THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, November 6, 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 10:30 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good day and welcome, colleagues, invited guests, 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 also available via webcast on the parl.gc.ca website, and you can find more information on the schedule of witnesses on the website under "Senate Committees."
We have a very impressive group of witnesses to start off this morning. I'd like to introduce, from the RCMP, Superintendent Joe Oliver, Assistant Commissioner, Technical Operations; Inspector Mercer Armstrong, Officer in Charge of Operations, Contract and Aboriginal Policing Directorate. From the Canadian Association of Chiefs of Police, Jim Chu, Chief, Vancouver Police Department, who is appearing video conference from Vancouver; and from the Ontario Provincial Police, Scott Naylor, Detective Inspector.
We will begin with Chief Chu. The floor is yours, sir.
Jim Chu, Chief, Vancouver Police Department, Canadian Association of Chiefs of Police: Good morning. My name is Jim Chu. I'm Past President of the Canadian Association of Chiefs of Police and Chief Constable of the Vancouver Police Department.
The Canadian Association of Chiefs of Police represents in excess of 90 per cent of the police community in Canada, including federal, First Nations, provincial, regional and municipal police leaders and services. Our mandate is the safety and security for all Canadians through innovative police leadership.
The Canadian Association of Chiefs of Police fully supports the introduction and passing of Bill C-13. This legislation will assist law enforcement officers by providing new tools to protect youth and adults from cyberbullying. The legislation helps us not only in the area of cyberbullying but for many other crimes where modern communications networks are used to facilitate the commission of a crime. The Internet and modern voice and data networks, while very useful in the everyday life of most Canadians, have been used by criminals to harass and exploit others.
If the police are not given these new legal tools, the likelihood of successfully investigating and prosecuting many types of crimes becomes lower and lower. This would be because essential evidence has disappeared or because police officer capacity has decreased due to cumbersome and dated legal tools.
Investigations that take longer than they should mean a proportional reduction in caseload capacity. The end result is that more criminals will not be held accountable by the police and the justice system, and fewer victims can be helped.
This bill fully meets the standard raised by critics of lawful access legislation in the past, namely, police must have the judicial authorization through a warrant. We ask each of you to support this bill. Canadians deserve the new protection that this law provides.
Rather than continue further, I would defer the rest of my time to the subject matter experts in the room with you, who are Canadian Association of Chiefs of Police members, and they will provide you with more technical details as to the importance of this bill within the policing community.
Superintendent Joe Oliver, Assistant Commissioner, Technical Operations, Royal Canadian Mounted Police: Senators, thank you for the opportunity to discuss Bill C-13. I'm Assistant Commissioner Joe Oliver and I'm responsible for overseeing the RCMP's Technical Operations Directorate. Joining me today is Inspector Mercer Armstrong from the RCMP's Contract and Aboriginal Policing Directorate.
[Translation]
Both Inspector Armstrong and I discussed Bill C-13 before the House of Commons justice and human rights committee in May of this year. At that committee appearance, we discussed cyberbullying and cybercrime more broadly, and touched on some of the investigative challenges that police face in a digital era.
[English]
This broader context is important, as cybercrime is not limited to any particular criminal offence. That said, please allow me and allow us to provide a similar overview today.
First, cybercrime refers to any crime that takes on a new scope and magnitude through technology. It often involves long-standing criminal offences that take new shapes in cyberspace, such as fraud, extortion or child exploitation. It also involves newer areas of crime that target computer networks and systems, such as involving industrial espionage or data extraction and theft of intellectual property or trade secrets. The Internet may also be used to communicate and plan terrorist activities, such as those involving online recruitment and radicalization of Canadians toward violent extremism.
Cybercrime is a global phenomenon where a perpetrator in one country can affect victims in many others — instantaneously, across the globe and anonymously. It is the ultimate borderless crime and it comes with its investigative challenges.
One challenge is attribution. Law enforcement agencies struggle with attributing cybercrime to a source, especially for the more sophisticated and often international crime threats involving unauthorized computer use and mischief in relation to data. Notably, the same technologies that people and organizations use for legitimate purposes may be used by criminals to mask their online activities and evade detection from law enforcement.
The proposed Bill C-13 would help to address the investigative challenge, not only in a cyberbullying context but for the many other technology-enabled crimes that threaten Canadians. Permit me to highlight a few key provisions in Bill C-13 that would better address criminal forms of bullying and other crimes in a digital age.
[Translation]
The bill’s proposed data preservation scheme, for example, is a critical tool for law enforcement and criminal investigations. As you know, computer data can be easily altered or deleted, whether inadvertently or intentionally.
[English]
Currently, police have no legal means of ensuring that telecommunications service providers do not delete data when there is reason to suspect links to criminal activity. The absence of such an investigative tool puts criminal investigations, evidence and potential prosecutions at risk.
The proposed data preservation scheme in Bill C-13 would enable police to ensure that data is not deleted in the short term and would include longer-term provisions and judicial authorizations for greater data preservation. This would support criminal investigations, both domestically and internationally, and would allow time for police to obtain judicial authorizations for data access.
Bill C-13 would also permit more effective policing efforts at the onset of an investigation involving the Internet and related technologies where we may have reason to suspect online criminal activity but little else.
In that context, specific components of digital evidence, such as transmission data and tracking data, are particularly important at the start of a police investigation into online criminal activity. These very precise types of digital evidence allow police to potentially attribute online criminality to a source and further investigative leads.
Currently, police seek judicial authority to access these types of data through search warrants or general production orders. However, when it comes to criminal investigations and the initial data requirements, a judicial threshold based on reasonable grounds to believe cannot always be fulfilled, potentially leading to investigative delays or dead ends. Bill C-13 would help address this issue by enabling police to seek judicial authority to access transmission and tracking data through specialized production orders.
These very precise investigative tools would provide law enforcement with the proportionate legal means to seek these specific types of data based on reasonable grounds to suspect judicial thresholds. These specific data types may contain key early indicators of criminal activity. Accessing this data is often necessary to commence a criminal investigation, especially where technology played a fundamental role.
[Translation]
I also want to mention the other part of this critical bill: cyberbullying and the non-consensual distribution of intimate images.
[English]
The proposed Bill C-13 would help to modernize criminal law for cyberbullying-related offences. Notably, the bill's proposed measures to modernize the existing offence of false, indecent and harassing communications — section 372 of the Criminal Code — to better reflect telecommunications and would align with what victims are experiencing through cyberbullying.
Moreover, the bill's proposed new offence to prohibit the non-consensual distribution of intimate images would provide law enforcement with more appropriate grounds to lay charges, giving police an option, where today's child pornography provisions might be too blunt an instrument to address these situations.
[Translation]
In closing, it is worth stressing the importance of Bill C-13 in today’s digital era. More than ever before, the interplay between public safety, privacy and technology cannot be understated.
[English]
Some of these issues have been brought to the forefront in recent months following the Supreme Court of Canada's decision in R. v. Spencer, or the Privacy Commissioner's recent report on government transparency and privacy in the digital age. In that context, it is important to emphasize that new and precise criminal laws and investigative tools that better reflect technology would permit more effective police work into suspected cybercrime activity, including cyberbullying and other online crimes. Such measures would also ensure that more exact privacy safeguards are in place, as law enforcement would not be limited to broad, one-size-fits-all investigative tools when dealing with crime in the digital age.
The proposed Bill C-13 would help to address law enforcement challenges and considerations that I have highlighted today.
We look forward to answering your questions.
Scott Naylor, Detective Inspector, Ontario Provincial Police: Good morning, I'm Scott Naylor. I'm the unit commander of the Child Sexual Exploitation Section of the Ontario Provincial Police. On behalf of Commissioner Vince Hawkes, it's my pleasure to be here to represent the approximately 6,200 uniformed and 2,800 civilian members of the Ontario Provincial Police. We welcome the opportunity to speak to this important legislation and reiterate our support for the position taken by the Canadian Association of Chiefs of Police.
The OPP has had opportunities to provide input on Bill C-13 since its introduction in 2013. The OPP had representation and contributed to the Cybercrime Working Group, which is part of the Criminal Justice Coordinating Committee of Senior Officials, which advised Public Safety Canada prior to the introduction of this legislation. We continue to do our part to reduce crime and victimization through various public education and crime prevention awareness initiatives, and of course through successful investigations.
The Ontario Provincial Police is continually educating front-line officers about issues such as self-peer exploitation so that we can better assist educators, parents and teens themselves when we are asked for support.
The OPP has developed Internet committees, through our community mobilization strategy, within high schools across Ontario to educate teens about the serious consequences of self-peer exploitation. Our front-line officers speak about the devastating effects and potential criminal risks associated with self-peer exploitation. We also provide information, age-appropriate links and resources such as youthconnected.ca — which has been developed and populated by and for teenagers — needhelpnow.ca, and sendthisinstead.com.
As police, our biggest concern is that teens are unintentionally victimizing themselves and are unaware of the consequences when self-peer exploitation images often go viral, through the Internet and across social media. We see many teens that cannot cope with the shame and embarrassment of what they have done during a momentary lapse in judgment. Many become depressed and anxious, and as you have heard from previous presenters in this committee, it can result in unfortunate and tragic instances of suicide.
The Ontario Provincial Police Child Sexual Exploitation Unit, which I'm in charge of, on average receives six to eight sexting or self-peer exploitation complaints each week, making it the highest reactive investigative occurrence fielded in this unit. Depending on the individual circumstances of each incident, an offence under the Criminal Code of Canada may or may not have occurred. Offences include possession and distribution of child pornography, making child pornography available, extortion, or threatening.
Similar complaints are received regularly by members of OPP Community Safety Services, formerly known as the Crime Prevention Section. The OPP is a proud supporter and partner of the Canadian Centre for Child Protection and the initiative supported by Public Safety Canada called Need Help Now. In fact, I proudly serve as a police adviser on the Canadian Centre for Child Protection’s board of directors.
Need Help Now is a web-based resource designed to help Canadian youth, especially in the age bracket of 13 to 17, to manage the negative consequences that can occur when sexual images are created and distributed online, and to reduce further harm.
Needhelpnow.ca provides teens with practical steps to regain control over their situation, helpful information on how they can seek support from a safe adult, and strategies to manage harassment, such as bullying, that may occur in both on line and off line. As of this morning, needhelpnow.ca has over 4,000 new hits every month.
