisions to the section to ensure it captures the conduct we normally associate with cyberbullying, as opposed to careless distribution of intimate images without the criminal intent we normally associate with cyberbullying.

This offence was introduced by the Minister of Justice as an effort ''to put an end to harmful online harassment and exploitation.'' The honourable minister specifically referred to the term ''cyberbullying'', although that term does not appear in the text of the offence. ''Cyberbullying'' has a specific meaning. The CCSO Cybercrime Working Group, whose report was heavily relied upon by the government in formulating this offence, defines cyberbullying as ''the use of information and communication technologies that support deliberate, hostile, and often repeated behaviour by an individual or group that is intended to hurt others.''

Critically, in our submission, this definition includes specific reference to deliberate and intentional conduct or what we sometimes refer to as specific intent. However, two aspects of the cyberbullying offence appear to criminalize conduct which may lack this specific intent.

First, the section is broadly worded to capture any sharing of images without consent, making no reference to the purpose of the distribution. This broad wording conceivably captures conduct which is removed from the deliberate and harmful conduct that we associate with cyberbullying. We provide an example of this problem in our hypothetical fact pattern, on page 5 of our submission.

To remedy this issue, we recommend a specific intent be built into the offence. What we have suggested is that the wording ''with the intent to annoy, embarrass, intimidate or harass'' be added to the provision.

The second revision we suggest is removing the recklessness standard from the mens rea, or mental element, of the offence. Given the practical reality of the Internet, there is a potentially wide sliding scale of moral culpability in the distribution of intimate images. Truly intentional cyberbullying refers to those who have direct knowledge of the source of an image and distribute it with that malicious intent. By including the recklessness standard, the section criminalizes individuals who may have little to no knowledge of the origins of an image, who is depicted in it, and perhaps most importantly, the intent behind its original distribution.

In our submission, the criminal law is a blunt tool that has lifelong impacts on those who are implicated within its scope. It should only be employed when absolutely necessary and in accordance with the stated objectives of each piece of legislation. In this case, Parliament has introduced this legislation to combat harassing and exploitive conduct which carries a specific intent. The recklessness standard broadens the scope of this provision beyond its intended target and raises constitutional concerns of over-breadth in that respect.

Dealing with the lawful access of the bill, on page 11 we begin to make a series of recommendations with respect to that aspect of the bill.

With respect to the preservation demand, section 487.012, we make four specific recommendations. The first is that this preservation power be conferred to an officer only in exigent circumstances where there is reason to believe that the data in question may be lost. Second, we recommend a shorter period of preservation — it's currently 21 days — to make it more consistent with the urgent nature of these requests. Third, we recommend eliminating officer-created conditions on these demands as they lack judicial oversight but nonetheless carry potential criminal penalty. Fourth, we recommend that this power, along with the preservation order in 487.013, be limited to the investigation of offences under Canadian law or offences under foreign law which have equivalents within the Canadian law.

Finally, with respect to the production orders in section 487.016 — that relates to transmission data — we recommend that the standard be increased from ''reasonable grounds to suspect'' to ''reasonable grounds to believe.'' We make the same recommendation with respect to warrants for transmission data recorders, and that's section 492.2.

In our submission, this position recognizes the sensitive nature of transmission data and recent pronouncements from the Supreme Court of Canada about the protection of privacy and anonymity in the modern age. Thank you.

The Chair: We will begin the questions with the committee's deputy chair, Senator Baker.

Senator Baker: Thank you, witness, for your presentation. I'm glad you cleared up the matter of whether or not you represent the Crown or defence attorney. I noticed in case law, from time to time, you represented both. You go back and forth. So you see both sides of the picture.

On the question, we've heard a great deal from witnesses from the legal community who question the grounds, as you have, of reasonable suspicion. I happen to know that you've litigated this matter of what is a reasonable suspicion. To support your argument, you used the Supreme Court of Canada decision in Mann, in which a reasonable suspicion has not only a subjective element but also an objective element.

Under our present law, reasonable suspicion is what grounds a production order for financial statements under the Criminal Code, for production orders under the Criminal Code today. Since it does have an objective and subjective element composed in it — in other words, it's not just somebody suspects, it's reasonable grounds to suspect — both elements — why would somebody say that is insufficient to ground the warrants that are being given under this legislation?

Mr. Paisana: Thank you for your question, senator.

The difference between the two is fairly wide, in our respectful view. The decision of Chehil out of the Supreme Court of Canada from 2013 provides some useful guidance on the difference between the two. Put simply, it's the difference between reasonable possibility on the one hand and a reasonable probability on the other. Reasonable suspicion is posited somewhere in between a mere hunch and reasonable grounds to believe.

Because of this lower threshold, the Supreme Court of Canada explicitly recognizes in Chehil that you will capture innocent persons as a result of this lower standard, as it will necessarily involve conduct that can apply to a wide range of individuals. The example in that case was when we go to the airport and you're asked questions about your luggage and appearing nervous, as opposed to an example where there may be the smell of marijuana clearly emanating from your luggage. Those two sets of scenarios provide a very different standard of reasonable grounds, one providing for a much more limited search and the second providing for a much more intrusive search.

In the context of the Protecting Canadians from Online Crime Bill, it is our view that the higher standard should be applied with respect to pieces of information that can reveal information about an individual which strikes at the biographical core of their being, as that language is sometimes used.

Senator Baker: As a final question to you because time is passing, most of the witnesses before our committee referenced the Spencer case, which was brought down after the House of Commons dealt with this bill in committee, by the way. It was in June of this year. However, the Supreme Court of Canada did not deal with reasonable suspicion. They were dealing with a request from the police in writing under PIPEDA, the Personal Information Protection and Electronic Documents Act. So I'm wondering what your view is on the stretch one would be making in saying that the provisions of Spencer apply to the provisions that we have under discussion in this bill when the Supreme Court of Canada passed no judgment whatsoever on the definition of ''reasonable suspicion'' as far as the warrant is concerned, the judicial application of the law.

Mr. Paisana: Yes. And to be clear, I was referring to the Chehil decision earlier, not the Spencer decision.

Senator Baker: That is the sniffer dog case.

Mr. Paisana: Yes. With respect to Spencer, a few very important things come out of that case and have some implication for this bill. For the first time, the Supreme Court of Canada explicitly recognized that anonymity is an important aspect of privacy. This bill strikes at some of that. What the court also said, which is important in respect to this bill, is that information that tends to reveal — that's the language they use — Internet usage by an individual engages significant privacy interests at the high end of the scale. Therefore, when you consider what they've said about information, which tends to reveal Internet usage, and you marry that up with what Chehil says about the difference in standards and why we should appropriate a reasonable-grounds-to-believe standard, the reasonable ground to believe is the more appropriate standard vis-à-vis warrants and production orders on transmission data.

Senator McInnis: Unfortunately, I was not here yesterday when the Criminal Lawyers' Association was here. I would like to have been. The traveller I was with had problems with planes.

In any event, your association has said that Bill C-13 sacrifices privacy in favour of expanded police powers and liberal disclosure standards.

Now, Canadians have clearly told the Government of Canada that they want this harm being inflicted on Canadians through cyberbullying, particularly the youth, to be cured. They want it handled.

I will read your brief, as the sponsor of the bill and as all members of the committee will do, under the technical details, but this government arrived at this legislation first of all through the federal, provincial and territorial ministers of justice in a working group over a long period of time and submitted the report; it's interesting. You're a Crown prosecutor and a criminal lawyer. We've had those practitioners from across the country analyze this piece of legislation. Government prosecutors, which you say you have done on a part-time basis, have come here and they've agreed with it. So has the Canadian Associations of Chiefs of Police, which represents 90 per cent of the police in the country who have lawyers on staff, RCMP, Ontario Provincial Police, interest groups, and Canadians that want this problem handled.

In my opinion, they all agree, and the committee can judge for themselves reading the briefs that have been submitted. It opens the door for law enforcement to commence an investigation so that they can take a step at a time. To do so, the threshold has been lowered to suspect.

We are told by the experts that if they did not have that initial opportunity using the threshold of suspicion, the investigation probably would not go forward because they do not have sufficient evidence to deal with reasonable belief.

All of these orders that are being given to the police are scrutinized by the judiciary. How is it sacrificing privacy, in favour of expanded police powers, when it is a step at a time used in precision with judicial oversight? How could your association make that comment?

Mr. Paisana: I want to clarify what our submission actually says. Our submission is comprehensive and for the most part is supportive of the bill. Where we've made some narrow recommendations is with respect to transmission data on this topic that you've raised about reasonable suspicion and reasonable belief.

You'll see that we also wholeheartedly accept and support the cyberbullying offence. So I want to make that very clear about our position.

With the ability of the police to investigate, and our submission with respect to these two areas where we say a higher threshold should be implemented, we don't see that it will create an impediment for the types of offences we all are talking about.

You're quite right that the tragic cases we've heard about created an impetus for your government to react, and it has done so. We will support in large measure what has been done, but let's think about the practical example that those cases show us, and that is we have an individual complainant who comes to the police and says someone is sharing an intimate image of me without my consent. Now, under this bill, with the inclusion of the new cyberbullying offence, that will provide clear, reasonable grounds to believe that an offence has been committed. You wouldn't have to resort to the reasonable suspicion standard. You have a complainant who can identify an image and who says that they have not consented to its being shared. That would satisfy the higher threshold easily. It is not an insurmountable threshold.

