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
Senator Bob Runciman (Chair) in the chair.
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
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
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
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
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
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
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.
Senator Dagenais: In your brief, you say that you would prefer to
see prevention and education initiatives for teenagers. No one can be
However, do you not feel that, in addition to education and prevention,
we still need a penalty in place as a deterrent?
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
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
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
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
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
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
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
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
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.
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
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.
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,
Mr. Therrien, welcome along with your staff. I understand you have an
opening statement, sir. Please proceed.
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
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
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
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.
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
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
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
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
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
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,
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
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
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
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
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
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
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
Legally, the issue here is consent. To what extent has this been
consented to by the consumer receiving services from the private
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
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
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.
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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.
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
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
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
Senator Plett: Fair enough. I know there's no perfect answer.
Ms. Anderson: It's important to have these discussions, 100 per
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
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
The Chair: I read that as your support of the recklessness
inclusion in the legislation.
Ms. Anderson: Yes.
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
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
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
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
The meeting is adjourned.
(The committee adjourned.)