Using the latest technologies and platforms, the OPP supports updated legislative tools to help police get access to the information we need to investigate child sexual abuse via the Internet, cyberbullying and other criminal activities.
Investigations concerning the most valuable people in our society, our children, are time consuming and cumbersome and, in effect, protect the identities of child predators and the materials that they produce. Thanks to recent legislation, Internet service providers have a legislated duty to report when their services are being used for child abuse-related purposes. This is working very well.
Current processes include serving Internet service providers with search warrants or production orders for the subscriber information relating to a particular Internet protocol address. Many have raised valid concerns regarding their personal use of the Internet and privacy of their information.
The information that police seek I can equate to using a licence number called in as a tip about a dangerous or drunk driver. In child sexual exploitation cases, the essential elements of the offence have already been obtained in most cases, and it is only the identity of the accused that police seek information through ISP information.
The OPP and its police and community partners believe Bill C-13 strengthens our ability to obtain vital information quickly, which can then be brought to bear on Internet predators, regardless of their location, anywhere in the world.
As has been demonstrated by police across North America and around the world, we are making progress combatting Internet child luring, sexual abuse and sexual exploitation, but at times it feels like we are holding a Dixie cup under Niagara Falls. We just cannot arrest our way out of this problem.
There is no question that some of the legislation involving technology and communication in Canada is out of date. Under the current legislation, police can only access the very basic subscriber information — i.e., name, address, telephone number — on a totally ad hoc basis, by production order from service providers. This means that there is an inconsistent response, which impedes investigations and, in extreme cases, may prolong victimization.
Under the proposed legislation, Internet service providers would be compelled to provide this information in a timely fashion and on a consistent basis. Access to this information would be strictly controlled and limited to law enforcement officials, who would be fully trained in these procedures and subject to auditing and report oversight. I will repeat — auditing and report oversight. The outcome would make a positive difference when we investigate and prevent criminal activity.
Should Bill C-13 legislation pass and be brought into force, the Ontario Provincial Police recognizes that we will face an increase in calls for service and an increase in workload related to the investigation of intimate images offences and complaints related to the new offences. Of course, the role of police isn't to create new legislation; that job is for elected officials. Our role as law enforcement is to respond effectively to criminal activity that has found a home on the Internet and been enabled through new and emerging technologies.
The Ontario Provincial Police takes its public safety mandate very seriously. We are not shy about underlining the need for updated legislation that will give us the effective tools to investigate and prevent criminal activity. We do appreciate the federal government's support to enhance what we do to prevent vulnerable persons from being exploited and victimized and to keep our communities safe.
Thank you very much.
The Chair: Thank you all. We'll begin the questions with the committee's deputy chair, Senator Baker.
Senator Baker: Thank you to the presenters here today, members of the law enforcement community in Canada.
I have a general question for you. It's something that I do not understand as it relates to this bill right now. Here we have the Criminal Code. It's very thick and there are various means whereby you can investigate and obtain information. With the new bill, the legal experts told us yesterday that production orders could only be executed for material that is being held at present. In other words, it is existing material.
Given the fact that most of the traffic that you are concerned about goes from one computer or one telephone to another one, through a central clearing place — in the case of Telus I think it's a master computer in Toronto, and I'm talking about text messaging now — and they hold on to the material for some 30 days for quality control purposes. I can understand where you can get a production order, first of all, for them to hold the material for you until you decide to proceed or not to proceed with your investigation and the laying of charges. However, that only applies to Telus. The others, Rogers and Bell, do not retain the information along the way. It just goes from point A to point B, and wouldn't this present a real problem for you in, first of all, interfering with that? Under this particular legislation how would you do it? That's interference in the movement of private information, which would require Part 6 of the Criminal Code, a 186 or 185 warrant of which you're aware. Could you explain to me how this bill would help you in those circumstances?
Mr. Oliver: The challenges that we face when it comes to the investigation of these types of crime are numerous. When it comes to particularly the borderless nature of online crime and how communication networks flow, this bill provides us with very specific tools.
In the case of a recent investigation we encountered that involved the exfiltration of data, we had enough information to believe there was an offence, so we ended up obtaining a production order. We had to go to the first service provider. That led us to another service provider. Then we had to go back and get another production order and yet another production order. What we're trying to is find the origin of the transmission. That led to successive production orders that take time and massive amounts of police resources to prepare. When you're talking about sensitive information that could be deleted easily, particularly if the suspect thinks that we're coming after them, there's a real challenge when it comes to that type of tool.
The communications data trace authority that comes with this, the production of communication trace data, section 487.015, would allow us to use a single document at the level of reasonable grounds to actually trace the data through the network. We don't know where the service provider is or where that transmission originated. Once we find out the originating location, then we can use the current authorities to obtain a production order in order to secure data.
There are two ways of finding data when it comes to these types of offences. The service provider may possess it, and if they don't, then we need to find the host computer where the transmission was sent from. There is residual data on there potentially, so we have to get our hands on the computer. Once we find the location, we execute a search warrant on the residence, seize the devices and do a digital forensic analysis.
Senator Baker: In other words, if you were investigating a crime that took place over the telephone, there's a number recorder warrant that you can get.
Mr. Oliver: Correct.
Senator Baker: Is it similar to that? Would you trace who is hooked up with whom, then add on the numbers and you arrive at the proper place?
Mr. Oliver: There are two types of authority when it comes to the data. One is the historical data, which I think Mr. Piragoff referred to yesterday. That's what the production orders are for. However, there's real-time tracing of just the transmissions and the data themselves, not the content, which then helps us in a real-time trace of the data as well.
The other issue we run into is the preservation of data. We've had cases where an international partner, through their investigation, identified that there's a predator in Canada who is impacting citizens in their country. They come to us with a request. We find out that the service provider, through their regular business practices, is about to delete the data. So we go there and make a voluntary request that they preserve the data. We do not have time to get a production order for that.
Under this new authority, either the preservation demand or the preservation order, we can serve it. They are required by law to retain this data so that then we can go and get the proper authority to come back and secure the data that will further an investigation in another country.
It's the same thing that happens when we have victims in Canada; we try to work with international partners.
Senator McInnis: On that point, yesterday when I questioned Justice officials on the effect of the Spencer case, basically what that has done has shut down the provider from voluntarily providing information. You will have to get a production order. It's just one of these things on which they're being extra cautious, I suppose.
I'm pleased to hear all three of you say you like this bill and the various tools and precision that it gives.
Bill C-13 will help you proactively stem and prevent crime and hopefully get the perpetrators after the fact. If you were asked today what other measures and laws you require in order to assist you with what I would call a crises with the cyberbullying that is taking place across the country, what additional laws would you require? We cannot, as Canadians, let this continue. There's got to be an end to it because it seems to be rampant.
Mr. Naylor: If the bag was open and I could do anything, the biggest problem that I see in the world of child sexual exploitation is anonymity on the Internet.
When we get our driver's licence, we're required to get our picture taken for identification. When you get a mortgage, you have to sign and provide identification. When you sign up for the Internet, there is absolutely no requirement for any kind of non-anonymity qualifier. There are a lot of people who are hiding behind the Internet to do all kinds of crime, including cybercrime, fraud, sexual exploitation and things along those lines.
The Internet is moving so quickly that law enforcement cannot keep up. If there were one thing that I would ask for discussion on is that there has to be some mechanism of accountability for someone to sign on to an Internet account that makes it like a digital fingerprint that identifies it to the person sitting behind the computer or something at that time. There are mechanisms to do it, but the Internet is so big and so vast at this point, and it's worldwide, I'm not sure how that could happen; but that would certainly assist everybody. In that way I can make a digital qualification that that's the person that I'm talking to. If I had one choice, that's what I would ask for.
Senator McInnis: I would agree with you. People use assumed names. In my home community, they use names like Beaver or Sawchuk, and they say terrible things. I absolutely agree with you. That's one.
Are there any others?
Mr. Oliver: There are two components when it comes to modern-day investigations, particularly those online. The first is: Do the offences, as described, reflect current communications practices? Within Bill C-13, a number of offences would be modernized by addressing the means of communication.
We look at harassing telephone calls. The reality is that, today, there are many instances where harassment is conducted online, but section 372 is for a different time and space. What we need is a modernization of existing offences.
The second piece is the modernization of investigation tools. Take the case where a parent comes to us saying that there is a child online and that it appears that a predator is trying to groom them. What I mean by that is that predators actually take steps when they try to recruit a child into taking self-images or to engage them in sexual exploitation. Part of it may be that they might share an image with the child they're communicating with online, addressing them by such things as, "Hi, hottie" and those types of things. Parents could come to us with that. With our current authorities today, there has been no offence. If we look at some of the thresholds that this new legislation provides, that are "reasonable grounds to suspect" level, then we can go get judicial authorization and start an investigation.
To get a production order today, for us to investigate that offence, is a dead end.
Mr. Naylor: I would like to draw an analogy to the assistant commissioner's example. The long-standing argument is this: Do you wait for the person to go in and rob the bank so that the offence is committed, or do you arrest the person outside the bank, knowing that he's going to commit the offence?
With a lot of these things, like that example, law enforcement has to wait for an offence to be it committed in order to take appropriate action, knowing full well that we are jeopardizing or putting a young person at risk by doing that. It is a putting-the-cart-before-the-horse or the cart-after-the-horse type of analogy.
Senator Jaffer: I want to thank all four of you. When you went to work, you probably never thought that this would be the kind of work you do.
I'm with you 100 per cent on everything you said about sexual assault and luring. This bill is good.
My concern — and you have mentioned it in your papers — is the child-child issue, one child sexting another child, and you see a lot of this. I am Chair of the Human Rights Committee, and we did the cyberbullying study. One of the things that has stayed with me is the children we met. For the first time ever in the Senate, we met with young people. They said, "On the same day, we could be the bully, the observer and the victim." It is not completely that one is the victim all the time and the other is the bully all the time. Bullies told us as well that they were bullied at times. We met with both groups.