Where the difference lies is where the fact pattern is such that you don't have clear evidence. It's verging on a mere hunch but barely crosses that threshold into a reasonable suspicion. When you're dealing with sensitive information such as Internet history, where someone has gone to a website, how often they've gone there, it can reveal a great deal about that person, and we suggest that in recognition of that, a higher standard should be employed vis-a-vis transmission data.

Senator McIntyre: Thank you, Mr. Paisana, for your presentation. I note that the Canadian Bar Association has made several recommendations. I'm not going to get into those, but I would like to touch on another topic.

In the Spencer decision, the court also noted that voluntary assistance could still be provided in exigent circumstances pursuant to reasonable law or where there's no reasonable expectation of privacy, contrary to the situation involving Mr. Spencer, thus making 487.0195 applicable, and as we know, that section will be replacing 487.014, which is the immunity section. So my question is this: Are you satisfied that the bill addresses the issue of exigent circumstances as raised in the Spencer decision?

Mr. Paisana: In my view, what Spencer clarifies is that where there are exigent circumstances, which they define as imminent harm, the police are able to request information outside of the scope of the legislation. That's my reading of what they have to say about that.

With respect to the immunity, the decision leaves untouched the concept that where there is no reasonable expectation of privacy then an individual cannot bring or does not have standing to bring a challenge to the admissibility of that evidence. That is literally the first step before anyone can make a challenge under section 8 of the Charter. They have to establish that they in fact have a reasonable expectation of privacy in the records that are sought to be admitted.

Senator McIntyre: That's right. In other words, common-law authority was not sufficient to constitute lawful authority, and therefore you need a warrant or a situation where you have exigent circumstances.

Mr. Paisana: Yes.

[Translation]

Senator Dagenais: In your brief, you say that you would prefer to see prevention and education initiatives for teenagers. No one can be against that.

However, do you not feel that, in addition to education and prevention, we still need a penalty in place as a deterrent?

[English]

Mr. Paisana: Yes, and we don't take issue with the government's ability or right to criminalize youth in the appropriate circumstances. Our position is a nuanced one in that we recognize that in extreme situations there should be a criminal sanction. However, it is also a recognition in our submission that the criminal law should not be the answer to all of society's ills, particularly with respect to a complex issue such as youth cyberbullying.

Senator Batters: Thank you very much for being here today. I know the CBA testified before the House of Commons committee last spring. It wasn't you personally. It was one of your colleagues. Correct?

Mr. Paisana: Yes.

Senator Batters: I'm not sure if you've had an opportunity to read the testimony from the House of Commons committee hearings on the bill, but I note that the committee studied it for about 10 days, hearing from more than 40 witnesses, and there was extensive discussion about the investigative powers provision of the bill. I see that the first recommendation that the CBA has provided in its brief today is that it recommends dividing Bill C-13 into two distinct bills, as we've heard from some other legal witnesses. There's a split of opinion on that with other witnesses on this particular matter, but I'm not really sure what more could be added if a separate study was done again. That seems to be the contention of some, that we split it and study it again. Already we've had a number of witnesses come before both the House of Commons committee and the Senate committee. You might have heard Mr. Canning's comments. He said we need this bill and the police need these tools to prevent another tragedy such as the one that happened to his daughter, Rehtaeh Parsons.

We had Mr. Alan Hubley here before our committee recently, just before our constituency break week. He is the father of Jamie Hubley, who was cyberbullied here in Ottawa and unfortunately died by suicide. Mr. Hubley said:

Bill C-13, in my view, is meant to help reduce cyberbullying and to help police obtain evidence needed to punish those among us who prey on our beautiful children. Our children need you to use your power as parliamentarians to protect them. Please ensure that change is progress by passing this bill and giving law enforcement the tools needed.

So I'm wondering if you could just comment on that and tell us whether you still believe that this bill needs to be delayed and split and studied another time.

Mr. Paisana: There's no questioning the tragedy that has befallen some Canadians with respect to cyberbullying, and no one is suggesting that delay is appropriate. What we're suggesting is that appropriate attention be provided to the seriousness, that is, each aspect of this bill, and they're very different in the sense that one has to do with substantive criminal law and a substantive criminal offence and the other has to do with lawful access, and there are also provisions in the bill that seem far removed from either of those two things: for example, criminalizing the creation and sale of devices having to do with the stealing of TV signals and that type of thing.

It's always been our position that when dealing with complex issues such as lawful access and emerging issues such as the Internet, those should be reviewed and studied individually in order to have a more comprehensive understanding of the impact it may have going forward because, as the court has said in cases like Tessling, these laws are going to be applied into the future with forms of technology that we simply can't even foresee at this stage. Careful thought has to be given to each aspect of the legislation, but no one is suggesting that there should be delay. No one is suggesting that these individuals and Canadians don't deserve protection. In fact, the Canadian Bar Association strongly supports those aspects of the bill.

The Chair: A quick question or two on your concerns about the recklessness standard, removing it from the mens rea.

I gather that what you're talking about here is individuals who may fall under this who have no knowledge of the circumstances and no way to determine if the person depicted has consented. I gather what you're suggesting here is that these people should be free and clear if they distribute those kinds of images. It strikes me that if they bear no responsibility, it's going to greatly reduce the effectiveness of this section.

Shouldn't the courts be in a position to determine that the person who started the process will bear greater responsibility than someone down the line?

I'm concerned about the impact it would have on the effectiveness of the legislation if that was removed.

Mr. Paisana: I will make two points in response to that comment. The first is that the stated objective of this piece of legislation, as we understand it, is to combat cyberbullying, which has a very specific intent associated with it. We suggest that by having the recklessness standard, it's contributing to the capture of individuals who go beyond that stated objective. It captures individuals who lack that intent by virtue of the circumstances, and we have provided a factual example of how that could be.

The second point I would make about that is that the criminal law is not the sole answer. There are privacy statutes across provinces that deal with situations where someone has violated someone's reasonable expectation of privacy. I know in British Columbia we have a statute of that kind. There are civil remedies. There can be municipal laws. There are other responses short of what many consider to be the blunt tool that is the criminal law. That carries significant impacts.

The Chair: I guess the concern is that the distribution of images escalates when someone new gets it, passes it on to who knows how many people. What you're suggesting would, in my view, weaken the ability to deal with that situation.

Senator Baker: Thank you for your presentation and for the excellent work that you do in the law in British Columbia. We all appreciate it.

Let me ask you this question: You've litigated matters involving transportation of drugs and so on. You've presented a very good argument to the court as to the required standard of reasonable suspicion for an investigative detention, if you recall the truck case that you did such an excellent job on.

Here's my question: In Spencer, the Supreme Court of Canada compared this particular matter to that of a search conducted by a dog sniff, paragraph 47 of Spencer. Similarity, because a dog sniff is a search, according to Brown.

In order to justify that search of your luggage, your car or anything where you need a dog sniff — and the dog is never wrong, I don't think — you need reasonable suspicion. That's the standard. But you are saying here, and a lot of other witnesses are saying — and I don't disagree with you; I'm just looking for an answer to this question — why is a reasonable suspicion not sufficient in this legislation when it's sufficient in other searches that are conducted in our society under the Criminal Code and established case law? You quoted the case in 2013, Supreme Court of Canada, concerning a reasonable suspicion as it relates to the dog sniff. Why, then, do you say now that this is not justified under this legislation, when Spencer allowed the results of the search? Constitutional rights were violated, but the evidence went in. Why? The Supreme Court of Canada said because this is important to our society. Our society wants justice here.

So why do you draw that line so firmly as you've drawn it as it relates to the subject matter of this bill?

Mr. Paisana: The answer lies in the subject matter of transmission data. To be clear, we're not taking issue with the reasonable suspicion aspect of this bill and other sections. For example, we agree that reasonable grounds to suspect are appropriate for the preservation demand.

What we're saying is that when you get to transmission data, because of the nature of that data, which is that the data can reveal a great deal about someone — and who knows in the future how much more it can reveal with the advances of technology — a higher standard should be required, because it reveals more about the person. That's what Spencer talks about, that subscriber information is just a name. It's just an address, just a telephone number. But that's not all it is. It provides the key; it provides the link to this Internet history that provides intimate details of Mr. Spencer's life.

That's why it was such a serious violation, in their view. Why it was considered a significant privacy interest is because it reveals a great deal about that individual, as opposed to the smell surrounding a piece of luggage, which you can see distinctively reveals a lot less about an individual.

Senator Baker: It's still a search.

Mr. Paisana: It's still a search, but it's a search that can be conducted at a lower level because it recognizes that there's a different privacy interest at stake, and that's what Chehil and Spencer talked about: What is the nature of the privacy interest? It's something to say that the air surrounding a piece of luggage is one thing, but revealing someone's Internet history and linking it to a particular individual is a whole different story, in our view.

Senator Baker: Spencer came in after the House of Commons had their hearings. It was right after, because they finished their hearings on June 12, and your association gave evidence in the early part of June, and on June 14, the Supreme Court of Canada made the decision in Spencer. I guess what you're saying is the picture has changed because of Spencer. Thank you.

Senator McInnis: Just on that point: One of the questions we always have here is balancing privacy with the protection of Canadians and safety of Canadians. It seems to me, after doing a fair bit of research on this, the word ''trust'' comes to the fore. It's very important. When we had the law enforcement people here, they said that any information they get will be strictly controlled and limited to law enforcement officials, fully trained in the procedures and subject to auditing and reporting oversight.

It seems to me that parliamentarians — and we here in the Senate now — in considering this have to weigh that we have great concerns about what's taking place, and youth committing suicide, horrific, and yet we too are interested in privacy. All you have to do is look at anything from the Charter of Rights to the Privacy Act to the Federal Accountability Act. All kinds of acts have been put in law in this country. Where is the problem?

