Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 21, Evidence - November 19, 2014
OTTAWA, Wednesday, November 19, 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 4:17 p.m. to give consideration to the
Senator Bob Runciman (Chair) in the chair.
The Chair: Good day. Welcome colleagues, invited guests and
members of the general public who are following today's proceedings of the
Standing Senate Committee on Legal and Constitutional Affairs. We are
meeting today to continue our study of Bill C-13, An Act to amend the
Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual
Legal Assistance in Criminal Matters Act.
As a reminder to those watching, these committee hearings are open to the
public and are also available via webcast on the parl.gc.ca website. You can
find more information on the schedule of witnesses on that same website,
under ''Senate Committees.''
To begin today's proceedings, please welcome, for our first panel, from
the Criminal Lawyers' Association, Leo Russomanno, who is a member of the
association and criminal defence counsel; and Michael Spratt, member of the
association as well and a criminal defence counsel.
From the Canadian Centre for Child Protection, we welcome Lianna
McDonald, the Executive Director; and Monique St. Germain, General Counsel.
I understand we have agreed to a format for opening statements. Michael
Spratt, the floor is yours.
Michael Spratt, Member and Criminal Defence Counsel, Criminal Lawyers'
Association: As you may know, the Criminal Lawyers' Association is a
non-profit organization comprised of over a thousand criminal defence
counsel from across Canada. The CLA supports legislation that's fair, modest,
constitutional and supported by the evidence.
Since I'm splitting my time with Mr. Russomanno, I'll cut right to the
chase. The CLA simply can't support Bill C- 13 in its current form. Bill
C-13, in our view, is a Trojan Horse for the reckless expansion of the
state's ability to collect and catalogue information. Bill C-13, along with
Bill S-4, represents a dangerous and, in our opinion, unconstitutional
pattern of erosion of privacy.
Bill C-13 disregards clear directions and judgments from the Supreme
Court of Canada, and the lawful access provisions are likely
I will speak about the unprincipled and low standards for the production
orders regarding transmission data, and Mr. Russomanno will speak about the
issue of immunity for voluntary disclosure.
In the time since this matter was before the House of Commons committee,
the Supreme Court of Canada released its decision in Spencer.
Spencer makes crystal clear what should have already been apparent.
Metadata, transmission data, is personal and sensitive information. The
Supreme Court found that there's a reasonable expectation of privacy with
this sort of information. That was already the case. The Supreme Court made
that clear in Vu, when describing metadata as revealing intimate
details about a user's interests, habits and identity. Interestingly enough,
in the Vu case, federal prosecutors argued that no warrant was
actually required to search a computer. They were wrong in that case, and
Bill C-13 is wrong in its current form.
Spencer confirmed, as I said, what was clear in Vu. The
court held that there is a privacy interest in metadata. This type of data
can reveal core biographical information, and metadata, therefore, engages a
high level of informational privacy. That's plain wording of Spencer.
It should be noted that Spencer was only about connecting an IP
address to an individual. Bill C-13 allows much more than that. Who you are,
where you are, where you've been, what you've searched for, who you spoke
to, all of this type of information can be provided under the production
order in Bill C-13.
The minister testified before this committee and told you that the
reasonable suspicion threshold reflects a low level of intrusiveness of
power in relation to both the quality and the quantity of information. He
said that lower expectations of privacy are triggered by such information.
Quite simply, he was wrong. The Supreme Court of Canada debunked that
characterization and one of the other common refrains and talking points,
that metadata is only analogous to phone book information. The Supreme Court
of Canada has also made it clear that reasonable suspicion should only be
reserved for cases with reduced expectations of privacy.
The Supreme Court's comments about the heightened privacy interest
inherent in Internet data and metadata are simply incompatible with the
lower standard of reasonable suspicion contained in Bill C-13. This is
especially so given that there are very little controls in Bill C-13 about
the retention and the use that that data can be put to. One need look no
further than the John Howard Society report and the Canadian Civil Liberties
Association report on police record checks to see the devastating impact
that can manifest when there is little or no control over the use and access
of information by the police.
Bill C-13 purports to be concerned with tackling cyberbullying and
stopping the spread of intimate images online. The real tragedy is that
those provisions are indeed necessary and laudable and should be proceeded
with. However, in reality, that aspect takes up only a small amount of Bill
On balance, Bill C-13 sacrifices privacy in favour of expanded police
powers and liberal disclosure standards.
Leo Russomanno, Member and Criminal Defence Counsel, Criminal Lawyers'
Association: Thanks for having me here. I just want to provide some
general impressions from reading over the bill.
Surely I'm not the only one who detects the extreme irony of a bill that
purports to protect the online privacy of Canadians from would-be predators
but, at the same time, at the back end of the bill basically opens the door
to a wide-scale government intrusion on people's privacy. Surely I'm not the
genius here who figured this out and detected the irony here in this bill.
We have a problem, in my submission, with the dialogue that goes on when
we talk about the Canadian Charter of Rights and Freedoms. The only cases we
ever hear about involve evidence being seized that leads to a criminal case.
The obvious reality, and something the Supreme Court has painstakingly
recognized, is that the Charter is a document that protects all of us. Those
of us who don't end up before the criminal courts deserve to have our rights
protected as well, and those people who do end up in criminal courts serve
as proxies for all of us who have to have our rights protected.
So this bill proposes to provide incentives to service providers to
voluntarily hand over Internet service data. We're met with a unique
opportunity here, where the Supreme Court has, in the wake of this bill
being introduced, actually decided a case that is more or less on all fours
with the subject matter of this legislation. The Supreme Court has spoken
clearly, and when I hear Minister MacKay discuss the impact of this
decision, I don't know how many ways I can say that he is just completely
wrong in his interpretation of how this case applies to the subject matter.
It is absolutely wrong. Voluntary disclosure will prove to be contrary to
the Charter, given what the Supreme Court has already said in Spencer.
They have already said that there is a reasonable expectation of privacy
with such information. That means that, by definition, section 8 applies,
and a warrantless search would be unreasonable.
So we need to actually move forward, interpret this case properly,
interpret the Spencer case, interpret the Vu case and not
waste our time with a future Charter challenge that has a high chance of
success. I ask that this committee keep in mind the true value of the
Charter when considering this legislation.
The Chair: Thank you, sir.
Lianna McDonald, Executive Director, Canadian Centre for Child
Protection: Mr. Chair and distinguished members of this committee, I
thank all very much for giving us this opportunity to provide a presentation
on Bill C-13.
My name is Lianna McDonald, and I am the Executive Director of the
Canadian Centre for Child Protection, a registered charity providing
national programs and services related to the personal safety of all
children. Joining me today is my colleague and our general counsel, Monique
St. Germain, and she will be here to answer any questions that you also may
Our goal today is to provide support for Bill C-13. We will offer
testimony based on our role in operating Cybertip.ca, which is Canada's
national tip line to report the online sexual exploitation and abuse of
children. It has been through this work that we see the most brutal
behaviours towards children. We have also seen teens trying to navigate the
social media fallout from a sexual picture or trying to cope with the
aftermath of a sexual crime that has been recorded. What we have witnessed
firsthand, and all too often, is the collision between sexual exploitation,
technology and bullying.
Through Cybertip, we have received over 125,000 reports regarding the
sexual abuse and exploitation of children, the majority of which deal with
child pornography complaints. Of those reports to the tip line,
approximately 4 per cent are submitted by young people who are coming in as
both the victim and the reporting person. Many of these reports contain
sexual images and videos being created and distributed electronically among
their peers, sometimes as a form of bullying. In some cases, the images were
voluntarily shared and in others the images were coerced or taken without
the child's knowledge.
The number one request from those impacted by a sexual image being shared
online is to get the content removed. These youth are desperate to get
humiliating photos or videos of themselves off of the Internet and have had
nowhere to turn to get the help that they need. Over the last year and a
half, we have seen and received at least a dozen reports from youth
threatening either self-harm or suicide in relation to the distribution of a
sexual image. We believe Bill C-13 will help address the dilemma for content
networks when being asked to remove the content from their service. Such
action can reduce the victimization of a young person significantly.
To respond to these complex cases, in 2012 we released a guide addressing
self-peer exploitation commonly known as ''sexting,'' which is a resource
intended to assist schools and families who are dealing with the negative
impact of a photo or video of a young person that has ended up online. This
resource was in the final editing stage when Amanda Todd took her life, and
since publication, we have received over 10,000 requests for copies of this
Also, in early 2013 we launched a resource called NeedHelpNow.ca, a
website aimed at youth to provide specific information about this issue and
where to get help. On average, we receive 16,000 unique page views a month,
with the most popular page being ''Steps you can take to remove content from
the Internet.'' To further our education and these educational resources, we
have recently created new guides for Grade 7 to 10 students that deal with
the issues of personal boundaries, sexual consent and how to respond to
these harmful situations.
While these and other resources are important, we know this is not
enough. Prevention is not the same as intervention. When it comes to this
issue, we do need both.
