Skip to Content

Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 21 - Evidence for February 16, 2011

OTTAWA, Wednesday, February 16, 2011

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-22, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service, met this day at 4:19 p.m. to give consideration to the bill.

Senator Joan Fraser (Chair) in the chair.


The Chair: Before we turn to the main agenda item of the day, which is continuing the study of Bill C-22, I will ask for a motion. You have all received 10 documents that have been submitted to the committee, including a number of responses from the justice ministry. You all have a list of those documents. Might I have a motion that these documents be filed as exhibits with the clerk?

Senator Chaput: I so move.

The Chair: So moved, by Senator Chaput. All in favour? Opposed? Abstentions? Carried.


It is a very great pleasure today to welcome from, the Office of the Privacy Commissioner of Canada, Ms. Chantal Bernier, who is Assistant Privacy Commissioner, and Ms. Anna Zubrzycka, Policy Analyst, Legal Services, at the Office of the Privacy Commissioner of Canada.


Thank you both for being here.


Honourable senators, since we have a lot of witnesses to hear today, I would ask you to be concise with your questions.

I believe Ms. Bernier has an opening statement to make. You may begin, madam.

Chantal Bernier, Assistant Privacy Commissioner, Office of the Privacy Commissioner of Canada: Thank you, Madam Chair, for inviting me to present the perspective of the Office of the Privacy Commissioner of Canada on Bill C-22.

I applaud the government for moving to curb the prevalence of online child pornography, a profoundly repellent scourge that makes victims of our society's most vulnerable. Every child has inherent human rights and warrants special care and protection.

This was the message of the 1989 Convention on the Rights of the Child, a message the Canadian government reaffirmed by ratifying the Convention and its Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.

The Office of the Privacy Commissioner of Canada has been taking action in that regard. In 2008, in the context of an international conference of data protection and privacy commissioners, Commissioner Stoddart sponsored a resolution on children's online privacy. This resolution called for legislation to limit the collection, use and disclosure of children's personal information.

In 2009, under the auspices of the International Development Research Centre, the Office of the Privacy Commissioner of Canada, contributed to the drafting of the Memorandum of Montevideo on the protection of children's and adolescents' personal data and privacy on the Internet.

In that context, I am pleased that Parliament is now considering legislation to combat child pornography. The intent is entirely laudable.

My intent here today is to submit a few questions for your deliberation, in the hope that Parliament will fashion an even better, more effective tool.


My first question relates to the implications of obliging a greater number of organizations to report — specifically, by widening this obligation to several organizations, are we actually further jeopardizing children who have already been victimized? Let me explain.

The bill obliges ISPs, Internet service providers, to report tips they receive from individuals about possible child pornography offences to a designated organization. From a review of House of Commons Debates, it appears that the designated organization would be Cybertip, a non-profit volunteer organization supported by the Government of Canada and such telecommunications giants as Bell, Rogers, Telus and Shaw.

Cybertip already receives tips from the public, assesses them and forwards to the police all those that are suspected to be unlawful. They have been at it since 2002 and, by all accounts, they are doing a great job. If the public can, and plainly does, already report to Cybertip, why would we wish to introduce another layer to the reporting process? By involving ISPs, do we simply expose these images to yet more eyes? By invading the privacy of these children, are we further victimizing them?

My second question relates to the organizations that will be reporting these offences. Specifically, are they best suited for the task? This question centres on the effectiveness of the bill as currently drafted. Effective legislation would make the best and most appropriate institutions of our society responsible for stamping out child pornography, and these institutions must be equipped with the expertise and supports necessary to swiftly and efficiently enforce the law.

As you know, the bill would require an ISP to notify police if it has reasonable grounds to believe that an Internet service is, or has been, used to commit a child pornography offence. Who are these ISPs? Do they have the necessary expertise to enforce the law?

It is conceivable that major telecommunications companies do. They have teams of lawyers who are able to develop the legal knowledge, skills and resources necessary to provide useful assistance to police in this regard. However, we understand that the bill would also make cyber cafés, hotels, mom-and-pop restaurants and public libraries responsible for policing child pornography. Do they have the necessary expertise and do they have the resources to do so?

Consider, for example, that they would need to apply "reasonable grounds to believe" that an offence is being committed This is a nuanced legal concept that could be difficult for the layperson to apply. Yet, even in the absence of specific legal training or support, all ISPs would be expected to assess what it means. Are mistakes likely? They are certainly possible, given the legislation would make reporting mandatory.

At the very least, I would caution, there will be an impulse to over report. We have observed this tendency in our audit of FINTRAC, Financial Transactions and Reports Analysis Centre of Canada. Where banks, casinos and other money-handling organizations are required to report suspicious transactions, employees are more likely to report even innocent interactions because the penalties for non-compliance are steep.

My third question relates to accountability. I want to underscore that my chief concern is that the legislation protect the interests of the child. In order to fully safeguard those interests, we also need a well-functioning society where the rule of law is paramount. For that reason, I am concerned when I see that Bill C-22 also obliges ISPs to seize and preserve all suspected computer data for 21 days without a police request or a warrant. Since the legislation does not define exactly what information the ISP must preserve, they can preserve anything from anyone, without the knowledge of the owners of the information and without judicial oversight.

In contrast, if and when police are notified — by an ISP, by Cybertip or by any member of the public — about suspicious material, an orderly and verifiable record of events is established. Accountability, therefore, should remain where it belongs, namely, with the law enforcement agencies. This best serves the interests of children and society as a whole.


And finally, I am concerned about the target of Bill C-22. Indeed, we must always be mindful of the long-term impact of any legislation on the personal freedoms of all Canadians.

Consider, for instance, the potential for heightened citizen monitoring. By asking ISPs to intrude on the private communications of Canadians in order to uncover child pornography offences, would we be opening the door to widespread surveillance of law-abiding citizens?

And, in the absence of accountability and transparency, what happens to the innocent people whose private communications are misinterpreted by well-meaning but misdirected ISPs. The consequences for their lives and reputations can be incalculable.

In closing, Madam Chair, our office supports the efforts to combat the online sexual abuse of children with legislation that is targeted and effective.

The questions I am submitting to you are aimed at ensuring the effectiveness of Bill C-22, which, in our opinion, should be targeted at the actual guilty parties, and should be supported by accountability mechanisms that protect both children and the right to privacy in Canada.

I welcome your questions.

The Chair: Just before we go down the list, I have a question for you. Does the Personal Information Protection Act apply to the Internet service providers referred to in this bill?

Ms. Bernier: Yes.

The Chair: So you have a mandate?

Ms. Bernier: Absolutely, the act applies to them.

The Chair: You have the power to go and conduct investigations to determine whether everything is going as it should?

Ms. Bernier: Absolutely.

Senator Boisvenu: Thank you for submitting your brief. A word, it surprised me. I do not know whether we have the same reading of the bill. You obviously see it with different eyes from mine. I am more on the side of the victims, and you seem to be more on the side of caution. You talk about the word "policing"; you say we are going to delegate responsibility for policing to the ISPs. Did you see that word in the act?

Ms. Bernier: No, but that is in fact what we deduce from a reading of the bill. That is to say that, if you look at the second duty assigned to the ISPs, it is twofold. The first is that, when they receive a notice, they must report it and, second, when they themselves have reasonable grounds to believe that there is child pornography activity on their site, they must report it. It is in this second aspect that we necessarily expect them to exercise some diligence and thus some surveillance.

Senator Boisvenu: But do you not believe that the responsibility assigned them is more to denounce than to police? Obviously, when someone observes a violation of the act, an observation must be made, the information must be noted and then reported. But to take this definition in this document and say that we are going to assign responsibility for policing child pornography, do you not believe that you are going too far in your fear?

Ms. Bernier: If we had indeed read the bill as providing that the first duty of ISPs was to police child pornography, absolutely, I entirely agree with you. That would be an excessive extrapolation. However, what we note is that the bill leads the ISPs into a policing regime.

Senator Boisvenu: That is the question I want to ask you. I want you to show some caution. Where is it stated in the act that we are leading the ISPs into a pornography policing regime? Are we not leading them instead to keep a log of observations of breaches of the act and, when those people observe a breach of the act, they have a duty to report, not a duty to police?

Ms. Bernier: In fact, that is our reading of clause 3. In that clause, we see that the ISPs indeed have a responsibility to exercise a degree of diligence.

Senator Carignan: Good afternoon, Ms. Bernier; it is always a pleasure to welcome you. My question concerns the notion of mandate.

You said: "For that reason, I am concerned when I see that Bill C-22 obliges ISPs to seize and preserve all suspected computer data for 21 days, without a police request or a warrant."

I do not see the warrant aspect very clearly; from what I understand of the bill, there is an obligation to report or to advise when the Internet service provider has reasonable or probable grounds to believe that its system or hosting site has been used to disseminate child pornography. It is being told, first, "You must report," and, second, "You preserve must that data," which is already on its computer. So we are not talking about seizing; we are talking about preserving.

So for the person who has a contract, who decides to host child pornography material, that is the very nature of its service as an Internet service provider to host and preserve that information. So I find it hard to see how you can say that this becomes a seizure.

Second, this is an act by a private person. This is not an act of seizure by the state. So I find it hard to see the need for a warrant. That leads me to the other question; if you want to have warrants, the person who is informed, who is the police officer, must have reasonable and probable grounds to believe. So we have to have someone who gives that person the information; he studies it and subsequently goes and obtains a warrant to preserve that evidence, which is provided for under clause 4(2). He must preserve for 21 days and must destroy — I imagine that point must satisfy you.

Ms. Bernier: Absolutely.

Senator Carignan: Then it states: ". . . after the expiry of the 21-day period, unless the person is required to preserve the computer data by a judicial order or under any other Act of Parliament or the legislature of a province." That assumes, at that point, that someone — I imagine the state or a representative of the state — has acquired a preservation order, which is a form of warrant. Is your suggestion of a warrant or seizure by the Internet service provider that reports not a bit premature? Is that not putting the cart before the horse?

Ms. Bernier: First of all, I want to emphasize something you yourself have raised, and that is that there are indeed provisions in the bill that we consider highly respectful of the protection of personal information and privacy, such as the obligation to destroy 21 days later — the act clearly states "immediately after 21 days." We hail this as entirely appropriate. The point where we have, not a fear, but rather a wish to invite you to consider it is that, in clause 4, preservation, which is usually done in accordance with a preservation order, would be done without a preservation order and, as you can see in the wording, refers to any kind of information. It clearly states: "must preserve all computer data related to the notification that is in their possession or control for 21 days."

There we have information that is preserved for 21 days and that could be entirely harmless. So it is quite broad, and this preservation is done in the absence of any request by the police or a judge. It is simply what we want to highlight, that there is a certain latitude in this duty to preserve.

Senator Carignan: The information may be harmless, but it nevertheless states that the Internet service provider must have reasonable and probable grounds to believe that it is related to the dissemination of child pornography. So the information may seem harmless to the uninitiated, but is extremely useful for the police department in looking for the person who has committed this offence or who has taken the picture.

Ms. Bernier: Absolutely. But that relates to our other argument, which was: will all ISPs be able to conduct this analysis of reasonable grounds to believe? So, if we start from the assumption that not all ISPs will be able to apply this notion, we may therefore fear a slight deviation from clause 4, because they would preserve information that is not consistent with the spirit of clause 3.

Senator Carignan: What are you proposing to improve privacy protection and to be effective enough so that we do not bog down in bureaucracy?

Ms. Bernier: We recently read the RCMP's testimony on this subject. We also read the reports on the effectiveness of Cybertip. We realize that there is currently a good system whereby people inform, where that information is reported to the competent authorities, who enforce the law.

We find that the current process is effective in combating child pornography while respecting privacy and being very targeted in its application.

Senator Carignan: Do you not think that the fact that it is not validated by a statutory provision that would give it a legal basis might be considered an abuse? Would it not be preferable to have a legislative support to provide a framework for this practice?

Ms. Bernier: Absolutely. That is why I began my remarks by telling you how pleased we are to see that the government has established legislation and is developing it.

I also remind you of the resolution our commissioner sponsored in 2008 calling precisely for legislation to provide this statutory support you are referring to.


Senator Runciman: When were you asked to appear before the committee and comment on this legislation?

Ms. Bernier: I believe it was last Friday.

Senator Runciman: I have suspicions about the amount of time spent taking a look at the implications of the legislation. You referenced the 21-day period as an example, and I know Senator Carignan spoke to that issue. Police have told the government and others that is a reasonable period of time to obtain a judicial order for further preservation or production of the data, and in some cases to obtain a search warrant. That is what the 21 days is all about.

I know you have criticized the 21 days. They require that time if someone does suspect something has happened. They are asked to preserve that data for that period of time to allow the authorities to do what they have to do to pursue it, if they believe it has merit in terms of further investigation.

You talked about privacy, as well. Clause 5 speaks to that, as does clause 6, in my view. They state a person must not disclose; they have made a report. Although the government is taking the position that clause 6 was placed in the bill to not give a defence to someone who might say they were simply pursuing their suspicions, there is also a privacy element contained in that as well. Therefore, I think that has been a concern and consideration of the government.

You reference expertise in your submission about ISPs — do they have the necessary expertise to enforce the law? I do not think they are being called upon by anything in this legislation to enforce the law, the way I interpret it. I think they are asking others who have those responsibilities, if there is a merit to the concerns, to carry out the responsibilities to enforce the law. I do not think any private citizen or any company provider is being asked to enforce the law. I had some difficulty with that suggestion, as well.

Your third question talked about accountability and not defining exactly what information the ISP must preserve. They can preserve anything from anyone without the knowledge of the owners of the information and without judicial oversight. Again, that deals with the 21-day period. Perhaps I am misinterpreting you or not being fair to you in terms of the way I am interpreting your position on this, but you seem to be of the opinion that the child's rights are outweighed by the rights of the customer who might be participating in the production or the distribution of this very offensive and harmful material.