I'm not questioning whether your association trusts the law enforcement. I know you do. But it strikes me that when we're making decisions like that we have to come down as fairly as we can in giving the law enforcement officers the tools to effectively protect Canadians.

Mr. Paisana: No one is taking issue with the government's ability to provide police officers with the tools necessary to investigate crime, but when we make suggestions like ''just trust the police,'' it provides a slippery slope that we have to guard against at all times.

As lawyers and legislators, we have to guard against falling into the habit of simply relying on the police to do the right thing. We trust that they will do the right thing most of the time. But that's why we need judicial oversight. This is a democracy that relies on that aspect of the judicial system to ensure that section 8 is observed to the greatest extent possible while still providing for the investigation of crime.

Senator McInnis: With respect, I'm not questioning whether your association or anyone trusts the police. I think we all do. Canadians admire the police. I guess what we're saying is that we're being asked to protect Canadians, and we're using the very best tools that we possibly can, and that's exactly what this bill does.

In my career, I've seen legislation that could go through in three to six months. This bill has been in the making for years, and I think Canadians want us to act, not with reckless abandon but with sincerity and effectiveness and efficiencies, but guarding privacy as well.

Mr. Paisana: What I think is that Canadians expect that balance to be struck appropriately. As we've seen with previous incarnations of this bill, which we've always had opportunity, thankfully, to comment upon, we've taken issue with previous incarnations that went too far, in our respectful view. We say those changes are appropriate.

That's why the recommendations we say in this round of study are much more moderate than the ones we have suggested in the past because, frankly, the government did the right thing and listened to many of the witnesses who came forward and presented concerns about the overreaching aspects of parts of the previous incarnations. We are simply asking for similar consideration vis-à-vis very narrow aspects of this most recent incarnation. As you can see from our 25-page submission, we don't take issue with most of what is included in this bill.

Senator McIntyre: I'm looking at recommendation number 3, and I notice that you're calling for the amendment of section 162.1, which says:

No person shall be convicted of an offence under this section if the distribution, transmission, selling, making available or advertising that forms the subject-matter of the charge is for the public's information or is a matter of public interest.

I was just wondering what you meant by ''matter of public interest,'' because, as you know, Bill C-13 includes a defence of public good. That defence is well established in Canadian law, as included in a few of the sections in the Criminal Code, including voyeurism and obscenity offences. Could you comment on that, please?

Mr. Paisana: Yes. That aspect of the bill was advocated for by our privacy and access to information law section. What I understand the recommendation to refer to is simply a refinement of the public good defence in order to make explicit that it's with respect to information that is for the public information and public interest. They're not necessarily at odds. I think it's more a refinement of the language as opposed to failing to recognize that there is a defence built in.

We concede that it may be that the public interest and public information aspects that we're recommending could, in fact, be built into the public good vis-à-vis interpretation of that defence in the courts.

The Chair: Thank you again, sir, for your appearance, your testimony and the good work the CBA has done with respect to its consideration of the legislation. We very much appreciate it.

For our next panel, from the Office of the Privacy Commissioner of Canada, we have Daniel Therrien, who is the Privacy Commissioner; Patricia Kosseim, Senior General Counsel and Director General; and Daniel Caron, Legal Counsel.

Mr. Therrien, welcome along with your staff. I understand you have an opening statement, sir. Please proceed.

[Translation]

Daniel Therrien, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada: Thank you, honourable senators, for the invitation to comment on Bill C-13, the Protecting Canadians from Online Crime Act.

My office has provided this committee with a written submission in which we support the creation of new criminal offences aimed at combating cyberbullying, but identify significant privacy risks associated with the surveillance powers being proposed.

Let me highlight a few of our key points today. On the issue of thresholds, I recommend that the reasonable grounds to believe standard prevail as the appropriate judicial threshold for authorization of the new production orders and warrants. Courts have upheld the lower reasonable suspicion standard only in limited situations where privacy interests are reduced or where state objectives of public importance are predominant.

The government defends the reasonable suspicion thresholds in Bill C-13 partly based on the argument that the information sought is not very sensitive and triggers a lower expectation of privacy. With respect, I disagree.

As the Supreme Court of Canada recently reminded us in the Spencer decision, protecting privacy interests requires us to look not only at the specific information being sought — no matter how seemingly innocuous — but also at what the information may further reveal about the activities of an individual.

A paper recently published by our office, entitled Metadata and Privacy, demonstrates how various forms of transactional and transmission data can indeed reveal very sensitive details about an individual.

The government further justifies the reasonable suspicion threshold on the grounds that combatting cyberbullying or online child exploitation are important state objectives, which of course they are.

However, it is important to remember that these new investigative tools would sweep up vast amounts of personal information by an open-ended group of public officers for a wide range of much less compelling purposes than the fight against cyberbullying.

[English]

As the Supreme Court said in Spencer, privacy interests do not depend on whether privacy shelters legal or illegal activity, or on the legal or illegal nature of the information being sought. The issue is therefore not one of concealing illegal use of the Internet for cyberbullying or child pornography but of protecting the privacy interests that people generally have with respect to home computers they use for private purposes.

While some may argue that this reasoning could create a virtual space where crime can flourish, the court rejected that argument in Spencer, noting that investigators had ample evidence to obtain a production order for the information they were seeking.

Should the committee support the lower standard of reasonable suspicion, we suggest adding language that would limit the use of information obtained through these powers to the investigation of the alleged crime specified in the court application.

With regard to section 487.095, this immunity provision would protect from legal liability those who voluntarily disclose personal information in response to government requests without a warrant.

Where the state seeks access to personal information held by organizations, including Internet service providers, R. v. Spencer clearly limits warrantless searches to situations where there are exigent circumstances, a reasonable law, or where the information does not attract a reasonable expectation of privacy. Carrying out a ''reasonable expectation of privacy'' analysis is complex and highly contextual, but how are organizations and individuals expected to do this in a given case?

Several months after Spencer, Canadians are still in the dark about what may happen to their personal information. There appears to be wide variation in how the Spencer decision is being interpreted. I would therefore urge Parliament to put an end to this state of ambiguity and clarify what, if anything, should remain of the common-law policing powers to obtain information without a warrant post-Spencer.

Finally, on the need for transparency and accountability, the Supreme Court of Canada has in the past invited Parliament to decide what accountability and oversight mechanisms would be appropriate to ensure the reasonableness of a law, while recognizing the practical and policy implications. I would therefore ask parliamentarians to build into Bill C-13 the necessary reporting mechanisms that would allow Canadians to hold government to account for the use of these significant new powers as well as requests without a warrant.

Thank you very much for the opportunity to comment on this important bill, and I welcome your questions.

The Chair: Thank you.

Senator Baker: Thank you to the Privacy Commissioner and his staff.

The Privacy Commissioner of Canada was, of course, one of the quoted interveners in the Spencer case, and I see you have with you two of the people who appeared before the Supreme Court of Canada concerning this matter.

Commissioner, Spencer was about your act, the PIPEDA. It wasn't about a warrant or a production order; it was about section 7 of the PIPEDA. And a resolution that, according to the Supreme Court of Canada, revolved around the definition of ''lawful authority'' in that section.

My first question to you is this: What direction would you give? You have to adjudicate matters that arise under this act. Under the act, the way it's worded, a police officer doesn't need anything, not reasonable grounds to suspect or anything, just a letter to the service provider, if they're covered by PIPEDA, and the information would be given if they had lawful authority to do so.

What is your opinion now on your PIPEDA? Spencer came after your appearance before the House of Commons committee, so this is a new area, and you've changed your submission substantially to what you said before the house. You're asking for definitive action here on the part of the government.

What do you have to say now about PIPEDA, the act that you administer?

Mr. Therrien: Thank you for the question. This is not an easy question to answer, so let me take a bit of time to explain.

PIPEDA is certainly relevant to this issue in that there's a provision in it which authorizes, by exception to the general rule, that private organizations should keep confidential the information they have with respect to individuals.

In section 7, PIPEDA authorizes the disclosure by private organizations to government of information sought by government and that private organizations voluntarily disclose on the basis of the letters you were referring to. So that's what PIPEDA does.

The Supreme Court has clearly significantly limited the extent to which these letters can actually result in the disclosure of information by private organizations to law enforcement agencies where there is a reasonable expectation of privacy. That's an important notion, ''reasonable expectation of privacy.''

Where there is a reasonable expectation of privacy, and the court judgment is very useful in giving guidance on what that term means with respect to information on the Internet, the court clarified that personal information that may sound innocuous or banal but that may reveal the activities of an individual on the Internet is sensitive and subject to a reasonable expectation of privacy.

When there is a reasonable expectation of privacy, the court adds that disclosure can occur only in one of three circumstances: where there is a judicial authorization, where there are exigent circumstances, or where there is a reasonable law. So the common law ceases to be a lawful authority for the purposes of PIPEDA.

So far, I've explained how Spencer significantly limits the disclosure of information by private organizations to government, but all of this depends on whether there is a reasonable expectation of privacy. The court says nothing about limitations when there is no reasonable expectation of privacy.

The reason I'm calling for clarity on this question is that we're hearing from various important players in this debate. Minister MacKay has said that the bill does not need to be changed as a result of Spencer, which leads one to wonder what impact in practice Spencer will have.

Many departments that were asked by certain members of Parliament to explain when they receive information from private organizations have revealed no information at all, so we don't know what they are obtaining. Some telecommunication companies have said, post-Spencer, that they will no longer provide information to government except in the three circumstances I've described, and others have said nothing.