To this end, we support Bill C-13 for the following reasons: First, we
believe an intimate image offence is much more appropriate than a child
pornography offence in circumstances involving youth; second, we support
that the offence covers victims of all ages; and, third, we welcome
provisions that facilitate the removal and deletion of images.
Technology has become a powerful weapon and the ammunition of choice for
those who wish to hide behind the protected cloak of anonymity. New
technologies make it much easier to harass and participate in a toxic
digital frontier where ongoing biases about sexual misconduct collide with
unrealistic expectations of adolescent behaviour, fuelled by the misuse of
While we are sophisticated enough not to place the blame solely on
technology, we should be rightly committed to understanding its role in the
commission of offences and how as we as a nation choose to respond and
modernize laws to adequately address new types of criminal behaviour.
In closing, we know that the issues youth are facing today are far beyond
what we might have imagined. We know that too many young people are
suffering silently and we have lost too many kids to suicide, those who felt
that there was no way out, no help, and that no one could make a difference.
This is absolutely not okay. Our children deserve better.
The Chair: Thank you all for your opening statements. We have a
long list of questioners, beginning with the committee's deputy chair,
Senator Baker: Thank you to the presenters for their excellent
presentations. They were thoroughly enjoyed and appreciated.
My question is directed toward Mr. Russomanno or Mr. Spratt. First, I
would like to congratulate them on the great contribution they make as
litigators. Almost on a daily basis one can read the case law that they
I have two questions. My first question is this: How do you answer a
person who says we have PIPEDA, the act that we passed in 2000, 2001. I
recall the day we did it. Subsection 7(3) of that act states that ''an
organization may disclose personal information without the knowledge or
consent of the individual only if the disclosure is . . . requested for the
purpose of enforcing any law of Canada . . . carrying out an investigation
relating to the enforcement of any such law . . . .'' It is an open-ended
exception to the provisions, I would say, of PIPEDA.
When you look at 487.012 that we are displacing here today, in regard to
a production order, one sees words to the effect that a judge has
''reasonable grounds to believe that'' a police officer has a suspicion. Now
without getting into how the courts have interpreted that phrase, how do you
answer people who say that we are not really going down the road that you're
suggesting, because already in PIPEDA and in the Criminal Code provision we
have, the word ''suspicion'' is there very clearly. How do you answer that?
Mr. Spratt: Looking at what's already in the Criminal Code can
give some context for what should be done in this case. For example, getting
a production order for a telephone company to list the numbers that you've
dialed, a number recorder warrant, requires reasonable suspicion. That has
been an acceptable standard, because the information you get are the numbers
When you look at the information that can be disseminated and disclosed
in this bill, it's more than that. I'm sure the committee will hear from
some experts, perhaps even today, who can talk about metadata, and the
courts have made pronouncements on that.
When you're looking at that in context with PIPEDA, we may have to do
what the Supreme Court did in Spencer. The whole purpose of PIPEDA is
to increase the protection of personal information. In the context of
voluntary disclosure, the Supreme Court was quite clear that you can't use a
declaratory provision in the Criminal Code combined with a statute that's
supposed to enhance and increase protection of personal information to do
Senator Baker: You have used the term ''reasonable suspicion,''
and I know why you have used that term. I've been on committees for 40 years
here on Parliament Hill, and it's a term that has crept into our law mainly
in the provisions relating to Controlled Drugs and Substances Act searches.
A dog sniff is a search. You need a reasonable suspicion for that search.
That has been adjudicated recently in 2013 by the Supreme Court of
Canada. You're nodding your head. You probably know the case. You have the
case there that I'm referring to. You're very well up on our case law, Mr.
Is this really a new era? To justify the dog sniff search, which, under
the Supreme Court decision in Kang-Brown, is judged to be a search, a
reasonable suspicion is the standard to be used, which as you will point out
is less than ''reasonable grounds to believe'' but more than just a
suspicion. Are we really going down a new road here with the provisions in
Mr. Spratt: We are going on down a new road.
Senator Baker: What is the case, by the way, I was referring to?
Mr. Spratt: There is Kang-Brown, and the case I brought is
one that follows it.
Senator Baker: Last year.
Mr. Spratt: R. v. Chehil, from 2013, another dog sniffing
case, and they talk about reasonable suspicion.
You're quite right. The courts have said that when there is a low
expectation of privacy in the information, for example, the smell that comes
out of your luggage at an airport or in a school, under those circumstances
reasonable suspicion might suffice, or grounds to request a breathalyzer,
roadside breath testing, or, as we talked about, to obtain telephone
The reasonable suspicion standard has been judicially approved in those
cases because the privacy interest is low. If you go back to Hunter v.
Southam, the court said that when you're balancing these interests, the
right to privacy against the right of a state to investigate offences,
searches based on reasonable suspicion can only be justified where there is
a low privacy interest, a reduced privacy interest, which of course is in
dramatic contrast to what the Supreme Court has said in both Vu and
Spencer with respect to metadata.
It doesn't take a genius to put two and two together in that case that
we're dealing with information that has a high privacy value, and we're
dealing with a standard that is only appropriate when there is a low privacy
The Chair: I have to stop you there, and we have to move to
Senator Plett: Thank you to our witnesses.
If I could, chair, for those of you on the committee who have never
toured the Canadian Centre for Child Protection in Winnipeg, I urge you to
do so. It is a state-of-the-art facility, and we owe a debt of gratitude to
Ms. McDonald and her entire team for what they do. Thank you very much.
In your experience, Ms. McDonald, what do you believe can be done to
highlight the dangers of sexting — I think that's the way to pronounce it —
sending sexual images, so that individuals don't end up in tragic
Ms. McDonald: I think what we're seeing as an agency is the
proliferation of this problem. The reality is that young people in most of
the cases we deal with are struggling to deal with this. We have a whole
generation of children who in many ways do not appreciate the consequences
of some of their actions.
Also, looking at this from a child development standpoint and the
development of the brain, we see that not happening until into their early
twenties. On a daily basis we deal with complaints coming in from kids,
typically kids who do not even want an adult around them to know what
happened because they are humiliated, pleading with us to figure out some
way to manage the damage because of an image that's landed on the Internet.
We deal first-hand with those complaints coming in.
That does not even take into consideration some of the cultural
considerations. We have kids who come from a variety of backgrounds, which
can make their circumstances much worse.
I would say that 4 per cent of the reports come in from kids who have
found out who we are and know that our service exists. We hear daily from
school resource officers working on the front lines in schools who have to
To answer the question, this is not just about a legislative response. We
believe that Bill C-13 will be important in this regard. I would also note
that obviously we recognize that prevention and public education are keys.
We see the opportunity to start educating this next generation of kids
coming up about the consequences of such behaviour to go a long way in
Senator Plett: Ms. St. Germain, you are a lawyer. We have heard,
as we hear so many times from our friends, that this is not constitutional
and will not pass the constitutional test. I would like your opinion on
As well, some have raised concerns about privacy rights, which were
raised here again today, being compromised. In your view as legal counsel,
does this bill strike the appropriate balance between privacy rights and the
safety of Canadians?
Monique St. Germain, General Counsel, Canadian Centre for Child
Protection: From everything that our agency has looked at, keeping in
mind all the things we deal with, we believe that this bill is
constitutional. There has to be a balance struck in legislation, and I
believe this bill has struck the right balance. There is a requirement for
people to go before a justice to get these orders; there is some reporting
back to justices on many of these orders; and there are strategic ways in
terms of information you can obtain through these orders. It seems to us in
terms of the stuff we deal with and the things we see that these powers are
sorely needed. They have been needed for a very long time, and we are
anxious to see this bill come into place.
Senator Jaffer: I have a number of questions, the first one being
to Mr. Spratt and Mr. Russomanno. We've all read the Spencer case and
as lawyers we all have different interpretations of cases. I would
appreciate if you would take the time to give us your interpretation and
tell us exactly where you think the minister has not interpreted Spencer,
which you did touch on.
Mr. Russomanno: I will add two main observations and then I'll let
Mr. Spratt elaborate.
The first thing relates to the degree of expectation of privacy that
attaches to this kind of information. Mr. Spratt touched upon how you have a
standard with respect to a warrant, reasonable suspicion being virtually the
lowest standard we have compared to ''reasonable grounds to believe.'' The
higher the expectation of privacy is, the higher theoretically the standard
ought to be.
The court said numerous times, paragraphs 27 and 51, in the Spencer
decision that there is high expectation of privacy with respect to this
information, specifically compared to the dog sniffer cases, as Mr. Spratt
referred to, and what kind of expectation of privacy one has for the smell
of the contents of their suitcase at an airport.
This is categorically a different kind of information. It is important
for the committee to recognize that it's not just the information but what
the information tends to reveal about someone — that the Supreme Court goes
out of its way to say is one reason that there is a high expectation of
privacy, not only the information attached to subscriber data but that which
it tends to reveal in a context where people carry out activity where they
expect to be anonymous. So there is that high expectation of privacy.