I have a lot of difficulty with the position you have put forward here today. I think this is outstanding legislation, and you talk about the need for it. I think you also imply that Cybertip, for example, is perhaps not trustworthy with respect to dealing with these kinds of concerns, initially. Again, I have trouble with that.

The Chair: Is there a question?

Senator Runciman: I think these are concerns being expressed and the witness will have an opportunity to respond.

There is one other, but you have thrown me off my line of thought here, Madam Chair. Maybe I will come back to it. We will let the witness respond if she wishes.

Ms. Bernier: Certainly. I do not believe we are nearly as far apart as you may have been given the impression of. We came here to bring to you some questions to consider to make this piece of legislation even better.

First, if I gave the impression that we thought Cybertip was not trustworthy, it is exactly the opposite. We feel they are doing an excellent job and they should be the partner with law enforcement to continue. We have every reason to believe they are trustworthy. I may have misspoken and I apologize if that was the case. Let me correct the record.

In relation to the 21 days, the issue is that preservation is usually done with a preservation order, and you can get a preservation order more quickly than 21 days. You may want to check this again, but this has to be verified with operational needs. However, judges are available 24-7 and can respond quickly. Therefore, perhaps looking at whether the 21 days is a necessary time is an avenue that could be pursued by this committee.

The Chair: I have a supplementary. Is your problem that 21 days is too short, too long, or is it the absence of a judicial order?

Ms. Bernier: It is the absence of a judicial order that comes and verifies the reasons for having preserved information.

Senator Runciman: I should put on the record that the 21-day period is consistent with amendments relating to the preservation command and order contained in Bill C-51, An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act. Therefore, this is something that has been discussed at length with policing officials and others who have interest in these areas. To some degree, it has been described as a reasonable compromise in that it meets the needs of the police and reflects the realities of the providers of Internet services.

You also talked about the system working well with individual citizens calling in. We have heard, and there has been testimony to this effect, that 30 per cent to 40 per cent of the ISPs have, in the past, refused to cooperate with police. I think a lack of cooperation from a significant number of providers is what has driven this legislation. The status quo in terms of direct reporting through Cybertip or to a policing agency has been a weakness that the government is trying to address.

Ms. Bernier: We, too, are very concerned about the fact that there are ISPs who refuse to cooperate, and that is one of the reasons we welcome legislation.


Senator Chaput: You said you currently had a good reporting system and a process that complies with private law. Were you talking about a partnership with police officers?

Ms. Bernier: I was referring to the present structure in which Cybertip receives reports and forwards them to the police departments.

The police departments intervene very often, if necessary immediately, on an ad hoc basis. There is a protocol with most ISPs. Our concern, as Senator Runciman said, is indeed that not everyone is cooperating. However, we feel that, if we can guarantee full cooperation, the present system seems to operate well and its value is that it does not result in the even broader dissemination of these photographs of children, which are exactly the way to make them victims.

Senator Chaput: Does this bill help ensure a better system for reporting that also respects privacy? I am going beyond privacy because, in my opinion, children are never guilty; they are always victims. Their privacy is taken away before they even have it.

Is it your concern that the bill does not adequately respect privacy, or is it that it does not do enough to protect children?

Ms. Bernier: With respect to children's privacy, the fact that even more stakeholders are being added concerns us in that there is this potential for broader exposure of children. This is precisely how children become victims in child pornography; it is by this exposure. So we think that increasing the number of stakeholders is a concern in relation to respect for children's privacy and integrity. We also wonder whether this will be more effective. Is it really effective to have so many stakeholders or is it not more effective now to combat child pornography in a very targeted manner?

That said, as I said in response to Senator Carignan, there are provisions in the act, and Senator Runciman said this as well, that respect privacy, that clearly stem from a concern to respect privacy, and we recognize that.


Senator Munson: In your estimation, would it make more sense to have the Internet service provider simply report directly to the police? As the opposition critic in the Senate, I note that there are a couple of reporting mechanisms here. Would it make more sense to exclude the other and just have it done to the police who are mandated to investigate and make possible arrests?

Ms. Bernier: Do you mean rather than going through the designated body?

Senator Munson: Yes, I do.

Ms. Bernier: That is interesting. Yes, I suppose that would ensure that you have a direct line that would go directly to the competent authorities who could immediately make a good judgment as to whether this indeed should be taken further.

That being said, I would be reluctant to give you a specific or prescriptive manner to improve, other than to say we would ensure that we streamline the number of intervenors as much as possible, and that we would subject the reporting to a very robust accountability mechanism.

Senator Munson: What does that mean?

Ms. Bernier: It means, for example, making sure that the reporting goes straight to a competent authority, including law enforcement; that there is an audit trail; that there is, as in the bill, a duty to destroy as soon as the evidence is no longer necessary, and so forth.

Senator Munson: You also say in your statement that the bill would make cyber cafés, hotels, mom-and-pop restaurants and public libraries responsible for policing child pornography. Could you elaborate a little on that? I am trying to envisage that picture. In the world we live in today, they are there by the hundreds of thousands. Sometimes I have that perception of Big Brother looking over your shoulder. You are using a cyber-café Internet service provider and up pops something that is horrible that no one ever wants to see. At that point, how does this all move into action? Is it reported to the police from something as simple as that, when it could be a very innocent look at a particular website that some people may find offensive, and that people see in our society today?

Ms. Bernier: That is our understanding of the House of Commons debates so far — that, indeed, that is the intent. It would cover any ISP, and it would mean anyone who would offer the infrastructure and host a site. We would infer from that that it would include even mom-and-pop — fairly unsophisticated, if I can say so — ISP providers or entrepreneurs who would then apply the act, perhaps not with all the knowledge that would be necessary to apply it well and, therefore, perhaps undermine its efficiency rather than enhance it.

Senator Munson: That is a heavy responsibility for these folks, in the world we live in.

Ms. Bernier: It would be highly regrettable should the law enforcement authorities be so burdened by irrelevant information that they would not actually get at the true guilty.

Senator Munson: I have notes here in front of me that state if a person reports a child pornography offence to the authorities, that person may be asked to testify in court. Should the identity of those persons who assist the authorities in uncovering the abuse of children be protected, as they are in the United Kingdom?

Ms. Bernier: Obviously, as an officer who is mandated to protect privacy, we would say yes, because that would be a situation where revealing identity could cause harm. Spontaneously, I would say that it could certainly be a very valid measure.

Senator Munson: There is one other point here in some of the questions from our great researchers. Some of what we do is spontaneous, but there are other questions here.

I do not know if you can answer this, but is Canada Post committing an offence if someone sends child pornography through the mail, and it is known to Canada Post but it does nothing about it, or is Bell Canada committing an offence in similar circumstances — in your estimation?

Ms. Bernier: That is a criminal law question. I would not answer that. Sorry, I do not feel it is appropriate for me to answer that.

Senator Munson: We can ask other witnesses that question.


Senator Joyal: I have two points. The first concerns what you contend on page 4 of your brief. Based on your experience, there is a risk of "over-reporting" on the basis that now, since there is an offence, Internet service providers will prefer to take the risk of reporting everything rather than determine themselves whether there are situations of child pornography because you say they are not equipped to rule or make a judgment on the nature of the site in question.

And I link that to a statement that we received from the ombudsman for victims, whom we heard in this committee last week, where she said:


Furthermore, while this proposed legislation will most likely help law enforcement to identify further leads, it will not address the current backlogs that many law enforcements agencies face in investigating these cases, due to a lack of resources and staffing.


If I understand you, your concern is similar to that of the federal ombudsman for victims, that this in a way causes an increase in the number of reports. Considering as well the testimony that we have heard from police officers, who say they cannot proceed within 21 days in a number of cases, and as the bill requires the information to be destroyed after 21 days, in principle, we are creating the expectation that the system will be more effective. However, in your assessment, you doubt that the actual impact of this bill will be a greater ability to take individuals guilty of using child pornography on Internet sites to court?

Ms. Bernier: That comment is based on our experience, as I said in my remarks on FINTRAC. We have seen excessive reporting, in which utterly harmless transactions were reported out of caution. People report everything in order to be sure they are meeting their obligations.

Exactly as you say, and as you have been told by other witnesses, this impedes the competent authorities. They are so submerged under information that it is very hard or takes a very long time to tell the relevant information from the irrelevant. As a result, instead of helping them, we hurt them.

That is why I emphasized the targeted nature of the information in my remarks. We would like to ensure that the act permits highly targeted intervention and thus genuinely helps the competent authorities by providing relevant information.

Senator Joyal: I am going back to your brief, where you say that accountability should remain where it belongs, namely with law enforcement agencies, and that this best serves the interests of children and society as a whole.

Do you mean that, by going through Internet service providers, we are complicating the process and that we are not only complicating it, but, in practice, we are putting the protection of privacy at greater risk? Should people not make their reports to police?

Ms. Bernier: There is indeed a risk that we will complicate it if the ISPs behave like the other institutions that we now see put at the service of law enforcement officers, like for FINTRAC, banking institutions, casinos and other institutions, whose natural inclination is to report more information in order to meet their legal obligations.

We can expect that the ISPs will do the same. That is where we fear there will be such a deluge of information that the public security agencies will be even less well equipped to address actual incidents than they are now.

Senator Joyal: Do you think the 21-day time period is too long, or do you think the duty under clause 4 to destroy information from the site after 21 days does not adequately protect privacy?

Ms. Bernier: On the contrary. The duty to destroy very clearly stems from a proper concern to protect privacy. However, I suggest you consider the fact that there is a provision requiring the ISPs to immediately obtain a preservation order if they genuinely believe there are reasons to do so.

We are not necessarily saying that the 21-day time period is too long, but we would like data preservation to be subject to an accountability mechanism such as a judicial authorization, for example.

Senator Joyal: You are suggesting an intermediate stage between what we currently have in the bill and what you are proposing, that when a service provider is notified by a person that its site is being used to disseminate child pornography, the provider immediately go to court to get a preservation order.

Ms. Bernier: It is not the service provider that would do that, but it could immediately contact police, who could intervene and obtain a preservation order. If it were provided with a better framework, we believe, we hope, and this is subject to consideration and deliberation with other expert witnesses, that this would streamline the process so that we would gather only relevant information and target only guilty parties. So we would better equip the security agencies to intervene.

Senator Joyal: Would you like to see an additional process provided for in the bill?

Ms. Bernier: For example, from the moment the ISP observes that its site has been used to spread child pornography and immediately reports that fact to the security agencies which will obtain a preservation order and use the information in order to take action.

Senator Joyal: You know that some cases may very obviously involve child pornography but that others may be less clear. We risk finding ourselves in the situation we were criticizing earlier, where, to avoid breaking the law, people report virtually everything. This is where the bill contains an additional problem that will not facilitate the fight against child pornography. We are going to give ourselves good intentions, but the bill lacks mechanisms to make it effective. Other witnesses have suggested this to us, and I believe it is an extremely important factor that we should consider in our discussions on this bill.

Ms. Bernier: That is precisely our fear as well. That is what we are submitting to you.


The Chair: Going back over some of the same ground that has already been raised, I want to clarify some things. This goes to your first question, where I understand you to be saying that since Cybertip now does a good job with the information it receives, why bring in ISPs? Yet, as Senator Runciman noted, a lot of ISPs do not report, unfortunately, and do not participate in the voluntary efforts to track down these terrible people.

What do we do? If I, as a citizen, stumbled upon a site like this, my instant reaction would be to call either the police or my ISP. Cybertip would not be top of mind. If I called Cybertip, I am sure they would do a wonderful job. If I called the police, I am sure they would do a wonderful job. However, if I called my ISP and it had no obligation to do anything with the information that I had provided, how else, other than a mechanism like this, would you see us handling that, as a society?

Ms. Bernier: You are speaking about the first part of section 2, the first obligation, which is the obligation to notify from the ISP. Clearly, we would want an ISP that comes across child pornography to immediately inform the police. There is no question about that.

The Chair: My question is this: Are you saying that the legal obligation to report is acceptable or not?

Ms. Bernier: We are concerned that they are put almost in an active role where they almost have to monitor. We wonder whether they are all well placed to do that. We trust some of them; they have lawyers and are well equipped to do so. However, we are afraid that too many cannot bear the responsibility that is given to them by the legislation.

The Chair: This may be a conundrum that will require all kinds of intervention to solve.


Senator Boisvenu: The more I listen to Ms. Bernier, the more confused I become about the position she seems to be presenting to us. First, her brief raises more questions than it answers about this bill. I would ask a direct question: is your agency in favour of this bill or not?

Ms. Bernier: Yes, absolutely.


Senator Runciman: Senator Joyal touched on something from a different perspective — the 21 days that the witness has expressed concern about — in thinking it could be compressed. There could be clearly, I would suspect, an investigative component before there is an application for a judicial order or a search warrant. The 21 days was arrived at after extensive consultation.

We heard a police witness last week who suggested that he would not mind seeing it as 31 days, but this is a compromise. I think most police agencies feel that this gives them sufficient time to carry out a necessary investigation.

The Chair: We will hear from police witnesses today.

Senator Runciman: I have a question of the witness about page 4 where it says, "Consider, for instance, the potential for heightened citizen monitoring." I do not see any requirement for citizen monitoring in this proposed legislation. Certainly, I do not interpret it that way. By asking ISPs to intrude on the private communications of Canadians would be opening the door to widespread surveillance of law-abiding citizens. That strikes me as more than a bit alarmist. How do you reach that kind of conclusion?

Ms. Bernier: I would not put it as a conclusion, but rather as a warning that any legislation that creates a framework of monitoring should be looked at —

Senator Runciman: This is not a framework for monitoring. I do not see it that way.

The Chair: Let the witness answer.

Ms. Bernier: It deputizes the ISPs to help law enforcement authorities to counter child pornography, and we are totally in favour of that. Definitely, we want to see legislation that will enhance the fight against child pornography.

