Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 20, Evidence - November 5, 2014
OTTAWA, Wednesday, November 5, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act, met this day at 4:16 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good day and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
We are meeting today to begin our study of Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act.
Bill C-13 deals the offence of non-consensual distribution of intimate images; offences committed by means of telecommunications; and the area of law generally referred to as ''lawful access,'' the investigative technique used by law enforcement and/or national security agencies to intercept private communications and seizing information, where authorized by law.
As a reminder to those watching these committee hearings, they are open to the public and also available via webcast on the parl.gc.ca website. You can find more information on the schedule of witnesses on the website under Senate Committees.
To begin our study on the bill, please welcome the Minister of Justice and Attorney General of Canada, the Honourable Peter MacKay. Welcome, minister.
Hon. Peter MacKay, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, senator.
The Chair: And from Justice Canada, Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector; and Normand Wong, Counsel, Criminal Law Policy. I'm told the minister will have to depart at 5:15, but then the officials can remain for the remainder of our meeting.
Minister, you have an opening statement. Please proceed.
Mr. MacKay: Thank you very much, Mr. Chair, colleagues, honourable senators. I'm pleased to be with you again to discuss what I consider to be a very important bill, and I'm ably assisted here, as the chair has indicated, by Mr. Piragoff and Mr. Wong, officials from the Department of Justice. I want to thank you in advance for your attention to this bill as you, I know, have a very busy committee and you have been, in fact, very diligent in examining a number of government bills.
This is my forty-eighth committee appearance, and I will try to keep my comments brief as I know there are many substantive questions that you may have about this bill.
This is important and timely legislation. It seeks to protect Canadians from crimes that are committed over the Internet which can deeply affect vulnerable people, in particular, but all Canadians, and it includes an attempt to address the harmful effects within the context of what is now commonly known as cyberbullying. This is a bill that will provide police with the necessary tools that they need to investigate all forms of crime in today's advanced and ever-changing technological environment.
It sends a message that crime that is committed online or in the virtual world has real-world consequences. Cybertip.ca, Canada's tip line for child sexual exploitation on the Internet, estimates that it will receive some 40,000 reports this year. All of these incidents will necessitate and will involve the collection of electronic evidence in order for the police to successfully prosecute.
Although I do not have recent statistics for Canada, I do want to quote a 2012 Scotland Yard estimate that over 80 per cent of all major crimes now leave electronic evidence. Whether police are investigating a murder or a child sex assault or terrorism, there's a high likelihood that the case will involve the collection of electronic evidence. One of the key features of Bill C-13 is to provide police with the judicially authorized tools that they need to combat crime in this modern, complicated computer age.
I want to emphasize, Mr. Chair, colleagues, that this bill does not provide for or enable warrantless access. It is a complete fallacy to say otherwise. This differs completely from previous bills in that the bill necessitates judicial authorization, that is, a judge must grant a warrant for all disclosures, a judge must say yes.
All of the authorities for access to data under this measure would require a judge to authorize access in advance. Under the proposed legislation there is no change to the current approach to legal thresholds and judicially authorized legal tools.
[Translation]
Mr. Chair, along with these new tools, the bill proposes to update the Criminal Code in regard to criminal behaviour associated with cyberbullying. Bill C-13 accomplishes this by proposing to create a new criminal offence of non-consensual distribution of intimate images. This disturbing conduct is increasingly arising in the context of cyberbullying activities, and it can result in significant and long-lasting impacts on its victims.
[English]
At its core, the proposed new offence would prohibit sharing sexual or nude images without the consent of the person depicted in the image. This type of behaviour has literally contributed to the death of young Canadians like Rehtaeh Parsons, Amanda Todd, Todd Loik and sadly many others. This proposed new offence is directed at a harmful and intolerable behaviour that is not currently adequately addressed under our Criminal Code. How could it address this type of activity? The current Criminal Code sections predate the Internet and were enacted in an era of rotary dial phones, and I say this having grown up in the country when we only had rotary dial phones.
But in proposing this offence, this bill reflects the recommendations that were made in the 2013 report by federal, provincial and territorial officials on how best to address the challenges posed by the problematic behaviour of cyberintimidation and non-consensual distribution of intimate images. These recommendations received unanimous support from federal, provincial and territorial ministers responsible for justice and public safety, and so there is a reflection in this bill on this particular aspect that is universally held around the country when it comes to our provincial and territorial justice ministers.
The proposed new offence would also be augmented by a number of supporting amendments that would, among other things, enable a judge to order the removal of intimate images from Canadian websites; order restitution to a victim for any reasonable and easily ascertainable expenses that may have been incurred for their removal of the intimate image from the Internet; and would issue a peace bond in a situation where a person reasonably fears that another person who is in possession of intimate images may, in fact, post that image. So there are some preventative measures included in this bill, as well as the ability of a judge to, in some cases, go so far as to seize computers and devices of offenders who have performed criminal acts.
As I mentioned earlier, Bill C-13 would amend the Criminal Code and other federal legislation with an aim of keeping the law up to date in a world of constant technological innovation. In addition to updating the language of some of the existing offences, Bill C-13 also proposes to modernize the judicially authorized powers to investigate crimes committed using electronic networks or that leave electronic evidence so that police are not hindered or stymied in their investigation by the use of these technologies by criminals. We are dealing with a very computer-savvy generation, and that is certainly good in terms of a generation that has perhaps more access to information than any in the history of the world, but it also certainly promotes the criminal use of the Internet and that technology for criminal purposes.
A key aspect of the investigative tools amendments is the creation of three new lower-threshold production orders that would provide police with specific information in a timely manner. These new production orders for tracing a specified communication, for obtaining transmission data and for acquiring tracking data will provide police with the narrow range of data that they need at the outset of an investigation.
The threshold reflects the lower level of intrusiveness of power, both in relation to the quality and quantity of information obtained and in relation to the lower expectation of privacy that's triggered by such information. For example, the new tracing production order would allow police to obtain only the transmission data necessary to trace the routing of a telecommunication, that is, which telecommunication service provider the email was routed through. So if we were to use the more perhaps well-known example of tracing mail, we would like to know which jurisdiction that particular piece of mail went through, not what was in the mail, not who it was addressed to, simply what path did the mail follow. That's what this particular tracking order would allow with a telecommunication service.
This would be a very small amount of data that has a lower privacy interest than with respect to the content of the whole communication. So, again, this is a lower level of intrusion, a lower threshold.
Providing police with specific tools for the type of specific information that they need will not only increase the effectiveness and efficiency of police investigations, but I would submit to you it also has the positive impact on the reasonable expectation of privacy of potential suspects. In other words, this is exculpatory. If we're able to determine and rule out certain suspects by following the routing of certain information, it cuts down on the time that police will have to expend, sometimes very valuable resources, in zeroing in on the actual suspect.
By limiting the information police obtain at the outset of the investigation, the availability of these narrower tools ensures that those persons who are eventually ruled out as suspects will not have been the subject of more invasive searches. Today, in order to get the type of information that would be covered by the proposed new lower-threshold production orders, police must use the general production order, which allows police to access a considerable amount of information about potential suspects and, therefore, result in a more significant privacy intrusion.