We could spend the entire time today talking about the warrant
provisions, but we would be remiss if we did not mention that this bill
provides incentives for voluntary disclosure, which is a warrantless search,
which is presumptively unreasonable. This is section 810(1) here. We can
talk about the low standard, but the more offensive part of the bill is that
it provides incentives for ISPs to hand over the stuff, giving them immunity
for going flagrantly against what the Supreme Court said, and doing these
Mr. Spratt: We should add that the minister's been quite fond of
reading the first half of paragraph 73 of the decision and doesn't always
read the last half, which says that the police can't gain new search powers
through a combination of a declaratory provision we have in the Criminal
Code and through PIPEDA, which is supposed to protect personal privacy. The
minister before this committee said that this is no different from when
there is a car accident on your street and the police come to your door to
ask what you saw. He said that there is no privacy there so why would there
be privacy if they are asking the telephone company? The point is that you
have no expectation of privacy when you get into a car accident on the
street, but according to the Supreme Court you do have expectation of
privacy in respect of your data.
When we look at examples like that we have to be careful that we are
looking at the proper examples and compare apples to apples, which was not
done before this committee.
Senator Jaffer: Ms. McDonald, as you know, since 2010 the Senate
has been looking at the issue of cyberbullying. This is not a new issue to
us, but it is a highly complicated issue. One of the challenges with the
bill is whether we will charge a young person. The testimony before the
committee has shown that a child can be a bully, a victim and an observer on
the same day, so it just depends on the cycle. It is a huge challenge and
you fairly said that this bill is only part of it. We must have a
Would you recommend that we recommend to the minister that he set aside
funding so that we can have a comprehensive approach to raising awareness
because this bill on its own will not stop cyberbullying? We need more. I
would like your opinion.
Ms. McDonald: Our agency has been quite vocal on the fact that
we're not going to arrest our way out of this problem, nor should we. Public
awareness has to be a key component. We have tabled to many parliamentarians
the need to support efforts of public awareness to do that.
We also want to note that it's important to take stock of what has
happened over the last several years when we look at a number of those high
profile cases. Although they may not be the norm, we have to be ready to
acknowledge circumstances where things get completely out of control, where
parents, educators and everybody else is trying to stop a behaviour that
crosses the threshold into criminal activity. For the cases that we have
been involved in, we look at the opportunity and this new bill as an
important vehicle in certain circumstances.
I also note as important that it is so easy to separate what we look at
as young children under the age of 18. A number of reports and information
we receive regularly are from that young adult category — the kids who are
19, 20, and 21 years old whose reputations have been ruined.
It's my understanding that these debates and discussions have been going
on for years, but it's been more than 10 years that we have had lawful
access discussions, so I think it's time to figure out some of the
We support this legislation, but to your point, public education and
awareness are also key.
Senator Batters: Ms. McDonald, thank you so much for the amazing
work you do with your particular group. I'm not sure if you had a chance to
read the minister's testimony when he led off this particular study. He
complimented the fine work that your organization does and, much like my
colleague Senator Plett did today, recommended your centre as one that many
people should investigate because it's one to emulate.
Last week, while we were on a constituency week, I was back in my
hometown of Regina, Saskatchewan, and I had the opportunity to speak to a
Grade 10 class at Campbell Collegiate high school in Regina about what my
role in the Senate was and what I do here. I also thought it was the ideal
opportunity, when I was speaking to them about the different committees on
which I serve, to let them know about the important work we are doing on
this particular bill because this is a bill that affects these kinds of
kids. I told them a little bit about this bill and also about your website,
NeedHelpNow.ca, because that might be the kind of opportunity for a student
in that class to hear that. I told them that is somewhere they can go even
if they didn't feel comfortable talking to anyone else. After more
discussion about that bill, when I was answering questions about various
parts during that meeting, I asked the students what they thought about it
becoming legislation potentially and whether they thought that the
legislation was needed or whether they thought this would be something that
could be accomplished with more public education, websites and things like
One of the students who responded to that question had been sitting at
the front of class, listening attentively, but this was the only thing he
said during the one hour I was there. He said: ''I really think that we need
this as legislation because if there aren't significant consequences, then
this kind of thing, people will just keep doing it. It needs to be known
that there are significant consequences for this type of activity.'' I
wanted to bring that to your attention.
I also want to give you a bit more of an opportunity. You obviously had a
limited time frame with your opening statement to testify about the reasons
your organization supports Bill C-13, and you had a little more time when
you testified before the House of Commons committee to outline those reasons
for your support, but I'm wondering if you could outline that in more
The Chair: We have limited time.
Ms. McDonald: I just want to say again that we are pleased that
this legislation will capture more than just the children under the age of
18. We're pleased that in fact we're not going to be running around charging
children with child pornography offences. That is a misplaced charge in many
instances, and this is far better suited to do that.
As I mentioned, there has to be some consequence. People need to
understand there is a law that does address this and will, in our view, be
an important thing that will deter people from committing that crime.
Finally, these conversations about privacy rights are key and we support
them as well. Part of the challenge when we're looking at the privacy rights
of many children who we would see in child pornography images or in child
sexual exploitation images is that they have absolutely no rights as it
pertains to what is happening with the distribution of that material. There
has to be a balance, and they to be included in the conversation when we are
examining important issues related to privacy.
Ms. St. Germain: I think that covers it. It is the deterrent
effect that we find very important in this bill in terms of having an
appropriate charge to use with young people.
Senator Joyal: I would like to come back to this discussion in
relation to the various scales of criteria, depending on the expectation of
privacy that is involved.
You made the comparison of somebody with baggage at the airport and the
dog comes and smells the bag. Of course, you compare that to the telephone
or to the computer. Of course, with a telephone you can trace a person's
whereabouts and trace to whom that person has been talking, when, and how
many times. There is a lot of data in a telephone that anyone carries these
days, and in a computer you have everything.
We have to recognize that by today's standards, those electronic devices
store a lot of information that was not available before, and I think it's a
caricature to say that when you handle your telephone it's like handling the
telephone directory. You just have to watch what Edward Snowden has been
disclosing to realize how much information you release with that.
If you establish the principle that the higher the privacy expectation
is, the higher the threshold should be of the proof to be made in front of a
judge to get such an order, could you explain the highest threshold of proof
should be needed to have access to the highest level of expectation of
Mr. Spratt: Yes. It was the Criminal Lawyers' Association's
submissions that were adopted in Vu, where we said that computer
systems are fastidious record keepers. This is data that is all catalogued,
often unwittingly and unknowingly, by the person using the information.
Taking into account the decisions in the Supreme Court, it's our opinion
that the traditional reasonable and probable grounds should be the standard
that's inserted. It's an easy change to make: cross out ''suspicion'' and
replace it with ''reasonable and probable grounds to believe.''
What is sometimes lost is this isn't a question of protecting children or
protecting privacy. Both can be accomplished with some minor changes. That's
the real tragedy here, especially with respect to children these days who
are on the Internet and using digital devices. If anyone needs their privacy
protected, it's these children who use these devices and have a much larger
digital footprint than any of us will, because they've been on it since they
were born. Studies have been done about what you can learn just by having
someone's IP address: sites they have commented on; political pages that
they've seen on line; who they've talked to; who those people have talked
to. This web of information is what necessitates that higher standard of
''reasonable and probable grounds to believe,'' and that is the standard
that we use when we search someone's house, when we want to find their
location through location tracking. That's the appropriate standard here
because it reflects the privacy interest in that information.
We should say that it is not a standard of protection. This isn't proof
beyond a reasonable doubt or absolute certainty. This is merely the standard
we would suggest that the police need to meet if they were to look into your
briefcase. There is a good argument that your online information, even your
metadata, which does not include the contents of your communication but
includes much other information which can sometimes be more revealing,
should be entitled to the same protection as what you might have in your
Senator Joyal: In Spencer, the Supreme Court understood the
technology world in which we live today whereby you can recoup the IP
address with, for instance, a credit card number. When you put the two
together, you get the whole picture of someone's life. Of course, if you add
to that the telephone, you have everything, and it seems to me that the
Criminal Code has to reflect the reality of how easy it is now to know
everything about anybody.
Mr. Russomanno: Also in Vu, the Supreme Court makes an
important observation, and I think they refer to it as ''digital exhaust,''
or something along those lines. Our computers and smartphones create a
record, a digital footprint, without our intention to create a footprint.
Even items that are deleted are not necessarily gone forever. There is a lot
of biographical information in there.
It needs to be stressed that getting a warrant is not an onerous
requirement. Law enforcement has been operating with this requirement for
decades. Getting a warrant is not difficult. I have to say that for this
kind of erosion of privacy, I would want to see some demonstrable evidence
that a failure to get a warrant or failure to abide by the relatively higher
standard of ''reasonable grounds to believe'' somehow led to victimization
here of a child with respect to cyberbullying. I just don't see that as
being the case. I see the drafters responding to something without actually
being responsive to any identifiable problem. I think a common thread here,
throughout a lot of the crime legislation, is a solution in search of a
problem. That's my comment on that.