We would like to put to you that you consider ensuring that this proposed legislation could not possibly open the door to surveillance of innocent law-abiding citizens, by perhaps being too broad in its wording. That is more a warning that we should not see this, as opening the door to surveillance in general.

The Chair: If I may come back to my first question, if this bill becomes law, you will have the authority to do surveillance, will you not?

Ms. Bernier: Indeed, if we received a complaint that there was an abuse by an ISP, it would be considered a violation of PIPEDA, Personal Information Protection and Electronic Documents Act, and we could investigate.

The Chair: I am sorry, Senator Runciman, but we are out of time with these witnesses, who were important to our work. We are most grateful to you for being here, Ms. Bernier and Ms. Zubrzycka. Thank you very much indeed.

We are pleased to welcome our next panel of witnesses. First, from the Canadian Centre for Child Protection is Lianna McDonald, Executive Director. Signy Arnason is Director of Cybertip. From the Ontario Provincial Police, we have Inspector Scott Naylor, Child Sexual Exploitation Section. From the Canadian Association of Chiefs of Police, we welcome Vincent Westwick, General Counsel.

Thank you all very much for being here. If you felt it was slightly short notice for us to get you here, that is the nature of the parliamentary timetable and we apologize.

Ms. McDonald, I believe you will give the opening statement. You will be followed by Inspector Naylor and then Mr. Westwick. After, we shall put questions to the lot of you.

Lianna McDonald, Executive Director, Canadian Centre for Child Protection: Thank you, Madam Chair and distinguished members of the committee. Thank you for the opportunity to provide a presentation on Bill C-22 and the larger issue of child sexual abuse on the Internet.

The Canadian Centre for Child Protection is a charitable organization dedicated to the personal safety of all children. We will offer testimony today supporting this new legislation based on our agency's role in operating, Canada's tip line to report the online sexual exploitation of children.

Cybertip was established in 2002 in partnership with the Government of Canada, various provincial governments, a national law enforcement advisory committee, a federal task force and a steering committee. Our analysts are special constables who review, confirm and triage reports to the appropriate law enforcement jurisdiction. This function permits the verification that material is potentially illegal and identifies the appropriate law enforcement jurisdiction. Specifically, the tip line accepts reports relating to child pornography, luring, child sex tourism, children exploited through prostitution, and child trafficking.

Since launching nationally, the tip line has received nearly 52,000 reports from the public regarding the online sexual exploitation of children, resulting in law enforcement executing nearly 70 arrests and with the effect of numerous children being removed from abusive environments.

Over the last 10 years of operating Cybertip, we have been better able to understand the online nature of child abuse content, and we have published research in this area. Child Sexual Abuse Images: An analysis of websites by reviewed approximately 15,000 child abuse websites and provided valuable information on sites that host illegal material, including the severity of abuse depicted in the images, host country locations, and other notable features on these sites. Of the webpages analyzed, 77.6 per cent had at least one child abuse image of a child less than eight years of age, with many showing infants and toddlers being sexually assaulted. At the time of analysis, nearly 60 countries were hosting this type of material and underscoring the global nature of this problem.

As a result, Cybertip has been working in partnership with industry, law enforcement, governments and international hotlines to reduce and disrupt the availability of child abuse websites. Recognizing the global impact of online child abuse, our agency has engaged the Internet community and wider online industry that shares our common interest in creating a safe and responsible Internet.

The Canadian Coalition Against Internet Child Exploitation, CCAICE, is a voluntary partnership between Cybertip, law enforcement and the private sector to address the sexual exploitation of children. We have realized a number of important successes. One such example includes Cleanfeed Canada, a solution to block access to foreign- based websites hosting child pornography. All of the major ISPs participate in this program and, to date, approximately 14,000 URLs have been put on this list, as well as 122,000 child abuse images, blocking this harmful material from the view of most Canadians.

We support Bill S-22 because it rightly addresses the challenges regarding Internet-related child abuse and exploitation.

There are two co-existing realities surrounding how the web facilitates child abuse and exploitation. The first problem is the publicly available child abuse material and content, usually in the form of websites. The second is how offenders use Internet services to facilitate the abuse of children. This would include the online storage of child pornography, sharing illegal material, and promoting such activities among individuals and online communities.

As the front door to the Canadian public for reporting, we have learned a few things. Up to 81 per cent of all reports submitted pertain to website content, of which the majority is hosted outside of Canada's borders. Roughly 19 per cent of potentially illegal websites are forwarded to Canadian law enforcement agencies. The triaging role of the tip line allows Canadian law enforcement to focus their limited resources on investigations within their jurisdiction.

The results and impact of mandatory reporting are evident in other jurisdictions. Cybertip is the designated reporting agency under Manitoba's mandatory reporting of child pornography legislation. Public reporting increased by 126 per cent in the first year that the legislation was enacted when compared to the previous year. The tip line triaged reports, which resulted in 17 reports containing information or an identified child victim and/or suspect in Manitoba being forwarded to a child welfare agency.

The public nature of the Internet, combined with the viral nature of child pornography, offers the opportunity for the public and Internet service providers to report and assist in the detection of this material. Bill S-22 will not only assist in reducing child pornography on the Internet, but will more importantly potentially identify victims and their abusers. Mandatory reporting legislation removes the professional and personal dilemma of reporting. It clarifies and reinforces what the major Internet access providers are already doing and offers protection for appropriate action.

Legislation also becomes a deterrent and sends the message that Canada will not become a haven for child abuse images and websites. Those profiting off the abuse of children often deliberately move content to avoid detection. Countries with strong legislation create a disincentive for those involved in providing access to the illegal material. Enacting mandatory reporting legislation demonstrates a cognizance that society as a whole has a moral obligation to protect its most vulnerable citizens. Placing the legal onus on those providing an Internet service should they become aware of illegal material would strengthen Canada's role in tackling this global problem.

In conclusion, good legislation, adequate resources, global cooperation, technical solutions and public education are key components to getting ahead of this problem. Canada's decision to take this additional step sends a clear and strong message to its citizens and other countries that children are a national priority.

I want to just mention a few notes that my colleague would have mentioned quickly in terms of some of the statistics. There were a lot of questions surrounding volume. Again, the reporting triaging function is key. When we look at the 52,000 reports, the majority of these dealing with websites, 91 per cent of those reports were classified as child pornography and were predominantly entered through our online report form. Of the total number of those reports, 81 per cent pertain to website content.

In terms of our overall triaging rates, 46 per cent of reports that come in go to law enforcement and/or our international hotline partners. This means that law enforcement is dealing with roughly 50 per cent of the reports that we receive. Of the 40,000 reports processed since April 2008, 4,200 were sent to Canadian law enforcement agencies.

Finally, as a tip line operating, we receive these reports 24 hours a day, 7 days a week and we have a 48-hour turnaround time. These are basic statistics for and some information as to why we support Bill C-22. Thank you for the opportunity to present.

The Chair: Thank you very much. I apologize for the fact that you are required to compress so much knowledge and experience into such a short time, but from our point of view, everything you give us is precious, even if it is compressed.

Inspector Scott Naylor, Manager, Child Sexual Exploitation Section, Ontario Provincial Police: Good evening. Thank you for the opportunity to offer some insight from a law enforcement perspective and provide comment regarding Bill C-22.

I am the manager of the OPP, Ontario Provincial Police, Child Sexual Exploitation Section. Our most fundamental responsibility as a society is to protect our children from those who would do them harm.

The Internet provides many excellent learning opportunities for children. It also opens another door for predators that would exploit and abuse children. A recent study shows that 94 per cent of Canadian children have access to the Internet and 40 per cent have their own Internet high-speed access.

Members of the OPP Child Sexual Exploitation Section and the OPP-led Ontario provincial strategy to protect children from sexual abuse and exploitation on the Internet have laid numerous charges through coordinated child sexual abuse (pornography) investigations.

From January 1, 2010, to February 16, 2011, the provincial strategy completed 2,578 investigations and laid 829 charges against 218 people. Eighty-four child victims were identified during that period. Over the same 11-month period, the OPP Child Sexual Exploitation Section investigated an additional 359 cases and laid 252 charges against 50 people. Thirty-seven additional child victims were identified.

This is a very big problem that cannot be overlooked. Child sexual exploitation in the Internet is child abuse, plain and simple. Every depiction of a child being abused through videos and photos, or downloaded and shared through peer-to-peer networks and ISP servers, represents a revictimization of that child.

The Ontario police services associated with the provincial strategy will stop at nothing to hunt down child predators and eliminate the threat they pose to our children and our communities.

It takes an enormous amount of resources and coordination for any police service to carry out Internet luring and child sexual abuse investigations. In recent weeks, we and our partners have made a large number of arrests in various parts of Ontario. These investigations have ties to other parts of Canada and across North America. The range in ages of those charged runs a wide and troubling gamut from mid-teens to senior citizens. In many of these cases, these are return customers, those who have previously offended.

We, as law enforcement, are also keenly aware that we cannot succeed in protecting children in isolation. Unfortunately, most parents and guardians are lagging far behind their children in their understanding of web technology and the ever-burgeoning world of social media. Parents and guardians need to educate themselves to keep children safe and keep Internet predators out of our real and virtual communities.

The OPP and its provincial strategy partners have been working diligently with others to create public education and awareness opportunities in communities, online and on television for kids, parents and guardians, but there are also ways that government can assist in keeping our children and communities safe — through effective legislative tools that will assist with police investigations.

It is my opinion, and the opinion of the Ontario Provincial Police, that Bill C-22 proposes another tool so that we may help advance our investigations and enhance public safety. This bill will effectively shine a public light on those websites, files and images of child sexual exploitation that have been previously and purposely shrouded in secrecy.

Currently, Internet service providers are served with search warrants, production orders or a law enforcement request for the subscriber information relating to a particular Internet protocol or IP address. This can be time consuming and cumbersome, and, in effect, protects the identities of child predators and the materials they produce.

If passed, the legislation being introduced by the Government of Canada will further strengthen our relationships with Internet service providers, and enhance the ability to obtain vital information and launch investigations quickly, which helps ensure the safety of children.

The OPP and the provincial strategy to protect children from sexual abuse and exploitation on the Internet are working. They continue to work to make our children and our communities safer. Tremendous dedication, collaboration and hard work are required in order to coordinate these investigations. All Ontario police services take this responsibility very seriously. We coordinate our limited resources to protect children from online predators.

The OPP and the provincial strategy partners appreciate any legislative tools that can be brought to bear on those who would commit these horrific crimes against society's most precious resource — our children.

Child pornography is a problem. It is in every community and continues to have a devastating effect on our children and our society.

Thank you again for taking the time to consider this important legislation, and for the opportunity to present my views and opinions from a law enforcement perspective.

Remember: Every child matters, everywhere.

The Chair: Thank you very much. Mr. Westwick.

Vincent Westwick, General Counsel, Canadian Association of Chiefs of Police: Child pornography is a special crime. Some years ago, I brought samples of child pornography to a parliamentary committee studying changes to the pornography sections of the Criminal Code. The thinking was that it was important for parliamentarians to actually see the kind of material that is being produced and distributed in Canadian communities. In spite of my full career in criminal justice, I was shocked, even stunned, by what I saw, and certainly shared the horror and outrage of parliamentarians.

It is with that sentiment in mind that I speak to you today. It is therefore very easy to stand before you, figuratively speaking, to support any legislation which addresses this most serious and heinous social problem.

I am joined today by Constable Frank Corkery, who is sitting in the back, from the Ottawa Police Service. Frank is a member of the high-tech crime Internet child exploitation unit, ICE. It is Constable Corkery's job to investigate in the area of high-tech crime and Internet crimes against children. He is available to the committee to provide that important front-line perspective. He is also part of Inspector Naylor's provincial strategy.

In the criminal sphere, Parliament passes different types of legislation. Some create new offences, some address evidentiary issues and others give direction on sentencing. Bill C-22 is different. Bill C-22 is what I call an "investigative assist". It provides a legislative assist to police in detecting and investigating crimes. This is an important type of bill. Police must be able to get child pornographers into the courtroom.

Bill C-22 also inherently recognizes that the world of child pornography has changed. For example, many years ago, when I was investigating child pornography as a police officer, I was told to watch for men wearing long raincoats, and who kept their pornography in a brown paper bag. Now, in our technological age, to speak in those terms seems laughable.

Officers such as Constable Corkery and Inspector Naylor are now investigating sophisticated criminals with a high level of technological knowledge, and who use complex computer processes to commit their crimes. Emerging technologies are being usurped. Today's child pornographer knows how to use technology to frustrate detection and to defeat the collection of evidence that can be used in the courtroom. What has not changed is the gravity of the offence and its immeasurable impact on children.

Putting a positive duty on Internet providers to report is an important investigative assist. To the police, it is a starting point, a lead, a place to begin the investigation. Sometimes it is information that the police might not otherwise obtain. Also, knowing that an Internet service provider will be required by law to report child pornography on their system may deter a child pornographer from his actions. That, too, is a positive consequence.

I am here today representing the Ottawa Police Service, but I also serve as the co-chair of the law amendments committee of the Canadian Association of Chiefs of Police, CACP. I am therefore pleased to convey greetings and the support of both Chief Vern White of the Ottawa Police Service and Chief Bill Blair of the Toronto Police Service, who is the current president of the CACP. Bill C-22 is important legislation and should be passed.

The Chair: Thank you all very much indeed. Thank you for keeping things as tight as you have done.

Senator Wallace: Thank you for your presentations.

Ms. McDonald, I direct my first question to you. In your presentation, I was particularly drawn by your comment that, when Manitoba moved to a mandatory reporting system from a voluntary one, in the first year the reporting of pornography online increased by 126 per cent. Obviously, it would seem to show that the mandatory system produced the needed results.

