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
Senator Chaput: I so move.
The Chair: So moved, by Senator Chaput. All in favour? Opposed?
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
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
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
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
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
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
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
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
I also remind you of the resolution our commissioner sponsored in 2008
calling precisely for legislation to provide this statutory support you are
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Cybertip.ca, Canada's tip line to report the online sexual exploitation of
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
Cybertip.ca 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
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
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 Cybertip.ca 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
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
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
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
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
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
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
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, Cybertip.ca, 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
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
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 Cybertip.ca. 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
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 Cybertip.ca. 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 Cybertip.ca in conjunction with partners to address this growing
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
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
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. Cybertip.ca 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
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
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
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
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
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
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
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,
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
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 "sen.parl.gc.ca." 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
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 sen.parl.gc.ca, 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, sen.parl.gc.ca. 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
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 sen.parl.gc.ca. 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
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
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
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
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
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
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
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
Senator Wallace: Thank you.
The Chair: I will restrain myself. I told Senator Watt he could have a
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
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 Cybertip.ca.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.)