Senator McIntyre: Thank you all for your presentations. As you
know, Bill C-13 includes the ''public good'' defence. This defence is
well-established in Canadian law and is already found in certain sections of
the Criminal Code, such as obscenity and voyeurism. As I understand, this
defence recognizes that there may be a limited set of circumstances
necessary or advantages to religion or morality, the administration of
justice, literature or art, the pursuit of science or other aspects of
general interest. Under those circumstances, my further understanding is
that the police or court officials would be required to share intimate
images as part of their disclosure obligations. I would simply have your
thoughts on this.
Mr. Spratt: That's nothing new, per se. Quite often, information
is shared in disclosure that may be illegal to possess in and of itself.
Senator McIntyre: Yes, because there are certain aspects in the
Criminal Code that are already covered with bullying, such as criminal
harassment, for example, extortion and so on.
Mr. Spratt: If you look at child pornography cases, as well, the
prosecution is often in possession of child pornography images. That's often
disclosed to the defence, and there's no suggestion that any crime is being
committed through complying with the right to full answer and defence. I
wouldn't disagree with your comments at all.
I think that the existing provisions in the Criminal Code arguably cover
many of the situations that we're talking about here. In as much as the
provisions deal with cyberbullying and updating and making clear some of
that law, there may be some quibbles here and there, but it's by far the not
very offensive and the least offensive part of this legislation. I don't
actually have much to say about the substantive provisions that deal with
Senator McIntyre: Ms. St. Germain, do you wish to comment on this?
Ms. St. Germain: On the public good defence?
Senator McIntyre: Yes.
Ms. St. Germain: I have to echo what he said in terms of whether
the defence is well-established. In terms of the sharing of information in a
criminal context, where there are defence and Crown attorneys possessing it,
that's what it would be covered under.
The only difference I would point out is that the defence is actually
different for child pornography. It's the ''legitimate purpose'' defence, so
it's positioned in a different way because the public good defence was
displaced after the Sharp decision.
Senator Boisvenu: Thank you very much for your testimony. My
question is for Mr. Spratt or Mr. Russomanno. You spoke a lot about
respecting privacy, and about the fact that this bill does not seem to
comply with that law and may even be unconstitutional in that regard. Does
your testimony apply as much to the privacy of children as to that of
Mr. Russomanno: As to whether we speak to the privacy of children
versus that of adults, I would echo Mr. Spratt's comments about the privacy
of children being just as important.
Senator Boisvenu: So it's both adults and kids.
Mr. Russomanno: Absolutely.
Senator Boisvenu: What do you think about parents who force their
children to disclose the information on their computers so that they can
check it? When parents have easy access to the information on their
children's computers, do you feel that the parents are violating the
Mr. Russomanno: I think we have to be careful when we talk about
this right to privacy because, in the language of the Charter, when we talk
about a privacy right, it's against the government; but in the everyday
sense, yes, a child's privacy is being infringed upon when the parent takes
a look at what's in their computer. However, in many cases, it could be a
valid parenting exercise.
Mr. Spratt: I might be the law in my house when it comes to me and
my children, but the Charter doesn't apply to my interactions with my
children. I'm not violating their right to privacy under section 8.
Senator Boisvenu: I would like to ask a final question. We know
how easy it is for sexual predators to enter into a relationship with
children now. It is also in a parenting situation where the supervision
leaves something to be desired and the child is alone with the computer.
What takes priority then? Do we prioritize the protection of the child from
a predator getting into the child's personal life with ease, or do we have
to protect the private information belonging to that sexual predator who has
established contact with the child? When we talk about checks and balances,
which aspect must be given priority? Must we not first give the priority to
protecting our children?
Mr. Russomanno: I would say that in the circumstances that you
just outlined it's not necessarily a matter of one versus the other, which
is why I opened my comments by saying that Charter rights protect not only
those that commit crimes but all of us. I would say that there is an obvious
importance to protecting the online privacy of children that are vulnerable
to being preyed upon by child predators. There's obviously a valid public
safety issue there, but I have to echo my earlier comment that I don't know
that there has been a demonstrated need to actually weaken all of our
privacy protections in order to protect this group of people.
Senator Dagenais: My thanks to our guests.
My first question goes to Ms. McDonald. Clause 24 of the bill allows the
court to make a restitution order against an accused found guilty of the
offence of distributing intimate images, if the person affected by the
offence incurs expenses to remove the images from the Internet or other
digital network. In your opinion, could that restitution order also allow
for compensation for moral and psychological damages?
Ms. McDonald: I defer to my colleague, Ms. St. Germain. We're just
trying to find that section right now.
Ms. St. Germain: Clause 24, you said?
Senator Dagenais: Yes, clause 24.
Ms. St. Germain: Could you repeat the question?
Senator Dagenais: There is a provision for compensation when a
person is found guilty of the offence. At that point, it may sometimes be
the case that the victim has incurred expenses in order to have the images
removed from the Internet or digital network. Could there not also be a
provision for compensation for moral and psychological damages, for which
the accused would be responsible?
Ms. St. Germain: I think that there should be some damages for
that, but we're looking at the bill the way it has been drafted in terms of
damages and different opportunities that there might be for a victim to
recover. There are obviously civil matters that people could proceed with as
well. Definitely, removing the images from the Internet, to the extent that
they're readily ascertainable, is what this is trying to say.
Ms. McDonald: If I may add to that, we've been participating in
some consultation on the Victim Bill of Rights. I think restitution is
another issue that we're looking at. One of the things that our agency deals
with when we're dealing with, particularly, victims of child pornography, is
that their past is really their present. So we will have victims who have
grown up in a series of child abuse. Years after, let's say, the offender
has been arrested, the images are still propagating online. Often these
young adults have significant challenges and problems carrying on. So we see
a lot of issues surrounding the need for therapeutic services that go on for
Senator Dagenais: So you would be in favour of compensation for
those people if they have to incur expenses, because of the moral and
physiological damages they have suffered?
Ms. McDonald: Ideally, if it were possible, it certainly would be
something that our agency would support.
Senator Dagenais: We can always hope for an ideal world. Thank
Senator Baker: I appreciate the evidence given to us today and
it's very clear what your positions are. Perhaps I could get some clarity.
Mr. Spratt and Mr. Russomanno, even without this bill, would you not
agree that perhaps we should look again at the present provisions of PIPEDA
and the Criminal Code regarding production orders in which this information
we're referencing today can be disclosed to any police investigation under a
present production order? Even without this bill, perhaps we should
re-examine, given your evidence, present provisions in the code that allow
such information to be divulged.
Mr. Spratt: I think there are two options: Either the provisions
in PIPEDA could be strengthened to reflect the protection of personal
information, or the title of the act could be changed to reflect the reality
of what it allows.
Senator McIntyre: My question is directed to Mr. Spratt and Mr.
Russomanno. As you know, certain aspects of cyberbullying are already
criminalized, such as criminal harassment, uttering threats, intimidation
and extortion. What is not criminalized is what's contained in Bill C-13, in
other words, the distribution of non-consensual images. As criminal defence
lawyers, have you had any experience with those offences that deal with
cyberbullying? What were the results?
Mr. Russomanno: I have not had experience specifically with
cyberbullying. I have had a lot of experience defending cases of criminal
harassment and similar cases but not specifically within the cyberbullying
context. It's not something that I see very often.
Mr. Spratt: I've not had experience dealing with the dissemination
of intimate or personal images, as would be covered under this bill. I think
most criminal defence lawyers who have represented anyone charged with
harassment, threats, intimidation, or any youthful offences have dealt with
the interception of online activity and inappropriate communications. In
almost every youth court case that we see, we have Facebook messages,
Twitter messages, and social media commentary between accused persons and
witnesses, and witnesses and accused persons. It definitely is something
that can be dealt with under the Criminal Code.
The fact that this bill specifically deals with that other aspect, even
if it's already criminalizing other contexts, there is nothing wrong with
providing additional clarity for that intimate image section.
Senator Jaffer: My question is around the intimate images. Do you
think this will help, especially in youth court? My concern is that it's
youth against youth. Some cases involve adults but often it is youth against
youth. Do you think this is an appropriate way to deal with young people?
You both have experience in youth court.
Mr. Spratt: The precision in which the conduct is defined in the
bill is helpful. It's already covered under some sections that we have, but
it is helpful.
In dealing with youth specifically, something we haven't talked about
today, which is a concern of some organizations and of our organization as
well, is the term ''reckless'' found in the bill. Especially when we're
dealing with youthful individuals, the term ''reckless'' might capture a lot
of action that wouldn't otherwise be captured by adults who might act in a
less youthful way. As we know, youth can be more reckless on occasion. With
that reckless standard, there is a chance that this bill might actually more
broadly apply to youthful activity than to adult activity. That reckless
standard and the lowering of the intense standard in that section might
merit some consideration as well.
Senator Batters: When our committee last met on this bill on
November 5, Norman Wong, Counsel for Criminal Law Policy, Justice Canada,
told us about a federal-provincial-territorial ministers committee called
the Coordinating Committee of Senior Officials Cybercrime Working Group.