Your organization receives tips from a number of sources, such as members of the public and Internet service providers. Can you tell us anything about the percentage of, or the trends in, reporting from Internet service providers? Of the total tips you receive, what percentage would come from the public versus from Internet service providers? Within the Internet service providers, what is the trend? Are they receiving more or fewer tips over the past few years?

Ms. McDonald: It is difficult for us to say specifically how many of our total number of reports pertain to Internet service providers. Currently, we do not separate that information in terms of industry reporting, so I do not have those numbers for you. Additionally, because much of the material that companies and individuals may come across pertains to websites, often they will not provide identifying information to that end.

Signy Arnason, Director,, Canadian Centre for Child Protection: I would add that, certainly, the vast majority of what comes in either comes from the Canadian public or from other countries around the world. In particular, we work closely with other hotlines. Once they identify that the jurisdiction may pertain to Canada, the information is forwarded directly to us. We predominantly receive our information from other hotlines or members of the public. As Ms. McDonald noted, you can come in and supply us with the URL and not have to provide any other information. Therefore, we would not be able to qualify how many of the ISPs come in to report.

Senator Wallace: Regardless of where reporting is coming from, is it fair to say from your experience that moving from a voluntary reporting system to a mandatory system will enhance greatly the opportunity to detect, and then take action against perpetrators of online problems?

Ms. McDonald: Certainly, we support the legislation. I will add, as mentioned in my presentation, that while we know that the majority of the major ISPs are reporting on a voluntary basis, this proposed legislation rightly covers content hosting providers. Definitely, we know through our research that we have a problem with content being hosted in Canada. This bill will require them to take action.

Senator Wallace: Inspector Naylor, I have a quick question to you along the same line. What is your comment as one who has seen these problems and worked with them for many years on the enforcement side? What is your comment about the current voluntary reporting system or lack of system versus a mandatory system as proposed in Bill C-22? Do you see moving to mandatory reporting as a significant improvement?

Mr. Naylor: Yes. We receive a significant number of reports from Cybertip. I have to bank on some of the information that Ms. McDonald has said as well. This is a positive move forward that will increase our workload because many reports out there are going unnoticed because there is no formalized reporting legislation for the ISPs.

Senator Wallace: Presumably, the result of that will be a shutdown in greater numbers of these offensive websites that create the problems. Ultimately, that is the objective.

Mr. Naylor: Yes.

Senator Angus: I thank all of you for coming today. Inspector Naylor, could you turn to page 8 of your opening statement? I believe there is a typo, or perhaps I need a clarification. Where the third paragraph states, "It is . . . the opinion of the Ontario Provincial Police that Bill C-22 proposes another tool that we may help. . ." Are you saying that it may help? What is meant by that line?

Mr. Naylor: I am sorry; it will help, absolutely.

Senator Angus: There is no issue.

Mr. Naylor: There is absolutely no doubt that there is a typo.

Senator Angus: You were so positive about the bill I thought it must be a typo. You talked about the provincial strategy partners. Are they different police forces?

Mr. Naylor: Yes.

Senator Angus: Are they only in Ontario?

Mr. Naylor: I am here to represent Ontario. The provincial strategy is 18 police services with 53 members from municipal agencies as well as the OPP. In 2006, the Government of Ontario pooled resources, as opposed to every municipal police organization doing things a separate way, to put together a joint force. It is working very effectively to standardize training, methodology and operating procedures across Ontario.

Senator Angus: It is not a national organization.

Mr. Naylor: It is not a national organization but, currently, it is being modeled across the country. It is not formalized yet but people are aspiring to follow it.

Senator Angus: Ms. McDonald, I believe that Mr. Westwick referred to your organization as one of the partners. I would like to know a little more about your charitable organization. I am impressed by all this material you have brought, including the list of your sponsors and supporters. Is your organization in Ontario only?

Ms. McDonald: No. We are a national organization. Our organization was established specifically to manage the online reporting of child pornography. We were set up in 2002 with a number of stakeholders who contributed to the establishment of The mandate is two pronged: First, we accept reports from the Canadian public regarding the online sexual exploitation of children; and second, we carry out mass public education campaigns on this issue.

Senator Angus: It seems like such a tremendous organization. Although the answers to my questions might be in all these papers, I will ask: How many employees do you have? Are they employees or are they volunteers?

Ms. McDonald: They are all employees.

Ms. Arnason: Working on the tip line, we have seven analysts and four technical staff as well as me as the director. The entire organization has 40 employees. In terms of the work on the tip line, we do not have volunteers. As Ms. McDonald mentioned, all analysts are special constables.

Senator Angus: Do your 40 employees work in one place?

Ms. McDonald: We are headquartered in Winnipeg, Manitoba, and we have a Toronto office as well.

Senator Angus: What is your budget?

Ms. McDonald: Our full operating budget is approximately $4 million, with roughly 97 per cent going to direct programming.

Senator Angus: Without going into a lot of detail, are the people who produce that $4 million the same people that you thank in your paper for being supporters and sponsors or do you have four main ones?

Ms. McDonald: We have diversified funding. The Government of Canada supplies roughly $1.7 million annually to operate We raise the balance of the budget through private sector and charitable donations. Including the telcos, we have the banking industry, heating companies and any other corporate groups that want to support our cause.

Senator Angus: Where did the initiative to start this, as you described in 2002, come from?

Ms. McDonald: Our organization was established in 1985 after the abduction and murder of a 13-year-old girl named Candace Derksen. The trial of the individual who allegedly committed that crime is currently ongoing. We recognized the changing face of missing children because of Internet luring, so we set up in conjunction with partners to address this growing issue.

Senator Angus: Do you mean yourself? The federal government did not suggest that someone set this up. Rather, a group of concerned parents and citizens set this up.

Ms. McDonald: Yes, it was a group of concerned people that were part of our board structure and organization who initially established the organization.

Senator Angus: I could go on forever. This is a tremendous organization. Where do we send our cheque?

Ms. McDonald: Thank you.


Senator Boisvenu: So you are working with all the provinces.


Do you have the data for the province? Is it possible to have that?

Ms. McDonald: We have a statistical sheet in our material.

The Chair: There is a lot of material, so it is probably in here.

Senator Angus: It is there; I saw it.

Ms. McDonald: Anyway, we can read it out. We track —


The Chair: Senator Boisvenu, it is at the end of this document.

Senator Boisvenu: Thank you very much, Madam Chair.

Senator Carignan: Further to Senator Angus's questions on funding, I understand that there are organizations that will fund the centre. I understand that Rogers and Telus are businesses, service providers, that fund the centre. If the centre becomes a designated organization under the act, will it provide for protection to prevent conflicts of interest because, if the business that is being monitored funds the agency, there are significant risks, or at least apparent ones?


Ms. McDonald: Yes, that is an excellent question. One of the very insightful steps that our organization took when we were established was that no individual could sit on the board of directors if they gave any financial contribution to the organization. That limits the influence over the guidelines and policies of the organization. I can even give examples whereby we had to take steps just to be prudent, even though there was no influence. Additionally, through the establishment of our financial and governing controls, we have independent finance and audit committees that have established clear grounds in terms of our conflicts of interest.

I can also tell you that, when we look at the allocation of funds contributed from these organizations, we allocate those funds directly into public awareness. Therefore, their investment is going directly back into the community to educate the Canadian public.

We would be happy to provide to you a number of those very direct, overt checkpoints that our organization has prudently put in place to separate and make sure there is no conflict.


Senator Carignan: My other question concerns the police departments. An international convention on cybercrime in Europe was signed in April 2010 and covers the European countries. Australia has suggested the idea of joining that convention to establish an international legislative framework on a common basis to achieve the common objective of all the countries.

To your knowledge, has Canada signed or expressed any intention to join this convention, and, if not, is the legislative process we are currently conducting nevertheless consistent with the spirit of this global legislative framework for the protection of children?


Mr. Naylor: I am not aware of the framework at the international level or what our partners in Europe are doing with respect to similarities with this legislation. I cannot answer that; I do not know.


Senator Carignan: Can any other members answer that question?


Mr. Westwick: I am afraid I cannot add much either.

Ms. McDonald: I can mention that there is another charitable organization out of Washington called the International Centre for Missing and Exploited Children. They publish a report ranking countries and looking specifically at how they are addressing the issue of child pornography.

I would have to verify this information. However, should this bill move forward, I believe Canada would be 1 of 9 countries out of over 100 countries that would be meeting these high criteria for good practice.


Senator Carignan: The duty to preserve computer data. I get the impression that may be inadequate in certain situations. Consider the example of an ISP that, for example, is a hotel or a restaurant; protecting computer data is one thing, but there may be information, not in a digital medium, but that should be preserved in order to identify the user of the computer terminal. When you go to a hotel, you get an access code and you access the Internet service. However, the paper document or bill, which links the individual to the access code, is an example of a piece of paper that might be useful in the context of an investigation. I am trying to imagine; there are no doubt others.

Do you think the bill goes far enough with other information that might help identify a suspicious user?

The Chair: Minor technical question.


Mr. Naylor: I think the bill is sufficient in the way that it is written, including the 21 days. This does not include completing the investigation; it is just to launch the investigation. There are several investigative steps that need to be completed by the police. Having had experience in this, it is my opinion that 21 days from the time of the report is sufficient enough to obtain any type of judicial authorization in a matter of this serious nature.

Mr. Westwick: As I said in my opening remarks, it is a lead or starting point. As the inspector said, it is not the whole investigation. It is to get the file open, to get movement, to get started and to get information that the police might not otherwise get.


Senator Chaput: My first question is for Ms. McDonald. is a Canadian national tipline for reporting sexual exploitation cases. When I read that you receive an average of 700 reports a month and 75,000 interventions a month, I wonder how many of those reports come from outside Canada and how many must be forwarded outside Canada.


Ms. Arnason: I will answer that question. The vast majority come from Canadians, although we do have other countries, such as the United States, coming to us and reporting. I do not have that exact figure in front of me.

However, as it relates to where we forward information, I can tell that you 82 per cent of our reports that come in end up going outside of Canada. That means that 18 per cent are forwarded to the appropriate Canadian law enforcement jurisdiction.


Senator Chaput: Are you responsible for ensuring that something is done with the reports sent outside Canada, or is it no longer your responsibility to ensure that something is done once it leaves the country?


Ms. Arnason: We work very closely under the national strategy with the National Child Exploitation Coordination Centre out of Ottawa. It is run by the RCMP. They are our partners that receive any of the information that ends up going internationally. They come in through a law enforcement portal to provide feedback on any potential results. It is my understanding that they take that information and forward it through Interpol, then follow up on that.

Ms. McDonald: It is important to note that our organization is not an investigative body. Our job is to triage the information for forwarding. It is up to the appropriate law enforcement agency to decide on further investigative action should any be taken.


Senator Chaput: My next question is for Inspector Naylor.


I am told that there is a centralized database that allows the RCMP to share information with 25 Canadian police forces.

Mr. Naylor: Yes.

Senator Chaput: I believe that in you presentation you talked about returned predators. Does the centralized database contain a list of the names of predators that offended and have re-offended so that you can be aware of what is going on? When a predator is released from prison, is his name removed from the database?

Mr. Naylor: No. The name always stays in the database.

Senator Chaput: The name is like a red flag.

Mr. Naylor: It is a red flag. However, our investigations are mostly reactive, so we have to wait for someone to offend in order to compare that name and IP address to the person on the list. There is no ankle bracelet or anything like that for us to monitor those people on a regular basis. We have to wait for them to fall into our net again. We maintain a database of previously convicted criminals.

Senator Chaput: Who pays the bill for that?

Mr. Naylor: The RCMP.

Senator Chaput: What is the role of Microsoft? Do they only sell the service?

Mr. Naylor: No. They do not even sell the service. Microsoft has donated the service and the RCMP is responsible for maintaining the database. It is called CETS, child exploitation tracking system.

Senator Runciman: My first question is to Inspector Naylor about the 21-day preservation period. You may have heard the previous witness indicate that she felt the timeline was too long. Another witness said they could use additional time. Could you give us a quick overview of what happens during that period of time?

Mr. Naylor: Yes. Having had experience in this through several areas of law enforcement, as soon as it comes to the attention of law enforcement that there is an offence and that some form of judicial authorization is required to obtain a search warrant and information, a relationship is made with whomever is holding that information. Specifically, that means the 21-day legislative requirement in the bill becomes a bit of a moot point because the law enforcement officer and the person holding the information have already established that relationship. Once that relationship is established, there can be communication between the two, such as the law enforcement officer saying that his search warrant is coming today or in three days.

I do not want to get handcuffed — pardon the pun — by the 21-day period. It is most important to law enforcement that the information lands in their lap so that we can take action. I believe the 21 days is sufficient but not ideal. When we are dealing with issues of such a serious nature, they cannot be put on the back burner; they need to be acted upon immediately.

Senator Runciman: Senator Munson was here earlier. His comments in the Senate expressed concern about the two-step process in the bill. Would any of the witnesses care to speak to that?

Ms. McDonald: My comment at the beginning was that the bill addresses the two complexities of Internet-facilitated crimes against children. We have websites that propagate crime. Often they are hosted outside Canada. This is the bulk of the reporting that we receive. Law enforcement should spend their time working on investigations that deal with actual offenders. The second part of the bill deals with material that can be found on an Internet service. This adequately allows police to address that issue, which makes good sense.

It is difficult to understand and appreciate fully how this happens on the Internet but the bill wisely, in our opinion, addresses these two complexities.

Senator Runciman: You validate the seriousness and then pass it on to the police if it has merit and requires that further step.

Ms. McDonald: Yes.

Senator Runciman: You mentioned in your submission as well that 80 per cent of the content is hosted outside Canada. Do you know how much of it is produced in Canada?

Ms. McDonald: No.

Senator Runciman: I ask that because last summer there was a worldwide investigation and 57 men were charged, including 25 Canadians. Almost 50 per cent were Canadians, which would suggest that it is a pretty serious problem in Canada. Do you have any further information on that?