So I'm left, certainly, and I think Canadians are left, with a judgment that is very useful, which limits disclosure by private organizations to government when there is a reasonable expectation of privacy, which leaves a lot of room for interpretation by various players on when there is or is not a reasonable expectation of privacy.

Senator McInnis: Thank you very much. This is not my question, but what we were told by law enforcement is that basically Spencer has shot them down; they're not giving anything. But that's not solace, necessarily.

I found a wonderful document entitled A Matter of Trust: Integrating Privacy and Public Safety in the 21st Century, a reference document from the Office of the Privacy Commissioner of Canada, 2010. I found it very interesting. I was looking for a formula because you always want to try to find the sweet spot, the balance, between the privacy and the protection of Canadians. I didn't find the formula. I may have partially found one in one of the test cases.

The paragraph here is titled ''privacy, security and the stakes for democracy.''

So what is at stake as policy makers and legislators grapple with the integration of privacy and public safety? . . . Foremost at stake for government is the issue of trust. Trust between citizens and their neighbours, as well as between citizen and the state, hinge on a mutual understanding about privacy, its value as both a human right and a collective good.

When I read that, I thought it was so accurate. I will read one more sentence that throws out the challenge to us.

In conclusion, the main purpose of this document is to provide reference in the constantly evolving context of security to ensure that the fundamental right to privacy is protected.

When I looked at this, I said, ''That's right.'' It's a moving target, and what governments have to try to do in that target is find the bull's eye, the sweet spot, where it is not injurious to the privacy of the individual but at the same time trying to protect Canadians.

Now, Bill C-13, used in this reference guide, I think hits the sweet spot. It hits the balance. On page 17 we find the four-part test — necessity, effectiveness, proportionality and alternatives. The reason I say it meets the test is that the gradual investigative powers that are given to police to find information are done so with judicial oversight every step of the way. As I said earlier to a witness, if they didn't have that reason to suspect, they wouldn't meet the test of reason to believe and the investigation would die.

The Chair: May I encourage you to put a question.

Senator McInnis: The question is first I want to thank you for this. That is the test, and I would like your comments on it because you put it out in the public domain to help us all, and you certainly helped me convince myself once again that Bill C-13 is the proper way.

Mr. Therrien: Thank you. Of course the challenge before you is to find the right balance, and in that balance the importance of the harm at play, which in part is cyber intimidation, is a factor, but Bill C-13 goes well beyond cyber intimidation. It provides new tools to law enforcement for any crime under the Criminal Code or any act of Parliament.

So I would encourage you to think about whether these powers, based on reasonable grounds to suspect, are always necessary, not only for cyberbullying but for all the crimes to which they apply, and I would suggest to you that that is not the proper balance.

Judicial oversight is certainly an important element. There is no question about that, but the courts generally have held that even when there is judicial oversight, the question of the threshold, the type of evidence required for the court to issue the order or the warrant sought should generally be reasonable grounds to believe, and there are very limited circumstances where the reasonable grounds to suspect standard is actually upheld.

I would suggest to you that there needs to be clear demonstration that reasonable grounds to suspect is necessary, and if you bear with me just for one more minute, I heard attentively the —

The Chair: I'm sorry; I can't give you another minute. We may get back to you on that depending how the time goes. Senator Joyal?

Senator Joyal: Welcome, Mr. Therrien, Mr. Caron and Ms. Kosseim.

I tried to understand what has changed between the time you testified in the House of Commons on this bill and what you propose as a recommendation to us today, to which I subscribe, by the way. Could you quickly run through what has changed about your position since Spencer that you have put into your recommendation?

Mr. Therrien: Thank you. A number of things have stayed the same from my submissions in June, including suggesting that thresholds be generally reasonable grounds to believe, but now I make a few more suggestions based on my reading of Spencer and the events around Spencer since it was released.

Spencer has, as I've explained to Senator Baker, significantly clarified an issue that was before the House of Commons when I appeared in June, which is how sensitive is the information that people put on the Internet that is subject to state powers requiring production of information; and at that time, it was a complete unknown, and many people were suggesting that the information sought in Bill C-13 was not sensitive, did not deserve constitutional protection, et cetera.

Now Spencer has clarified that significantly, provided that there is a reasonable expectation of privacy. And despite the judgment in Spencer, I see again important players in the debate — government, telecommunication companies, federal departments — making statements that do not give me a whole lot of confidence on what impact Spencer will actually have. They seem to give a very narrow interpretation to Spencer.

The bill before you suggests that certain information would be obtained based on reasonable grounds to suspect. I'm advocating reasonable grounds to believe. But if the committee accepts reasonable grounds to suspect, one thing that I think would be useful to clarify is that the common law should no longer be relied upon to obtain information based on evidence lower than reasonable grounds to suspect. I cannot imagine really a standard lower than reasonable grounds to suspect.

If the common law is left to stand to authorize the type of requests that law enforcement make to telecommunication companies and others, based on the common law, based on an argument that there is no reasonable expectation of privacy, it means that information would be sought on something lower than reasonable grounds to suspect. I do not think that is a balanced way of approaching the issue.

Senator Joyal: Has it not been your position in the past that the lower the threshold the higher the control needs to be, as well as the need to notify the person? I was surprised that you didn't mention the need to notify the person that exists when you get a search warrant to wiretap a telephone line.

If you tap my computer and my telephone line, I will be better protected on my telephone line than on my computer because at some point in time you will have to inform me that you have tapped my telephone line. On the computer, you will go unnoticed. I won't even know that you have all the metadata. There is the report you published, which I think is a very good report, in which you analyze all the information you can get in the metadata, and you get much more information through my computer than just listening to my conversation with Senator Baker, and after that you will have to come and tell me that I have spoken to Senator Baker and you have received that information.

That's why I think there is no logic at this point in the system, and I'm trying to wrestle how we should make sure that the system remains logical and that the parameters are the same and that they are rational in terms of control at the various levels.

Patricia Kosseim, Senior General Counsel and Director General, Office of the Privacy Commissioner of Canada: Thank you for the question. We do advocate the inclusion of transparency and accountability mechanisms. We talk about public reporting, but certainly after-the-fact notice is a very important means of inserting accountability into the provisions. The Supreme Court has said so in R. v. Tse and more recently in R. v. Wakeling. Even in Wakeling both the majority and the dissent confirmed that transparency and accountability, such as after-the-fact notice and public reporting, are important policy decisions that have to be considered precisely by Parliament. Both of them invite Parliament to consider these important mechanisms, and this is why we would encourage you today to consider this. Public reporting was our recommendation, but after-the-fact notice is a very important mechanism that could achieve the same means or the same ends.

Senator Frum: In the same report that Senator Joyal just referenced, the metadata and privacy report of October 2014 and on the theme of reasonable expectation of privacy, you lay out here what metadata is collected by the providers when you use the Internet and your telephone.

The issue that I'm struggling with on reasonable expectation of privacy — and I asked this of the criminal lawyer who appeared yesterday — is that your provider is already collecting the metadata. They're using it, and what I don't understand is when law enforcement receives a transmission-of-data warrant, they are going then to be receiving the same level of information about you that Google and Facebook already have, are already collecting and are already monetizing. They are already employing that information against you.

To this philosophical question about what is the reasonable expectation of privacy, as the user, my data is being collected, deployed, sold, monetized and capitalized already. When there is a reasonable suspicion, then law enforcement can have access to it as well, but my privacy is already being violated as is. No?

Mr. Therrien: You're raising a good question as to whether there are sufficient safeguards to protect personal information vis-à-vis private organizations and not the state. Based on our current law, this information is collected by Google and other companies based on consent, is the argument.

The individual uses certain services and consents to certain uses by the organization of that information. I would agree with you that private organizations with consent, whether it is fully informed or fully detailed, is another matter, but private organizations use this information for many purposes.

Legally, the issue here is consent. To what extent has this been consented to by the consumer receiving services from the private organization?

When the state knocks on the door of a private organization, we're no longer talking about consent, of course. We're talking about the state, for legitimate investigative purposes, wanting information without consent from the individual who is subject to it. That is why we have, I would suggest, rules on what are the limited circumstances in which this should be permitted at law, and generally reasonable grounds to believe is the appropriate threshold.

Senator Frum: I would question how much consent there is on the collection of that data. I think it's forced consent.

Mr. Therrien: That's a fair question.

Senator Frum: You can't use services unless you agree, and so I'm not sure about that.

Again, on the expectation of privacy, once I have allegedly consented to the collection of that data, I'm acknowledging that it's not private anymore.

Mr. Therrien: You're acknowledging that the private organization can use it for the purposes for which it sought consent. Let's remember that the Supreme Court in Spencer addressed the issue of anonymity on the Internet and of a reasonable expectation. In that case the court made clear that the information in question, personal information going to the activities of an individual, does attract a reasonable expectation of privacy as a constitutional matter. That is now settled law, and that comes with certain consequences.

As a matter of constitutional law, this is now settled. It was not settled in June. It is now settled.

You're raising very fair questions as to how informed, voluntary and fulsome the consent provided to a private organization is. I totally agree with that, but I think there's a big difference between collection and use by private organizations and compulsory obtainment of information by the state for criminal purposes.

[Translation]

Senator McIntyre: Thank you for your presentation, Mr. Therrien. I looked at the bill and my understanding is that there are two major components: first, law enforcement officers are required to apply for warrants, and second, there is judicial discretion on whether or not to issue a warrant.