I raised this concern with the minister yesterday, and I didn't get an answer. I said, "You are in a very difficult situation. With this bill, are you going to be charging children?" I got the answer that there is the Youth Criminal Justice Act, and all that, but this is a very difficult issue. I can tell you that young people said to us, those who were also bullied, "We don't want a friend to go to jail; we just want it to stop."
Mr. Chu: With regard to the front lines of Vancouver schools, I talk to our school liaison offers. One officer might be in charge of one high school, and each week they get one or two or three complaints of peer-to-peer harassment or bullying. In the old days, it might have been a written note passed around between three girls or three boys. Now it is posted online for hundreds of thousands or the whole world to see.
The vast majority of cases that we deal with we resolve through counselling, through getting the young person to come in. The school counsellors are involved. We explain why this is wrong, and so while the criminal law and proceedings under the Youth Criminal Justice Act do exist, we generally just want to stop it, prevent it. Especially if it's young people, we use our discretion.
Even if we lay charges, if it is somebody under age of 18, the Youth Justice Act calls for extra-judicial measures, which means that it doesn't go through the court system.
My colleagues mentioned all of the preventive measures that are in place. The police are closely involved with educators in educating young people to not do this in the first place. I don't believe this bill is going to be used as a hammer to start rounding up young people who engage in immature and irresponsible behaviour that can simply be straightened out through speaking to them and through education.
Senator Jaffer: I know very little about these devices, but the young people educated me. They said, "The police are never going to be able to catch us because we can use an anonymous application." I asked the question of the officials yesterday, and they said that you guys are smarter than the young people. You can get through to the anonymous applications. Can you?
Mr. Naylor: I can answer that. We're not smarter than the young people. We're behind the young people.
Senator Jaffer: That's what I thought, too.
Mr. Naylor: However, they don't know what we know and they don't have the access to the tools and the technology that we have.
Senator Jaffer: That's good to hear.
Mr. Naylor: It is a constant cat and mouse game.
I can draw this comparison: The young people learn a technology and the predators learn that technology. As a result of a complaint or something along those lines, the police learn then that technology. We are working very diligently to try to get in front of that so that we're on the leading edge of the latest technology.
Things happen so quickly in the young people's world that we are always playing catch-up, especially with the devices and the apps that are being developed. Some apps are built to do one thing, but somebody will figure out how to do something else on it, and it will run viral through the Internet with young people. We have to play catch-up because we don't hear of this until there's a complaint because a predator has caught up with this.
Senator McIntyre: Thank you, gentlemen, for your presentations.
The Criminal Code, as you know, has one tracking warrant. The bill proposes two types of tracking warrants; in other words, we would have a dual threshold. In the case of persons, enforcement officers must have "reasonable grounds to believe," for example, in tracking a person's cellphone. However, in the case of things, enforcement officers must have "reasonable grounds to suspect," for example, in tracking vehicles and things. I understand that enforcement officers must also have reasonable grounds to suspect in the case of transmission warrants and preservation. Are you concerned regarding this dual threshold? Will it cause problems for law enforcement?
Mr. Oliver: Today the authorities under the Criminal Code come in with both thresholds. So a production order needs reasonable grounds to believe. Access to customer account information in a financial institution needs reasonable grounds to suspect. We currently deal with both of those thresholds today.
The law, as proposed in Bill C-13, is recognizing the higher expectation of privacy that comes when you are tracking an individual's movement, given the precision of modern-day technology. I suspect that's why the drafters recognized that, when it comes to a vehicle or a device or a vessel, reasonable grounds to suspect is a sufficient threshold, versus when we're tracking the movement of an individual with modern-day communications tools that may involve a more invasive —
Senator McIntyre: As noted in Spencer, for example.
Mr. Oliver: Correct. In Spencer, the court recognized —
Senator McIntyre: An expectation of privacy.
Mr. Oliver: Correct, when we can link a name to an individual's online activity. That doesn't necessarily mean that when we need just the name without linking it to activity that that meets the same threshold. All we're looking for in the case of a phone record is just the name and address.
Senator McIntyre: The distribution of child pornography as set under the code calls for mandatory minimum penalties. Bill C-13 creates a new offence, the non-consensual distribution of images. Is it possible that this proposed new offence will encourage plea bargaining to avoid the mandatory minimum penalties for distribution of child pornography, particularly in cases where both parties are young people?
Mr. Oliver: That's a tough question. It would have best been addressed to our colleagues in the Department of Justice. When it comes to thresholds for prosecution, the prosecutors take into account two issues. One is the ability to prosecute the offence based on the evidence, and the other is the public interest.
Senator McIntyre: That's right.
Mr. Oliver: Someone from the Public Prosecution Service or the Department of Justice would probably be best.
Senator McIntyre: The onus remains on the Crown. The Crown must prove its case beyond a reasonable doubt, so the prosecutor would make that decision at the time.
Mr. Oliver: That's correct.
[Translation]
Senator Dagenais: My thanks to our three guests. Mr. Oliver, I would like to refer to your presentation. You say that the measures proposed in Bill C-13 would enable police to ensure that data is not deleted in the short term and would include long-term provisions for greater data preservation. I would like to know what you mean by "long term". We know that evidence must be preserved during an investigation, but the file is not automatically destroyed, even when the investigation is over. It is kept for a certain period of time. I would like to hear what you have to say about the provisions and the length of the time for which you could keep that data.
Mr. Oliver: Thank you for the question. I am going to answer in English.
[English]
Bill C-13 actually provides two authorities for the preservation of data, the first being when a police officer makes a demand, and there's a specific form within the proposal. The police officer has to make that demand based on reasonable grounds to suspect.
There are two elements. One is if it's for a domestic case, we have 21 days. If it's for an international case — and we have to make specific reference to the international case, the authority and offence in that foreign jurisdiction — the police demand can be for up to 90 days.
The other is we can go to a judge and get a preservation order. Instead of the demand from a police officer, get a judge to give an order. Now unlike the police officer's demand, the order is renewable. We can go back to a judge after the first 90 days and get it renewed for another 90 days, because particularly in an international investigation, with the mutual legal assistance treaty, it may take more time than the 90 days. So there is the ability to get additional time.
It is not that the companies would have to hold it. There's still an authority or an order that would require them to retain it. When they either are not renewed or the time period expires for the police, then they would delete it as per the regular business process.
Mr. Naylor: Or in the execution of the search warrant, which would start the clock over again after a retention order.
Mr. Oliver: Correct.
The Chair: Chief, do you wish to respond to that? We will move on to Senator Boisvenu.
[Translation]
Senator Boisvenu: Thank you for your very informative presentations. My question is more general. Every time we pass, or try to pass, a bill that increases police power in the sense of gaining access to more information, especially in the case of cybercrime, the criticism is always that there is a danger of privacy violations. The two are always set against each other.
The question I would like to ask, Mr. Oliver or Mr. Naylor, is this: In recent years, the years in which police powers in gaining access to information online have been increased, how many complaints of privacy violations have been reported, to the RCMP or the OPP, in the course of your duties?
[English]
Mr. Oliver: I don't have those specific numbers, the number of complaints that have been received. If will would allow me to explain, I think that in the past the bills that have come before with respect to lawful access have included a warrantless access provision. It is important that we clarify that nothing in Bill C-13 includes warrantless access. Everything requires judicial authorization, or in the case of a preservation demand, the threshold of reasonable grounds to suspect. Then we come back later with a production order to get the data.
The other thing is that the authorities in here are very precise and prescriptive in terms of what can be accessed through the various authorities. In the case of transmission data, the provision is very clear that we cannot access content or subject. What we are accessing is the data, the transmission from this location to that location on this time during that duration of time. The precise legal authorities here take into account and put in place the safeguards that are necessary to protect private information.
Mr. Chu: My answer to that is I'm not aware of any case with the Vancouver police where we have had a police officer go and access private information with a production order, with a warrant, and it was an intrusion on someone's privacy, that it was unauthorized, that it was inappropriate. I haven't seen that in the Vancouver Police Department.
Mr. Naylor: I can answer pre-Spencer;there were virtually none. I think there may have been some legal challenges on law enforcement requests prior to Spencer that were straightened out in court. Once Spencer happened, we have had zero.
Senator Frum: Superintendent Oliver, I think you used the words about this being a borderless crime. I have the Amanda Todd case in mind.
For a certain type of predator, I would think choosing to prey on children outside the border of the country they live in is a strategy. I'm starting to understand the additional tools you will have as a result of this bill to identify perpetrators, but in terms of your ability to bring those perpetrators to justice in Canada, if the victim is Canadian, you have to rely on extradition treaties. Can you tell me about the next step about being able to move to prosecution?
Mr. Oliver: This is the challenge we are confronted with every day. Determining the origin of a communication is always very difficult, because there are two approaches we take when it comes to international investigations. The first might be in Canada, if we possess the information, there is a possibility of prosecution here. Then we would work with the Public Prosecution Service and with the Department of Justice, which has the International Assistance Group, to determine whether Canada would seek extradition, depending on the foreign state.
The other option available to us is taking information, either police to police, sharing it and helping the foreign authority develop sufficient grounds so they can then, through their own judicial systems, prosecute, which is a much more efficient and effective way of achieving a criminal justice outcome and holding the individual to account.
Yes, it is true that the complications of extradition and mutual legal assistance add time and complexity to investigations.
Senator Frum: Does anything in the cyberbullying treaty help with that process? Is that relevant?
Mr. Oliver: I believe the Minister of Justice mentioned yesterday when he spoke that Bill C-13, if and when it receives Royal Assent, would allow Canada to be in the position to ratify the Budapest Convention on Cybercrime. That bill itself contains, similar to Bill C-13, two elements. One is specific offences for which countries must meet the thresholds. The other piece is modernization of investigative tools, and preservation demands, for instance, is one.
If you are a party to the offence, you have access to those provisions. If you are not, then you have to go through bilateral discussions on how you would exchange information, and that would assist in a criminal investigation.
Senator Batters: Thanks to all of you for being with us today and providing excellent information on a pretty complex subject area. You have provided a lot of clarity on issues that are difficult to understand, especially as we are just starting on the study of this particular bill.
I also want to thank all of you for your service, especially leading up to Remembrance week. We are taking special effort, of course, with what has happened here recently to thank those who protect us and keep us safe. Thank you for your service.