Ms. McDonald: No. Certainly, Inspector Naylor can speak to individuals and arrests pertaining to those committing these types of crimes, but we want to underscore that our goal is to consider that we want to stop the images from getting on the Internet in the first place. The goal is to stop the sexual abuse in homes and communities before the photography takes place and ends up online. We are hoping that this bill will provide law enforcement with the information required to stop hands-on offenders.

Senator Runciman: I have two quick questions.

The Chair: Senator Joyal is waiting and I am waiting, actually.

Senator Runciman: Inspector Naylor, how do you go about identifying and rescuing the victims?

Mr. Naylor: In most circumstances, the victims rescued are familial victims of the people under arrest. With respect to some of these bigger projects, such as Project Sanctuary, many of the victims are family members and that is how they are identified.

Senator Runciman: Mr. Westwick, concern was expressed by someone who made a submission about the interpretation of "reasonable grounds to believe." How do you see that applying? Do you see that as a concern?

Mr. Westwick: Not at all. In the policing world, reasonable grounds to believe is something that people will deal with from their first day on the job, even before they go on the job. The concept is certainly familiar within the law enforcement world. I do not think it would present a great deal of difficulty for the ISPs. I cannot imagine that it will be a difficulty.

Senator Runciman: Does it put them under any legal jeopardy that you can see?

Mr. Westwick: I cannot imagine so.

Senator Joyal: Ms. McDonald, on your opening page you mention that you have received nearly 52,000 reports from the public. Can you give us an idea how many of those reports would not lead to a report to police because you judge them not to be serious in nature? Can you give us an idea of the right stuff and what is nothing to be concerned about?

Ms. Arnason: As mentioned, 40 per cent of the information that comes into the tip line is forwarded to the appropriate law enforcement jurisdiction, which means that 54 per cent of the information does not go to law enforcement so they do not have to process the information. That is because it is clearly legal. Anything that is potentially legal or grey, we leave in the hands of law enforcement to determine whether they will take action from an investigative standpoint. We get a number of Canadians coming in and reporting adult pornography. It is highly offensive and egregious to the individual and can border on obscenity, but it is legal. That kind of information is triaged by us and, in some instances, hits an educational track as well.

Mr. Naylor: As a recipient of this from Cybertip, Cybertip works on the same basis that we do for categorization of images, and they are spot on. If there is ever any question, then they default to the less severe to send to law enforcement for analysis.

Ms. McDonald: I would like to add to some of the earlier comments made. We dealt with this when contemplating mandatory reporting in Manitoba. Even though people come forward and it increases workloads, reporting does not equate guilt. When we are looking at children and as we explore this, we are simply giving children added protection. As mentioned, the reporting itself can assist in the detection of abuse and the identification of possible offenders.

Senator Joyal: In other words, a little more than 50 per cent of the reporting is not stuff that would be followed up on in terms of child pornography.

Ms. McDonald: That is correct.

Senator Joyal: My other preoccupation about this hopefully effective bill is the additional workload that it will put either on the police forces or on your own services. We were told by the federal ombudsman that there is a serious backlog — that the current backlog that many law enforcement agencies face in investigating these cases is due to a lack of resources and manpower. One could expect that, if this bill is implemented, you would have an additional workload; there would be more reports to investigate and, of course, more initiative to be taken by you.

How would you deal with this additional work you may have to face if you already have a backlog?

Mr. Naylor: There is a huge proliferation of child pornography on the Internet. If I had 100 people in my unit, I would need 200. We will not catch up to this. However, we have to take every possible step we can to effectively enforce and investigate any report of child pornography. Investigators in Ontario look at it by thinking that there is a potential live victim at the other end of the Internet; it is our responsibility to at least fully investigate to see if we can get that child out of a dangerous situation.

I do not know if I am answering your question about manpower. We do the best we can with what we have. We do the best we can within our budget allocations. I feel this is good legislation in order to bring more reports to law enforcement in order to effectively investigate.

Senator Joyal: However, at this stage, you have not set aside an additional amount for more investigators, policemen or for Ms. McDonald's services to have additional people to be able to process more reports that come to you; is that correct?

Ms. Arnason: In the last 10 years, we have developed an expertise in doing the up-front triaging. We employ a number of technical solutions to ensure the information, particularly websites, are dealt with expeditiously. We know that the mass majority of these websites, which we are obviously dealing with under this bill, will be forwarded internationally.

For example, there may be a slight increase to Canadian law enforcement. However, if you are looking at Ontario, we have had 5,800 websites reported to us since April 2008. That has resulted in 263 going to an Ontario law enforcement agency. Therefore, 4.5 per cent of what came to us from Ontario went into Ontario.

Again, it is the value of triaging, recognizing that a lot of this content is hosted internationally, and knowing that we have spent the last 10 years triaging website content. I do not have any significant concerns about our ability to manage that.

Senator Joyal: Someone at the "end of the rope" will have to deal with that information. I do not doubt you have the capacity because you have developed a scale of analysis that permits you to decide or classify which cases are child pornography and which are not. However, at the other end, Mr. Naylor and Mr. Westwick will have to deal with additional investigations if this bill is to reach its objective.

Mr. Naylor: There is the potential that some of the information we receive from ISPs would have been received later through a full investigation, anyway.

Senator Joyal: It could also be done by going to court to get a warrant. We were told that 30 per cent to 40 per cent of Internet service providers do not comply spontaneously. They give the information if it is requested under a court warrant.

Mr. Westwick: There is not a chief of police in the country who would not be happy to have the resources, but there is also not a chief of police in the country who is not dealing with budgetary constraints and pressures.

What it forces police services to do is be smarter. You have had a couple of examples at this table of how that is being done. You are seeing more cooperation between municipal, provincial and federal police services. You are seeing community partnerships being used. You are also seeing civilianization of police positions, where possible, so they can be more economical and smarter in how they use the budget they have.

More money and more people is not always the answer. Chiefs of police have had to find ways to be creative to get the job done. That is what makes their job tough, I am afraid.

The Chair: We are into overtime. I am giving up my own question so that you can have one more.

Senator Joyal: I can conclude quickly. At this stage, you do not have a decision that, if this bill is implemented, you will have X amount of people or officers devoted to be able to deal with the additional reports that deserve investigations; is that correct?

Mr. Naylor: No. However, we can re-prioritize some of the proactive investigations we do to address the reactive ones we will get from this reporting legislation.

The Chair: Thank you. You can tell that we actually could have kept any one of you here for a lot longer, let alone all three groups. We are very grateful for your help and for all the material you have provided.


Senator Boisvenu, I misled you earlier. My provincial statistics are not in the document I referred to.


I will ask the witness from Cybertip to please forward us the provincial statistics that Senator Boisvenu asked for.

Ms. McDonald: We will do so immediately. We brought some other educational materials as well. I know we have loaded you up.

The Chair: Please provide them to the clerk and we will be glad to make them available to the committee.

Colleagues, we are now fortunate to have an expert witness from ExitCertified, Michael MacKay, Senior Consultant. He actually understands how these things work, and he is here to help us understand how these things work. Mr. MacKay, I believe you have a statement for us.

Michael MacKay, Senior Consultant, ExitCertified: Thank you. Yes, I have prepared a presentation, which I hope the members have had a chance to look at. I would be happy to answer your questions on that. Rather than summarize the presentation, I thought I would, in my brief opening remarks, make a few comments to directly address the issue about how this works. How do web pages work? How do images show up there? What are these things that the bill talks about — Internet protocol, IP, addresses, uniform resource locater — and why is it important that these things in particular be reported?

The whole point is that we all want to see, first, that incidents of child pornography on the Internet do not come about in the first place, and there can be technical means to do that. If they do come about, we would like to isolate them, stop them and ultimately go after the people who put them there. If we are focusing on the Internet aspect, that is what I want to do.

I wanted to take just an example to show the experience of the end user who, let us say, unfortunately becomes the recipient of this offensive and possibly criminal material. Rather than show you that, I decided to show you a very normal looking web page. Do you have this presentation with the first page showing a picture of your own website? I say "your own" because it is the Senate of Canada website.

Senator Angus: Do we have that?

The Chair: We do. It looks like this.

Mr. MacKay: There is a photograph of the building we are in.

The Chair: If you do not have it yet, we will get it to you.

Mr. MacKay: Sorry, it is the Centre Block, a few steps away.

The Chair: Press on, Mr. MacKay.

Mr. MacKay: Thank you. I want to point out, with these few slides, where and how I did this. I did this at home, and I did that because I wanted to show that anyone ordinary could do this. I did not do this at some office or some special computer. This is my home computer on the Internet. Anyone in the world could have done what I am doing right here. Anyone can visit a website if they have an Internet computer with a browser.

This is what I saw in my browser when I visited the Senate of Canada website. This is just the front page. Immediately, you see that image there of the Centre Block. I want to talk about that image. Instead of being this nice photograph, suppose it was something we had a serious concern about.

How did I get here? You will see at the top something called a uniform resource locater. I have circled it there. It is an address. It is the location on the Internet of this page. I got that the way most people do. I went to a search engine like Google. I typed in the words "Senate" and "Canada," and it turns out this is the number one choice. The point is that my browser needed to have this information to go to the website in the first place. There would not have been a connection otherwise.

My home computer starts with this information. You can see at the top of the page that it says "" That is the address on the Internet of this website. My point is that that is actually what I start with, the URL, the uniform resource locater. I got it because I got the image that was on the web page. This piece of information actually comes first. That is one of the pieces of information that this bill talks about. Here I am just an ordinary user. Not only do I have the image, but I already have that piece of information. I would not have got it if I did not have it. That is just the way browsers work. They need to have an address.

It is like saying if I want to telephone someone, I suppose I would have to know their telephone number, would I not? If I did not know it, I would look it up and call them; so my browser had that information.

This is just the appearance that most people see in the browser, but if you dig deeper, it turns out my home computer got more information just because I looked at this Senate of Canada web page.

The next page is called the source of the page. My browser got instructions from the Senate's web server about what to do. It said here is my web page; here is some text and it should look like this. Here is an image, go get it. These are the actual instructions. Anyone can see what they are. They are not a secret.

I opened my browser and said view the source; show me the instructions that you just got from the web server to do that web page and here they are. Look at the information that is there.

The second point is the key one. Somewhere there is the name of the file that has that picture. I circled that right in the middle. That is another thing I know right away just because I got it. I had to look up the name. It was not sitting there on the main page, but my browser had that information; I have it.

You see, I know it is called images/banner-b.jpg; that is the name of a file that holds that image. I know that must be the name on the Senate web server, which I already know has the name, so I knew that.

The bill also talks about an Internet protocol address. What is that? It is just a number. You see that name at the beginning, We are human beings; we like names; we remember them. We are not very good at numbers, but computers, believe me, are good at numbers. In fact, they only work with numbers, so that name is always translated to a number.

Again, on my home computer, I said I wonder what that number is. I looked it up. There are also websites that can do this. It is easy. It is free information.

You can think of it almost like the phone book. I do not know someone's phone number but I look it up. A lot of people these days use 411 websites to look up people's phone numbers. Anyone in the world can look up what the Internet protocol address is of any server. It is even better than the phone companies. There is no such thing as an unlisted number; everything that has a name has a number and you can look it up.

I decided to say, I wonder what the number is for You can see the answer is in the middle. The other information is not important, but there is the key bit; it turns out it has that number. That number is unique in the world. No other Internet-connected computer has that particular number, except the Senate web server.

The next one is not so important, but it turns out the Internet is all about communicating information between computers. The way the information appears when it goes over wires or wireless networks is called "packets." The whole thing is not sent at once. It is sent in small pieces, but every one of these pieces has complete information.

I think in my brief I used the analogy of a postcard. Postcards are small, but if they get to where they are going they must have had the final address correct. You have your picture and your address.

The Internet has even more information. I just picked out a few of the interesting pieces from one little packet. These things go around thousands per second — this is just one. I thought, look at that, there is that IP address again, so I know who was talking to me at the time. That is the IP address of the Senate website. I happened to say this is the part where I ask for that image. There is the name of the image from the web server.

The final part is the key part and it relates to the bill talking about advising an Internet service provider. I just went to the Senate website and I said, there is a nice picture of the Centre Block. I want to compliment someone on it, as opposed to reporting offensive child pornography. It turns out you can also freely and easily and publicly find out who controls the network. This is also available.

I used a command; I could have used websites to do this. I already know the IP address. All I did was look up from the name — and that came from my web browser — so I can look up who is responsible for the network. Every network has a name.

The second part talks more about the details. What are the details about this particular network? You can see there is technical information like the actual number identity of the network, but you look further and there is an address. There is a responsible person. There is a telephone number; there are even web links for contacts and so on. This is the kind of information that could be used for advising an ISP about it.

My point is that the bill talks about "advising an ISP." How do you know who the ISP is? The Internet is a very big place and it changes very quickly. There are millions of networks in the world. There are probably several hundred thousand Internet service providers.

Which one do you notify? I just showed you; it follows. There is the content, the picture — how did you get it? There is an address. The address can be translated to an Internet protocol address. From the Internet protocol address, you can always figure out the network because the information is right there; and when you know the network, there is always someone responsible.

If you cannot get them, everyone is connected to everyone else — someone bigger than someone else. For example, since I looked it up, the Senate web server is in a network that is part of a much larger network that, at least in Ottawa, is controlled by Bell Canada. Everyone gets connections to networks other than their own through someone else.

My point in these opening remarks was basically how open the Internet is. This information was all there right in front of me. When I got the content — let us say we are talking now about offensive and criminal child pornography — I got all this information as well. Therefore, the issue is then about reporting.

With this information, I not only have data but I have metadata — in other words, the actual content and the description about the content. Bill C-22 talks about how it should be ISPs giving the information about two specific pieces of metadata, IP addresses and URLs, to competent authorities. My point is — is that really necessary?