In other words, law enforcement has the obligation to report the facts to the judge of first instance, who then has the information to conduct a proper review and decide whether or not a warrant needs to be issued.

I see that the only section that does not require a warrant is the one dealing with preservation. That being said, ''preservation'' does not mean ''protection'' and, as a result, I think the bill strikes a balance between the protection of privacy and the protection of the public.

I would like to hear what you have to say on that.

Mr. Therrien: In terms of preservation orders, we agree that the reasonable suspicion standard is adequate in this case. As you say, it is one thing to preserve information that might eventually be useful in a police investigation, and it is a whole different thing to disclose the information to police forces.

We agree that preservation orders are issued on reasonable suspicion grounds. However, despite the judicial oversight, we feel that the reasonable grounds to believe standard should apply to disclosing information to police forces. That is what courts have generally been upholding for years.

Senator McIntyre: Thank you, Mr. Therrien.

[English]

Senator Batters: Thank you all for being here. Mr. Therrien, I think the last time we had a chance to speak was when you were in the Senate Chamber for your confirmation hearings or what have you.

Mr. Therrien: I remember well.

Senator Batters: Just because there's been so much talk over the last couple days especially about Spencer, I thought it might provide some interesting context to many on this committee who know these details, and I'm sure Mr. Therrien knows them well. For those who might be following this particular Bill C-13 hearing, it might be interesting for them to know a few of the facts behind the Spencer case.

In this case, in June 2014, the Supreme Court of Canada released its decision in R v. Spencer. I find this important to bring up, particularly because Saskatchewan is my home province and this is a Saskatchewan case.

In this case, Saskatoon police were able to identify Shaw Communications as the service provider of a person accessing and distributing child pornography. Police had used a law enforcement request, known as an LER, to obtain the basic subscriber information from Shaw that led to Mr. Spencer. Most of Canada's telecommunications services providers comply with LERs, and those are only made in relation to child sexual exploitation cases. Shaw did voluntarily provide that information, and the police then sought and obtained a search warrant to seize Mr. Spencer's computer.

The accused then challenged that LER on the basis of a reasonable expectation of privacy in an IP address. The Saskatchewan Court of Appeal and the Saskatchewan Court of Queen's Bench initially upheld the use of that for basic subscriber information, saying there was no reasonable expectation of privacy in the information attached.

The Supreme Court of Canada then dismissed the appeal, actually, and confirmed the conviction of possession of child pornography, which some following this might find interesting, but they ordered a new trial, given that they said that the trial judge had erred in interpreting the offence of making available child pornography under the Criminal Code.

The court concluded that Mr. Spencer enjoyed a reasonable expectation of privacy in his identity in respect of his anonymous online activities, and the actions of the police constituted a search.

Another interesting finding is that the Supreme Court of Canada also ruled that the evidence in question in the Spencer case, in particular, should not be excluded on the basis of subsection 24(2) of the Charter analysis, as articulated in Grant.

I just wanted to draw that to people's attention to bring the facts out. As lawyers, we sometimes toss out these case names without knowing what the facts of the case are.

The Chair: We are running a little over time, so we're not going to have an opportunity for second round. Mr. Therrien and your staff, we very much appreciate your appearance here today and your testimony.

For our final panel this afternoon, from the Boys and Girls Clubs of Canada, we have Rachel Gouin, Director, Research and Public Policy; and Fahd Alhattab, who is an alumnus of the organization. From the Bully Free Community Alliance, we have Basiliki Schinas-Vlasis, Co-Founder; and Gwyneth Anderson, also Co-Founder.

Welcome, all. I haven't been given any indication of who is going to give the opening statements. We'll let you make the call. Please proceed.

Fahd Alhattab, Alumnus, Boys and Girls Clubs of Canada: Thank you for having us.

A little bit about me. I'm a Boys and Girls Clubs of Canada and Ottawa alumnus. I've been going to the Boys and Girls Clubs for 12 years, a place where my brothers and sisters and I kind of grew up.

Thank you for having us here today to speak about Bill C-13. The Boys and Girls Clubs of Canada is dedicated to supporting the growing and development of children and youth all across Canada. We serve about 200,000 young people every year, in 650 different communities, something we're very proud of. We're excited to be able to speak to this.

There are four sections that I'll be speaking about and topics to cover: protection and privacy rights; the consultation with youth; education; and restorative justice.

To begin around protection and privacy rights, we are very much for Bill C-13 and the fact that it protects the children and youth that we work with around cyberbullying. Young people deserve protection from cyberbullying, but they also deserve protection from unreasonable interference with their privacy. While matters of privacy are not our expertise, they ought to be given a proper consideration.

The only recommendation we have around protection and privacy right is to, obviously, listen to the Privacy Commissioner and note that, protecting children from cyberbullying while protecting their right to privacy.

The second part is around consultation with youth. As most of you know, youth are connected in so many different ways. Ninety-nine per cent of youth across Canada are connected to the Internet outside of school. Eighty-five per cent of youth in grade 11 have access to cellphones. Through their use of technology, youth are testing social boundaries. This is their way of experimenting as teenagers, of getting to know different things. It's part of the way that they're growing up. In addressing cyberbullying, legislators would benefit from understanding how children and youth use technology and what they think will work in addressing cyberbullying.

Our recommendation here is to consult youth on the legislation, on prevention programs and on education that addresses cyberbullying, to ensure that the efforts to stop the distribution of non-consensual images are informed by those who are most affected by it.

The third part is around education. The desire to address bullying and cyberbullying has resulted in a patchwork of legislation across federal, provincial and territorial jurisdictions. As you know, the Internet does not have borders the way countries and provinces do. We've put children and youth at risk of being confused about their responsibilities and the legal repercussions of their actions.

The Standing Senate Committee on Human Rights and the CCSO Cybercrime Working Group both recommended that the federal government play a leading role in coordinating efforts to address cyberbullying, in part through a national prevention strategy and legal education. We want to put this forth again and say that this is very important to us. The recommendation here is to lead the coordination of legislative efforts across all jurisdictions.

The second recommendation would be to engage youth in developing a federal plan to educate young Canadians about cyberbullying and the law and to encourage respectful online communications. Obviously, with the Boys and Girls Clubs, with 650 communities, we say that we are open to being able to help deliver that education and work with the youth across the country.

In terms of restorative justice, given the number of young children navigating the Internet and interacting using digital communications, the government ought to consider enforcement measures that are age appropriate and that prioritize restorative justice. In the study on cyberbullying, the Standing Senate Committee on Human Rights also recommended that the promotion of restorative justice initiatives be a key component of any coordinated strategy to address cyberbullying developed, in partnership, by the federal, provincial and territorial governments.

We understand, as the Boys and Girls Clubs, that restorative justice is key to the way that we work. It's a main principle of the Youth Criminal Justice Act, and Boys and Girls Clubs in Alberta, British Columbia, Yukon and Ontario have all been offering youth restorative justice programs since 2001, with great success.

Our recommendation here, given the persuasive use of cellphones, social media and the Internet among children and youth, is to allow youth to take the responsibility for their actions and repair the harm they have done by favouring a restorative justice approach in all but most severe cases.

In conclusion, the Boys and Girls Clubs of Canada supports the government's efforts to criminalize the sharing of intimate images without consent and encourages the government to also ensure that privacy rights of youth are protected in the process. Most importantly, we urge the government to seek meaningful youth engagement and leadership in all matters pertaining to the development of legislation, policies and programs that affect youth. Organizations like ours can accompany youth to participate in forming decisions in bills, such as Bill C-13, and we encourage the government and the committee to reach out for support.

Basiliki Schinas-Vlasis, Co-Founder, Bully Free Community Alliance: Good morning, and thank you for inviting us here today to speak about Bill C-13. My name is Bessie Vlasis, and together with my colleague, Gwyneth Anderson, I am the co-founder of Bully Free Community Alliance, a not-for-profit, grassroots organization located in York Region, Ontario. Our organization advocates for students and families who have been affected by bullying, and we educate and bring awareness about bullying throughout our community and beyond. Our mission and vision is to build and sustain positive communities.

Our work began over eight years ago, when our children became victims of bullying. We realized quickly that there was not enough support for victims and their families. As our organization developed, our main concerns were technology and mental health. For all of the positive attributes, technology is being used to inflict harm and socially victimize. Cyberbullying has become an epidemic within our schools and communities, and, as technology evolves at a rapid pace, so will new ways to abuse it.

Snapchat, Instagram, Twitter, Tinder and Kik are just some of the apps and sites our youth visit, post to and download from. They are the 24-hour accessible apps and sites that subject our children to teasing, taunting, torment and threats, from which the only escape for some has been suicide.

It's easy to say to a teenager, ''Just turn it off. Don't look at it, or don't read it,'' but the reality is very much tied to what they see and hear on the Internet and on social media. The number of ''likes'' they get on Instagram or re-tweets on Twitter are a large part of how they socialize today and where they draw their sense of value and belonging from.

We teach our children, as they grow up, not to talk to strangers and not to open the door to people they don't know, and yet we allow them to surf the Internet on social media sites in the privacy of their bedrooms, virtually allowing strangers to enter their lives in a potentially predatory and dangerous manner. Some children do not have the social and emotional maturity or life experience to understand that they could be putting themselves in harm's way.

We understand the privacy concerns that surround Bill C-13. However, when our children, or even adults, press an app or sign onto a social website, we have to ask the question: Do we really have privacy? The Criminal Code must be updated in order for our law enforcement to respond effectively and quickly when cybercrime occurs. Our society has changed, and our legislation needs to change with it.