I come from Saskatchewan, and I have seen the excellent work that the ICE unit in Saskatchewan has done on these types of crimes, and also child pornography. They and all of you today have talked about needing the most up-to-date tools to deal with all this new technology that you continually have to deal with.
I noticed that in your opening statement, Superintendent Oliver, you said that the bill's proposed new offence to prohibit the non-consensual distribution of intimate images would provide law enforcement with more appropriate grounds to lay criminal charges, giving police an option where today's child pornography provisions may be too blunt of an instrument to address these particular situations. I would like you to expand on that.
Mr. Oliver: It goes back to Senator Jaffer's question about youth. If there are investigations where it meets the threshold of where this might be an offence to prosecute, recognizing that a youth's decision making and their judgment may not be that of an adult, instead of prosecuting someone under the provisions of child pornography, distributing child pornography, it may be more appropriate, if the person is under the age of 18, to use the non-consensual transmission offence. When you talk about someone you are trying to reform, the child pornography offences might be too harsh a tool.
Senator Batters: Thank you, Mr. Naylor, for your bank robbery analogy. I thought that was appropriate. As you specified that, I was thinking that it also may be appropriate that the person outside the bank in that analogy would be standing there with the tools and weapons that they planned to use to do the particular offence. But that would be another portion of that analogy to carry that a little bit further. Thank you.
Senator Baker: The decision to lay a charge, this is under the Criminal Code. So if we were talking about terrorism, the decision to lay a charge would not be in your hands; it would be in the hands of the Public Prosecution Service of Canada, if it were under that particular section.
Three provinces in Canada have decided to instruct their police forces to receive prior approval from the Crown prosecutor before charges are laid. When we look at the instruction booklet as to the standard that has to be met by prosecutors to continue a prosecution, the standard appears to be higher than "reasonable grounds to believe," which is the standard of the police to lay a charge.
Do you have any comment at all on what appears to be an impediment to the police laying charges under these particular sections we're talking about, in the three provinces in which you have to receive permission from the prosecution service to lay a charge?
Mr. Oliver: That's an interesting question. Chief Chu may want to address this as well because he is in British Columbia, where they have the same experience.
Senator Baker: Yes.
Mr. Oliver: It requires a bit of negotiation, and certainly the objective that the Crown is trying to achieve is efficient use of the criminal justice system and putting cases before it that would likely have greater success. It can be frustrating at times, but we work with the Crown as best we can — and at times it is a negotiation — to ensure that the best offences are brought forward. That's what I could say at this moment.
Senator Baker: I would like to hear from the chief from British Columbia who is under that restriction.
Mr. Chu: Yes, "under that restriction" is correct. In British Columbia, you have to meet a "substantial likelihood of conviction" test. In other provinces, the test is a "reasonable likelihood of conviction." It is a lower standard that we have to meet.
Personally, in the Vancouver Police Department, we have frustrations at times; we think we have met the substantial standard, but the Crown won't proceed with the charges. That is a different issue than what we're talking about with Bill C-13, but it is a frustration.
Senator Baker: Well, chief, it gets to the laying of the charge. It is all and fine to do the investigation to make out the offence, but then you have to get permission from the Crown prosecutor's office. When I look at the manual, their instruction is that you need not only have proof of the essential elements of the offence; you must have further proof — whereas you and I would agree, and Mr. Naylor a moment ago mentioned that if the constituent elements of the offence are there, then all you need to know is who committed the offence and you lay a charge, which is the police standard.
At common law in Canada, we have a system of justice under which the police decide to lay a charge. Then the Crown takes over and makes another judgment as to whether or not to continue the prosecution. That's not present in the three provinces.
Chief, would you prefer to have it as it was 15 years ago, where you could just lay the charge without seeking permission from the prosecutor's office?
Mr. Chu: Yes, that's the way it started when I began in policing.
One more test is thrown in too: public interest. They're weighing that, and that's very subjective as well. Sometimes I wonder if public interest is, "Oh, it’s just too expensive to prosecute."
Senator Baker: Yes. Excellent answers.
Senator McInnis: Following along with what Senator Boisvenu was talking about, I was told once by a senior pollster that if you want to discover where the public are, you read the letters to the editor and you listen to "Cross Country Checkup," Rex Murphy, which I did last Sunday. The public really respects the law enforcement in this country; they really do. But they don't want them to have too much authority at the risk that they may invade the rights of the public.
The fact that they respect you so much, are you doing enough in our educational system? Are you doing enough talking publicly about this issue? I know that back home the RCMP are in the schools a lot, but it seems to me that it is not out there in the public domain as much, where you are highly regarded. Can you do more?
Inspector Mercer Armstrong, Officer in Charge of Operations, Contract & Aboriginal Policing Directorate, Royal Canadian Mounted Police: I can give some response to that. From an RCMP point of view, the ability to get into the public and into the schools is a very key part of our mandate and also our desire. Obviously, everything does not come down to enforcement, and we recognize the need to be able to prevent crime and to intercept, if you like, our young people when they are, not "vulnerable," but when they are beginning to form their thinking. Certainly we have a large emphasis on being in the community.
We have a fair amount of resources assigned to the development of material and also to work with other organizations, to partner with them to provide material to the schools, to our resource officers, to be able to bring messages such as anti-bullying, and how to defend yourself against cybercrime, into the schools.
For instance, the Centre for Youth Crime Prevention, which is run by our RCMP community policing people, has material that has gone into 5,000 schools across the country. Working with other organizations such as PREVNet, the Promoting Relationships & Eliminating Violence Network, we have actually been able to engage many students using the WITS program, which is out of Victoria. It is an acronym for Walk away, Ignore, Talk it out or Seek help. That program has been in 50 schools and has reached about 8,800 students.
So while it is at times relatively unseen by the general public, there is a lot going on. We have our resource officers in the schools, not just in the schools but they are working with the communities. All of the material that we have is available to the community, available to the public on our website with all of the links to the various organizations that can provide materials that help in this way.
While there is always more to do and while we always look for new places to go and new ways of doing things, we are certainly, with the resources we have, trying to do as much as we can at present.
Senator McInnis: But you could do more.
Mr. Armstrong: We could do more with more resources and with more opportunities, yes.
Mr. Naylor: In Ontario, we have engaged our community mobilization model. We're now empowering and engaging some of our municipal partners and our corporate partners, right down through the high schools, teen mentoring, to get the message out. It's not just the cops telling the kids "no"; it's everybody not just telling them "no" but what other strategies and what other tools are there out there in order for you just to either move on or keep yourself safe. When the police tell the kids "no, no, no," we all know how successful that is; it's not very successful. Kids today with mobile devices in their hands, they are very smart and very tech savvy, so we have to provide them with another strategy in order to deal with these things.
The Chair: Chief Chu, do you wish to respond?
Mr. Chu: It's everybody's responsibility, and the kids may not listen to the police. They are also not likely to listen to their parents. There definitely is a technology gap between what the parents are familiar with regarding technology and what kids can do these days. Especially in a city like Vancouver with people from elsewhere in the world, you have the language barrier. You have parents who are working very hard and don't speak English, and then you have kids who are very savvy in technology and committing cyberbullying.
It's everybody's responsibility, and I will say that some of the service providers have taken responsibility. I personally would like to see the people who are making money from providing these technologies to take more of a role in educating young people so that these tools are used appropriately.
Senator Jaffer: My question follows what Senator McInnis was saying. One of the things that became very clear in our study was there is no boundary. Before, bullying could happen in school, but you went home and you had the security of your bedroom, your home and you were safe. Now there is no safety because this image comes everywhere. Children and young people said to us, "24 hours, this follows us; this bullying follows us everywhere."
The schools say, "Once the child goes home, that's not our responsibility." The parents say, "Once the child goes to school, then it's the school's responsibility." Those boundaries are gone, so you have a huge responsibility. I know that you build partnerships with young people. You need to build partnerships with them rather than be seen as a person in authority. You need to be in a partnership.
We heard over and over about a particular scenario. An intimate image goes up on the Internet. They come to you. All they want is for it to stop, to stop seeing this image and it being circulated. One teacher said to us he wrote to Facebook 100 times to remove the image, and the image was not removed. How are you working with the providers of service to remove these images? It's not easy for you, I understand that, but that's the challenge, to remove the image right away so this bullying stops right away. That's the challenge.
Mr. Naylor: We have an excellent working relationship with Facebook, Twitter and all of the service providers, especially in the world of child pornography because they have a responsibility to take down an image of child pornography once they know it. It's very difficult for young people to progress their way through this because there's shame and embarrassment, things along those lines.
Getting back to the public information and crime prevention aspect of it, the Need Help Now website offers all of these age-appropriate things that people can do as opposed to calling the police. Anybody can call the police, but they don't want to do this.
There are some very explicit instructions on what a young person can do and how a young person can contact the service provider, because there's a very high level of embarrassment. The last thing that a teen who's done something in a momentary lapse of judgment wants to do is stick up their hand and tell their parent that they've done something silly. So what they will do is they'll hide themselves and hope that this goes away, and unfortunately it doesn't.
Need Help Now empowers the young person to start taking actions for themselves. It's very age appropriate. It talks directly to the youth and to the teen on some of the things that they can do in order to do that.
If that is unsuccessful and we do get a complaint — and it's always the parent, never the young person — we have some amazing contacts with the service providers and the social networking in order to take it down. We can get things taken down in minutes.
Senator Jaffer: The thing is that when we asked a child, "Why do you not complain to your parents?" they said, "If we complain, our parents don't understand the device; they'll just take the device away." They will not deal with it because they think it's the device. If they take the device away, then they don't have to deal with it. We heard all the time, "We don't complain to our parents."
There are the children who are grounded and can come to you, come to their parents, but it's the marginalized child, the child who is more prone to issues of suicide and are marginalized. How are you reaching out to them?
Mr. Naylor: I go back to Need Help Now. We understood the situation. With respect to the unfortunate incident with Amanda Todd, we needed to develop something that was self-explanatory and age appropriate where people could empower themselves and take action without having to go to an adult or go to the police in order to take action.
So there's always that option. There's always the button on there that says "report this to the police," but there's a whole section in there where young people can take action themselves in order to take some direction and get some control and power back into their world.