Bill C-13 also proposes to modernize two existing judicial warrant powers: the tracking warrant and the number recorder warrant. The proposed tracking warrant amendments that apply to the tracking of individuals raise the standard for judicial consideration from ''reasonable grounds to suspect'' to ''reasonable grounds to believe'' that an offence has been or will be committed. This proposed change reflects the privacy impact of the increased accuracy in the technical capability of tracking devices, for example a cell phone or a handheld device, which can now be more privacy invasive than they were when tracking warrants were first introduced into the Criminal Code in 1993.
However, police would continue to be able to track the movement of things, for example a car or any type of vehicle, under the existing standard of reasonable grounds to suspect. But when it's your person, obviously there's an expectation of a higher degree of intrusion when it comes to someone's privacy and the judge must consider this.
I recently visited the Canadian Centre for Child Protection which, if ever this Senate committee was interested in taking an outside look at an agency or a non-governmental body that is doing outstanding work when it comes to the protection of our children, this centre in Winnipeg, Manitoba, is world class in everything that they do. Their director, Lianna McDonald, and the amazing team there have been asking for this type of protection found in Bill C-13 for some time. Child exploitation, luring, sexual assaults, including abduction, I'm told by Ms. McDonald, sadly I report, senators, is on the rise.
As I mentioned earlier — and I believe it bears repeating — Cybertip, one of the important sites that this body oversees, estimates receiving 40,000 reports of child exploitation over the Internet in Canada alone. Department of Justice stats also indicate that sexual offences on children are increasing at an alarming rate annually, and, while much has been said in the media about the proposals for new legislation and modernizing police tools, I mention this only to put it in a practical context of what we are trying to achieve. These are tools that help locate and deter and prevent child sexual assaults, among other things.
More recently, there have been calls by some to strike portions of Bill C-13 as a result of the June 2014 Supreme Court of Canada decision in R. v. Spencer. I expect many of you will have questions. I want to be perfectly clear; there is nothing in the Supreme Court decision in Spencer that would necessitate modification of this bill. In the Spencer decision, a child pornography case, the Supreme Court of Canada considered the disclosure of information on a voluntary basis, and the authorities in Bill C-13 do not propose any disclosure of information without judicial authority. If anything, the Supreme Court, in deciding as it did, only clarified the interpretation of Bill C-13, and I'll come back to that.
Section 487.014 of the Criminal Code, which deals with voluntary disclosure and immunity, does not create any new search and seizure powers. In the words of Mr. Justice Cromwell, writing for the majority in the Supreme Court case in Spencer:
Section 487.014(1) is a declaratory provision that confirms the existing common law powers of police officers to make enquiries, as indicated by the fact that the section begins with the phrase ''[f]or greater certainty''. . . .
This is found in paragraph 73 of the decision, for context.
The minor modifications that would be made, through Bill C-13, to the proposed new section of 487.0195, which would replace the current section, 487.014, very much reflect that reality.
The Supreme Court, in the Spencer decision, has limited the scope of voluntary assistance, to be sure, but it has not precluded it. In fact, the decision supports the voluntary provision of information in an emergency situation, or what has commonly become known as ''exigent circumstances,'' a passage that comes from the case known as R. v. Feeney, which I recall well. It was tabled around the time that I arrived in Parliament, in 1997, the first time I met Senator Baker.
In the Feeney case, the ratio decidendi spoke of the reasonable expectation of privacy to be balanced, as well as pursuant to reasonable law. The circumstances in which police were to find themselves in deciding whether or not to seek a warrant were to be weighed with exigent circumstances. What was the pressing need that required the police to act or to get a warrant? The purpose of this new section is to ensure that there is clear language around voluntary assistance. Where not prohibited by law, it is not precluded and is protected from criminal and civil liability.
To give you a practical example, if there was a car accident in front of your house and the police arrived after hours, came to your door and simply asked you if you saw anything happen in front of your house last night, you'd have two choices. If you did see anything, you could close the door and say, ''I'm sorry; I have nothing to tell you,'' or you could voluntarily disclose what you saw and share that with the police. This is, practically, what we're talking about when it comes to voluntary disclosures to the police. They now have the ability. Interpreting the Supreme Court's exigent circumstances test, if somebody finds a cell phone or a recording device at an accident scene, exigent circumstances, I would suggest, as a practical example, would permit the police to go to the Internet service provider and say, ''Who owns this particular device? Based on this telephone number, who has the contract with you, Telus, Bell, Rogers?''
[Translation]
I would like to conclude by reiterating that Bill C-13, which amends the Criminal Code, the Canada Evidence Act, the Mutual Legal Assistance in Criminal Matters Act, and the Competition Act represents a focused approach to modernizing these laws to address modern crimes. Further, and most importantly, the bill has been crafted in a manner that respects the privacy interests of Canadians while ensuring that public safety can continue to be protected. Thank you for your attention.
[English]
I thank you for your careful examination of this important legislation. I know you will bring the usual standard of consideration to this bill, and I look forward to your questions.
The Chair: Thank you, minister. We have a long list of senators wishing to ask questions, and we'll begin with the Deputy Chair of the committee, Senator Baker.
Senator Baker: Welcome, again, to the minister, who's certainly done a wonderful job in putting forward government legislation and getting it passed in this Parliament, and, as well, to his two witnesses, Mr. Wong and Mr. Piragoff, who both have an excellent knowledge of the criminal law and even civil law.
Minister, I wonder if you could respond — and I think you have in your address — to the objections of the Privacy Commissioner of Canada, on June 9, 2014, when the Privacy Commissioner said:
The bulk of the new powers may be used where investigators have a reasonable suspicion of wrongdoing, not a reasonable belief.
Then, the Privacy Commissioner goes on to say:
In our view, the rationale for resort to a lower and less privacy protective legal threshold has not been established to access and collect private data, including highly sensitive data generated in the course of individuals' private, Internet-based communications from the sanctity of their own homes.
How would you respond to that? I know you've responded generally to it, but how would you respond to that criticism?
Mr. MacKay: Thank you, Senator Baker. This standard of reasonable grounds to believe versus reasonable grounds to suspect has been around, as the saying goes, since time immemorial. This is what police officers do every day when it comes to their investigations. However, the judicial interpretation of that is extremely important when we examine this important and ongoing debate, if you will, over the balance of privacy rights versus the rights of police to investigate and, in some cases, collect evidence.
What we are talking about when we say ''reasonable grounds to believe'' is that judicial threshold that most warrants must meet for a judge to say, ''Yes, here is your authorization to go further with your investigation.'' As to having the ''reasonable grounds to suspect,'' the less intrusive standard that police would use, at what I would call the ''front end'' of an investigation, as I said earlier, we're talking about police, in this case — our security forces — seeking the authorization to gather what we would consider to be very non-intrusive evidence. As I said through my example, how did this information travel? Because what we're talking about, in some cases, is the routing of this information if we're tracking someone suspected of fraud, luring, child pornography. We saw a recent case in Halifax that was reported today of somebody in Nova Scotia being lured by somebody in the United Kingdom.
