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 bill.

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 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 unconstitutional.

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 C-13.

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.

Ms. McDonald.

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 have.

Our goal today is to provide support for Bill C-13. We will offer testimony based on our role in operating, 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 guide.

Also, in early 2013 we launched a resource called, 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 technology.

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.

Thank you.

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.

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 participate in.

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 dialed.

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 the opposite.

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. Spratt.

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 this bill?

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 numbers.

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 value.

The Chair: I have to stop you there, and we have to move to Senator Plett.

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 circumstances?

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 manage this.

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 stopping it.

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 that.

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 searches.

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 comprehensive approach.

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 solutions.

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,, 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 that.

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 detail.

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 privacy?

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 briefcase.

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 this bullying.

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 adults?


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 children's privacy?


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 many years.


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 you, Madam.


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 Canadian jurisdictions.

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 surveillance there.

He says:

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 own views.

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 information

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 concerns.

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 enforcement.

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 Code.

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 one iota.

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 crucial.

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 wrong.

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 or not.

Mr. Geist: No. When you are on the service, with your consent, you signed up and they offered up a privacy policy and a whole species of 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 the province.

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 see.

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 Bill C-13.

(The committee adjourned.)