Mr. Chu: Most police agencies have school liaison officers that work in high schools, and the objective for those officers is not to rack up charges and charge as many young people with crimes as possible. The objective is to build the relationships, coach their sports teams, get along with their clubs, educate them on respect for the criminal justice system and creating that relationship that if a young person wants to come forward, they feel comfortable doing it. That's the primary purpose of school liaison officers in high schools and elementary schools in Canada.
Senator Batters: I think that most Canadians understand and agree that it's wrong to take intimate nude photos of someone and post them online, but what's less obvious to some people checking out this bill is why this particular bill has elements that don't seem to be related to cyberbullying. I'm speaking particularly to references in the bill to terrorism and money laundering legislation. Can outline how portions of this bill deal with those two very serious crimes and how they provide you with some needed tools to address those very serious issues?
Mr. Oliver: I go back to my opening remarks where we speak of modern-day criminality. I believe there was a reference yesterday, although I don't have the specifics for Canada, but I do see the majority of our most serious crimes in Canada, and almost every one has some sort of digital footprint or some sort of connectivity to online.
The authorities in this legislation, all of which come with judicial authorization, provide us the modern-day investigative tools that we need not only to investigate offences involving child exploitation, cyberbullying, but those that involve modern crimes such as hacking, and in cases of terrorism where there might be the use of the Internet to plan and might be fundraising online to help support terrorism. These tools enable us to investigate modern-day crimes.
Senator Batters: Excellent. Thank you.
Senator McIntyre: Gentlemen, before Spencer, law enforcement agencies could rely heavily on the common law power, which is found under section 25 of the code and section 487.014, which is the immunity section. Spencer has changed all that. In light of that decision, it would appear that all of the BSI requests, except those already conducted pursuant to a warrant or in exigent circumstances, will require a warrant.
As far as I'm concerned, and I'd like to have your opinion on this, I'm sure it will have considerable resource impacts on police, border law enforcement and national security agencies, as well as on the judicial system. Could I have your thoughts on that, please?
Mr. Oliver: The impacts have been twofold, the first being when it comes to even meeting thresholds that we need in order to launch an investigation.
Senator McIntyre: Yes.
Mr. Oliver: The current tools in the Criminal Code, such as production orders, require the "reasonable grounds to believe" threshold. In many instances, we cannot at the start of an investigation meet that threshold, so that’s where certain provisions here are at "reasonable grounds," when all we're looking for is pieces that would help with the onset of an investigation are at the "reasonable grounds to suspect" level.
The other aspect is when it comes to resources. In the past, when we used a law enforcement request and provided it to the service provider, that would take mere hours. It was a situation where all we were looking for was the name and address so that we could undertake part of the investigation. Today, if we have enough information to launch an investigation and to obtain a production order, that can now take 10, 15, 20 hours given the time we need to produce a production order. The consequences of that are that valuable evidence could be lost between the time that we start developing the production order and the time that we get the information that we need.
Mr. Naylor: With respect to a production order or a search warrant that is now required as opposed to a law enforcement request, a law enforcement request required no report back to a justice. A production order and a search warrant now require a report back. Although it does slow down the process, it now is starting to bog down the judiciary as well because it's extra and more documents and more visits to a justice of the peace in order to provide the same information that we got pre-Spencer.
Senator McIntyre: I'm sure it's good news for you that the process will now be streamlined into one process. In other words, you will not have to run back and forth to see different judges with applications, but one judge will be able to follow all the tracking and transmission data.
Mr. Naylor: Anything that causes expediency in law enforcement is a resource benefit for us.
Senator McIntyre: Yes, and I think the bill clears that. Thank you.
Senator McInnis: Chief Chu, you mentioned that the service providers are coming forward and helping, and I didn't quite understand. How are they doing that and under what authority are they doing it? Did I understand you properly?
Mr. Chu: I think when I was talking earlier, I talked about education and telling their customers about prevention and the appropriate use of technology.
Senator McInnis: I see.
Mr. Chu: Some are taking corporate responsibility in helping to spread the information. I'm saying that it's not just up to the police to get the information out to people about using the devices appropriately.
Senator Jaffer: Chief Chu, I would be remiss if I didn't thank you for the great work you do for all of us. I come from your province and city.
You alluded to the fact that you have people from all over the world, and you and I are proof of that, so there are some bigger challenges. You have all the challenges that we spoke about today, but you have additional ones, and so you all have to face that. It's not just the parents who don't speak the language. Often the children who are using the devices are also not very conversant with the language. It's not just language; cultural issues cause issues as well.
How are you reaching out to people who are new in our country and have issues with cyberbullying? Do you have any outreach programs to reach out to the young people?
Mr. Chu: In Vancouver, there is a coordinated effort with the school system. They have multilingual educators, and we partner with them through brochures that have been developed in a multilingual format. Expectations for appropriate use are given to students. As the police, we help distribute and explain that, but it is a challenge.
You're correct. It's not only the generational gap about ages; it's also the language gap.
Mr. Armstrong: From an RCMP point of view, a number of materials that are translated into a variety of languages are being used in the schools, and they are available to community organizations, so that's a help.
The other large group that we deal with that has particular cultural needs is the Aboriginal community, and the materials that are used are appropriate to those communities.
Senator Baker: On the report to a justice, after 90 days, you can get an extension up to a year, or, if you lay charges, you don't have to get your extension.
Superintendent, you said several times that the production order requires grounds to believe in order for the judge to issue it. The exact words are "to believe that . . . any offence against this Act or any other Act of Parliament has been or is suspected to have been committed." So are you passing judgment on the Criminal Code that this requires a belief and not a suspicion as the act actually says?
Mr. Oliver: Well, I think you had an interesting debate yesterday with Mr. Wong on that very point.
Senator Baker: You read that, did you?
Mr. Oliver: So my understanding is that the new provision addresses that dual threshold issue.
Senator Baker: Okay.
The Chair: I have one quick question to Superintendent Oliver, and it's really prompted by something Detective Naylor mentioned. I'm quoting him about an excellent working relationship. I think you referenced Facebook and Twitter. I'm just wondering about how that might apply. It doesn't necessarily deal with this legislation, but in terms of compelling some of these website providers, for example, to take down jihadi recruiting messages or incitements to violence, do you get that same kind of cooperation? If not, is that something the government should be looking at with respect to introducing legislation?
Mr. Oliver: I certainly think that under the child exploitation offences there is an authority to have an order obtained to remove material. In fact, this bill itself contains a provision that would allow an order to be obtained to have an intimate image that was distributed non-consensually removed as well.
I think in the current context, given recent events, that's perhaps something the government ought to explore. We do work with the service providers today. If there is material that we are concerned about, we could ask for consensual removal or for the service provider themselves to exercise their authorities to remove harmful content.
There is no current authority other than if an individual is hosting it on their own computer, for us to obtain authorities and go seize that under the authority of a search warrant, but it would have to be linked to a substantive offence in the Criminal Code.
The Chair: Essentially what I'm getting from that is this is something the government should be looking at.
Mr. Oliver: It's probably worth exploring, recognizing the complexities and the balance of free speech and the need for us to protect the public as well.
Mr. Naylor: Senator Runciman, I have first-hand knowledge on this. In the world of child sexual exploitation, we have an excellent working relationship. Outside of that realm, there are several legal issues and amendment issues in the States that they fully support. So although the relationship with child sexual exploitation is very good, outside of that, it needs some work.
The Chair: Okay.
Thank you all for being here today. Your presentations have been very helpful to the committee during its deliberations.
For our second panel today we have appearing, as individuals, Allan Hubley, Councillor, City of Ottawa, recently re-elected; and Greg Gilhooly. Welcome to you both.
Allan Hubley, Councillor, City of Ottawa, as an individual: Thank you for inviting me to speak with you here today in support of the other families who can't be here today to share their experience with you. We are all here because we are concerned with the issue of bullying and we want to bring about change.
Over the past three years, I have been talking to neighbours, friends, people across our city, province and our country. I sincerely believe that change is coming, if we work together to address this challenge facing so many families in each of our communities.
By way of introduction, I will give you a little background on myself and what has brought me here today.
I first moved to Kanata in the late 1970s and have been actively involved in building our community for many years. I organized youth forums where we brought all the young people together to talk about issues. I started the Sandra Ball Youth Recognition Program where I gave out over 400 awards to young people for doing good things in our community. I was the founder of the Bill Connelly Charity, which paid the tuition for young people wanting to go into the building trades. I know many of our youth and I believe I have an understanding of their issues.
In 2007 I was named the City of Ottawa's Citizen of the Year. In 2008 I received the Governor General's Caring Canadian Award. But my proudest accomplishment was to be blessed with three wonderful children: Christine Leigh, who is now over 30; James, who should be 18; and Josh, who just turned 16. I say Jamie "should be 18" because we lost him in 2011 to suicide after years of being bullied that left him in a severe depression despite our best efforts to save him. I need to confess that I am still literally learning how to deal with the pain from the loss of my boy, and I want you to know that I appreciate the kindness that our community has shown my family as we find our way without him.
It is almost three years later, and a lot of people now know how beautiful my boy was, and I feel that others share our sense of immense loss. Since losing Jamie, my family chose to honour his memory by doing all we can do to ensure that no other family will suffer the unbelievable, indescribable pain of a preventable loss of life with so much promise.
Nobody's child should be coming to that conclusion when they think about their life ahead in our beautiful country. In fact, people from across Canada and around the world have reached out to us sharing their personal pain and also their survivor stories. We know we are not alone in wanting a better world for our children.
Dr. Levy is Ottawa's Chief Medical Officer of Health, and he tells me that we have over 1,000 people in this city alone that are seriously attempting suicide every year. I pray that together we will conquer each of the factors one by one, including bullying, that can lead to that fateful decision that my boy and others make all too often before it affects your own family.
Winston Churchill said that, "Change is inevitable, however progress is optional." On this issue, I believe that progress cannot be optional. How can we make sure that changes we are working on mean progress and a better future? Do we have an opportunity to actually make a difference in the lives of young people? Together, I sincerely believe that we do.
I am going to share my view and hope that you will agree with me because I can't do this without you.
Everyone in this room has a story to tell about bullies. It may be you personally that was bullied. Maybe you were physically bullied or maybe you were verbally assaulted. It doesn't matter, because both hurt and can cause a lifetime of damage.