They published a report, which you may be familiar with, called
''Cyberbullying and the Non-consensual Distribution of Intimate Images.''
For that working group, Mr. Wong said:
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
The Chair: Can we have the question please?
Senator Batters: He continued:
There were approximately 30 people who worked on that, all very
experienced practitioners in this area of the law.
The fourth recommendation of their report called on the government to
give the police the investigative tools to investigate cyberbullying and
other online crime. Mr. Spratt, could you tell us why, in your view, those
30 experts on that working group were wrong in calling on the government to
include these kinds of investigative tools in cyberbullying legislation?
Mr. Spratt: Investigators need tools to investigate these crimes.
Unfortunately, the tools suggested in this bill are unconstitutional. They
need constitutional tools to properly investigate crimes. The Supreme Court
said high expectation of privacy for high privacy value. The Supreme Court
said reasonable suspicion only for low privacy value. There is no way to
square that circle. Don't give them a tool that's going to be struck down in
a year or two.
Senator Batters: You're view is split and study.
The Chair: Witnesses, thank you all. Your appearance and testimony
are much appreciated by the committee.
For our second panel today, I would like to welcome Andrea Slane,
Associate Professor, University of Ontario Institute of Technology; and
Michael Geist, Law Professor, University of Ottawa.
Professor Slane, I believe you will begin with the opening remarks,
followed by Professor Geist.
Andrea Slane, Associate Professor, University of Ontario Institute of
Technology, as an individual: My research and a lot of my
policy-oriented work has been in two areas. One is online child exploitation
and how to best address those problems, and the other has been with the
appropriate scope of voluntary cooperation with police investigations,
especially on the part of Internet service providers. It does span both
aspects of this bill. I have struggled a lot with how to bring those things
together. That's why I'm here today, how to honour those two objectives.
The bill isn't entirely integrated. It is something that deals with two
different types of problems, but insofar as I have tried to bring those
things together, I am happy to offer my views.
There are many aspects of the bill that I support, including the new
offence on non-consensual distribution of intimate images. I will not spend
a lot of time talking about that, although I do welcome questions.
There are important tools in this bill that need to be implemented, but I
would agree with some of the comments made by the previous panel about
things that need to be tweaked in order to make those tools appropriate to
the privacy protection of all of us that is set out in the Charter.
I also applaud the drafters for taking out the most controversial aspects
of the last iteration of the bill, and some of the iterations beforehand,
regarding warrantless access. This is an improved bill, though I do still
have some problems.
I only want to focus on one thing since my introductory comments are
supposed to short. I want to reiterate some of the things that were said in
the previous panel about transmission data, the inappropriateness of the
reasonable suspicion standard for the production orders and the transmission
data recorder warrant for transmission data specifically.
There has been an increasing amount of testimony in other places about
the sensitivity that transmission data reveals about people's lives,
especially insofar as there's a kind of fallacy that the government has been
putting forward about this and that it is somehow less sensitive than
content. There are a couple of problems with the logic that says that if
it's less sensitive than content, it deserves a lesser level of scrutiny to
meet that threshold.
One problem is that it isn't necessarily less sensitive than content. I
want to quote from Professor Edward Felten, a professor of computer science
and public affairs at Princeton University. When I submitted to this
committee in May, along with Professor Lisa Austin from University of
Toronto, we gave you the full testimony that he gave before a U.S. Senate
committee, much like this one, though it was focused on foreign intelligence
It is no longer safe to assume that this 'summary' or 'non-content'
information is less revealing or less sensitive than the content it
describes . . . Just by using new technologies such as smart phones and
social media, we leave rich and revealing trails of metadata as we move
through daily life. Many details of our lives can be gleaned by
examining those trails.
It's important to recognize that in the past we may have thought of there
being a distinction between content, which all of us agree is highly
sensitive and therefore requires a lot of privacy protection, and the
information that surrounds digital communications as they travel through
cyberspace and across our various networks.
It's also important to think about what the Canadian public expects from
this type of information. It was raised in the last panel about the National
Security Agency in the United States and the revelations we found on CSEC's
testing on that type of data mining they're able to do and analysis they're
able to do of metadata. Just this past January, the news broke that there
was a test done via a Canadian airport's Wi-Fi and a lot of people were
deeply upset. It was not content that was being examined then; it was just
metadata. Nonetheless, it shows that the Canadian public also believes the
way that their information travels across a network and the Internet is
something they would consider private and would therefore require the same
standard of that type of information as they do of content data.
My last point on this — and again I welcome questions not just about this
but other aspects of the bill that I don't have time to address in these
introductory remarks — is that you cannot base anything having to do with
digital communication technologies on what we've done before for telephones,
an analog technology. It seems completely inappropriate to think that
because a certain standard applies to telephone number recorders or has
applied in the past to telephones that used to be land lines, it would
translate in any kind of direct way to current technologies.
I'll stop there.
Michael Geist, Law Professor, University of Ottawa, as an individual:
Good afternoon. My name is Michael Geist, a law professor at the
University of Ottawa, where I hold the Canada Research Chair in Internet and
E-commerce Law. I appear today in a personal capacity representing only my
Given the limited time, I would like to focus on three privacy-related
issues that you have already heard about today: the immunity for voluntary
disclosure provision, the low threshold for transmission data warrants, and
the absence of reporting and disclosure requirements.
I should start by first emphasizing that criticism of lawful access
legislation doesn't mean opposition to ensuring that our law enforcement
agencies have the tools they need to address crime in the online
environment. As Carol Todd, Amanda Todd's mother, told the House of Commons
committee that studied Bill C-13, ''we should not have to choose between our
privacy and our safety.'' Similarly, Sue O'Sullivan, the Federal Ombudsman
for Victims of Crime, told the committee that victims were split on the bill
precisely because of the privacy concerns arising out of Bill C-13.
Let me focus on these three issues that I promised you.
First, on immunity for voluntary disclosure, I think it should be viewed
within the context of five facts.
First, as you heard earlier, the Supreme Court of Canada's Spencer
decision confirms that there is a reasonable expectation of privacy in
subscriber information and clearly indicates that, absent exigent
circumstances, disclosures should involve a warrant.
Second, pre-Spencer intermediaries disclose personal information
on a voluntary basis without a warrant with shocking frequency. The
revelation earlier this year of 1.2 million requests to telecom companies
for customer information in 2011 affecting 750,000 user accounts provides a
hint of the privacy impact of voluntary disclosures.
Third, disclosures have involved more than just so-called ''basic
subscriber information.'' Indeed, the house committee studying Bill C-13
heard from the RCMP, which noted that ''currently specific types of data
such as transmission or tracking data may be obtained through voluntary
disclosure by a third party.
Fourth, these intermediaries do not notify users about their disclosures,
keeping hundreds of thousands of Canadians in the dark. Contrary to some
discussion we have heard over the months on C-13, there were no notification
requirements within the bill or auditing mechanism.
Fifth, the voluntarily disclosure provision should be viewed in concert
with the lack of meaningful changes in Bill S- 4, the Digital Privacy Act,
which already passed the Senate, that would expand voluntarily warrantless
disclosure now to any organization. Given this background, I'd argue that
the provision is a mistake and should be removed. It unquestionably
increases the likelihood of voluntary disclosures at the very time when
Canadians and courts are increasingly concerned with such activity.
You have heard quite a bit about the low threshold for transmission data
warrants. This information is commonly referred to as metadata. While some
have tried to argue that the metadata is non-sensitive information, that's
simply not the case. This information is far more than who phoned whom for
how long. It can include highly sensitive information related to computer
and computer messaging. As you heard in the prior committee late last year,
the Supreme Court of Canada ruled in R. v. Vu on the privacy
importance of computer-generated metadata, noting:
In the context of a criminal investigation, however, it can also
enable investigators to access intimate details about a user's
interests, habits, and identity, drawing on a record that the user
created unwittingly . . . .
Security officials have also commented on the importance of metadata.
General Michael Hayden, former Director of the NSA and CIA, stated, ''We
kill people based on metadata.'' Stewart Baker, former NSA General Counsel,
stated that ''metadata absolutely tells you everything about somebody's
life. If you have enough metadata, you don't really need content.''
There are numerous studies that confirm Hayden's and Baker's comments.
Some of those studies point to calls to religious organizations that will
allow for inferences of a person's religion. Calls to medical organizations
allow for inferences on medical conditions. In fact, in a U.S. court brief
signed by some of the world's leading computer experts, they noted:
Telephony metadata reveals private and sensitive information about
people. It can reveal political affiliation, religious practices, and
people's most intimate associations. It reveals who calls a suicide
prevention hotline and who calls their elected official; who calls the
local Tea Party office and who calls Planned Parenthood. The aggregation
of telephony metadata about a single person over time, about groups of
people, or with other datasets only intensifies the sensitivity of the
Further, the Privacy Commissioner of Canada has released a study on the
privacy implications of IP addresses, noting how they can be used to develop
a highly personal look at an individual. In fact, even the Justice
Minister's report that Senator Batters referred to earlier and served
seemingly as the basis for some Bill C-13 recommendations, recommends the
creation of new investigative tools but also says that ''the level of
safeguards increases with the level of privacy interest involved.''