The goal is to give our law enforcement the tools to combat cybercrime, allowing them access to data quickly to ensure the safety of our youth. We need to educate youth on the hazards of misusing technology. We need to have stringent laws for those who purposefully use technology to harm and we need to hold predators and criminals accountable.

Gwyneth Anderson, Co-Founder, Bully Free Community Alliance: Bill C-13 is a positive and necessary step forward, but we can't stop here. We need to follow it with a national strategy. What would a national strategy look like? Provinces working together, using common language, through education, awareness and supports and laws, particularly with a focus on youth mental health and suicide.

Data must be regulated on cellphones for youth 12 and under. With full data on a cellphone, children as young as 6 have access to anything they want on the Internet at any time, often with no boundaries and no limits. They need to be protected from this.

We need to continue to develop the Get Cyber Safe website, as well as other websites, so that current information, supports and resources can be easily accessible and available.

We need continued public service announcements, similar to the ones currently running, so education on new legislation can be understood.

Bullying and being mean is learned behaviour. We do need a culture shift. We must initiate steps to promote a culture of respect and kindness for each other. This might sound like an unrealistic and impossible undertaking, but I'd like us to reflect for a moment. We changed a culture on drinking and driving, and we changed laws because it was killing people. We changed a culture on smoking because it was killing people, and we needed to change laws. We changed a culture on how we treat the environment. Laws were changed because people were getting sick and dying. We can certainly change a culture on how we treat each other. It can be done.

We have collaborated with our local school boards and police on a YouTube video, which you recently received via email through the clerk, called #yeswewill Change the Culture of Cyberbullying. We need this culture shift. It's a huge undertaking, but that should not discourage the effort.

It is not a child's privilege to feel safe at home, at school and in their community; it's their right — a very basic right. When children start taking their own lives and mental illness is at a national high, we the adults need to pay attention and take action. We hope you will join us in this vision.

The Chair: Thank you all. We will begin the questions with Senator Baker, the committee's deputy chair.

Senator Baker: Thank you to the presenters here today. These are excellent presentations, with excellent suggestions being made, and I'm glad these two presentations are now on the record of the Senate.

I don't have any specific questions to ask except perhaps that I don't know if you wish to elaborate on point number 2 by the last presenter, under the heading ''What would a national strategy look like?'' You said that the data must be regulated on cellphones for youth 12 and under because with full data on a cellphone, children as young as 6 have access to anything they want on the Internet at any time, often with no boundaries and no limits, and they need to be protected.

Do you want to elaborate on that? You don't have to, but do you wish to?

Ms. Anderson: We totally can. We work so much with front-line workers, with families and students, with teachers, so we get a lot of our information directly from teachers who are teaching in the classroom who have children as young as 6 coming to school with an iPhone, with full data, and access to anything they want at any time. Kids don't have the social and emotional maturity at that age to know that they're being groomed for something or to know that they're going on a site that they shouldn't go on. We would like to see at least some discussion on regulating something for children, because when parents purchase packages it's usually some type of text and data package. That's not to say they can't go home and get on the computer, but it's more the situation that computers are bigger and hopefully they're in a good area in a house where they have to log on and parents can see the screen. But when they're walking with handheld devices, we thought a discussion of what we could do to help protect our children who are very young from predators or from possibly getting themselves into situations that they can't get out of.

Senator Baker: You're suggesting we open up the dialogue, open up the subject on how we would approach this, as you mentioned, for those under a certain age limit.

Ms. Anderson: Right. If anybody has a teenager, they know that this is how they socialize. We don't believe in taking technology away from students at all, because this is their world and it's only going to grow bigger. But that doesn't mean that we can't take a look for our little ones to say they're driving at a certain age for a certain reason or they're able to drink at a certain age for a certain reason. We think it's a good dialogue to open up to ask what we are doing for technology for our little ones.

Senator Baker: Fahd, I wonder if I could ask you a general question? Do you find that people my age don't know anything about the Internet and perhaps we should be having greater discourse with people like yourself?

Mr. Alhattab: I would not say that you don't know anything about the Internet. That is not a claim that I will put my name to.

Senator Joyal: He knows a lot, believe me.

Mr. Alhattab: I think in some cases you know far more than we know. If you look at the biggest creators on the Internet, the people who make the most YouTube videos and post the most stuff, they're 16-year-olds. They're the ones who are creating the Internet. They're the ones who are not consuming. The older generation consumes. You go online, read the news and see the YouTube videos, but you don't post the YouTube videos. The young people are the ones who post.

I think we have a different perspective on where we are with the Internet and cybertechnology. A lot of that is consuming and creating. If we're able to have a discussion with youth around that and around where they see the Internet and where they fit in, it will change the way we look at legislation.

Senator McInnis: Thank you very much. This is very interesting. This is not my question, but Senator Jaffer could not be here today. She and I have been talking about working towards some mechanism that we can put in place with respect to a national strategy to bring together, coordinate and be more effective in getting it out to the public. I'm sure we'll want to talk about it. Her Human Rights Committee did a wonderful study a few years back on the subject. She would love to have been here to talk to you about this.

I want to talk about restorative justice because it's not the intent of this bill just to throw young people in jail. I want to get into it a bit because I remember back a number of years ago, when I practised law, restorative justice was just coming into vogue. Of course, you have the victim, and there's a victim impact statement, and the perpetrator is there and the family members and someone to oversee, a bit of an adjudicator and so on.

The problem I saw at the end of the day was the follow-up. After everyone leaves the room, everyone is remorseful, they hug or whatever or shake hands, but it's the follow-up after. I want you to tell me: What is it that you do to keep in touch after? That has always been the problem. In one that I just participated in, no more than a year ago, the problem was follow-up, and then it was too late.

Rachel Gouin, Director, Research and Public Policy, Boys and Girls Clubs of Canada: I'd like to answer that, if I may. When those kinds of programs are delivered by a community organization like Boys and Girls Clubs, we have relationships with the youth already, and in many cases those are long-term relationships. We know them from a young age right through adulthood. We're better able to support them throughout that process and following to make sure they do what they said they were going to do and they're accompanied. The success rate has been 87 per cent. It's in our brief. Nearly 9 in 10 of the youth don't reoffend.

Our Kawartha Lakes Boys and Girls Club has such a program, and recently the Ontario Provincial Police has been referring cases of sexting, youth who have been caught who are between 12 and 17. This gives them a chance to make amends and fix the wrongs they've done.

I hear what you're saying. There's a real strength in working with community organizations that have a relationship with youth, to make sure it's not just a one time, we hug and everything is nice, that there's a follow-up.

Senator McInnis: How is the punishment doled out? What do you do? Is it education?

Ms. Gouin: It depends. From what I understand, the committee decides that together. It could be making reparations like an apology letter or an essay on the matter. It can be fundraising for a certain issue. It can be community service, but often it goes beyond just putting in a few hours in the community. Of course in some cases you could always volunteer with the Boys and Girls Clubs or put in hours with younger children or to educate around cyberbullying, for instance, with your younger peers.

Senator Joyal: Thank you for your presentation. You're most welcome. I have two sets of questions.

First, in your opinion, how many groups like yours are active at that level? I know one in Quebec is the Fondation Jasmin Roy. As a matter of fact, I support them directly. How many similar groups as yours might exist in Canada, and are you connected? In other words, are you exchanging initiatives, best practices, common objectives in terms of getting legislation amended, getting programs put into place at the provincial level and so forth?

Ms. Anderson: Yes, there are many groups that do great work. When Bessie and I started eight years ago, we had similar instances of our children being bullied, and we thought we would save the world at the school level and everything would be fine. However, the more you dig deep, you realize it's a huge issue, and we view it as a huge puzzle and there are many pieces to that puzzle. There are municipal changes, provincial changes and federal changes. There are lots of people out there doing great work.

It would be fantastic to have people across Canada coming together and sharing what they're doing because it is very piecemeal. People in Quebec are doing certain things, and people in different areas of Canada are doing other things. We do network with different people for sure; you have to.

Senator Joyal: There is no organization to try to group all of them and share best practices, initiatives and expertise.

Ms. Anderson: Correct me if I'm wrong because you guys are probably connected with many people, as we are. The Canadian Safe School Network and other organizations might hold seminars or workshops, but I don't think one large forum exists where everybody could get together and share best practices. That might be something to add to the national strategy.

Ms. Gouin: There is also PREVNet. There is a lot of sharing of resources and collaboration on certain issues. For example, the Boys and Girls Clubs of Canada has collaborated with the Canadian Mental Health Association to see how we can increase mental health support in communities for young children and youth. There are collaborations on issues like that.

Of course, a national strategy on bullying would help to rally all of us together to work more cohesively. We share resources, but we don't always have a guiding thread to our work. Boys and Girls Clubs has launched the Belonging campaign. It is the first Wednesday of May to try to shift the discussion from stopping bullying to restoring a sense of belonging and to promoting mental health in young people, which will help them have respectful relationships with one another.

We see that as the antidote. The education component is about letting young people know what the consequences of their actions are, and modelling the kind of behaviours and respect from each other is also very important.

Senator Joyal: The other preoccupation I have is that the school environment has changed, but I don't want to say dramatically. The curricula at the provincial ministry of education should be part of the program to instruct the kids or teens on the impact of what they have in their hands.

I have young nephews who are four years old. They already spend hours and hours on their games. They are already islands unto themselves. School is where kids can socialize and meet other people daily, continuously — many people they don't know — and they have to adapt to an environment in which what they have in hand can be an arm and a tool at the same time. It seems that school curricula should have an aspect that teaches kids about the implications of that. A knife can be useful to cut meat, but it can be harmful when used without care against somebody.