It's the ability to trace the route in which the alleged criminal activity has happened. Not who did it, not what was said, not the type of evidence that would eventually be required to prove a case beyond a reasonable doubt, which is, again, an even higher standard, but simply to get information that will further the investigation. That's how I would differentiate between ''grounds to suspect'' and ''grounds to believe.''
Senator Baker: Something like a number recorder warrant. It would track the telephone call. Much used. Section 492.2, I think it is, Mr. Piragoff.
Mr. MacKay: That's correct. Less intrusive, for sure.
Senator Baker: I know that section fairly well. I've read a lot of case law on 487.01 up to 487.012 because it's frequently before the courts. I have always been astounded at what's in the Criminal Code now at 487.01 in that you can get a warrant to do anything that you can't do under any other federal law as long as you're violating the Charter and you don't involve somebody's personal integrity. I think that's the wording of 487.01. It's an incredible piece of legislation, an incredible part of the code, in that you could do anything you are proposing here in your legislation.
When I look at 487.012, the production order section of the Criminal Code, that's where the changes are taking place.
Here is my question to you: 487.012 states that a judge can issue a warrant if:
(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application —
That is a private application, which is normal.
— containing information on oath in writing, that there are reasonable grounds to believe that
(a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed;
The belief is on the part of the judge issuing the warrant. The suspicion presently in the code is on the part of the police officer. Am I correct in saying that you've now taken various sections, and you have various numbers, 5.001 and so on, your forms, and you have made the suspicion that's presently in the code the standard for the police officers in making sure that things are recorded or are kept, a preservation order, but that in order to get that material, it requires reasonable grounds to believe issued by a judge. Am I correct in saying that?
Mr. MacKay: That's absolutely correct. You've encapsulated in very straightforward terms what this legislation is attempting to do. It codifies certain practices that have been around for some time for police. It puts within the Criminal Code itself this effort that we believe is necessary to ensure that police, in the standard they meet in the collection of evidence, in going before a judge, can actually present in some cases the evidence that they have thus far.
As you know, investigations follow a continuum. They have things that are as obscure as simple tips from sources, from informants, that lead them to build the case, up to and including and beyond getting a warrant. It goes from sometimes complete hearsay evidence to evidence that must be preserved and presented to a judge. If it's in the form of electronic evidence, they can actually present that once they have reached that point where they can collect it. Then, as the investigation continues, as they get to a higher threshold, they still have to go before a judge, perhaps more than once, to say they now need to go to a higher level of intrusion to further the investigation to either prove or in some cases even eliminate a suspect in the hopes of either preventing, proving or prosecuting a crime. It does require that important judicial oversight or judicial intervention in some cases. The police are now required, I would suggest, to present a more codified and cogent step-by-step analysis of the evidence they are producing and relying on.
Senator McInnis: The sponsor of the bill is all pumped up with the great question just asked and by your remarks in dealing with the lowering of the threshold and the precision of the orders that the legislation is being brought on.
Over the past few years, cyberbullying has shown Canadians tremendous harm that can be caused by the misuse of technology, and the sad events of the last two and a half weeks have left Canadians shocked and actually questioning what's next. At this time, Canadians want laws in place that will enable law enforcement to protect them; yet, at the same time, I believe Canadians have a high regard for privacy rights. Do you think the bill strikes the balance? I know that we're helping law enforcement to have efficient and effective law enforcement tools, but is this bill fair?
Mr. MacKay: I truly believe it is. This is before you as legislation that you will no doubt examine in great detail, as I know you already have. You will hear from other witnesses who will voice their opinions. Certainly the drafters of this legislation, in consultation with me and members of the government, believe we have arrived at that sweet spot that considers the very important privacy rights of Canadians.
We believe as well, and it almost sounds trite to say this, that we are living in very challenging times when it comes to the proliferation occurring on the Internet of various sophisticated types of crime. With that reality in mind, we have a Criminal Code that frankly contains sections that go back almost to the time of Confederation. There are pieces of this Criminal Code that do require, necessitate urgently, updated amendments that will allow the police to deal with this reality that predated many of these sections of the Criminal Code.
Many of these sections deal with the subject matter of intimidation, of fraud, of these acts that have a very real impact on people's lives. As we saw, young people are taking their own lives because of the type of harassment that has become so pervasive and intrusive in their lives. This gives the police not only the ability to hold them to account for that type of criminal activity, but also and perhaps even most importantly to pre-empt and prevent some of that very corrosive behaviour before it happens.
We are mindful that we need to have precise investigative tools and techniques, always tailored to protect privacy rights appropriately, ensuring that we are erring on the side of protecting privacy, but giving the police the ability to act when and where they can, appropriately, with judicial oversight, and to hold people accountable. It's a penetrating statement of the obvious, but a lot of this crime, particularly the intimidation and the harassment that we've seen in the Rehtaeh Parsons case, happened because they were anonymous. It's amazing. It goes back to the beginning of time. Criminal behaviour tends to go up when somebody thinks there is no chance they will be detected and they can do it anonymously. This strips away some of that anonymity and sends the message that we will find you and we'll do it within the bounds of the law. If you're committing that type of offence in the virtual world, just as in the real world, the police are tracking you and they will find you.
Senator Jaffer: Thank you very much, minister, for your presentation and your initiative. I am pleased with many of your remarks. You spoke about virtual luring, especially Canadian men and international women, and how much Canadians are involved in this was written in Maclean's magazine. I was very pleased to hear that you were also looking at this.
As you know, minister, I'm the chair of the Human Rights Committee as well. When our committee was working on this and prepared our report on cyberbullying, you were supportive. When you read the report, you were very complimentary, and I want to publicly thank you for that.
I also want to say to you that I am really concerned as to how this bill will address some of the issues we were looking at with cyberbullying.
As far as adults go, I agree and I couldn't support you more on this, but I'm struggling with how we are going to deal with children who put terrible images of their classmates on the Internet. How are we going to deal with that problem? Because Amanda Todd and Rehtaeh Parsons, I could be wrong, but as far as I know, it was young people causing harm to other young people. I'm struggling with that. How is this bill going to answer those questions?
Mr. MacKay: That's an excellent question because I would be less than honest if I said that this bill is going to answer every issue when it comes to this issue of cyberbullying in particular. It goes well beyond Criminal Code sanctions and amendments that we are discussing here.
To answer this question, senator, you would have to look to our education system. You would have to look to a more public information type of advertising and programming, including greater involvement from the Internet providers themselves, yes, from government but other agencies. I've already commended the work of the Canadian Centre for Child Protection, but through that medium I think there have to be more efforts made to reach out to young people and to try to change the culture of impunity that seems to exist.
The fact is that many young people think that somehow the behaviour on the Internet is not as impactful as it is in the real world, so there is a disconnect, in my view. It's my observation that if you said to that young person ''Would you pass a photograph depicting your friend in a compromised position to somebody else?'' they would probably say no, but they seem to have somehow a disconnect doing the exact same thing over the Internet or through a handheld device. It seems to be somehow less tangible, if I can put it that way.