Anyone capable of advising an ISP knows who the ISP is. Of course they do, because they have the IP and the URL. I would think that someone with evidence of crime should report crime; and that the more direct — this is up to you to decide — the better. This is the evidence; why am I not reporting this information?

There is much more to it, but I would welcome any of your remarks upon this or my brief — just how the bill works, or about IPs or URLs or anything else.

Senator Wallace: It is hard to know where to start.

Senator Angus: Start with the URL.

Senator Wallace: I will leave that to you. I found it easier when you were using the analogy of the phone book. I can relate to that; it is just numbers in the book and you have the book. That was useful to understand how all of this connects together, but I am having trouble with what your conclusion seems to be.

The purpose of the bill is to increase the opportunities for authorities to close down these child pornography websites. They have to be aware of them in order to be able to take action against them; and the timeliness with which they do take that action is obviously critical for the victims who are the subject of the child pornography. It is the time limits and being able to react to it, which comes back to being aware of its existence.

I was taking from your comments that all of this information is somehow out there in cyberspace and perhaps the police could spend their time going through cyberspace trying to find it. Your words were that someone who witnesses crime should report it. Well, if an ISP sees something that could constitute pornographic material on the Internet, what possible problem could there be in having them bring that to the attention of the authorities? Do the victims not benefit from that?

Mr. MacKay: The bill talks about advising ISPs, so the starting point of Bill C-22 starts with advice. If it just started with ISPs detecting child pornography on their own network, that would be fine, but the starting point is upon being advised.

Senator Wallace: If you are talking about clause 2 of the bill, it is not the ISP that somehow is to be advised. If any person becomes aware of the existence of this material in the course of an ISP carrying on its business or otherwise, then they have the obligation to report.

Mr. MacKay: Right.

Senator Wallace: My sense is you feel that this places an undue requirement on an ISP and their only responsibility should be to look after their own system. In the course of their business, if they find something else out there, that is someone else's problem. I hope that is not your conclusion, but I am taking that from your comments.

Mr. MacKay: No, not at all. My understanding, and the way I read the bill, is it starts with someone advising an ISP about an incidence of child pornography on their network. It then introduces an obligation on the ISP to report two pieces of metadata, an IP and a URL, to competent authorities. My point is simply a logical one. How did someone know which of all the ISPs in the world to advise? The answer? They already have those two pieces of metadata right in front of them. Otherwise, they would not know. IP addresses do not just identify hosts on networks. They identify the networks themselves, hence the ISPs. My point is that, if we want to be more quick about this, more reactive, more responsive, why introduce this roundabout procedure? Why does the advice not go straight to competent authorities? Why is there not an obligation on witnesses to crime to report crime?

Senator Wallace: I will take one more crack at it. On that point, I think you are referring to clause 2, which indicates that if a person is advised in the course of providing an Internet service of the address, then it must be reported. The person could be an individual or a corporation. If the provider, the ISP, the corporation, is advised of such an address, the obligation would be on the corporation. A person is also an individual. It could be an individual employee working for an ISP. It would seem to me that clause 2 would capture them. That individual would have the obligation. It is in the business. It is working for a provider of Internet service. The individual would have the obligation to report. Once again, what is the conundrum with that?

Mr. MacKay: We have the case of someone saying, "I saw offensive content on your website."

Senator Wallace: On a website. Not ours, but a website.

Mr. MacKay: It is a website that appears to be under your control. Do we want third-party witnesses? Do we want people to talk about other people's networks?

Senator Wallace: The person that finds it would not be reporting it to the potential offending —

Mr. MacKay: They might be, under this bill. How do we know the ISP is not the criminal organization?

Senator Wallace: I do not intend to get into a debate with you. I apologize for that. My understanding of clause 2 is that the only obligation on the person who has come upon this potentially offending third-party Internet service provider would be then to report it to an organization.

Mr. MacKay: They would say, "Someone said there is offensive content on a network, and we are passing along the IP of this network. It is true that that IP is in this network, as anyone in the world could have told you."

The Chair: Might I have a little supplementary?

Senator Wallace: Yes, indeed.

The Chair: I would take issue with your "as anyone in the world could have told you." As anyone in the world who is as technologically literate as you — but the people around this table, honourable senators all, are also part of anyone in the world, and I would bet you my right arm that not one of us would have known how to notify anyone about all the information that you have now explained to us is available, just by dint of having that URL up on their screen.

Mr. MacKay: That is true, but the bill presupposes someone who is capable of advising.

The Chair: That is my question. Correct me if I am wrong, Mr. MacKay, but you seem to me to be saying that there is no point in having me turn to someone who knows more about this technology than I do, if I stumble upon what looks to me like a site devoted to child pornography. I am not sure what you are saying.

Senator Angus: That is right.

The Chair: Somewhere in there, I got lost. Senator Wallace, you can help me here.

Senator Wallace: At least I am not alone in this. I know I am in good company. This is probably an oversimplification. I take from what you are saying that, somewhere in this phone book is an offender, and I know which phone number it is and I know the address, but I will not tell you because you have a phone book as well.

Mr. MacKay: I am trying to follow your analogy there.

The Chair: Ratchet it down to words with one syllable for us, and for many other people in the world.

Senator Angus: They may be watching us on the webcast, for example.

The Chair: Let Mr. MacKay take a shot at answering this, and then Senator Watt can have a quick supplementary. We will be well into overtime.

Mr. MacKay: It is absolutely correct that most people not only do not know about IP addresses, but they do not even know about URLs, because they click on links and just follow them, and the content just appears in front of them. They see it and are upset by it. They do not know who to talk to. If they talk to anyone, they probably talk to their own ISP, because they are not doing this lookup of whatever it is. Their own ISP probably has absolutely nothing to do with it.

As I said, the information is there and the police, for example, or other competent authorities could also look it up. Is there a benefit to have a special onus on an ISP to handle just that particular, to be a relay for that IP information? I just do not know. It seems to me that it is a roundabout way of reporting crime.

Senator Wallace: Thank you.

The Chair: I will restrain myself. I told Senator Watt he could have a supplementary.

Senator Watt: I might be able to provide a little bit of help here, if I understand what has been dealt with up until now.

I am not specialized. I have no knowledge whatsoever in terms of what you are saying, but I am going by what I heard. You are basically talking about what people are doing with information that is already available. Anyone can access that information that you highlighted and walked us through in terms of the information and how can you get the information.

Internet service providers also have that information, and you have that information. All you have to do is look it up. I think you are telling us: Why make it complicated when it is a straightforward issue? All you have to do is report it because the information is already there. That is what I am hearing from our witnesses.

Mr. MacKay: I made a point in my brief that a distinction people commonly make is that Internet service providers are some big company and that we are just home users and we are not the same. I have been working with the Internet for 20 years and I know that it is much more of an equal partnership; it is much more like a conversation. This is not a technology like television, which you watch. This is not a technology like radio, where you listen. It is much more like a conversation. At any time the roles could be reversed.

Could an ISP have this information? Of course. In fact it is their job to manage it every day, right? I teach my customers how to build the DNS servers, domain name servers, that can do that telephone book. I know how to build a telephone book on the Internet and can I teach other system administrators how to do it.

Only a tiny number of people need to know how to do that. As far as the rest of us are concerned, the mapping between someone's name and a number can be magic as long as it works. The ISP knows how to do that.

However, home computers, PDAs, personal digital assistants, and so on are extremely powerful and the information could all be there. Your home computer could become a web server at the flip of a switch. It is true that only a small number of people have the technological knowledge to do it, but that number is growing and growing, especially as it is made easier with, for example, social networking websites and so on.

The idea of the distinction between an ISP, which is a company that provides a service that is completely separate from their customers, who are recipients of service, is not so ironclad. It is much more of a peer type of network, and it has always been that way. It has always been that the information is everywhere and they are equal partners.


Senator Carignan: I am trying to understand your point of view. I believe you have to read the bill very carefully. The problem may stem from your comment on the text of the bill. I do not know whether you have it before you, but clause 3 reads as follows:

If a person is advised, in the course of providing an Internet service to the public — that is, the Internet service provider — of an Internet Protocol Address or a Uniform Resource Locator where child pornography may be available to the public, the person must report that address as soon as feasible.

So I am a customer, and I do not know a lot about computers, but enough to know how to find an Internet address, as you showed us earlier, and I call up my provider. It receives a very large number of calls every week and cannot do all the work; that is why it helps an agency called the Canadian Centre for Child Protection, whose representatives appeared before you earlier. It helps that centre do the sorting, or else it will have to hire full-time staff to perform that task. It prefers to help a third agency to do that work.

The bill therefore frames a practice that has already developed in the industry. As the privacy commissioner said earlier, it makes no sense for a practice of preserving private information, as sensitive as this information is, not to be supported by a legislative framework, and clause 3 therefore addresses this difficulty that Internet services providers have responding to all complaints or requests that may come from their customers.

This is forwarded to the agency that the government will designate by regulation, which should be

Clause 4:

If a person who provides an Internet service to the public has reasonable grounds to believe that their Internet service is being or has been used to commit a child pornography offence. . .

So we are not dealing with the presence or preservation of child pornography; we are dealing with the commission of an offence. The person no longer calls the designated organization; he or she calls the police; he or she has grounds to believe that an offence has been committed and calls the police department responsible for enforcing the law.

I do not understand the issue you submitted to us, that the bill would mean that Internet service providers would conspire.

In my opinion, and you will correct me if I am wrong — here is my question — the Internet service providers have felt a need to act on their own, without there even being a legislative framework for sorting all this information, and we are supporting those service providers by means of a bill; do you not consider that as a help rather than as a charge of conspiracy?

The Chair: Before Mr. MacKay answers, I would point out that, when you cited clauses 3 and 4, I believe they are clauses 2 and 3 in the most recent version of the bill, Senator Carignan.

Senator Carignan: Pardon me; I may have had the wrong version.


The Chair: That exchange was simply technical references for the record regarding the clauses being quoted. Now let us move to the substance of the question.

Mr. MacKay: I understood the substance of the question to be whether this helps ISPs in their reporting. As far as I know, the substance of the bill is about fines if they do not report this information. In other words, it basically implies that there is a special duty on them to report this crime. However, it does not impose the same requirement upon the original person giving the advice.

I just do not see how that helps an ISP in the job they need to do to regulate their networks in accordance with the law.


Senator Carignan: So your problem is with the fine, not the obligation?


Mr. MacKay: The obligation is something ISPs will have anyway. I see this opening up a problem for people who are essentially accidental ISPs, or smaller ones. If you have in mind big telcos that have the capability to do extensive logging, to keep large servers with this information and that have the ability to know about and respond to this, what about smaller ISPs and what about accidental ISPs, which are people who have their machines or networks compromised? They are ISPs.

In a way, I see service providers as secondary victims in this crime, unless they are the originator of it in the first place, which is always a possibility. However, in most cases, they are hosting companies or they are compromised home computers with this information. Any citizen could be the ISP in that case. The bill does not make a distinction in that respect.

Therefore, it opens up a very technical issue about reporting two specific pieces of metadata on anyone who ends up being an Internet service, accidentally or otherwise.

If your question is: Does that help them? I do not know. I think it frightens, or it should frighten, many people who will not understand it or be technically competent if they find themselves in that position.

The Chair: Mr. MacKay, we still have four senators on the list. We are officially in overtime with you, so the question to every senator is: Can you keep your question — singular — tight? Senator Watt, this is an instruction to you too because you are on the list. I am saying that each senator will have one question.

Senator Watt: I have a question.

The Chair: You are on the list. That is why I was harassing you. I will ask Mr. MacKay to keep his answers as tight as he possibly can. The senators on the list are Senators Runciman, Watt, Angus and Boisvenu.

Senator Runciman: An important element of the proposed or old legislation, I will say clause 4, states that, "A person who makes a notification under section 3 must preserve all computer data related to the notification that is in their possession or control for 21 days after the day on which the notification is made." That has real relevance to what we are trying to accomplish in terms of being able to shut down these sites after we discover them and, hopefully, save a child from continued abuse.

I have trouble with what you are saying. We are hearing from the policing community and victims' organizations that this proposed legislation is necessary and that it will be helpful. A report from the National Child Exploitation Coordination Centre tells us about ISPs advertising that they do not cooperate with the police as a way to attract customers. We hear that, in 30 per cent to 40 per cent of the cases of suspected child abuse on the Internet, the ISP refuses to provide subscriber information. I do not have a question. I disagree with the conclusion you have reached.

The Chair: Do you have a precise answer to the effect that "that is interesting, senator?"

Mr. MacKay: Yes. That is interesting, senator.

Senator Watt: Being a person claiming to understand your presentation, maybe I do understand and maybe I do not. I would like to take it a bit further.

I know for a fact that this is not unregulated in terms of the way the Internet is being used. The CRTC, Canadian Radio-television Telecommunications Commission, is not involved. If they will not come up with a set of regulations for how Internet service providers have to operate in this country or anywhere else, what would you recommend? Would you recommend that they be regulated? That would be another way to ensure that they are honest and do the job they purport to do. You also mentioned a good possibility that some ISPs might act within a communal area.

Mr. MacKay: Absolutely. It is not just one computer. We are talking about the whole network that is a criminal organization.

Senator Watt: Could you tell me what else we need to do? What is your alternative recommendation? You seem to be knocking the bill before us. What alternative do you suggest, if anything at all?

Mr. MacKay: That is a good question. In response, I will say: the alternative that I presented at the conclusion of my longer brief. I talked about something called, a computer emergency response team, CERT. Essentially, it goes back to the past. The Internet, do not forget, started out as essentially a creature of the U.S. government — the military. They called the shots because they controlled the grant money that went to the universities and institutes to develop it. It was cohesive; it had technical rules; and they followed them because if you did not, you were off the network. As it grew, it basically became like the Wild West such that anyone who does the right connection connects in. That does not mean we cannot self regulate. The Internet has these. I talked about requests for comments — the rules that already govern the Internet. They are technical rules. The answer is: Enforce them. We need an active body that works at the Internet at its own level — people who understand this kind of thing. If I just had my finger on the switch of firewall routers, I could stop this in a second. That addresses Senator Runciman's point about the ISPs pushing back and so on. The answer is in something that reaches them at their own level. The community emergency response team says: Look, you do not want to host this traffic and you do not want to relay it. It then passes through your networks to other people. I could shut this down easily as long as I had my finger on the button effectively.