When many of us were younger, you could go home to avoid a bully or go to your friend's house for protection. It was possible to feel safe then, but it isn't anymore.
Today we have cyberbullies who can attack you with an email or text message. They attack you through social media sites such as Twitter and Facebook, with little or no consequences, and all from behind a cyberwall so you don't even know who your attacker is today.
You may be fortunate and only be bullied a few times, while others must endure the relentless attack on their mental health for years. Imagine how many lives have been negatively impacted because of bullying in just Canada? Studies can present various numbers, but for me, the bottom line is that one is too many.
People get bullied because they're tall, short, the colour of their hair, how thin they are, or just maybe they are, as I prefer to think of myself, built like a teddy bear.
A bully will attack you based on your place of birth, your religion, perhaps your financial status or even your sexuality. To limit our protection against bullying to only identified groups, as some propose, is wrong. Every child deserves our best effort to protect them.
Whatever distinguishes you as an individual can make you the target of bullies. We need to work together to turn that around. As a proud Canadian, I believe we should be able to celebrate our differences and respect each other for who we are and rejoice in the fact that in this country we have the freedom to be different.
Jamie was going to make the world a better place, and I know in my heart he would have succeeded if given the chance.
I believe that much like impaired driving or spousal abuse, if we start today, we can attach a stigma to bullying and reduce the damage to Canada's future potential that this issue is causing.
Bullying is not a character flaw that you are born with, but one that you learn. There is means to stop it. We can make Jamie's vision of acceptance of each other a reality and in doing so make a better future that does not include bullies.
Even though this is an issue that is contributing to the loss of life and damaging many more lives that is entirely preventable, we still have people trying to find ways or excuses not to protect our children.
Bill C-13, in my view, is meant to help reduce cyberbullying and to help police obtain evidence needed to punish those among us who prey on our beautiful children. Our children need you to use your powers as parliamentarians to protect them. Please ensure that change is progress by passing this bill and giving law enforcement the tools needed.
While I believe and know that we are making a difference in our city, sadly our work is not going to be done quickly.
Please find it in your hearts to make the right decision to help ensure that no more young people are damaged, as they are our future. Let's do what each of us can.
Thank you for listening, and God bless.
Greg Gilhooly, as an individual: I'm Greg Gilhooly. I'm here in an interesting position. I am a victim of about three and a half years of sexual abuse at the hands of Graham James, one of Canada's more notorious offenders back when I was a child playing hockey in Winnipeg. I'm also a lawyer by training. After the abuse, I escaped to Princeton and then the University of Toronto law and then worked as a corporate lawyer.
I'm in the midst of writing a book about those years under Graham's spell. I find it very therapeutic, somewhat cathartic, and at times a difficult process to go back and revisit those years.
We clearly have before us an interesting issue to deal with in terms of crafting legislation that respects the rights of individuals in society, yet at the same time provides essential tools that those who are empowered to protect us require.
I'm just a guy, so I take a step back and take a look at things and say, how do you sort this problem out? What do you do to resolve the issues at hand? Is there a problem? Clearly, there is an issue that needs to be resolved. There's cyberbullying; there's bullying generally; there is the increased use of sophisticated technology generally within our society. Our laws have to keep pace with that.
What is the perception that those police officers have as to the tools at their disposal? You have heard clearly from them, both at the house and now here in this Senate committee, that the laws currently as written do not adequately give them and empower them with the tools they require to protect our society generally.
At the same time, you are going to hear, if the experience is anything like what took place at committee at the house level, from any number of experts in the field and legal experts who will say that the proposed legislation goes too far. As someone who lives with the tension, as a victim and as a lawyer, I guess my words of advice to you would be to press on with the bill and press on with the work that has been done so far in terms of bringing this legislation up to speed.
It is sometimes too easy to craft easy legislation. I sat on committee at the house level with members from the Canadian Bar Association, representatives from the criminal defence lawyers’ association, and listened to them as they went through the proposed legislation line by line and recommended changes that would, in their view, ensure that the legislation squared on all fours with the Charter of Rights.
My view is that anybody can write safe legislation. The issue here isn't to write safe legislation that wins at the end of the day; it's to craft legislation that empowers those who protect us to prevent crime before it happens and intervene once it has happened. That is going to involve compromise along the way.
It's trite to say that we have privacy rights and that privacy rights are absolute. Everybody here wants to live in a society where we have privacy rights. Everybody here wants to live in a safe society, and everybody here wants to make things better. The issue is this: Where along that continuum do we craft the compromise that makes everybody happy?
The answer is that there is nothing that will make everybody happy. We are going to have to upset people along the way, and we as a society are going to have to learn to compromise and not get everything we want. In my view, that means that 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 or that we have to live in a police state. It means that we have to take, as a collective, a view in terms of what we need and what we require to ensure that commonsensical results take place.
What do we do? We listen to the police and to the Supreme Court of Canada. The Supreme Court of Canada spoke loudly in Spencer. What did the Supreme Court of Canada say? The Supreme Court said an awful lot that contradicted itself, and reached a fundamentally effective and commonsensical answer. We know that we have privacy rights. We know that we need procedures that respect the rights of individuals. We also know that the administration of justice cannot be brought into disrepute.
In the end, we get to where we need to get by bringing commonsensical views to the table where we compromise and where we understand that we're all in this together.
As a victim, I would like to end my introductory remarks by saying that if there's anything that bothers me, it is when I see political parties going back and forth about so-and-so is tough on crime and so-and-so is weak on crime. I prefer to view our political world as everybody volunteering, coming forward, committing to public service, wanting to make our country better. We may not at all times agree on everything, but we all do want to make things better.
We may disagree where on the continuum we are, but anyone who criticizes the draft legislation isn't weak on crime. They simply disagree where on the spectrum we should be on privacy rights. Anyone who is in favour of this legislation isn't advocating a police state; they are saying that perhaps the balance hasn't been right all along the way and we need to adjust the balance to ensure that the police have adequate tools before them.
I would much prefer if the level of debate could rise so that we have respect across the corridor and understand that we are all trying to get to the right answer. If we listen to the Supreme Court of Canada and to the police who were in here earlier today, and we hear the voices of those who represent victims and who have come forward to give that side of the discussion some life, we will end up as a collective somewhere where we want to be and where we deserve to be as a society.
Senator Batters: Thank you very much, both of you, for being here. I know it's not an easy thing to do, but just know that what you are doing today will help people across Canada. Like Mr. Gilhooly just said, this is what we are all here to do, to make life better for Canadians.
I want to also thank you both for being here to share with us and also for the great things you have both done in your personal lives to turn tragic situations into real positive change. Unfortunately, I have something in common with Mr. Hubley in that my husband died by suicide in 2009, obviously not because of cyberbullying or anything like that, but there's a lot of commonality in our experience. I know personally, and I'm sure you found this as well, that just trying to work through that and to make something better come out of such a tragedy really does help. I hope you find that as well.
Mr. Hubley, you were on CTV news a year ago and I have a quotation here from you. You were saying:
When we were younger, you always knew who your bully was, you could do something about it. Now, up until the time this legislation gets enacted, they can hide behind that.
This was on "Canada AM." You also said:
Not only does it start to take the mask off of them, through this legislation, there is serious consequences for their actions.
I'm wondering if you could please expand on that a little bit.
Mr. Hubley: I was referring to what I saw with this bill, that it would give law enforcement a tool — obviously with a warrant, as they would have to go through the warrant process – to be able to start to identify some of these people who are hiding behind fake names and really attacking our children a lot, as well as adults. There have been lots of stories in the media, even one here in the city, a cyberbully for 10 years who had been attacking people. This bill, for the first time, will give easier access to find out who these people are.
What I'm hoping comes out of just this discussion around the bill is that we put some pressure on the social media providers to also be accountable for what people are doing with their tools.
One of the examples I have used before in public is that if we owned a coffee shop and this kind of behaviour was going on in the shop, if we didn't correct it, we would be out of business. We would lose our customers.
It's something I can't understand, maybe you can, but how come Canadians allow this to happen over social media? I think they're looking to you as parliamentarians to help them with that. I don't think it's acceptable.
Senator Batters: Thank you.
Mr. Gilhooly, I met you earlier and I was telling you that I'm from Saskatchewan. I was the organist for the Regina Pats hockey team at the time when Graham James was the coach of the Swift Current Broncos in the same league, so I knew a lot of the Regina Pats players at that point. When everything came out with Graham James years later, I remember thinking back to how horrified I was that players, who would have been in the same situation as those guys that I knew, were being put in that terrible situation by a real predator. I appreciate your efforts to move past that in a real way and to help others.
You also provide a really interesting perspective for us on this particular legislation because you're a victim and also a lawyer.
You spoke about the need to find a balance between privacy rights and the need to protect the public. In your legal opinion, does Bill C-13 strike the correct legal balance here?
Mr. Gilhooly: I think it does. One of the areas that I focus on is the notion about belief and suspecting that a crime is about to take place.
Graham took advantage of me back in the days before the Internet. I was groomed over any number of months, almost a year by Graham. Had what happened with Graham taken place in this environment, I'm sure the Internet would have been involved and there would have been a grooming process that involved an online component. Back then it was very much face to face. We didn't even have voicemail machines back then.
I think it's specifically important, when you address the notion of sexual exploitation of children and those most vulnerable in society, that at some point there's going to be suspicion something untoward is going on. If we want to empower the police to engage before a crime is committed, moving to a level where suspicion triggers relevant rights on behalf of those empowered to protect us is a good thing. Otherwise we're effectively adopting a legal results system where we're looking at things that are already a fait accompli and trying to ascribe penalties after the fact. If police are there both to enforce the law and to prevent ill from happening in society, the notion that suspicion is a relevant hurdle, especially with this type of crime, is a good thing.
Senator Jaffer: I want to thank both of you because this takes a lot of leadership. This is you putting yourself out every day, opening up your hearts. Both of you do a tremendous service to all of us, and I want to thank you.
Mr. Hubley, I want to say to you that I know you will never get over the pain of Jamie. I've been following both your works, but especially yours because I was involved in the Human Rights Committee when we had hearings on this. You put your pain aside to protect other people's children. That takes a lot of leadership, and I want to thank both of you for being here and helping us to learn about these issues.