So to come back to your question of how do we convey that to young people, I think it involves an even broader Canadian conversation, having people outside of this place, with great respect to all present — athletes, artists, well-known Canadians — taking part in that public information. People like Sheldon Kennedy have gone to tremendous lengths, and I know you will be examining some of the other provisions that are coming forward through the victims' bill of rights; and people, as we've seen, like Clara Hughes, those who are known for having achieved things in other walks of life that young people relate to, I think can be very important ambassadors for that discussion that should take place.
So a mature, open discussion about the ramifications of behaviour online is still unfolding. This bill helps and the spectre of criminal consequences is an important part of the deterrent. We have been running ads — you may have seen them — that show young people in the principal's office after having done the type of behaviour that was so devastating for Rehtaeh Parsons and others. That message has to get through, and there are many ways, mediums and individuals, to help send that message, but this bill is very much part of that equation, but it goes beyond simple legislation.
The Chair: The minister has to leave at 5:15, so I encourage senators to tighten up the questions.
Mr. MacKay: I'll tighten up the answers as well, Mr. Chair.
[Translation]
Senator Boisvenu: Congratulations, Mr. Minister, on this bill. You listed a few statistics on the increase in criminal behaviour related to cybercrime. I only had data for the Montreal area dating back to 2012. That is a 30 per cent increase in charges by police.
The police have added a lot of resources in recent years, but this is a crime that is increasing the most. This bill addresses children, but adults as well, because there have been cases in Quebec in divorce situations where people put intimate images on the Internet in order to settle the score with a spouse or ex-spouse.
Is this bill for both adults and children?
[English]
Mr. MacKay: I'll get right to the heart of this issue, senator.
[Translation]
Thank you for your question. The provisions of the Criminal Code are currently inadequate for this particular crime.
[English]
This non-consensual distribution of intimate images, quite frankly, just is not covered in the current Criminal Code. There was a glaring gap, an omission, and it came to light in particular in the Rehtaeh Parsons case.
By putting this sanction in place, we believe that it sends the message of deterrence, general specific deterrence, but it also has this broader message, because you're correct. There has not only been an increase in the reporting of this type of activity, we know that many of the sexual offences involving children still go unreported. So the statistics, as is so often the case, don't really tell the full story or the gravity or the scope of the issue, but we believe this section goes a great distance in addressing the specifics of this type of distributing of non-consensual information. An expression that is quite shocking to hear, but revenge porn is another phenomenon you will hear about, I suspect, from witnesses whose pictures were taken consensually that are then used as a very insidious way to harm someone.
Make no mistake about it, senators. This is very harmful behaviour, particularly for a vulnerable person, a vulnerable child. It's devastating. We've seen that. How hopeless must a young person feel to take their own life because of a picture that is being passed around in the school? You only have to hear the testimony of Glen Canning and Rehtaeh Parson's mother to know just how insidious this was in her life. She moved schools.
To come back to the question of what do we do, we have to have the school boards, the teachers, the principals but mostly young people very involved in this discussion so they understand the harm and that when you press ''send'' that is not just going to your friend. That could be going around the world and could haunt you the rest of your life, both as the sender and the receiver.
[Translation]
Senator Rivest: My question is somewhat related to the answer given to Senator Jaffer's question. You said in your response that, from the government's perspective, cyberbullying is not strictly a problem relating to criminal rights or police activity. In many respects, your bill improves and clarifies the situation, and tries to balance privacy with new powers.
Is the government aware that the problem is much larger than that? In this global strategy by the Canadian government and other stakeholders in our society, including the provincial governments, which are responsible for health care, social services and education, is there a general action plan not just for sanctions, because that is the purpose of your bill, since it has to do with criminal law, but also for prevention and support? Is there a political will at the federal and provincial levels in Canada given the seriousness of this problem so that we can intervene effectively, because the police and criminal law measures cannot handle such a complex issue?
Mr. McKay: You are right. This is a very complex issue. The short answer is yes. A lot of people are currently involved in this challenge at the federal, provincial and territorial level. The police also fully understand the extent of the problem. It is widespread in many countries. Canada is responsible for working with the international community on this issue, and there is an international protocol for the matter.
[English]
Right now we have a much greater ability to share information, practices and protocols with the international community, and that is happening. I can assure you this was on the agenda for what's called the Five Eyes justice ministers. We had a very in-depth discussion about how we help assist people who either flee the jurisdiction or move around when it comes to proliferation of child pornography, the making and sharing of child pornography, or the luring of children. They are obviously very adept at evading detection and capture.
We owe it to the broader community, and certainly we owe it to children to try to share internationally the practices we are undertaking, including this bill. We will arrive at a place with the passage of this bill and some of the other things that we're doing, that we're talking about in terms of education, involvement of the broader community. I want to see Canada as the safest place to raise a child and the country that has the highest standards when it comes to the protection of children.
When we do that, I think it will inspire others to take action. It will allow us to go to jurisdictions with a lower threshold of child protection, with less capacity, fewer tools, less legislation, less protocol when it comes to their Internet service providers, and we can encourage them to raise their standards as well. It is happening, but not quickly enough because we unfortunately can't move at the same speed as some of the horrendous things that are happening online. However, we're taking a big leap forward with this legislation and some of the other practices that are well under way.
The service providers themselves are really on-board, on side with this, and I hope the courts will make proper decisions in terms of how this evidence is going to be presented.
Senator McIntyre: Thank you, minister, for being here today, for your presentation. In November 2001, Canada signed the Council of Europe's Convention on Cybercrime. It also signed the protocol on hate crimes in 2005, but has not yet ratified those documents. Will Bill C-13 be used to ratify the Convention on Cybercrime?
Mr. MacKay: Yes. I'm so glad you asked this question. It comes back to Senator Rivest's question and others. This will put us in a class with our Five Eyes partners, with our traditional allies to be able to confidently say we will meet those international standards. We will sign that protocol upon Royal Assent of this bill. It will put us in a position to confidently say we've now met that standard and, in fact, will exceed that standard.
Senator McIntyre: I have another question. I know that recklessness is also included as a mental state, in addition to knowledge, and in relation to the victim's lack of consent to the sharing of the image.
As you know, other offences under the Criminal Code are formulated in this regard. For example, the definition for second-degree murder where the Crown has to show either an intent to kill or an intent to cause bodily harm knowing that it would result in the death and the accused person was reckless, whether or not death ensued. If I'm not mistaken, it's also formulated in other sections of the code, such as 244.2(1), the offence of intentionally discharging a firearm.
Are you satisfied that both mental state definitions are incorporated with Bill C-13?
Mr. MacKay: Yes, senator, I am. I think that you've properly captured the terminology here and the recklessness does go to the mental state of the person who sent the message, received the message, is sending it on and becomes part of that chain. It's all about the accused person's appreciation, knowledge and willingness to take the risk and act upon whatever instinct to continue with either the proliferation or the sharing of that information.