You mentioned the CRTC. Frankly, that is the older technology. This is not a broadcast medium. It is something else and something that needs to be met on its own terms. I propose a computer emergency response team and so do all the experts on the cyber war threat to Canada, which is another issue not related to this bill.

Senator Angus: My understanding of the reason you are here is to say that this bill is not necessary, and will not do any good in protecting our children from these kinds of criminal activities we have been talking about because the law, as it stands, is adequate to do what is necessary. This bill adds nothing. That is what I understand. I read your document. You say that you do not need any change in the law to set up a CERT because you can set up a CERT under the present law. Do I have that right? In other words, you are saying that we are whistling past the graveyard with Bill C-22.

Mr. MacKay: I think so. There would be regulatory needs because we have to have some kind of obligation to ISPs to pay attention to the CERT; otherwise, what good is it? A rule of thumb in security is: You are not doing any good unless you have the power to enforce your rules. It needs to be something that works with them at their own level, such as a CERT. They are stakeholders in this thing. They want well-regulated networks. They do not want the reputation of this stuff showing up. They do not want to be punished under this bill. That is why I came to this conclusion.

Senator Angus: Is CERT your term?

Mr. MacKay: CERT is computer emergency response team. That term has been around for well over 20 years.

Senator Angus: I understand.

The Chair: This is frustrating, but we have to do what we have to do.


Senator Boisvenu: I am not a computer specialist, far from it, but I believe I understood the gist of your argument. You are saying that, instead of helping the system administrators do their work, the bill acts with you as paid officers of the state.

It is as though the Senate's Internet site and pornographic sites were the same thing. We know that pornographic sites are very hard to detect and that an average person cannot access them. They are very often networks.

Your participation and cooperation are essential. You say on page 3 that the bill gives you the impression that you are conspiring with pornographers and, at the end of your brief, you offer two ways to prevent the bill from applying or for circumventing the law. I call that conspiring.

Are you not using your brief to provide the people who distribute Internet services with a method for conspiring against the government?


Mr. MacKay: Is not the obligation of every citizen to avoid violating the law? The best way to avoid violating the law is not to fall afoul of its provisions. I just pointed out logically that, if the law applies to Internet service providers and you are not one, then the law would not apply to you. That is a logical point. The law talks about being advised. If you are not advised, then it does not apply to you. I just think it is an ordinary point about reasonable people not doing things that would lead them to fall afoul of the law. If they are in these circumstances, then of course they should respect it. I do not see that as plotting or so on. I do not see the language of the bill as aiding ISPs or treating them as partners, since it talks about fines if they do not do reporting of certain pieces of information. I see it as something slightly threatening and that a reasonable person would want to avoid falling under that circumstance.

Senator Chaput: At Parliament, we all have Internet services provided by Bell. If this bill goes through, is Bell responsible for reporting if something happens in one of our Internet services?

Mr. MacKay: I do not know. The answer to the question is, I do not know because I am not clear about what the bill means by the Internet service provider. Is it your own network? Is it Bell? I am not sure.

Senator Chaput: You do not know.

Mr. MacKay: I do not know.

Senator Chaput: Thank you.

The Chair: Mr. MacKay, we have had a cultural encounter here. There are two different worlds. I must say you have managed to drag us kicking and screaming into something approaching a beginner's understanding of your world and your perspective. That is a major accomplishment, and we thank you very much for doing that. We appreciate it.

Mr. MacKay: Thank you for the opportunity.

The Chair: Turning to our last panel this evening, we have two witnesses from whom we are privileged to hear. From UNICEF Canada, we have Marvin Bernstein, Chief Advisor, Advocacy, and from Kids Internet Safety Alliance, we have Paul Gillespie, President and Chief Executive Officer. Mr. Bernstein, you have the floor.

Marvin Bernstein, Chief Advisor, Advocacy, UNICEF Canada: Thank you for the invitation on behalf of UNICEF Canada. UNICEF Canada strongly supports the enactment of Bill C-22 in principle as being a timely piece of legislation and a positive step towards achieving greater child protection and safety, certainly consistent with the provisions contained in the United Nations Convention on the Rights of the Child.

We take the position that it is clear that the sexual abuse of children is being facilitated by digital technologies and that children have rights to protection from sexual abuse in all of its forms. Bill C-22 is a step forward in the protection of Canada's children. However, a full, rights-based and systems approach to child protection suggests the need for some amendments to Bill C-22, or the establishment of guidelines that could enhance the prevention of risk for all children. The amendments we propose recognize that children are not only victims of sexual abuse, but also engage in risk behaviours that cause harm to themselves and other children in the use of digital technologies. To protect all children from harm, children need to know what constitutes abusive and illegal activity, how to report it, and how to avoid actions that would harm other children and themselves.

To strengthen the objectives of the bill, it is important, in our view, to address three areas: First, the absence of a statement of purpose provision; second, the mitigation of exposure of children and youth to criminal charges and prosecution; and, third, the need for children and youth to receive preventive and corrective education.

One of the recommendations is that the bill be amended to add a new section enumerating the main purposes of the bill. Recommendation number 2, which I will not go through, is that consideration be given to including in this new statement of purpose provision a set of purposes. We have defined what some of those purposes could be by way of illustration.

Around the mitigation of exposure of children to criminal charges and prosecution, while we applaud the laudable purposes of Bill C-22 in promoting the online protection and safety of children, we are concerned about the unintended consequence of children and youth being subject to greater exposure to criminal liability and prosecution through the projected increased reporting by Internet service providers of the digital activity of such young persons, where it involves sexual abuse images. This heightened exposure to criminal liability may occur even when actions reflect a youthful exploratory instinct or a lack of awareness of the consequences and have no malicious intent.

As such, there are heavy and disproportionate consequences that may accrue to young people for not knowing the legal parameters of the responsible use of technologies. I am talking about sexting here and transmitting messages — it could be videos and photographs that are sexually explicit — between young people themselves. It is important to be vigilant, in our estimation, that in our focus, which is an important focus, to protect children from the possession, transmission and accessing of sexual abuse images, that we do not inadvertently create legislative machinery that could be used to hurt children in other ways.

It is also necessary to consider the risks to children and youth whose actions are criminalized when transmitting sexual images, or otherwise accessing website and other digital child pornographic content, as defined in section 163.1 of the Criminal Code. Such criminalization could lead to reputational damage, a permanent stigma negatively affecting education and employment opportunities, and potential acts of self harm resulting from a sense of embarrassment or humiliation.

I will not go through this, but in our brief we submitted some observations and analysis from R. v. Sharpe, the Supreme Court of Canada decision in 2001. To move on, our recommendations are that police charging guidelines and prosecutorial guidelines be developed that could be used to withdraw charges or to stay criminal proceedings, in the case of prosecutorial guidelines, against a child who may have technically committed an offence under section 163.1 of the Criminal Code.

We also recommend, in our fourth recommendation, that a list of non-exclusive factors be identified for Crown attorneys to consider when determining whether to prosecute a child for committing an offence under section 163.1 of the Criminal Code. Again, by way of illustration, we identify some possible factors that could be encouraged.

By way of justification, our legal analysis suggests that children and youth may be charged or prosecuted for technical breaches of section 163.1 of the code, and may not be able to rely upon considerations of consent or private possession or use, particularly where there has been the distribution or transmission of child pornography under subsection 161.1(3), which is the transmission or distribution offence; or the accessing of child pornography by the recipient under subsection 163.1(4.1) of the code, which is the accessing the child pornography offence.

This would then place young persons at risk of criminal liability in the case of their sending or receiving sexually explicit messages, photos or videos. Accordingly, a reasonable response to this risk of criminalization would be the development of appropriate police charging and Crown attorney prosecutorial guidelines.

The last area, briefly, is the provision of preventive education for children. To protect all children from abuse, children need to know what constitutes abusive and illegal activity to know how to report it and to avoid actions that would harm other children and themselves. We see the need for increased education to prevent children from being placed at risk of abuse, and also at risk of criminal prosecution.

The bill offers an opportunity to press for the need for preventive education of youth — that is all youth — through effective programs that consult youth in their design and are properly evaluated. In this regard, preventive education would benefit not only potential youth victims, but also potential youth victimizers who may not fully appreciate the implications of their actions.

We need to recognize that not all children receive the same quality of parenting and the same kind of guidance. This kind of preventive education in terms of identifying the risks — what are the implications of engaging in this kind of activity — is quite crucial to try to structure and organize around the same time as the bill is proclaimed. In the submission, we have identified a number of different websites that have the potential within Canada, from abroad, that provide this kind of preventive information to young people.

The recommendation in this area, number five, is that Bill C-22 be amended, or regulations thereto and/or guidelines be created, to require the development and dissemination of effective educational interventions for children and young people to address the risks involved in making, possessing, transmitting or accessing child pornography, as defined by the Criminal Code.

Last, there should be due consideration of the recommendations for training, education and public awareness advanced by the Canadian Centre for Child Protection, as a result of the review of the Manitoba experience with mandatory reporting of child pornography.

The last point I want to make is that we have some statistical information from Europe that illustrates that sexting goes on more frequently than we would think. This generally tends to be communications between young people themselves, between boyfriend and girlfriend.

The real purpose of this bill is to try and prevent predators from engaging in serious sexual abusive acts and victimizing young children with inappropriate activities. It is not to catch or capture this kind of curious or rather benign communications between young people. It is an unintended consequence, and there is a bit of a blind spot because of this gap in the Criminal Code that does not really capture or set out these exceptions in the case of transmissions and accessing child pornography.

The Supreme Court of Canada decision speaks to possession and making of child pornography. At the time that section of the code was enacted and the Sharpe case was decided, there was not this level of digital activity and people were not as proficient.

I heard the previous presenter. I fall into your side of the table and do not have the technological expertise. My background is in child protection. I was a provincial children's advocate in Saskatchewan for five years and I now work at UNICEF.

This bill is absolutely necessary to try to eradicate an escalating situation that is wreaking havoc and is harmful to children. However, there is another contextual element here that needs to be considered so we do not inadvertently create other problems for young people. I will stop there.

The Chair: Necessary but not sufficient, would that be a summary?

Mr. Bernstein: Yes. Thank you.

Paul Gillespie, President and Chief Executive Officer, Kids Internet Safety Alliance: As I am the last speaker, I will not be long, but prior to the questions I would like to provide a bit of context for your thoughts with regard to these Internet discussions.

I was a police officer in Toronto for 28 years and I left the Toronto police force in 2006. In my last six years, I was the officer in charge of the child exploitation section. I had a great team of officers who developed some of the ground- breaking techniques still being used around the world today.

In 2002, I was invited to make a presentation at an all-party meeting in Parliament to discuss child exploitation and the impacts of the Internet. In 2003, I was asked to return to have a similar meeting with the Conservative caucus.

Regarding the system you mentioned earlier, CETS, the Child Exploitation Tracking System that is being used across Canada and now around the world, I am the one who contacted Microsoft and helped build the system. I am still involved with maintaining it and trying to spread the word that we need to work together. I just wanted to give you a bit of background about who I am.

In 1997, I was involved in an investigation of something called "The Wonderland Club." This is a group of worldwide predators who, for the first time, were seen using the Internet to basically host pay-per-view child abuse. It was horrible. They were all over the world.

It was first identified in California. A global investigation of some very smart people, similar to the previous guest, identified that the real bad guys were centred out of England.

The police got involved and they actually arrested one of the main bad guys. When they did so, they took over his identity in an undercover capacity in the same way you would infiltrate a drug ring. When he got onto the computer, posing as the person arrested, he started to chat and pretend he was that man. He had spent the last month learning everything there was to know.

Within five seconds of him starting to type, his screen went black. At that time, that group had a bot monitoring the group and it identified the fact that this particular chat was coming from a different IP address, one that had never been used before by this individual. It sensed a threat and moved the group to another location. This was in 1997. To this day, that is still quite remarkable.

In 2003, I was involved in an investigation of something called the Darknet or the Freenet. This was the bowels of the Internet where the worst of the worst bad guys operate. It was originally developed by some MIT, Massachusetts Institute of Technology, grads who were concerned about the ability of students in some areas of world to be able to communicate and have free speech. They built something, thinking that it will never be able to be traced to the authors and, in fact, they were right. They did a great job. It still operates. However, like all other technology, when the bad guys see something, they are the first to modify it for their own use.

The investigation that we conducted from 2003 to 2006 was the most mind-numbing thing I have ever seen in my life. These were the predators — the worst of the worst — in the tens of thousands who produce the really vile stuff that is disbursed through the Internet.

We are now 2011, so those particular investigations were 8 and almost 15 years ago. That is the sophistication that is out there today. I think you need to keep that in mind as you consider this and future Internet-based legislation.

First, I would say that I absolutely think this legislation is good. I echo the sentiments of most others here in thinking that there should be a responsibility placed upon service providers. I was around back when there were some challenges. I think most service providers are doing the right things for the right reasons. I believe that they will call, but let us ensure they do. That inherent responsibility needs to be placed on them.

My organization is called KINSA, Kids Internet Safety Alliance, and I started this when I left the police force. Our mandate is simple: To find and rescue these poor kids whose images are being shared on the Internet. You have probably heard many different numbers over the course of this particular endeavour as to how many pictures and kids are out there. The reality is that we only know about 2 per cent of the children whose images are being transferred around the world.