Given the level of privacy interest with metadata, the approach in Bill
C-13 for transmission data warrants should be amended.
Finally, the lack of transparency, disclosure and reporting requirements
associated with warrantless disclosure should be addressed. The stunning
revelations earlier this year about requests and disclosure of personal
information, the majority of which were without court oversight or warrant,
points to an enormously troubling weakness in Canada's privacy laws that
Spencer only begins to address.
Most Canadians have no awareness of these disclosures and have been
shocked to learn how frequently they are used and that bills before
Parliament propose to expand their scope. In my view, this makes victims of
us all — disclosure of our personal information often without our awareness
or explicit consent.
I will stop there and welcome your questions.
Senator Baker: These were excellent presentations. It's an honour
to have both of you here.
I'd like to direct my first question to Mr. Geist to ask his opinion on
the standard way today that police obtain information from Internet service
providers. They send a letter to them and say that they are conducting an
investigation. Pursuant to section 7(3)(i) of PIPEDA, they're
requesting information concerning the particular user. What do you think of
that provision, Mr. Geist?
Mr. Geist: There have been ongoing concerns about the ability for
warrantless disclosure within PIPEDA. In fact, those concerns have been
expressed by the Privacy Commissioner of Canada, who was appointed by the
current government. When appearing on this bill before the House of Commons
committee, the commissioner expressed concern about the lumping together of
cyberbullying provisions, which many people think are appropriate and don't
have concern with, with lawful access provisions that raise real privacy
I would have thought that the ability to address some of the issues under
PIPEDA might have been addressed under Bill S-4, the Digital Privacy Act.
Yet, this did not happen, to the dismay of many, including the Office of the
Privacy Commissioner who, when appearing before the Senate committee on
this, raised concerns about the potential expansion of voluntary disclosure
in this instance to third-party organizations extending beyond law
Senator Baker: We've had this law since 2001 on voluntary
disclosure. Internet service providers have developed a protocol and they
have someone in a department to deal specifically with the police. When you
look at disclosure in criminal cases, you see this procedure followed all
the time without a warrant. Don't you think it's time it was changed?
Mr. Geist: Certainly, the Supreme Court of Canada thought that. At
the end of day, Spencer is likely to result in some change in terms
of practice. From a law enforcement perspective when obtaining this
information, if it ultimately can't be used and if it ultimately proceeds to
a court case, it is not particularly helpful but ultimately harmful. Some
ISPs have made it clear that they intend to change some of their practices,
but not all. In fact, it's worth noting that the lack of transparency and
disclosure that I referenced in my opening remarks applies not only to law
enforcement but also to our telecom providers, who in many instances have
not been forthcoming in terms of their practices. Some of the largest
providers, notably Bell, still have not publicly advised their millions of
subscribers about how they intend to react to the Spencer decision.
Senator Baker: There are laws in effect that you think should be
changed. Your criticism of this legislation is that you could go to those
provisions and stay with the production orders in section 487.012, which is
based on a suspicion today in the present Criminal Code. We can talk about
reasonable suspicion and so on, but there is it is. It is in the Criminal
Both of you are saying that times have changed in that under the normal
investigative procedures regarding the interception of private
communications, which normally involves a 487 warrant, a 492.2, which is a
dialed-number recorder warrant, and a 186 warrant to intercept private
communications, should change because the second one is on a suspicion. Both
of you are saying that that second one as it relates to the Internet should
be on ''reasonable grounds to believe,'' which is the same standard that is
used for the interception of private communication. Is that correct?
Ms. Slane: The initial impetus for that was a different
technology. Different information could be obtained from a dialed-number
recorder 20 years ago when that standard seemed appropriate than there is
now. That's clear. If you were updating things, you could keep the
dialed-number recorder if ''dial'' means something different than
transmission data. If it doesn't, if a dialed-number recorder is now a
transmission-data recorder, which is something similar in terms of how we
now communicate, then yes, we do need to update that older provision as well
to match that if people aren't using something similar to what that
technology was back in the day. That makes some sense to me.
I would like to add that it seems to me there is some restraint within
PIPEDA that has not been fully explored either, which is that people who are
subject to PIPEDA, the private companies, including Internet service
providers, have to act reasonably within the circumstances, even with regard
to section 7. So it would seem that they do have some obligations, even
within that legislation, not to just provide information upon request. It
has to be something that actually fits the circumstances.
Senator Plett: Mr. Geist, you have testified that a balance has to
be struck between upholding the right of privacy and fighting online harms.
I think we all agree that a balance needs to be struck. I think the
discussion is: What is the right balance?
Two weeks ago, we hear from Mr. Gilhooly, who was a victim of sexual
assault as a child and who is now a lawyer. He testified before us, saying:
. . . privacy rights are going to have to be compromised to ensure
that we live in a safe society where our police have adequate tools.
That doesn't, in my view, mean that we're living in a police state,
that we have to live in a police state. That means that we have to take,
as a collective, a view in terms of what do we need and what do we
require to ensure that commonsensical results take place.
Later, in response to a question that my colleague Senator Frum had about
privacy, he discussed privacy in the modern connected word, concluding:
In terms of this legislation, it won't impact the average Canadian
I would just like your comment on his comment, if you would.
Mr. Geist: Off the cuff, I'd raise three things. First, I think
you're right that everybody does agree that we are talking ultimately about
a balance here and where to strike that balance. That said, if the witness
that you heard from last week suggests somehow that we dispense with privacy
because this is what law enforcement needs, I would submit that the Charter
doesn't say that. The ultimate law of the land, at this stage, doesn't say
that we dispense with privacy. Privacy remains something that's absolutely
But within this context, it seems to me that we are talking about how to
deal with that balance. What you heard from me, and what I think the
committee has heard many times, is that when we talk about the need for
appropriate oversight, that doesn't hamstring law enforcement. That doesn't
say that we get rid of privacy or that we don't provide the tools. That says
that we have real concerns about expanding voluntary disclosure, as this
bill seeks to do and as Bill S-4 sought to do, so that you are expanding the
likelihood of disclosure without any oversight. I'm not saying not to
disclose; in the appropriate circumstances, without question. I'm saying
that you don't do it without oversight, and if you expand the likelihood of
voluntarily disclosure, you are removing the likelihood of that oversight.
Second, if we are talking about this issue of threshold, as we just did a
moment ago with metadata, the core point to recognize is that the kind of
information that can be gleaned from metadata very often is now what we
would have thought of as content a decade or so ago. We recognized very
easily that content was somehow deeply sensitive. It says a whole lot about
stuff, and yet somehow we thought back then, partially because the
technology was not where it is today, that metadata did not have that same
kind of privacy import. It does today. If the former witness suggests that
we should dispense with oversight and the right thresholds, I think he's
Finally, I would point out that if he thinks that this does not affect
the average Canadian, he is absolutely wrong. I also talk to high school
kids and was in one of my kids' high schools talking with some of their
cohort. When we talked about Bill C-13 and Bill S-4, it involved not only a
discussion of the cyberbullying provisions but also the prospect of what
would happen if who they were communicating with, with other pieces of
information, might also be accessed at a very low threshold. They were
deeply concerned with the impact of that kind of thing.
One need only look at the headlines that we've seen here and elsewhere
over the last number of weeks to know what metadata can mean. Think of the
communications that might have taken place between a couple of members of
Parliament now accused of harassment and other MPs. All someone would want
is not to know the content of these emails but simply to know who they were
communicating with and when they were communicating because that information
would have enormous impact.
Think of those who have come forward in the Jian Ghomeshi case. It's not
a matter of what was said. It's merely a matter of metadata involved that
can be enormously revealing and have a huge impact. What I'm saying, and
what many others have said, is that if you are going to have that
information disclosed it's essential that it be at an appropriate threshold.
Senator Joyal: Taking into consideration the conclusion of the
Supreme Court's Spencer decision in June, would you think that if
that bill passes the way it is, the next step is that someone who is the
object of an accusation in relation to possession of images relating to kids
could fight that accusation on the basis that the proof would have been
illegally obtained by the police force and that the case could be dismissed?
Mr. Geist: I'm not a criminal defence lawyer, but I suppose it
will depend upon how law enforcement got that information and how it
ultimately gets used in the case.
Senator Joyal: On the basis of the principles in Spencer.
Mr. Geist: Yes, on the basis of Spencer, if we are talking
about the transmission-data warrant, if they go out and get the warrant and
that's the threshold, I think there's no doubt that that puts it at
potential risk. You only need to read the decision, along with Vu and
a series of other cases that have come from the court. Plus, we'll get the
Fearon case fairly soon as well. The court has now created four or
five privacy cases in which they really have sought to update privacy law
for the current technological environment. They, frankly, better than this
legislation, have recognized the privacy implications. If law enforcement
seeks to rely on information obtained via a warrant with that lower
threshold, I don't think there is any doubt that a defence attorney will
seek to challenge the validity of that warrant as having a threshold that's
far too low.