Recklessness, as you said, is a well-recognized standard in the Criminal Code when it comes to criminal liability. It's used in a number of sections. There are many precedents. The cases of R. v. Hamilton and Sansregret v. The Queen delve into the matter in some detail.
Senator McIntyre: In driving offences as well.
Mr. MacKay: Driving offences as well. To use an example, when a person receives an intimate image of a co-worker in a workplace and they don't know whether that co-worker consented to that image being taken or distributed, whether they know the person or not, without making any inquiry, any contextualization, they then choose to share it with everybody else at the office. That would be very much, in my view, a reckless decision to make and reckless behaviour.
That's what we're talking about, whether the person made reasonable inquiries in the context as to the sharing of that information, which on its face I would suggest, in many cases, should lead that person to believe further proliferation of that material would be inappropriate, and in some cases criminal.
Senator Batters: Thank you very much, minister, for being here and bringing us this very important piece of legislation for Canada.
As someone who's done a lot of work over the past years for suicide prevention and mental health, it was heartbreaking for me personally to see the tragic stories that unfolded with Jamie Hubley, Amanda Todd and Rehtaeh Parsons. I heard someone on television, on the newscast recently talking about this type of legislation and saying if we gave someone a mask, that wouldn't give them the right to physically abuse someone. Why, then, would disguising themselves online give them the right to emotionally abuse someone?
So minister, our government obviously believes in equilibrium between prevention and prosecution. We believe that victims deserve justice and that authorities at every level must participate to prevent crimes on the Internet. I'm wondering if you could tell us about some of the initiatives put forward by our government to prevent crimes committed on the Internet.
Mr. MacKay: First, let me express appreciation for the work and the leadership you've demonstrated on this issue, and I know it is one of personal pursuit for you and important to all.
It is this anonymity, I'm afraid, that spurs much of the behaviour we see on the Internet, so it requires an all-hands-on-deck approach. This is not something that is partisan. It's not something that is limited to any level of government or any agency. I think there is recognition that this very harmful behaviour has resulted in some young people taking their own lives, but there are many other consequences, whether it is fraud, whether it be luring, whether it be the type of exploitation that really has become so intrusive into many people's lives.
The Get Cyber Safe campaign is one that comes to mind, to answer your question specifically, which is back to this issue of sharing information about responsible behaviour online and the consequences for not behaving properly. It helps to protect families and it helps young people to understand consequences, but also what can be done to help prevent, understand and cope with the type of cyberbullying that we've seen across the country.
There is part of a National Bullying Awareness Week, and it goes beyond the schoolyard and the Internet. There are many types of bullying that happen, but children and cyberbullying is a particular program that is hopefully getting more into the schools and sharing information through more traditional types of pamphlets, information. Social media is part of that as well. We're working with partners and agencies to try and spread this information broadly.
We have, for example, supported a number of school-based projects to prevent bullying. One that I'm proud of, which emanated from a school in Nova Scotia, was Pink Shirt Day, where a child had come to school wearing pink and was teased relentlessly. A couple of other young people in the school said, okay, everybody in the school is going to wear pink tomorrow, and it caught on. Many of the schools around the province, and in fact the country, now do this to push back against all forms of bullying. There's funding attached to that. There's a $10 million commitment with respect to prevention projects around the country.
I mentioned Cybertip earlier. There's also a website called NeedHelpNow.ca, which is again about how you remove material from the Internet and some of your recourse for reaching out for online sexual exploitation of children — as I said, images and words that are deemed inappropriate. There is help.
Overall, senator, my last comment, Mr. Chair, is that addressing all forms of bullying and all forms of exploitation really requires raised awareness that there is help out there. That's what a lot of young people have to come to understand. They're not alone, and there are places to go and people who are there prepared and willing to help. I'm hopeful that even the discussion around this bill will go a long way in that regard.
Senator Batters: Thank you.
Senator MacDonald: Thank you, minister. I know this is important and timely legislation, and I know you put your heart and soul into this. I thank you for all your hard work on this legislation.
Can you give us some insight on the consultation process to date? You met with the families of the teenagers and young adults who have taken their lives as a result of cyberbullying. Could you share with us their response to the legislation?
Mr. MacKay: Meeting with the victims is always a very stirring and insightful exercise, to say the least. They pour their hearts out. It's affected them in an indescribable way when they've lost a loved one or when a young person has been pushed over the edge, or when anybody's been pushed over the edge. It has lots of other contributing collateral damage. Many people turn to drugs and alcohol as an escape. Many people do desperate acts. Another phenomenon that we've seen in the area of sexual assaults and abuse is that it's passed on. That behaviour is repeated because it becomes, sadly, a learned type of behaviour.
On the consultation, we obviously consulted with people who were technically proficient in how we can do things like the removal orders and the prevention type of activity. We consulted with schools in the education system. We consulted with provinces and territories because of the jurisdictional aspect, getting their input. Police have figured very prominently. We have a very talented and committed police force throughout the country that has developed, sadly, out of necessity, expertise in this area. Again, this bill is about laws that allow them to do the type of work online that they're doing in real life, in real time in the communities. It's enabling legislation. It's about modernizing our ability to investigate in this broader world. We consulted, of course, with the ISPs and telcos, communications associations, and the Privacy Commissioner was mentioned earlier.
It is a bill, as you would expect, that has had a lot of eyes on it and a lot of input, a lot of intelligence behind these sections. We're quite confident in their constitutionality, we're quite confident in the impact that it will have, and it will enjoy further scrutiny by the membership of this committee.
Senator Frum: Minister, thank you for being here. For a damaging image to go viral, it has to begin with one person breaking trust or taking advantage and then spreading it out. Does this bill anticipate any different treatment between the original source of the violation, let's call it, the original posting of an image, and those who post it thereafter? Are they treated the same, or is one different?
Mr. MacKay: I'll try to answer your question this way, Senator Frum: The impact on the aggrieved person, the victim, would be weighed considerably by the judge. How the image made its way into the cyberworld is the important element here. That is the original offence in how that information or image made its way onto the Internet.
In law, each offence is viewed individually. It's viewed on its circumstances. It's viewed on the evidence presented before the court. Judges will inevitably weigh aggravating and mitigating circumstances in their determination after a finding of guilt as to the appropriateness of a sentence. There are varying degrees of culpability all along the continuum of the evidence. I can't really say anything more than that. Each case is going to be viewed on the facts and the evidence, and a judge would make a determination after a finding of guilt as to the appropriateness of the sentence.
The Chair: Minister, we've reached your departure time, but I have one senator remaining on my list. Is there any chance you can extend your time a little bit?
Mr. MacKay: Of course, by all means.
[Translation]
Senator Dagenais: Mr. Minister, thank you very much for your presentation. This is obviously a tool that will be of use to the police. With this bill, there is no doubt that the police will be able to compile the evidence on the Internet. They will also have to keep it for a certain period of time so they can produce it in court. Once the work is done, is there a set date when the police will be able to get rid of this evidence on the Internet? Will there be a date on which they will have to destroy this evidence?
[English]
Mr. MacKay: If I understand your question, is there a date on, for example, prevention orders or orders with respect to the collection of the data, the technical evidence?