There is a lack in the way the minister of education approaches the school environment today. It should be the first thing thought about because the first thing kids know in life these days is how to use their phone or their computer or other.

Did you make any representation at the provincial level as a group?

Ms. Anderson: We are certainly trying. The process is so slow and technology is so fast. Our school board, York Region District, is trying very hard to bring the social and emotional well-being of children in line with academic learning. Studies have been done on how important it is for children to belong and feel safe. Their academics will automatically improve because of that. Those are conversations we are trying to have. We are trying to talk to our local MPP also, with the colleges and universities having the Bachelor of Education program for teachers coming into their new careers so they have the skills, knowledge and experience.

We spoke to a student teacher just yesterday because it's Bullying Awareness Week in Ontario. They have not discussed bullying or youth mental health. Teachers wear many hats, but it would be great to send them into their new careers with sufficient skills to recognize what mental may look like in a 4-year-old or a 6-year-old, which may be different from a 16-year-old, and to recognize the signs of bullying and be able to answer those questions.

We are trying to have those conversations; we are constantly trying.

Senator Joyal: What about at the college or secondary level?

The Chair: We will get back to you, Senator Joyal.

Senator Batters: I want to single out the emphasis you place on mental health — a very important issue to me, so I thank you for that.

I want to briefly touch on what Mr. Alhattab talked about and his desire to have enforcement measures age- appropriate in this bill and restorative justice taken into account. I draw to your attention that under this bill, for those who are of the appropriate age, the Youth Criminal Justice Act, as a governing force in this particular matter, has the provisions that would apply to the age-appropriateness and the restorative justice element. Many elements in there would apply to young people, so I wanted to draw that to your attention.

For the Bully Free Community Alliance, I appreciate your support of this bill. I thought you made an excellent point in your opening statement when you said:

We understand the privacy concerns that surround Bill C-13. However, when our children, even adults, press an app or sign onto a social website, we have to ask the question: Do we really have privacy? The Criminal Code must be updated in order for law enforcement to response effectively and quickly when cybercrime occurs. Our society has changed, and our legislation needs to change with it.

That's really important to keep in mind. That's what we are trying to do with this bill, to keep up because our law has kind of fallen behind on this issue. Senator Jaffer, the Liberal critic of this bill, was discussing how her Human Rights Committee was studying this issue four years ago. Now, we're moving ahead with a bill.

Could you go a little further into the need for privacy and the need for action at the same time?

Ms. Anderson: I was listening to Senator Frum when she talked about being on the Internet and where our information is going. We're certainly not policy-makers or privacy commissioners. It's a little bit over our head sometimes because we don't know all of the other aspects. We come at it as parents of young children who need to manage that in our homes.

We've talked to Carol Todd and Glen Canning. We collaborate with the Canadian Centre for Abuse Awareness and work with the police. They all say that they need to be able to act quickly — take that information and do what we need to do to protect the child and stop it from happening. We wonder if only they had had that legislation earlier — coulda, shoulda, woulda — but let's move forward. We're all concerned about our privacy. I am concerned when I'm online too, but I don't know where to find that balance. I know only that when we talk to the parents and see what happens to these children, we know there has to be something we can do; and this seems to be the great first step forward.

Senator Batters: Because you brought up her name, Carol Todd, we spoke briefly about her yesterday with Mr. Geist. I was asking him about a particular CBC interview that she had done. We didn't have the transcript at the time but I have it today. I want to pass along her comment because she kind of clarified her comments she made at the House of Commons committee. In that transcript, Carol Todd said, ''I think it needs to be passed soon. It needed to be passed many years ago, in my eyes, as soon as technology started to show its ugly head.'' She went on to say, ''You know I did talk about splitting'' — meaning the bill — ''and in my personal views, I don't know why we can't split, but it was explained to me that it couldn't be split for the reasons that you have the cyberbullying and cyber harassment clauses, and then you have the other clauses that have to do with investigative powers, searching and online looking into the stuff. It was shared with me that they have to be hand in hand.'' And, that was the end of her quote on that particular portion. I think that's very important to keep in mind.

You, today, have the ability, as you're in front of a Senate of Canada committee, to relay to Canadians the important work that you do with your particular organization. For the two of you that are here from the Bully Free Community Alliance, for someone who might be watching this committee hearing or will read this transcript, what good, practical advice would you give to a young Canadian, or that youth's parents, who might be the subject of cyberbullying right now?

Ms. Anderson: Thank you for the opportunity. We try to keep it simple. Number one is just to remove all technology from the bedroom at night. Nothing good happens in the middle of the night when you're trying to respond. Kids will get up in the middle of the night when their phone buzzes. Even if it's bad, they want to know what people are saying. They value what some kid they don't know at another school is saying about them.

We have to pay attention to that. So, having all technology — iPads, iPods, cellphones — out of the bedroom at night.

There have been studies done that kids are losing sleep, and they are going to school not well rested. It becomes a vicious circle. So that would be one.

Have that open communication. You do pay for the cellphone, and they're still a minor. You discuss the responsibilities that go along with having that hand-held device. You know what? The kids don't like it, but it's our responsibility to look after them, and you can word it in that way, that you are doing your job as a parent, that you have to make sure things are safe and that you're not spying on them. You just need to know that things are safe.

Senator Batters: I agree.

Senator McIntyre: Thank you all for your presentations.

First of all, I note that the Boys and Girls Clubs favours a restorative justice approach in all but the most severe cases. I am pleased to hear that.

Ms. Anderson and Ms. Schinas-Vlasis, the mental health issue has been raised. I noted you also raised it in your memo, which was given to us. As a matter of fact, you mention that as your organization developed, your main concerns were technology and mental health.

Now, my question is this: Could you elaborate further on the relationship between bullying and cyberbullying and mental health issues? In other words, do a lot of the young people involved in bullying or cyberbullying, either as victims or aggressors, suffer from mental health issues? As Senator McInnis rightly pointed out, is there a follow-up? If there is a follow-up, what kind do we have? Do we have a follow-up with the community mental health centres in the area? Could you elaborate on that, please?

Ms. Anderson: Well, youth mental health is an epidemic. It's a tough question because just because somebody is bullied, it doesn't mean they're going to end up with mental health issues, or just because a child bullies, it doesn't mean that they do have a mental health issue. However, we do have children who are much more resilient than others. Something could be said to them and it rolls right off their shoulders. For others, it percolates in them. Depending on the ongoing harassment or on the ongoing images that might be circulating, it can literally change their brain and have lifelong implications.

What can we do to help that? We need to start very early. A lot of money has been given to post-secondary education on mental health, which is excellent. This is because we have students leaving university before December, because they can't manage. But we really need to focus on the little ones, as well, to make sure that we catch it early on and can help guide them through that social and emotional aspect of school.

Ms. Schinas-Vlasis: Being proactive is key. We find that when we are speaking with children, especially with the younger children, it's as simple as teaching children how to be a good friend. When they can grasp that and understand what being a good friend means, it leads later on to kindness. It's just all about being proactive and teaching children about being good and having empathy. These are all traits that they need to learn at a young age, and then we have fewer problems later on.

Ms. Anderson: Because when they communicate on line, they can't see a face. They can't see that somebody is hurt.

Senator McIntyre: I understand what you're saying, but is there a follow-up with community mental health centres, is what I'm driving at? Because those centres play a major role in helping those kids with mental health issues.

Ms. Schinas-Vlasis: Absolutely, and we're finding that the lineups and wait times are getting longer and longer. Just to get in to be seen, the wait time is long. The follow-up is not happening as much because of the long wait times. We would like to see that changed because if children are at a crisis point, then there should be a lot of follow-up. They should be getting the supports that they need right away.

Ms. Anderson: We have a crisis centre at our local hospital, and they take the person who tried to take their own life, as opposed to the person who has been talking about it. They're both crisis situations, but they're strapped as well. People's insurance runs out, and then they're left with monetarily not being able to afford care for their children.

[Translation]

Senator Dagenais: Thank you for your presentations. Let me congratulate you on your work. I think your mission and the values that you are promoting fall under what used to be called training, prevention and education for youth.

New technologies can have devastating effects. Sometimes, we can do great things with them, but they can also wreak havoc. In fact, new technologies can often lead young people down a slippery slope.

I think the government has good reason to be concerned and to want to provide police officers with the tools they need to do their jobs better. Could you elaborate on the balance needed between effectively applying the legislation and what we talked about earlier in terms of human rights?

Ms. Gouin: One right is not better than another. People have a right to protection against violence and harassment, but they also have a right to the protection of their privacy.

Young people are entitled to all those rights equally. We need a balance, but we cannot set one right against another. I trust you with that, with the help of experts in the field.

What we care about is ensuring that young people can fully enjoy all their rights: the right to the security of their person, the right to privacy, and so on. We trust the experts who were here. We are pleased to see that there are a number of different voices speaking to this issue, and we are counting on you to make wise choices. In the meantime, we will continue to support young people.

[English]

Senator Plett: I want to follow up a little bit on the answer you gave Senator Batters about having no devices in the bedroom in the evening. As a parent and now a grandparent, I would certainly endorse that.

However, we deal with legislation here all the time, and I'm dealing with a particular piece of legislation right now where parents are telling me that their three-, four- and five-year-old children are old enough to make decisions. How do you square that box, when a parent says a five-year-old or a three-year-old is old enough to make a life-changing decision, and they take these devices into the bedroom? Who do we need to educate, the kids or the parents? How do we educate the parents? That would be my first question. I have one for the other panel.