When you were struggling to get help for your son — and you were a very involved parent — what could have been in place that would have helped you, helped him?
Mr. Hubley: One of the things that we identified quickly afterwards was that there was no place to go to find out what all the resources were, for example. We fixed that. Within six months we had a document produced to know who to call and where to go. My wife and I put a lot of time and resources into trying to get him the help he needed right away. We knew something was wrong. You would call a doctor and be told there was a six-month waiting list. You would find ways around those waiting lists to get him in quickly.
There are services out there like the Youth Services Bureau here in Ottawa. They have different names throughout the country, different providers that have counselling. We didn't know at the time that you could go there and they had walk-in clinics. That helps in an emergency situation.
That booklet has helped. We put that out there.
With the bullying, to bring it back to this legislation, at the time you would go to the school for meetings and the principals didn't even have the ability to expel a bully. I don't know if any of the senators have had a chance to see the documentary Bully to see how bad it is in schools. That documentary was made in the States, but any parent will tell you that very similar circumstances are happening in almost every school in our country.
We had to get that kind of legislation changed, which we've done in Ontario, and I understand in B.C. Nova Scotia is probably ahead of Ontario in that effort as well to try and change things in the school.
One of our good friends is Carol Todd, the mom of Amanda Todd, and that's a story, as a parent who lost a child, where I feel so bad for Carol because that's even worse. If there's something that could be worse than what we went through, there's a parent's story that was even harder with what happened to her daughter. Rehtaeh Parsons from Nova Scotia is another similar incident.
These are very preventable deaths that I can see. I've talked to those parents and they can see pieces of this bill, if it had been in place, could have helped their children.
It was two or three years after Amanda before they actually charged her cyberbully. If we had some of the things that are in this bill, the police would have been able to identify those people a lot faster.
Senator Jaffer: One of the things that really rings from the hearings we had is a young boy from this region met who with us in camera. He said that his girlfriend was putting all kinds of things, not even images, about him on the Internet. Every time he thought he had dealt with it, put it past him and it stopped — he changed schools six times — it came again. Then he was seen as a rapist, even though he wasn't, and he'd spent a lot of time in mental homes trying to deal with this.
What I got from all the young people I spoke to was that they wanted it to just stop, not haunt them all the time. That's the challenge, even with this legislation, because a lot of providers will still be out of our jurisdiction. Can you both comment on that?
Mr. Hubley: Absolutely, and we had those days with Jamie. You could see he was giving up hope. Because of the comments that would be on Facebook and things like that, he didn't think it could get better, that it was going to be out there forever. I think that's part of where they lose that.
I'm a parent that lost a son to suicide, yet I still can't understand how so many kids, including my own, can come to that conclusion. I still haven't got my head around that, and I'm still looking to that one day when someone's going to come up and give me the answer, I hope, because I can't figure it out.
You're right; it can't all be done here at this table. There are many other players. For example, in the schools, we can't expect the teachers to protect every child. We can't expect the student's best friend to be beside them all the time.
I referenced the efforts under impaired driving and domestic abuse. I think most of us in this room are from the generation where nobody used to go to jail for drinking and driving. You got pulled over, they took your alcohol away and you went on your way. That was the way. That does not happen anymore. That was a change in society that took probably a decade, maybe two, to happen.
Today, I believe we can use the Internet and social media that the bullies are using to attack our children, friends and family members against them, and make that societal change happen a lot faster. I see it in our city; I see changes. I talk to students and things are improving, but you have the task and the ability to make it better across the country.
Senator McInnis: Thanks to both of you for being here. I'm very sorry for what both of you have had to endure and go through, but the fact that you're here certainly will help cement the passing of this bill, and also for future action by parliamentarians.
Cyberbullying took centre stage, at least in Nova Scotia, where I'm from, back about four years ago. Sadly, it took a great deal of hurt, grief and the suicide of innocent youth to unveil the real problems. Of course, I refer to Rehtaeh Parsons. I asked to sponsor this bill is because I'm good friends with her uncle, Warren.
When that sad death occurred, the police nor the government had any idea what to do. They simply did not know. People scurried and ran. Now the government has passed two pieces of legislation down there. That is helpful, particularly through the educational system.
This bill will pass. I have no doubt about that. You've alluded to some of this. This is more than a rifle shot and it's going to give the police the necessary tools, and it's going to expedite investigations. It's going to be tremendous in that regard. But what are the other things that we can do to help?
Obviously both of you are doing a great job. I know you, as councillor, Mr. Hubley, and you as a lawyer in Toronto, Mr. Gilhooly. Individuals like you continue to talk about this, as sad and as hard as it is to get it out there. How can we make sure that business people, educators, community leaders and all of these people make this a key issue? You mentioned 1,000 individuals are contemplating suicide.
Mr. Hubley: Not contemplating.
Senator McInnis: Attempted?
Mr. Hubley: What Dr. Levy said was "seriously attempt." In other words, if there wasn't an interaction or an injection of someone involved, we would have lost them. So it's not contemplating. That number would be a whole lot higher.
Senator McInnis: You can see the seriousness. You know the seriousness of it. How do we make it front and centre throughout the country so that parents, youth and students become aware of it?
Mr. Gilhooly: I think it's an issue with respect to this legislation of ensuring that the legislation doesn't fall behind what has to happen socially. This is a case where, unfortunately, you can't legislate a social change or social improvement. I think everyone recognizes that. More now the discussion falls to other arms of the government and dedicating funding and financing to groups like the children's advocacy centres that are developing across the country. Sheldon Kennedy is doing a great job. Sheldon is a friend of mine, and we share the unfortunate past with Graham.
It is the extent to which young people can easily find at their disposal in schools and media the resources that they need to ensure that when they get in times of trouble or encounter times of need, they have an easy email address or website or phone number to reach out to. That's going to be the wave of the future. It is more the de-stigmatization of what a child or young person is going through that I think at the end of the day is going to bring about the most success when it comes to issues of cyberbullying.
I do agree that peer pressure is, without a doubt, the greatest force at society's disposal to marginalize those who bring ill upon others. It is humour and the stigmatization of those who are ill, not the people who are the subject of the bullying which is, at the end of the day, going to carry the day. Make the bully the outcast, not the person bullied. That is going to take time.
I believe things are dramatically different now than they were when I was in high school, and I think they are going to increasingly improve as situations like this come to light and people understand what's going on. The more society understands and grasps the recognition of the damage that bullies do, that movement will further.
Senator McInnis: It was interesting that the Minister of Justice yesterday — in Nova Scotia, a young guy wore a pink T-shirt into the classroom, and then students said they were all going to wear one, and now it's almost international.
Mr. Gilhooly: Yes.
Senator McInnis: That's the type of takeoff.
Mr. Gilhooly: Yes.
Senator McInnis: Thank you very much.
[Translation]
Senator Rivest: Thank you for your testimony.
This bill, as Mr. Gilhooly pointed out, must try to strike a balance between privacy and effectiveness. There is no doubt about this. Everyone is happy that the government has brought forward a bill that gives police more powers while abiding by the principles in the Charter. The powers are commensurate with the problem you have illustrated through your life experience. Mr. Hubley illustrated it too, when he talked about the cruel loss he had to suffer because of bullying.
Clearly, at federal government level, we are talking about criminal law. With the immense amount of work that Mr. Hubley and your people have done in the past to raise public awareness, there are some encouraging signs. This bill attests to that. I am sure that you know that, in Quebec — and this is quite extraordinary, but very encouraging — the issue of bullying became a campaign commitment made by a political party, the Quebec Liberal Party, under the leadership of Premier Couillard, About a month ago, Premier Couillard of Quebec held a press conference in which he announced that he had assigned two ministers the responsibility of examining the issue of bullying in all its aspects, criminal as well as social, at school and so on. You mentioned it. The issue is now becoming a social concern of the highest importance. You yourself have gone through terrible difficulties in this context. Your efforts to raise awareness in public opinion are bearing fruit.
An act to prevent and stop bullying in schools was adopted by the Assemblée nationale in 2012, I believe. And two ministers are responsible for examining the issue in all its aspects. These are encouraging developments that could doubtless be applied in other parts of Canada.
[English]
Mr. Gilhooly: I think it's hitting on the fundamental issue again. The more these issues are front and centre, the more they are de-stigmatized. The greater the extent to which you can de-stigmatize something and focus on understanding that there is an issue that needs to be addressed, the easier it is to address the problem.
If you are a young person and are increasingly inundated with stories about how bullying is bad and you see it happening in the classroom or amongst your friends, you are empowered to take action.
The big takeaway of this is everyone has an obligation to stop this, and anyone who sees something can't sit idly by. Everyone has that affirmative obligation to step up and protect those who are less fortunate and less empowered in a situation.
[Translation]
Senator Boisvenu: My thanks to our witnesses. Mr. Hubley, I am not talking to you as a senator, but as a father who has also experienced the tragedy of losing a daughter. I must salute you for your courage. In a sense, we are on the same journey by giving meaning to the death of our loved ones; we are finding that the road gets complicated when we want to change the law.
If this legislation had been in effect when your son was the victim of cyberbullying, the question we ask as parents is: would our child still be alive? If the laws had been tougher when my daughter was abducted and murdered, would she still be alive? That is why we are going down the road of toughness, of taking responsibility and of getting accountable legislation that will allow none of this kind of tolerance when women or children are attacked.
Mr. Hubley, if this legislation had been in effect when your son was being bullied, do you think that he would still be with you today?
[English]
Mr. Hubley: I find that a very difficult question to try to answer for the simple reason that from the day I lost him, I prefer not to think about the "what ifs," because then I'm going to be very angry at somebody for not doing their job to put in place whatever we needed to protect our children.
You are right. We are in a group where far too many of us that have lost children. It is not natural for our children to go before us, whether it is in a case such as yours or mine. When your kids go first, it throws out your whole sense of life balance.
I appreciate the comments made about the work that we're both trying to do. In my case, I look at it as the normal order of life would be that maybe I would take up my father's work when he's done and continue it. In my case, that's reversed. I'm now doing the work that my son wanted to do. He wanted to make a better world where people would accept each other and respect each other's differences. He couldn't fathom the idea that somebody would just hate him for the sake of hating someone. He had never done anything to hurt anyone. He was not a vicious or a mean boy. He went out of his way to try to help people and make them feel better.