Senator Dagenais: Exactly.
Mr. MacKay: Yes. There are, in fact, strict parameters granted within a warrant by a judge for the expiration of the time in which they have to collect the data.
This comes back to some of the questions from Senator Baker. It is modelled on current warrant provisions, but the difference, as we can all appreciate, is that with the simple click of a button, you can very quickly delete and remove and hide the offensive material and evidence in some cases, or erase the trail, perhaps would be a better way of describing it.
Having said that, the police do have to comply within certain time frames in each case. After having been granted a warrant, they have so much time to execute the warrant. In the prevention or the preservation orders, it's an order not to delete, so they can go to the service providers and say, ''We believe that certain information is in your possession. We don't want to see it, and we're not asking to see it, but we're telling you not to delete it until such time as we have adequate opportunity to get a warrant to then either see, preserve further or actually have the evidence disclosed.''
All of that is set out in significant detail in this bill, and it does include expiration times. They have parameters. These are not open-ended warrants that are preserving data or preserving evidence for infinity.
The Chair: Thank you, minister. We appreciate your appearance and your testimony. It has been very helpful.
Mr. MacKay: Thank you. I wish you the best in your deliberations.
The Chair: Thank you.
For the remainder of today's meeting we have Mr. Piragoff and Mr. Wong here to answer members' questions. Again, we will lead off with Senator Baker, the deputy chair.
Senator Baker: Thank you, Mr. Chairman. I'd like to ask Mr. Wong and Mr. Piragoff a question, and I don't know the answer to the question I'm about to ask, and I hope that you will be able to give me good judgment on the question.
It was a year ago that the Supreme Court of Canada ruled in a case called Telus. In that case we learned that Telus was the only provider of the type of service that was under adjudication at that time — I think it was text messaging — that kept a record for 30 days of all of their communications. Rogers and Bell and the others don't do that. The Supreme Court of Canada ruled that this was legal because it was under an exception granted under the Criminal Code for quality control purposes.
So the question before the court was: Could a general warrant issue an order to allow the telecommunications company to record future communications from this particular individual to other persons? The Supreme Court of Canada ruled by majority, with Justice Cromwell dissenting on it, that in order for a future communication to be intercepted, it comes under the rigours of section 6 of the code, that you're intercepting private communications and you cannot use 487, the section that we're talking about now, for the interception of future private communications.
How does that fit in with this bill? How is that matter addressed in this particular bill that you would be seeking authorization in the name of a production order to intercept future communications which the Supreme Court of Canada has judged to be an interception of private communication to be dealt with under the rigours of section 6 of the code?
Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector, Justice Canada: Thank you, senator. I hope I have the answer to that question.
Production orders apply to things, information in the past, so it's historical information. It's an order to produce something which already exists, so it's records, whether they be telephone records, Internet records, bank records; it's historical stuff.
Senator Baker: Okay.
Mr. Piragoff: That's what the production order is, and all the production orders in this bill talk about things in the past. So if you want, for example, an order to produce telephone records from the telecommunication company for the last 30 days, who that person called in the past 30 days, that would be a production order.
And because it's not content, it's just simply who called whom, it would be under the new production order with a lower standard because the level of privacy is a lot less than actually getting the content. It's the same thing with email. All you want to know is who did the person email in the last 30 days, but I don't want the content. To get the content, you would have to get a full production order with reasonable grounds to believe because it's higher intrusiveness, higher privacy.
Prospectively, if you wanted to ask an Internet service provider or a telecommunication company to collect data into the future, it would not be a production order. It would be one of the warrants. If it was content, that is, the actual record of the content of emails or record of future telephone conversations, that would be a Part 6 intercept or authorization.
Senator Baker: I understand.
Mr. Piragoff: If it was simply who does the person call in the next 30 days or who is he communicating with in the next 30 days, then that would be the new warrant in order to —
Senator Baker: A number recorder warrant.
Mr. Piragoff: Number recorder warrant, that's right, which is in the existing law right now.
Senator Baker: Yes, in 492.
Mr. Piragoff: And the existing law for that right now is reasonable grounds to suspect, and that was for telephones, and we are applying the same type of standard to, basically, email.
Senator Baker: Mr. Piragoff, then would this be a correct assumption? I don't know if this is oversimplifying it, but you're erasing 487.012. You're creating a new 487.012 and further in there. It says in 487.012 that a warrant must issue from a judge on grounds to believe that a police officer has a suspicion that, because that's the way it reads. Is it an oversimplification to say that you've now created several sections in the code that cover the officer's suspicion and then a couple of sections to cover the judge's belief?
In other words, you've dissected it so that you have several sections that say ''suspect,'' it's the police officer who suspects, but for the actual warrant to get the material, it reverts back to ''reasonable grounds to believe'' on the part of the judge? In other words, somebody counting the number of times — I read the Privacy Commissioner's letter, and it said, ''Numerous times in this bill 'suspect' is being used and only a couple of times 'belief' is used.'' Would it be an oversimplification to say that, yes, that's correct, but it replaces the general direction of 487.012 right now that says there must be grounds to believe that the officer has a suspicion that an offence has been created?
Normand Wong, Counsel, Criminal Law Policy, Justice Canada: I will answer this, Senator Baker. It sort of feels like déjà vu from 2004 because you picked up on that same issue about the dual threshold in the production order.
Senator Baker: Yes.
Mr. Wong: That currently also exists in 487, and that was my response to you in 2004.
Senator Baker: Yes, it was. You were right that time, by the way.
Mr. Wong: I was right, but so were you. Case law has proven over the last 10 years that even the courts have been confused by that dual threshold. So if you notice under the new section 487.014, which is the re-enactment of the current production order, we've taken out that dual threshold, so it's no longer confusing.
Senator Baker: And it's just ''belief.''
Mr. Wong: It's just ''belief.''
Senator Baker: In other words, it's no longer belief that the police have a suspicion; it's now belief, the higher standard.
Mr. Wong: And to follow up on the parsing out, as you've said, in terms of the suspicion of police in these lower-threshold warrants, these warrants, as the minister said, are to be used at the outset of an investigation. So it's not only suspicion that an offence has been or will be committed, but the proof that they have to bring before the court as well, in relation to the evidence, is lower as well. It's information that will assist, because a lot of this information, as we've talked about, has a lower expectation of privacy. So phone numbers and the tracing of the communication might not ever be used as evidence in a court of law, but it is information that police will use to actually find who the suspect is and find that evidence that they'll bring before a court of law.
Senator Baker: Excellent. Thank you.
Senator McInnis: I want to ask you about the constitutionality of the bill. As certain as Thursday will follow Wednesday, this committee will hear lawyers from the Canadian Bar Association.
Senator Baker: Of which you are a member.
Senator McInnis: Of which I am a member, and I presume these gentlemen are as well, perhaps.
We'll see lawyers from the criminal justice lawyers' associations, distinguished professors of law and constitutional experts, and they'll come in here and tell us about various sections; they'll probably look at sections like immunity, lowering threshold, reason to suspect versus reason to believe and certain introduction orders that are now new.