Ms. Anderson: If we had the perfect answer, that would be fantastic. We struggle with it at schools because the devices are in the classroom to be used as an educational tool. Pictures are taken, and nobody passes notes anymore. They make rude comments about somebody else. The actual cyberbullying is going on in the classroom as the teacher is trying to teach.

We have said to the principals, ''Maybe you want to have cellphones used only when the teacher says it's time to pull your cellphone out and look on the Internet or the Moodle for some particular topic or instruction.'' However, a lot of the principals won't do it because parents will say, ''I want to be able to get ahold of my child at any time of the day at any point.''

Senator Plett: Exactly.

Ms. Anderson: We had one principal say to a parent, ''Well, use the office phone. If you want to call and speak to your child, we will bring them down and you can speak to them on the phone.''

There is education for everybody. I hate to put the onus on just the kids, like it's their responsibility, because it's all our responsibility. Parents absolutely need to be educated. A five-year-old making a decision on where they go on the Internet is not good.

Senator Plett: It's unacceptable.

Ms. Schinas-Vlasis: We liken it a lot to whether you would give your 12-year-old your car keys and say, ''Honey, go down to the corner store and pick up some milk.'' You wouldn't because, at 12, they don't know how to drive a car. It's the same idea when you're handing a cellphone to someone who is under 12 and you have no instruction or no guidelines. They could potentially cause damage to themselves or others.

Senator Plett: I agree. However, there is one difference here. The 12-year-old probably knows how to use the computer and Internet much better than the parent does.

Ms. Anderson: They can get anywhere they want to go. That's for sure.

Senator Plett: Fair enough. I know there's no perfect answer.

Ms. Anderson: It's important to have these discussions, 100 per cent.

Senator Plett: For the Boys and Girls Clubs, just further to this particular answer, do you have programs that would really teach these kids that there are much more constructive activities that they can get involved in? Of course you only have them maybe one night out of the week, but certainly when kids are so tired that they just want to go to bed when they come home, they maybe won't be on the iPad. What do you do to maybe tire the kids out enough that maybe they want to stay away from it?

Mr. Alhattab: I make them run laps around the gym over and over again. We definitely have tons of programs at our Boys and Girls Club. A lot of the youth and kids who come to our Boys and Girls Clubs are there multiple times a week, which is fantastic. Parents love us because, yes, they do go home tired. They get their energy out.

We do also run a lot of computer technology programs. We have had media literacy programs where they're learning to make videos and how to use Photoshop. They're learning to use the tools on the computer for effective things and for fun things that can be used, so it's showing how the computer and the Internet can be used for very productive things.

We have tonnes of programs around sports, leadership programs and arts programs that allow them to create friends in their local community and around their neighbourhood and kind of use their time away from the cellphone. A lot of the clubs discourage the use of cellphones while they're in our program. They say, ''You can use it at a different time. We're playing basketball. You can' really text when you're playing basketball.'' Or, ''We're doing a leadership program. As a young leader, you have to focus your attention on what is happening now, right?'' So we discourage the use of that so that we have their attention and we're teaching them the positive values of being good citizens and being good friends and creating those relationships.

Senator Plett: At many meetings, we have to check our cellphones at the door when we walk in.

The Chair: I have a question for the alliance representatives. Earlier today, we had a representative from the Canadian Bar Association appear, and one of their concerns about the legislation was they suggested the recklessness standard with respect to the criminal intent element of the bill be removed. I have some personal concerns about that. The justice ministry definition of ''recklessness'' as it applies to this legislation captures those who recognize that there is a risk the person did not consent but proceeded to share the image anyway.

My concern is that we're suggesting these people should be free and clear, essentially, if they distribute such an image if there is no clear knowledge of the circumstances to determine if the person depicted had consented. In my view, it greatly reduces the effectiveness of the legislation. I wonder if you've taken a look at that issue. I know the bar apparently was concerned about overreach, but we still have significant police and Crown discretion. Ultimately the judge is going to make a determination as well. I wonder if you have a comment on that.

Ms. Anderson: We haven't read the entire legislation from beginning to end. A little bit of it is over our head. I'm not going to lie. We're here as parents and community members. But having this bill and youth and parents in our society knowing that there is a crime involved when you distribute those images is going to make people stop and think before doing it. That is our feeling as parents. Being able to have that discussion as kids, even when they are getting their cellphone for the first time, saying, ''Here is your responsibility, but please understand that there is now legislation and law that's attached to the cellphone. So think twice about what you say and what you send, as simple as that.''

You can pick apart every piece of the legislation, and the privacy aspect is big, but we are heading into waters that we haven't been through before. I guess that would be my answer. I think it's really important because kids need to know that there is a crime attached. We don't want them to go to jail, every single person who distributes something, but they need to know it's there.

The Chair: I read that as your support of the recklessness inclusion in the legislation.

Ms. Anderson: Yes.

[Translation]

Senator Boisvenu: I find your comments very relevant. If you allow an eight-, nine-, or ten-year-old to have a tool like that and spend all night in his or her bedroom, you might as well give the key to the child's room to a stranger or a pedophile.

In my view, no piece of legislation will replace the vigilance of parents. Pedophiles are able to contact children because they know the parents are not there.

As such, I think police officers should be given special powers, powers that go beyond the current framework of the Criminal Code. We are now dealing with people who use technology and tools to be in contact with our children, which the Criminal Code historically has never foreseen.

I see people objecting just based on the principle of protecting privacy. I do not know whether you heard their testimony. Do you feel that we are putting the criminals' right to privacy before the children's right to protection?

[English]

Ms. Schinas-Vlasis: Yes. Very short answer: Yes.

Senator Baker: I have just one question to the Boys and Girls Club. When you appeared before the House of Commons committee, you recommended splitting the bill. From your presentation before the Senate committee now, you appear to not be suggesting that but saying very strongly, yes, protect children and youth from cyberbullying, but you must also protect their right to privacy. And you are suggesting not a split of the bill, but that we pay particular attention to the Privacy Commissioner and their recommendations. Am I correct in that? Could you elaborate on that?

Ms. Gouin: We still think it would be a good idea to split the bill, but we recognize that that's not likely to happen. We're recommending we pay attention to the issues that were raised and the reason behind many requests to split the bill, one being that this bill is very large.

So while we are speaking to certain aspects of it based on our experience, there's a lot of the bill we can't speak to. We're counting on others to make sense of it and make sure it's a good, strong bill that will protect children and youth. If it were simpler and limited to just cyberbullying, that's all we've spoken about. For the rest, we're letting other people step up and speak to that. In that sense, it would be easier for us to fully support those provisions if it were split. Right now, we're doing our best with what we have.

Senator Baker: Congratulations on your presentations to the house committee and Senate committee.

Senator McInnis: I have a follow-up on this. On splitting the bill, you can't put something in the Criminal Code that does not have the procedure and process in order to bring about a charge for the police, so I fail to understand. I think you have to look at this bill in its entirety, because they need the thresholds put in place in order to investigate the crime. I don't get that point at all when you read this bill in its entirety. Why would we not want to have the investigative powers when we're putting the offence in place?

Ms. Gouin: Given that, we'll trust the judgment that this bill is moving forward together, as one, with the investigative powers, and you'll consider the issues that were raised with concerns to privacy. We won't be doing that, but that's why we took that part out of this brief.

Senator McInnis: Responsible governments have to weigh the balance.

Senator Batters: Mr. Alhattab, you suggested that we consult youth on this. I did my own personal small consultation last week when I was home in Regina. I was relaying this to witnesses yesterday. I spoke to a high school class of 22 students at Campbell Collegiate in Regina. I talked to them about different things, my role in the Senate and what I do. I was telling them about this committee and, given that it was Grade 10 students, cyberbullying could be something that they in particular are dealing with right now. Maybe somebody sitting in that class might be someone who is going through this right now. I talked to them a little bit about this bill and gave them some information about the needhelpnow.ca website, which we previously heard about from a police officer who was testifying before our committee.

When I took questions after my presentation, there was one particular student who hadn't asked anything of me prior to that point. He was sitting in the front row and had listened attentively but hadn't asked anything. The teacher told the class: ''This is your chance to influence a lawmaker. What do you think about this bill?'' I asked them: ''Do you think we need legislation? Do you think it's satisfactory to just have more public education and websites, that sort of thing?'' This student said to me that he thought it was very important we have this law because without having a significant law like this, we wouldn't have consequences for these types of very serious actions.

I relay that to thank you for your comment. In our little part, we're trying to do that as well. Certainly we're receiving information as well, sometimes from email and phone calls.

Senator McIntyre: I want to go back to the idea of splitting the bill. I know this idea was discussed at length by the House of Commons committee, and they decided not to split the bill. However, they did recommend a parliamentary review in seven years. I wanted to have your thoughts on the seven-year review of this legislation.

Ms. Anderson: We've never been part of wanting to separate the bill, but I think a seven-year review would be good because technology will have changed in seven years. You might be looking at something completely different. A review in seven years would be a very good idea.

Senator McIntyre: You're in agreement with that recommendation?

Ms. Anderson: Yes.

The Chair: Thank you all for a very helpful and informative contribution to our deliberations on this important piece of legislation.

Members, we will continue discussing Bill C-13 next week. We also have on our agenda the pre-study element of the budget implementation act that we have to deal with in a timely way. We'll be looking at that next week as well.

The meeting is adjourned.

(The committee adjourned.)


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