It was very difficult for him, when the hate came out, and that people just hated him for the fact that he was an individual, or for whatever reason. There were different things at play. When he was younger, he was a figure skater instead of a hockey player. Kids picked on him heavily for that. He was a figure skater because he had a natural gift for it. At five years old, his coaches picked up on it and they told us that he was a potential Olympian. They could see the skill in him. He could skate so beautifully. A lot of kids are robotic when they try to do figure skating, if you know what I mean. Here was a boy that had a natural rhythm and he was a beautiful skater. At 14 years old, I think he was seventh in the province of Ontario. He was going someplace. The Olympic coaches came to Ottawa and saw him skate. Here was someone who was going to represent his country, yet people hated him for that. How do you hate a child for that?
Could this law, if it was passed, have saved him? I don't even want to go there. But what I can say to you is that I believe this law will save children in the future because it is going to allow police to get involved quicker, get to the source of what the problem is, and deal with the offenders. It will deal with these 400 pounds guys, sitting in their mother's basements, who are attacking kids around our country. That's the impression that people give us of what is going on. People are getting charged and being outed for what they're doing. We're seeing that it might be your neighbour who you would never suspect doing this. To your face, there are some people that are going to be very nice, cordial and polite, but put them in a dark room, on a computer monitor, behind an alias so that you can't find out who they are, and they can do mean and nasty things. That's bad.
As a society, we need to get away from that. I hope this law will be a piece of that, but it won't solve everything. As we discussed today, it's going to be everybody doing their part, which means parents, teachers, schools, shop owners, friends and society. You have the ability to give the police some tools that will help speed up that process.
Senator Frum: This is a very difficult and emotional exchange to follow.
Mr. Hubley, in response to Senator Batters, you talked about the balance that's been struck here and you think is it satisfactory. From a real world perspective, for a typical Canadian, can you describe the potential privacy rights that are being put aside in this bill in favour of greater protections? How will people feel the differences after the bill is passed?
Mr. Gilhooly: That's a good question, because on a day-to-day basis, the average Canadian won't notice a single difference. We have this understanding that we're entitled to the right of privacy. We wake up in the morning and we go about our business. Any number of things happen when we log on to a computer. We do this or do that. To the extent that we're not involving ourselves in evil, or bad, or harm, or whatever, I'm more concerned about the jean manufacturer in China accessing me whenever I log on to order my clothing online, so that they know my size and will inundate me with advertising on Facebook. That's a real issue that we have out there.
Everything we do when we log on to a computer is pretty much looked at by any number of different people, according to the agreements we click on to accept whenever we subscribe or sign up for an app or a Facebook type of thing. In terms of this legislation, it won't impact the average Canadian one iota.
Senator Frum: Yesterday, I asked a question of the minister and I would be interested in your perspective. The bill, as it is written, doesn't differentiate between a person who initiates a bullying campaign by being the first person to post an image, let’s say, and the subsequent posters who have no connection to the original crime. From your perspective and given your experience, do you see a difference between the original poster and those people who subsequently follow? Do they have different levels of culpability?
Mr. Hubley: It's a very interesting question. To me, if they're attacking people or harming people like that, then they're all guilty to some degree. I'm in no way a judge. I believe that for what they do, I will leave that to God — whoever their God is — to judge them on their final day and decide what their punishment should be.
I would like to have laws like this, and more, that will give the police the ability to identify these people – and as you said, the originator versus the one that's circulating it more.
If you wanted to determine the level of impact of their actions, it would be on a case-by-case basis. If somebody sent it to three friends, but one of those three friends sent it out to a hundred, they obviously have done more damage than the original person.
I would hope that we don't lose a whole lot of time in trying to weigh their guilt. Instead we should just try to stop the action to begin with.
Senator McIntyre: Thank you both, gentlemen, for your presentations.
Mr. Hubley, I am sorry for the loss of your son.
Mr. Gilhooly, I can understand what you went through.
These are terrible experiences, and now you both have to live with terrible memories.
There's no question that over the years a lot of young people took their lives as a result of cyberbullying. I can think of Rehtaeh Parsons from Nova Scotia; Amanda Todd on the West Coast; Todd Loik from Saskatchewan; and now James Hubley from Ottawa. The list goes on.
Under Bill C-13, the court can do a lot of things. It can order a peace bond against the person who had intimate images in his or her possession; make a prohibition order; order non-consensual posted images to be removed from the Internet; order that cellphones or computers be forfeited to the Crown; and order that the convicted offender pay restitution to the victim.
I'm sure that you have both had an opportunity to review Bill C-13. Is there anything else that the bill should address in terms of addressing the issue of punishment?
Mr. Gilhooly: My own view is, no. Admittedly, I didn't set out to review the draft legislation as to what it was missing. I was focused on what was included and whether I thought it was appropriate.
My sense, again, is that the bill can only go so far in terms of trying to right the wrong that will take place. As long as the police have the tools that are crafted in this proposed legislation, that's probably going far enough at this time in terms of empowering the police to take affirmative steps on a go-forward basis.
There is a valid concern on the other side of things that over-empowering the police will infringe excessively on individual rights. It will be an ongoing effort. One of the good things that came out of the review at house level was an amendment to the bill for a review after seven years in terms of its effectiveness and whether the tools granted were appropriate and should be expanded or carved back.
Senator McInnis: In the case of child pornography, the Criminal Code calls for mandatory minimum sentences. Bill C-13 is silent on the issue of mandatory minimum sentences. Do you think that the bill should call for mandatory minimum sentences?
Mr. Gilhooly: I abhor mandatory sentences for this reason: My take on things is that we all know evil when we see it. The only time a mandatory minimum comes into play is when we're on the edge. If something is truly off-side, the mandatory minimum isn't going to come into play or shouldn't come into play unless some judge has it dramatically wrong, in which case we have a bigger issue. The mandatory minimums, in my view, are excessive. I know that I ruffle feathers when I say this, but I'm often called to speak to mandatory minimums in the aftermath of Graham's sentencing, which was woefully deficient and upped on appeal.
I had to come to the unfortunate conclusion that we truly don't have a justice system when it comes to sentencing. We have a legal results system. At the same time, mandatory minimums are simply raising what happens at the lower end. My personal view is that we're better left empowering judges with all the discretion at their hands. If we have a problem with improper sentencing or sentencing that runs in the face of society's view of the appropriate administration of justice, that's how we attack that problem. That's my personal view.
Mr. Hubley: I would agree, because we have a whole spectrum of potential offences here, from children doing things to other children and teenagers doing things to other teenagers, up to cases of adults doing some really nasty things. We've got to have a range.
I am going to give you an example of the provincial rules in Ontario before they changed. I mentioned that principals couldn't expel a student. The original bill proposed would give the principal the ability to expel a student. Imagine a 12-year-old or 14-year-old student bullying other students and they get expelled from school. What happens to them then? You are discarding a human being. Yes, you have to take them out of the school, if that's what the principal determines is in the best interests of protecting the other children, but you have to have some means to work with these people to rehabilitate them or find out what's wrong.
If you look at the studies on bullying, you find, as I mentioned in my opening remarks, that you are not born a bully; it is a learned behaviour. Often what I have seen in studies is that it might be a case of maybe the year before the bully was the shortest kid in the class and this year he's the biggest so he makes everybody pay for that last year — those kinds of things.
We translate that into criminal behaviour, like in the courts. But if you have a minimum sentence, I'm not so sure that it's going to allow judges the leeway to deal with people.
In closing, I would say that I'm here to tell you why you need a bill for the family of victims. Lawyers and law enforcement can tell you more about what they need in that bill in order to do their jobs to protect families like mine from becoming victims.
The Chair: We have time for a couple of quick second-round questions. I don't know if anyone has one they would like to pose.
Senator Jaffer: I have the same point of view as you have on mandatory minimums. Having also been a lawyer and knowing the sentencing issues, I have been thinking about what you said about privacy, and I am not sure how far this one goes in taking away a person's privacy. I'm struggling with that. Since we have the time, can you elaborate on that?
Mr. Gilhooly: Well, I'm a big believer in justice being doled out on a case-by-case basis. Anything that gets in the way of a judge being able to consider something on a case-by-case basis, in my view, is an excessive imposition or restriction on a judge. I believe there's a process for selecting those who become judges, that we empower judges because of who they are and their background, and that that's the way we go forward. I believe we assume an excessive risk when we impose a minimum anything on anyone. In my view, a judge should have at his or her disposal at each and every step of the way the ability to craft whatever is appropriate in the circumstances.
My second response, though, is that in my perfect world, our legislation would be drafted with guidelines. It would be almost as if you crafted a table such that if you have something like this, then you get something like that.
To move away from cyberbullying and to my situation, Graham James was convicted for what he admitted to, let alone what he pled out of — over 500 to 600 individual sexual assaults — and has served less than five years in jail. In my perfect world, there would be some line in some piece of legislation somewhere that said, look, you might get 250 or 300, but once you hit 500, you are probably going to go to jail for longer than five years.
I'm being somewhat flippant when I say that, but I would prefer that society speak that way to guide a judge to craft an appropriate sentence so that the legal result we have coming out is consistent with what we, as a society, believe is appropriate in the circumstance as opposed to putting in a minimum that may be appropriate for the Graham James situation.
[Translation]
Senator Boisvenu: In the Estrie, my region of Quebec, I was with the family of a girl who had been the victim of bullying and incitement to suicide, which she committed. And I remember that, when I met the mother for the first time, she said to me: "the people who attacked her killed her". When we are faced with bullying that leads to such serious consequences as suicide, have they not, in a sense, committed manslaughter? Should we not identify the consequence of the bullying in this bill? Some bullying has less serious consequences, but when it extends to causing a suicide, that almost seems like manslaughter.
[English]
Mr. Gilhooly: It depends on the circumstances. Not all bullying is the same. Was this bullying so extreme that it caused — or was the bullying normal depending upon the victim? That's why I believe mandatory anything is difficult. Absolutely, actions that yield events should have consequences.
The Chair: Thank you, gentlemen, we appreciate your appearance and testimony here today.
We will adjourn until Wednesday, November 19, when we will continue our hearings on Bill C-13.
(The committee adjourned.)