We're told all of these bills are scrutinized as to whether they will meet any challenge, so my question to you is: Will this bill stand up to the challenge?
And if you say yes, then we should have you here when the other groups come in.
Mr. Piragoff: The powers in the bill are based on existing standards that are already in the code. Senator Baker made reference to the dial number recorder. That provision has been in the code for a number of years. It's on the standard threshold of reasonable grounds to suspect. That has been adjudicated by the courts and has been held to be constitutional. There is a lower expectation of privacy with respect to a telephone number than the actual content of a telephone conversation, and therefore one can obtain a collection of telephone numbers at a lower standard.
We used the same type of methodology with respect to all the other powers in this bill that have the lesser threshold of reasonable grounds to suspect. We've looked at particular types of information and made an assessment that that has a lower expectation of privacy, and that therefore it's justifiable to go for that piece of information.
The one thing that Senator Baker said about the section 487.01, which, if you get this warrant, you can do anything that would constitute a violation of section 8 of the Charter. That warrant, like an ordinary search warrant, entitles you to take everything in the room. With these orders that say you have reasonable grounds to suspect, it's a lower threshold, but the quantity and the type of information that you get is much more limited. You can't get the content of the conversation. You can only get the telephone number or the email or the routing. Which ISP did the telecommunication go through? That's all you get. It's very precise, and the type of information you're obtaining is information of a lower order of expectation of privacy. That's why we believe it's constitutional, and there is precedent with the dial number recorder. The courts have upheld that differentiation in law.
Senator Jaffer: From my earlier question to the minister, my question to both of you is: Will this bill help a future Rehtaeh Parsons or an Amanda Todd and, if so, how do you see it helping them?
Mr. Wong: There are a number of provisions that would have helped in those situations. First, in the Rehtaeh Parsons case, because she was a minor, there were a whole bunch of different offences that were potentially committed in that scenario, and the young men who were involved in that are currently under charges and potential prosecution for their actions.
In the Amanda Todd situation, they recently found out who the person was who was extorting and terrorizing her. It's a person who lives in the Netherlands. It took about 10 months to find that person.
Had the production order for tracing a communication been in place at the time, it may have been a matter of weeks or maybe even days to have located that person, and in that situation, perhaps the whole incident may not have even ended the way that it did.
There are things in this legislation that will help police investigate these types of crimes and incidents better and more efficiently. It's not only for cyber type crimes, but as the minister said, all major crimes nowadays leave electronic evidence and allow them to investigate any type of crime better, whether it's a murder, sexual assault, or, as the minister said, a terrorism offence.
Senator Jaffer: Can I give you a scenario? I heard all the time in the committee, especially from parents and teachers that as soon as the image is posted, they want to find a way to remove the image right away. If an unacceptable image is put on the Internet and there was a complaint, how soon would that image be removed?
To make myself clear, I can't tell you how many teachers said the child complained; they phoned and wrote to Facebook, and Facebook didn't do anything. One person wrote 100 times and they didn't do anything. As you know, the image was repeated and repeated. Basically, what I understand after having spoken to many young people is they just want that image to be removed. Will this bill do that?
Mr. Wong: This bill will certainly help in a number of ways. It's a very simple question that you are asking, but I will give you a complicated response because there are many different aspects of this bill that will assist in that.
First, section 164.1, which is the notice and take down provision in the Criminal Code currently for child pornography and voyeuristic material, will be amended to include intimate images. So a person could make an application to a court to have their image removed from a website.
Of course, the jurisdiction of Canadian courts only goes as far as Canadian borders, so that would only apply to Canadian ISPs.
However, as the minister said, this bill will also put Canada in a position to ratify the convention on cybercrime. That treaty has 42 current partners, many of which are not current Canadian international assistance partners, so it will extend the reach of law enforcement to those countries.
The other good news is most states in the United States are now considering revenge porn laws. Although Facebook is located in California and may not be replying now, if California enacts a revenge porn law, it increases the likelihood that a Canadian domestic order for notice and take down will be put in effect in the United States.
Senator McIntyre: Mr. Wong, in June last year, the Coordinating Committee of Senior Officials, Cybercrime Working Group, published a report, Cyberbullying and the Non-consensual Distribution of Intimate Images. I understand you chaired that group, and I further understand a lot of the recommendations contained in that report are now reflected in Bill C-13, such as the new offence, the complementary amendments for that new offence, as well as the modernization of the code and the introduction of modernized and improved police powers as it affects the Internet. Could you elaborate on that report?
Mr. Wong: The CCSO and this FPT working group is sort of a function of the operational arm of FPT relations. Following the tragic death of Rehtaeh Parsons, which followed only a few months after the Amanda Todd situation, all FPT ministers responsible for justice and public safety were engaged on the issue of cyberbullying. They asked the working group to look at this issue.
We met for a number of days to study this. Also, the working group is composed of policy people, prosecutors and police from across all Canadian jurisdictions. There were approximately 30 people who worked on that, all very experienced practitioners in this area of the law.
Following those deliberations, we came up with the recommendations. We realized that the term ''cyberbullying'' covers so many different aspects of behaviour that it can't be encapsulated in one particular offence because there may be 15 or 20 offences currently in the Criminal Code that capture most of the aspects of cyberbullying that we see. One aspect of cyberbullying that was not adequately captured was the non-consensual distribution of intimate images. And that's why Bill C-13 proposes that new offence.
The Working Group on Cybercrime, which authored the report, has also been consulted on the lawful access initiative over the last 10 to 15 years. They realize how important it is to put the proper tools in the hands of police to collect this information. As I said, police and prosecutors are on there, and they know that if they don't have the proper evidence, they can't have effective prosecutions. That large component of the report also formed one of the recommendations.
Senator Batters: Thank you for your answer, Mr. Wong. You spoke about the federal-provincial-territorial ministers and the working group that was involved. I worked for the then Minister of Justice for almost five years as his chief of staff in Saskatchewan. I recall that every year we would have an FPT meeting. Sometimes we would have smaller PT meetings and that sort of thing. These types of issues would come up every year, so it's nice to have a resolution to that process.
The preservation of data is a key element that allows the Crown to produce evidence that can lead to accusations and convictions of criminals. You just talked about the working group on cyberbullying that strongly recommended that the federal government enact investigative tools and procedures to enable law enforcement to keep pace with modern technology. Those proposals suggested to concretely assist police to respond to criminal harassment that occurs on the Internet through the preservation of that data. Today when police seek evidence of those types of crimes, the service provider may have deleted that data before the police can access. The data preservation authority would allow the police to freeze the data so that the evidence is not lost. Can either of you give us more information about that important aspect of this bill?
Mr. Wong: The preservation of data is important because in large part the ISP industry in Canada is not regulated. The telcos are regulated but not the ISP industry. Every ISP has slightly different business practices. The smaller mom and pop shops may not preserve or retain any data. They may have a first-in-first-out system where information is continually overwritten.