Senator Joyal: Of course, if that proof is brought to the court,
the defence lawyer will fight the fact that the proof has been illegally
obtained, that is, contrary to the protection that the Charter affords to
someone to be unreasonably searched, to get some elements of facts that are
not admissible as proof.
Mr. Geist: Sure, and that's what I thought you heard from the
criminal lawyers earlier. I would like to even extend the damage this causes
for those who are hoping to ensure that law enforcement has the appropriate
tools. I keep hearing that law enforcement needs the tools, and it seems
like everybody is in agreement on that. Think of the expansion of voluntary
disclosure creating this immunity. I don't think you will see many ISPs
disclosing voluntarily anymore in a post-Spencer environment. You
have a provision that purports to help to expand some of that voluntarily
disclosure to help law enforcement. You now have a Supreme Court of Canada
decision that makes it clear that most ISPs are not going to cooperate at
all, and in the event that they do, you have a clear opportunity for a
challenge anyway based on what we had in Spencer.
If you are generally concerned about providing law enforcement with the
tools they need to deal with this issue, why on earth would anybody, in a
post-Spencer environment, move forward with an attempt to try to
expand voluntary exposure? That's the part that I find so puzzling from the
Justice Minister, who, in the aftermath of Spencer, has tried to
argue that nothing changed. The thing that changed is that if you are
serious about trying to give law enforcement the tools they need, you can't
use the voluntary approach. The Supreme Court just told you that.
Senator Joyal: The other element that concerns me is that when
there is a challenge on a provision of a Charter, there are always three
questions that the court will walk through. The first is: What is the
purpose of the legislation? Is it a sound purpose? Second, does the measure
proposed in the legislation under discussion serve the objective that the
purpose is supposed to get? Third, is it the least intrusive? In my opinion,
the least intrusive question will fail because at least presently, when you
get a search warrant or an authorization to tap someone's line, you have to
inform the person after that you have done it in order for there to be a
balance, but not with this anymore. Now you can get much more information
than the wiretap and you don't even have the obligation to inform the person
that you got all the information about the privacy of that person. It seems
to be one of the key elements that will bring those measures to fail in the
court. Can you comment on that?
Ms. Slane: One of things that has been puzzling, because a lot of
strategy has been going on for 10 years now, is that the Spencer case
highlighted that they were testing voluntary disclosure capabilities. They
had cases where they could have gotten a warrant. In all of those child
pornography cases, they had the smoking gun. They had the image and could
have easily established the highest standards of ''reasonable grounds to
believe'' that the crime had been committed. It was all there, but they did
it in order to see if this would fly with the Charter and it failed.
There were lots of disclosures that ISPs gave in the course of that time
which were not in the service of child pornography investigations but all
other types of requests. Those are not coming to the courts and being
challenged because they are not relying on those to get further warrants
where someone presents the evidence in court.
One of the problems, without having any oversight, is there is a whole
lot of collection that goes on and does not come to anyone's attention
because they are smarter than that. They are not going to put it in the
court's face if it is potentially questionable. There is other damage that
could be done by this type of bill that will be very difficult to bring to
under Charter scrutiny.
Senator Batters: Mr. Geist, you were speaking about Carol Todd,
Amanda Todd's mom. She met with the Minister of Justice after her House of
Commons appearance and did an interview on CBC radio. Did you hear that
interview or see a transcript, because she clarified her views on the bill.
Mr. Geist: Not only did I hear that, but I got an email from her
days after this bill passed in the House of Commons, expressing dismay that
the bill had not been changed and that victims like her, who had expressed
concern about privacy, had not been heard.
Senator McIntyre: Thank you both for your presentations. I will
move your attention away from some of the issues that have been raised.
I draw your attention to section 162.1(2) of the bill. That clause deals
with a definition of ''intimate image.'' I will not read out that section,
however, I understand it contains a three-part definition of intimate
images. First, it appears to me that there is clarity in the determination
and specific warning of what classifies as an intimate image. As you know,
the definition is similar to the one found in child pornography offences.
Second, it's clear that there is an expectation of privacy at the time
the image was taken. In other words, it was done in circumstances that gave
rise to the reasonable expectation of privacy, and finally the person had
retained an expectation of privacy.
I'm satisfied with that definition and I wonder if you are satisfied with
it. The reason I'm asking that question is because most if not all the
sections found in this bill rotate around the definition of intimate image.
Ms. Slane: I'm basically satisfied with that. If anything, I've
had some reason to be questioning the last bit in that I have had concerns
on what it takes to lose your reasonable expectation of privacy in an image.
I don't think this bill wants it, but I wanted it to be clear that because
an image got out, you then no longer have that expectation to be able to
control it. There is some point down the line where the image is now out
there in the world and therefore you've lost your reasonable expectation of
privacy in that intimate image.
I would not want that to happen necessarily, although important points
have been made about where the lines are going to be drawn, especially when
the images go viral and circulate so much that you cannot charge your way
out of those situations. You can't charge 1,000 people for having shared an
image. Nevertheless, I would not want to see us establish some sort of
standard by which a person, because their image has been circulating, has
lost their expectation of privacy.
Mr. Geist: My area is more on the privacy side. I don't feel I'm
in a position to respond specifically to this. In some ways it highlights
why, as the Privacy Commissioner of Canada, Mr. Therrien, noted, this bill
should have been divided into two. We would have had the opportunity to more
carefully study these issues on the cyberbullying side and ensure we had
effective tools to deal with it, and perhaps separately deal with these
lawful access provisions.
Senator Frum: I'm a digital immigrant. I ask this question
sincerely on the issue of metadata.
If law enforcement gets a transmission data warrant, will they have more
access on a metadata level to my information, or any Canadian's information,
than Facebook or Google already has?
Mr. Geist: Yes, of course. Facebook and Google have only the
information that you reveal to them. If you are interacting directly with
Facebook, and you have certain cookie information, they can track certain
amounts of activity where you've gone to websites that have a Facebook
widget embedded. They don't see who you email or sites you visit that don't
have a Facebook widget. You can anonymize yourself and simply not use a
Facebook widget. Similarly with Google, you can use it without logging in at
all and Google does not track anything about who you are specifically.
Senator Frum: That is not how it feels when I get targeted email.
Mr. Geist: They are able to target, on an anonymous basis, a
particular IP address. In an email situation, they are simply canvassing the
content, on an automatic basis, on what is in the email and coming up with
something they think would be relevant.
That is a far cry from the ability to access all of your correspondence,
regardless of who it is with and under what circumstance, as a transmission
data warrant would. There is not even close to a comparison.
Senator Frum: On the concept of reasonable expectation of privacy,
isn't it fair to say that there is much less privacy than most of us
Internet users appreciate or recognize as is? So when you're trying to find
that level of reasonable expectation, you have to remove the ignorance out
of it for people who use Facebook or Google; it is not actually private.
Facebook is monitoring every single transmission you make. They hang on to
it, own it, monitor it, target you and market to you and sell it. They don't
respect your privacy at all. I'm very anti-Facebook.
Ms. Slane: One of the things Michael has been saying is what is
different about when law enforcement does it is that they would potentially
have the capacity to compile all of those things. It's your transactions
with all the social media sites, plus the places where you browse, things
you are taking a look at, people you call, things you are inquire about.
It's being able to pull all those things together, which is more invasive
than what one social media company gets.
In terms of what is reasonable, there is the normative standard. If you
are used to having your privacy violated, it does not change. It's still in
relationship to what we expect in a democratic society. Just because you are
used to being treated terribly by your company doesn't mean that the privacy
standards we want to uphold as a democratic society adjust to that.
Senator Frum: If I was using one of those interface mechanisms, in
fact I am being completely monitored at all times, whether I'm aware of it
Mr. Geist: No. When you are on the service, with your consent, you
different mechanisms that you can choose in terms of how much information
you share, how that information is used and the like. These are choices that
you ultimately make, and of course you can choose not to use it altogether.
They are able to collect and use that, which is not the same as tracking all
Internet-based activity. The equivalent of saying that Facebook and ''this''
are the same, is on the one hand saying I'm going to log out of Facebook and
on the other hand I'm going to log off communication altogether. That's not
the same thing. I can decide that I don't want to use Facebook.
I would submit that it is not practical for almost any Canadian at this
point in time to simply say they won't communicate any more using our
computer networks as well as our phone networks. Yet that is what is being
captured. That's a far cry and much different from what Facebook is able to
capture, as people opt into it.
Senator Frum: I don't want Google tracking me, but they do.
Mr. Geist: They only track you if you allow them to track you. You
can surf Google and you can the search functionality without any profile,
without logging in, and it's done on an anonymous basis.
Senator Frum: You'll have to tell me how to do that later.
Senator Dagenais: Mr. Geist, you are aware that most internet
service providers have policies on the acceptable use of their service and
that the policies contain guidelines for the users of the Internet service.
Do you feel that those policies are effective enough to stop cyberbullying?
If not, what could be added to those policies to make them more effective?