My organization trains cyber cops from developing nations to do a better job on the Internet, to better identify and rescue these kids, and to raise their bars a little so they can join the likes of the great officers we have in Canada and elsewhere within the RCMP, the OPP, the FBI and Interpol. Today, we have trained officers from 10 different countries, such as Romania, Chile, Brazil, Malawi, Mozambique and Zambia.

One of the Brazilian officers, once trained, actually led to the identification and arrest of an offender in a small town called Tracyville, New Brunswick. The offender had been abusing 10 kids. This was in the papers last week. The offender pled guilty. Had that officer from Brazil not received that training, those kids would not have been identified and rescued.

I want to let you know this because there are often thoughts that we need to have 10, 100, 1,000 or 10,000 more cyber cops out there and I suggest it is not realistic, based on the taxes and the cost.

The reality is the Internet has no borders. Therefore, we are positioned such that there are tens of thousands of cyber cops working around the world right now. They are keen, eager, young police officers — the Romanian National Police, the Polish National Police, the Brazilian Federal Police — who patrol the Internet. However, they are only really allowed to work on credit card fraud or eBay fraud. They are not quite sensitized enough to recognize that they could also be doing other things out there.

Therefore, that is what we are doing. It is very expensive to plant the seed, water it and wait five years for it to grow. That is what we are doing when we are hiring and training new cyber cops. I am trying to plant the seeds that are already growing around the world, and explain that they need to pay attention to kids who might be in your country or who might be somewhere else.

This scourge and this deluge of awful we are in the middle of is bigger than anyone could have ever imagined. The numbers are shocking. Someday, the only way we will get rid of it will be through a technical solution, to segue to the previous speaker. It will certainly never be solved by human eyes.

I wanted to let you know that this is good legislation.

The one last piece I want to remark on is that, when we send officers back to their country with new techniques and ways to do business, we also send them back with the best practices of the law enforcement we have here in Canada. The officers we have as cyber cops are second to none. They are brilliant. I could not always say that, but I can now. We send not only our techniques but our legislation because we have some of the best laws in the world, certainly in the case of cyber laws. We should be proud of that.

I think this is another piece of legislation that is vital and necessary — I do not want to say "keeps us ahead of the curve." As leaders in this area, we have responsibilities to share what we do best and I think we are starting to do that more.

There were comments earlier about whether there are enough people to handle this, whether there are enough police officers and whether they are ready for this onslaught. Time will tell whether there is a serious need for more officers.

However, one must consider the big picture, the amount of images being shared and the way that people are sharing them. Most of it is not being done through websites, but through file sharing, the way we download music. It would be like dropping you in the middle of Lake Ontario and asking you if you noticed if someone in Toronto threw another bucket of water in the lake. That is how swamped the officers around the world are right now. They will never get out from under that using the methods they are using now.

I want to thank you for the time. I laud the government for this legislation. I think it is good, and I would invite you to keep the conversations going because soon we will need to start talking bigger picture stuff. Thank you.

Senator Wallace: Thank you very much for the presentations.

Mr. Bernstein, the first question I direct to you. Both your written and oral presentations were comprehensive. You are looking at this issue very comprehensively, from the point of view of providing as much protection as possible to children who find themselves involved with this terrible, terrible problem.

I know from your comments you are well aware of this, but Bill C-22 is not perhaps as comprehensive and broad in its approach as what you describe. It is a very focused bill and deals specifically with the requirement for the mandatory reporting by Internet service providers. It does not get into a review and possible revisions of section 163 of the Criminal Code of Canada, which is really where the meat of child pornography offences lies.

I believe I am stating the obvious in saying that is it fair to say, based on your presentation here today, that the bill in as far as it deals with this mandatory reporting is beneficial, and an improvement over the voluntary system of reporting that exists today. However, in going forward into the future, there should be a time that section 163 is looked at in a serious way and the issues you brought up should be raised.

It seems to me this bill is not necessarily the mechanism to address the issues you raise. It is not that broad in its scope. However, it should not be forgotten that section 163 should be reviewed in the not-too-distant future, is that not what you are suggesting?

Mr. Bernstein: That is a good reframing of the points I was trying to convey in the written submission and in the oral presentation. I am a lawyer and I should have identified that. I did consult with some law professor colleagues of mine in terms of obtaining their perspective. I think both of them felt that section 163.1 required some amendment in terms of bringing it up to date and looking at some of these other activities that could inadvertently catch young people.

I certainly did not want to come here and suggest to this committee that you should not proceed with passing Bill C- 22 until we re-examine section 163.1. I do not think that is practical. The important thing is to try to address this particular mischief at play and to enact a piece of legislation that will require mandatory reporting.

I was chief counsel to a Children's Aid Society for 20 years in Toronto, and I know how valuable it is in terms of having mandatory reporting, enhancing public awareness, and having people conscious that they have a public responsibility to protect children. We need to put in place this safety net for children and young people.

I am concerned that it is precisely some of those young people in the youth criminal justice system and in the child protection system who could be caught unawares and who could inadvertently be charged. Some of this could be addressed through police charging guidelines and prosecutorial guidelines. I do think it is important to identify the need at some future date to re-examine section 163.1 so that it can work in lockstep with and support the purposes of Bill C-22.

Senator Wallace: Mr. Gillespie, I think this is stating the obvious, having listened to what you have told us. There is no question in your mind that the focus of Bill C-22, being to take reporting from a voluntary mechanism to mandatory, is the way to go, that it will be a definite improvement over what exists today?

Mr. Gillespie: Absolutely.

Senator Wallace: As Mr. Bernstein has said — and I think you made much the same comment — this is an important step, but there are other steps that, as a government, we should be moving forward with a review of section 163.1 perhaps being appropriate?

Mr. Gillespie: Certainly.


Senator Carignan: My question is for Mr. Bernstein. I am a bit surprised at the emphasis you place, in the brief you have presented to us, on the problem with section 163.1 of the Criminal Code. The purpose of Bill C-22 is to protect children, to make Internet service providers accountable and to create a system of exchange of information to provide the best protection for children. Through the presentation that you made to us in your brief, and it is as though you were saying that we have to watch out because, by reporting, we may harm children because innocent children could be charged with accessing child pornography material because children will, innocently perhaps, be inclined to exchange information or — somewhat as for the Supreme Court judgment and the exception in the Sharpe affair — will be led involuntarily to commit offences. It is as though we were forgetting the main point and focusing solely on a minor exception. I believe you are placing disproportionate emphasis on the problem of children who might be prosecuted.

First, to your knowledge, under section 163.1, have a lot of charges been laid against children in this connection? I am really surprised that so much emphasis has been placed on this.

Second, do you not believe that the mechanism created in clause 2 of Bill C-22, with a designated organization, does indeed protect children? That mechanism provides, for example, that, if the designated organization is called the Canadian Centre for the Protection of Children, technicians, specialized analysts, will analyze the information before forwarding it to police officers. Do you not think this mechanism is a balanced measure of extraordinary law to protect children and to distinguish between an innocent, technical offence committed by a child and offences committed by actual pedophiles, who are the ones we aim to arrest?


The Chair: Do you have the general sense of that question?

Mr. Bernstein: Yes, I do.

As I said, having been involved in the field of child protection in Ontario for 28 years before I went out to the province of Saskatchewan, and in my role as a provincial children's advocate, I saw many young people victimized, who came and brought their concerns to my office. Child sexual exploitation often happened in tragic circumstances, and sometimes to very vulnerable and marginalized child populations. That clearly is an important constituency to protect. I want to be unequivocal that that is a position that I and UNICEF completely support in terms of the purposes of this bill.

We did attempt to ascertain from both Nova Scotia and Manitoba whether or not there is a tracking of prosecutions or the laying of charges against young people. In one instance, we were told that that information could not be ascertained and was not being tracked; and in the other instance, we had made several attempts and the response was not transmitted back to us. I do not have clear data. I would expect that it is infrequent, but it is a concern.

Sometimes, at least in my experience, we tend to artificially differentiate between child victims, and sometimes we stigmatize children and we create an impression that there are young people who are victimizing other children. Even in terms of the concepts and the language that we are using around this table, I am not entirely comfortable with it.

I did a report when I was in Saskatchewan on child sexual exploitation. The term that was thrown around at times was "child prostitution." We took the position that that was not proper language, that young people do not make an occupational preference; it is exploitation.

Here the same thing; child sexual images are a form of child sexual abuse. We are talking about child pornography because that is the reference point. That is the language of the Criminal Code.

Certainly, in terms of the primary emphasis of this bill, I could not agree more with you that it is an important piece of legislation. I am just saying let us not forget that there may be a smaller group of young people who could run afoul of this because they are not aware of the implications, they do not understand the legislation in terms of the Criminal Code, and they have not received any preventive education. Let us try to work together to put all those pieces together. I think that is what I am trying to emphasize tonight.


Senator Carignan: I do not believe you entirely answered the last part of my question, which concerned the role of the Canadian Centre for the Protection of Children as the designated organization and the fact that it strikes a good balance for the purpose of preventing the negative impact that you mention in your brief.


Mr. Bernstein: Just briefly on that point, I think it could be an effective filter in terms of receiving the information and determining that this seems to be more of an innocent exchange between two curious young people, and not to refer that on to the police for purposes of laying the charge. That could be an added safeguard in terms of responding to your question.

The Chair: Did you want to add anything, Mr. Gillespie?

Mr. Gillespie: No.

Senator Angus: Thank you, gentlemen.

Mr. Gillespie, I was impressed with your experience in these things and your technological expertise. You were present here and saw us technically challenged liberal-arts graduates wrestling with the testimony of the previous witness.

Did you understand the point he was trying to make and do you agree with what he said?

Mr. Gillespie: First, when I started in this section, I had a hard time sending an email or knowing whether I had saved a file properly. My generation did not grow up with the technology, so I am learning, and it is very difficult, not like it is for our children and grandchildren.

I got the gist of what he said. As with anything new, it is easy to be overwhelmed. Experts can wow with ideas or philosophies that are really hard to pare down to basic language that the layman might understand.

The only point I really agreed with him on was his last point, that being that the technical ability exists to stop this. Everything he said up to that point was his view, I believe. I am not sure if I agree with him, and I reached a conclusion similar to that which many of you probably arrived at.

Senator Angus: The gist of the bill is to render mandatory what is presently voluntary, namely, that the ISPs will now be under pain of penalty if they do not report. He is sort of an ISP. Is it feasible that he was making the point to avoid extra work, or is that being a little paranoid?

Mr. Gillespie: I have been around the world of ISPs for many years and watched this issue evolve. He could have all sorts of motives for saying what he did. I do not know because I do not know the man or what he does for a living.

However, I think that he interprets, by definition, networks, computers and infrastructure in a way that would back up his argument, and it simply might be interpreted differently by other people. I think we would all agree that there is a moral obligation. It is, however, imperative that there be a legal obligation as well so that people do not have the choice. If you find a loaded gun or a bag of cocaine, you call the police. Why is it any different with this?

The Chair: Mr. Gillespie, you said that for now this bill is worthwhile and important, but that down the road, and I got the impression that you meant not that far down the road, there will not be enough human bodies to do the work necessary to control this and that we will need technological means of some sort.

Will you expand on that a bit? Are you talking about something like clean feed that blocks transmission or are you talking about more advanced technology so that robots, if you will, will cruise the Internet and find out who is responsible for things rather than us only blocking transmission?

Mr. Gillespie: That is a great question and you described exactly what can happen now. In Star Wars, every time robots saw a horrible picture, they could shoot it and destroy it. That is available now.

Clean feed is simply an opportunity to block access to bad websites. In my opinion, the vast majority of these horrible pictures are not from websites. They may be sometimes but that is a very small percentage. Predators share their files today through file-sharing programs in the same way that Napster started so that we could share music without having to pay royalties. It is now illegal to do that in the United States, although it is still legal in Canada.

Pedophiles and predators use the exact same technology to share these horrible pictures. Global police are in possession of hundreds of thousands of Internet protocol addresses of people who share these pictures every day, and many of them are in Canada.

Police also have the ability to watch these pictures flying through the Internet. They can tell exactly where they came from and they know which pictures they are. Again, hundreds of thousands of people are sharing these horrible pictures of prepubescent, typically five- and six-year-old, victims of horrific abuse.

People have opinions. In my opinion, there are about 1 million original images of child abuse on the Internet. Some people say there are as many as 5 million. I believe that about 50,000 different kids are involved, and through the best efforts of global law enforcement, we have identified less than 2,000 of these kids.

The only science we have with regard to people who collect and share pictures is that about 35 per cent to 40 per cent are believed to be actual hands-on abusers. If you are going to collect and trade child pornography, there is a three- to four-out-of-ten chance that you are an abuser. If I told you that in Canada there are tens of thousands of Canadian IPs trading this terrible filth daily, and you assume that 30 per cent to 40 per cent are hands-on abusers, you can do the math for yourself.

This is a bucket that is overflowing for law enforcement. I think that human eyes will never get back what technology has exploited and manifested in an exponential way that no one envisioned.

I am not trying to be alarmist, but I would invite you to ask law enforcement to explain exactly what the numbers are so that people can have a better understanding of what the challenges are. I am not sure that society is really informed on this, and maybe they do not want to know, but it is pretty bad.

The Chair: It is certain that many people do not want to think about it, and that is why senators, and people like you even more so, get tasked with this.

I believe you are saying that some technology is available now but that more is needed, that we could not do now what we need to do.

Mr. Gillespie: We could not in a million years investigate all of the tips following legal process. We do, however, have the technical ability to get rid of these millions and millions of pictures that are being traded each day.

Senator Angus: That exists now?

Mr. Gillespie: Yes, and that is what Mr. MacKay was alluding to, although all the issues that that brings up would have to be dealt with.

The Chair: My question was how long it will be before we have the kind of technology you are talking about, and the answer is that some of it is available now.

Mr. Gillespie: Absolutely.

The Chair: Gentlemen, thank you very much. This has been fascinating, and we are very grateful to both of you.

(The committee adjourned.)