This is an advanced telecommunications world. You recall how your Internet package may have started 10 to 15 years ago and how you were charged each time you went on the Internet. Now they sell you chunks of bandwidth that allow you to go on the Internet whenever you want. Billing was the reason they wanted to track you when you got on and off. If you have unlimited use and are paying for it, there is no longer a need to track that information. Increasingly, companies are not collecting the type of information that may be very important to a police investigation.
As a less intrusive means of preserving data, this bill proposes preservation to ban and preservation orders. The alternative, which they have in the European Union, is to have data retention. It requires service providers, telcos and ISPs to retain a range of information on all subscribers for a certain period of time, which could be very privacy invasive if you consider the implications.
We're proposing that when police suspect a crime has occurred, they may call the telco that is implicated and ask them to preserve a specific range of information on a specific suspect.
The Chair: There is a question on the notion of consent with respect to the distribution of intimate images. Can a minor consent?
Mr. Wong: A minor can consent but the image would be child pornography. If they consented, they wouldn't be committing the non-consensual distribution of intimate images offence but the person who distributed the image would be charged with the much more serious offence of distributing child pornography.
The Chair: For purposes of this bill, how do you define ''minors''? Are they under 18 or 16?
Mr. Wong: For child pornography, it's under 18.
Senator McIntyre: Gentlemen, you're both attached to the Department of Justice, so I need your help on this one. I would like to tie in the relationship between the common law power, section 487.014 as it exists under the Criminal Code, and Bill C-13 and the proposed amendment. The common law power is found under section 25 of the code, whereby if you do something that you are authorized by law to do, you are protected from civil or criminal liability. I further understand that following the codification of section 25, there was a concern about having a power to compel people to provide information. That's when section 487.014 was created. It says, ''for greater certainty the fact that there is a protection order does not affect the ability of people to voluntarily provide information.''
Enter Bill C-13 and the proposed amendment, which brings in proposed section 487.0195. As I understand it, the amendment would extend the immunity provisions to include those individuals who voluntarily preserve data to ensure they are not liable criminally or civilly because they voluntarily cooperate with the police. Is this the relationship between the common law power found under section 25 and section 487.014 of the code and proposed section 487.0195 found in Bill C-13?
Mr. Wong: Thank you for the question. Proposed section 487.014 exists because, as you correctly pointed out, section 25 already exists. Any time a police officer asks someone to assist voluntarily they would be protected by section 25. That's why 487.014 makes reference to section 25. It was meant to be a helpful way to point to that section for the immunity provision; and 487.014 exists because one principle of law is that a statute displaces the common law. Whereas police may have had the common law power under their duties and responsibilities to ask questions of people, there was some concern that by enacting the production order scheme, under the current sections 487.012 and 487.013 third parties would require a production order any time police asked them a question.
It was a place marker for greater certainty. The production orders do not displace the common law power of police to do their duties and ask questions.
Senator McIntyre: The Supreme Court of Canada decision in Spencer basically eliminates 487.014. Would you say that?
Mr. Wong: Not at all. The ruling in Spencer in relation to and the commentary on 487.014 is exactly what the minister's been saying all along: It is a for-greater-certainty provision and is meant to clarify what the duties of the police are and how people can respond voluntarily. As the minister said, the Spencer decision may have narrowed what can be provided in relation to voluntary assistance, but it does not preclude voluntary assistance.
Senator McIntyre: Are we going to keep section 487.014, or will it, with the passing of Bill C-13, be replaced by 487.0195?
Mr. Wong: It will be replaced, and as Senator Baker alluded to, section 487.012 will become the preservation demand. Basically, it's a re-enactment of the current scheme, and a lot of the numbers have been shifted because we added the two new preservation powers, along with three new production orders. It's moving the whole scheme along.
Senator Jaffer: I am going to come back to my preoccupation with young people. One young person puts up a bad image against another young person. Do you envisage that there will be charges laid against the young person? And have you considered — it can't be in the bill — the issue of restorative justice? It is all part of the whole-community approach. Are you looking at charging, or are you considering or reflecting upon charging young people?
Mr. Piragoff: If it's a young person who is accused of committing an offence, then the Youth Criminal Justice Act would apply, and all of those provisions would apply. Of course, there are provisions for diversion as opposed to proceeding with the prosecution, and, if there was a prosecution, then, again, the principles of the act are not really to punish the youth. They hold them accountable but also try to rehabilitate them. That act would apply to any person under the age of 18 who is charged.
Senator Jaffer: I'm not that familiar with all of the devices for taking an image and posting it, but young people tell me that there is no way — and I'm not an authority on this — that they can be traced once they put up the image. There are all kinds of modern devices. The names escape me. The minister was saying that you can trace the sender, but I'm told that that's not possible with some of the new devices or some of the new ways.
Mr. Wong: There are many different applications that help mask your identity. Young people are correct, but police have techniques that they can use to dig beneath that mask.
So they're right for the most part. If you're going to use an anonymizing app, anyone from the general public who might be looking at you would not know who you were, and they probably do not have the investigative techniques at their disposal that the police have.
But when a crime has been committed and police know that a crime has been committed, they might take that communication and run it through their forensic tools to try to uncover the identity of that person.
Senator Jaffer: I'm very impressed with all the work that has been done for pornography. Police have done exceptional work around that issue. Obviously, that knowledge will be transferred to some of this work. Will there be a separate body set up to look at cybercrime, or will it be integrated with your child pornography team?
Mr. Wong: As you know, the administration of justice is mainly the responsibility of the provinces, and I know that there are a number of provinces that have specialized cybercrime units. Most provinces have specialized police ICE units, which are Internet Child Exploitation units that investigate these types of crimes. Federally, we don't have the specialized unit to prosecute these sorts of things, but we're only responsible for the prosecution in the territories in relation to the most part of the Criminal Code.
Senator McInnis: Further to what Senator McIntyre was saying, from a practical point of view, I understand Spencer, and I understand the bill, where there's clarification here. However, if I was a service provider, it seems to me it would be a closed shop at this point. There will be very little volunteering. Would you agree with that?
Mr. Wong: In relation to the Spencer issue, you're 100 per cent right. Not only ISPs and telephone companies but also banks have stopped providing any subscriber information to police. Go get a search warrant or a production order that police cannot meet the threshold for.
The Chair: I have a quick question about the spouse now being a compellable witness under this legislation. What's the thinking there? What's the rationale for that?
Mr. Piragoff: That was the common law position, and it has been recodified in the Canada Evidence Act. There are a number of exceptions to the non-compellability of a spouse. There is a list of offences. Most of the offences share the common theme that, if it's an offence against the spouse, an act of violence, or if it's an offence against children, then the spouse can be compelled to testify against the other spouse. Given the nature of the intimate images offence, whether you call it revenge porn or whether it's involving children, it's a situation where you have a vulnerable victim. It could be a child. It could be the other spouse as the victim. Therefore, the spouse should be compellable to provide testimony. It fits into the same sort of general classification of the exceptions, and that's why it has been added.
The Chair: It fits in with current exceptions.
No other questions? No additional comments from our witnesses? We thank you both, gentlemen, for being here and assisting us with our deliberations.
Members, the meeting is adjourned.
(The committee adjourned.)