Mr. Geist: I've looked at some of those network provider policies
in a number of different contexts, and quite frankly most providers grant
for themselves the right to do just about anything on their networks in
terms of what subscribers do on their networks.
I think the short answer is, sure, ISPs have the power. They grant
themselves, at least contractually, the power to turn somebody off or to say
that they're going to cease to be a customer or to say that it's violating
any number of different rules that they've identified with respect to
network behaviour. But that's that direct contractual relationship between
ISP and the subscriber.
This issue came up also in Spencer with the argument being that
somehow people didn't have a reasonable expectation of privacy because ISPs
were trying to limit what their expectation might be based on those terms.
The court rejected that, noting that importing that contract, essentially
signing away or clicking away your reasonable expectation of privacy, to
them didn't seem reasonable under those circumstances.
Senator Dagenais: Do you find that the policies are effective
enough or do they overstate things?
Mr. Geist: I suppose you'd have to look at each individual
provider's terms. From what I've seen, and perhaps Professor Slane can
expand, they mirror one another fairly closely in terms of the power that an
ISP reserves for itself, in terms of what they see as appropriate or
inappropriate behaviour on their network.
Do they have the power to address those issues from a contractual
perspective? I suspect the answer is yes, but clearly that doesn't provide
us with a whole solution to the issue of cyberbullying.
I don't know that anyone seriously is against the cyberbullying-related
provisions here. This helps to deal with the issue. I've got three kids who
are in school right now. If they were the target of this, I would want to
ensure that there are some appropriate rules in place, too.
The problem, in a sense, with a lot of this discussion is that we're
talking about two bills. We're talking about a three-page cyberbullying bill
and a 40-odd page lawful privacy access bill. We should be having two
different conversations about that, and I think we probably could have
ensured that we quickly got a very good cyberbullying bill and probably
would have got a better lawful access bill as well, especially one that is
compliant with Spencer, but we have what we have.
Senator Baker: In the Spencer case the police used that
letter of request under section 7 of PIPEDA. One wonders what is now going
to happen to the act, PIPEDA, that's presently on the books. It would apply
to Shaw, which I think was the service provider in the Spencer case.
It wouldn't apply to some other service providers that are not really
regulated. If you're looking for privacy, for example, SaskTel would operate
as a service provider; they would come under the provincial privacy act of
Let me ask you one final question, Professor Geist. You're quoted quite
often in case law and as time passes, sometimes you may not agree with the
quotations that are used. This past year I was just looking at R. v.
Mills, a Newfoundland and Labrador case. David Orr was the judge. One
sentence from paragraph 24 says:
Counsel for the Crown has argued that there is no expectation of
privacy in an email message. She has noted author Michael Geist's book
Internet Law in Canada, 2nd Edition . . . at page 262:
You will never hear it enough: e-mail on the Internet is as
private and secure as a postcard in the ''snail mail''. Everyone
from your Internet provider staff to your correspondent's friends or
colleagues can read your electronic message from the moment you
click ''SEND'' on your computer.
So your book of 2001 was used to say that there's no privacy on the
Internet. Do you still hold these comments as being fact?
Mr. Geist: I wasn't aware of that case. I'm tempted to say maybe
that's why there's a third edition.
In a sense, we're talking there about two different things. We're talking
closer to what Senator Frum was talking about and what the average user
feels about the kind of privacy they have when they engage in online
activity. I think it is the case that for a lot of users, and certainly in a
post-Snowden environment, that's accurate. We learned through Snowden, in a
world in which security intelligence agencies are hoovering up all of that
information, that the notion that somehow those emails are private is wrong.
That just doesn't happen.
But that's not really what is at stake or at issue here. At issue isn't
whether or not emails themselves can get captured in a myriad of different
ways unless you take steps to encrypt them to provide some level of privacy
over those messages. The issue is the standards that we establish in terms
of when law enforcement can obtain that under a search and then use that
information. That's something quite different.
Senator Baker: Spencer was not by a warrant. Let's not be
confused here. It was by a letter. There was no warrant. There was no
judicial authorization. Under this bill, it provides for judicial
authorization in certain circumstances. Yes, based on a suspicion, but it is
judicial authorization on a reasonable suspicion basis. So they are two
completely different things.
Do you agree with the previous witnesses from the Criminal Lawyers'
Association that this will not survive a Charter challenge because of the
Supreme Court of Canada's decision in Spencer?
Mr. Geist: I don't think there any doubt that it's vulnerable. We
talked about voluntary disclosure being clearly vulnerable; that's what we
see directly in the Spencer case.
On the issue of transmission data, when we look at what the court has
said quite consistently, whether in Vu or Spencer and now some
other cases, the TELUS case, I think they have coalesced around a
view of the privacy import of digital data, so much of the electronic
information that is generated when we communicate in these networks. It has
recognized that for the law to keep pace we need to be thinking about much
of that kind of data in the same way that we thought about content a decade
or two ago.
Senator Joyal: There is something that has to be very well
understood by everybody. There is no such thing as a presumption that once
you are on the computer it's for the whole world to see or read what you do.
Senator Frum's question was more or less on the assumption that as long as
you dial up on our computer to access your Facebook or you exchange
messages, since everybody has a computer and everybody could have access to
your computer, then you have no more protection. You have yielded your
protection to privacy. That presumption, in my opinion, has been set aside
in Spencer. The court has been very clear. It's not because you are
sitting at your computer that the presumption is that it's for everybody to
Of course, your service provider can have a program that, for instance,
watches your purchases on eBay, and after a while you have purchases of skis
so many times, then you receive all kinds of publicity related to ski
resorts and tickets to go there. We know that they have those kinds of
programs. But it's not because we see that on our screen that individually
we have abandoned our right to privacy. The danger I see in this legislation
is once you do that for some kind of objective, the government will find any
other kind of objectives to follow the path that is enshrined in this bill.
That's what concerns me.
For the sake of the good we will find a lot of other ''goods'' whereby
the threshold to maintain privacy will be lowered. That's my preoccupation.
It's in the long term, because I can imagine a lot of other objectives I
could propose to you whereby you say that for the sake of national security
or radicalization — I could give you a list and I'm sure you could invent
one also, and then we will be caught in a different trend of the protection
we should have when we use that technology.
Mr. Geist: Our country and other countries have created specific
privacy rules that someone shouldn't know what books I read or take out of
the library. This is my library. We have rules in the U.S., after the Bork
hearings, which talk about privacy protection for people's video rental
activities because people shouldn't necessarily get access to what we watch.
This is my video store. This single device functions in so many different
ways. For some reason we've recognized in the past, over the course of a
couple of decades, about the privacy importance in that off-line environment
and we're about to pass legislation that hasn't kept pace with how these
kinds of devices generate all that same information but perhaps without the
same level of protection that we've almost now taken for granted in an off-
line or non-digital environment.
Senator Baker: Mr. Geist, you heard of the case called TELUS v.
R., Supreme Court of Canada, not long ago. The Supreme Court of Canada
approved the standard of 487.012, which is a judge's belief on reasonable
grounds that an officer has a suspicion to obtain. The majority of the court
— Justice Cromwell disagreed, probably right in my opinion — agreed that you
could on a suspicion, on that section, obtain what existed in TELUS,
which was your text messaging, and so on, that they kept for a 30-day period
as an exception to 186 for quality control purposes. Do you think now the
Supreme Court of Canada will reverse their position on that given what
they've now decided in Spencer?
Mr. Geist: No. The TELUS decision is close enough in time
that they won't.
What I take away from the TELUS case are a couple of things. First
is how rare it is for a telecom provider to go to bat for their subscriber
information in these contexts. The TELUS case notable because so few
telecom companies have done anything to stand up to attempts to access this
kind of information, which is why it's notable in its own right, and
secondarily, for the court to begin to grapple with that notion of
interception and storage and recognize that there are differences.
We've got a court that's willing to truly examine the technology and
think about what that means from a privacy perspective. In that case we had
at least one telecom company willing to do the same. The fear is, especially
from the telecom perspective, they are a bit of an outlier when it comes to
that willingness to stand up for customer privacy.
Senator Joyal: What is the situation in the United States in
relation to the same issue?
Mr. Geist: In some ways, if we look at what we've seen in the
post-Snowden environment, the U.S. is highly instructive about what not to
do as opposed to what to do. I think we could look at the level of
surveillance that exists in that jurisdiction. We're part of the Five Eyes,
so we're playing along with all of that. But the expectation of privacy
there is lower even than it would be here, and part of that stems from the
fact that they don't even have basic national privacy legislation. The one
exception to that — the exception to the exception, I guess — is the
Fearon case, which is this issue of accessing information on a cellphone
that isn't password protected. That's a case that the U.S. Supreme Court
heard and has decided and our own Supreme Court has heard a very similar
case and will render a decision very soon, and the U.S. court ruled that
there was privacy in that information. I suspect our court will follow suit.
The Chair: Witnesses, thank you very much for a most interesting
contribution to our deliberations. It's much appreciated.
Members, we will meet again tomorrow morning to continue our study of