JUST Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Monday, June 9, 2003

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1530

The Vice-Chair (Mr. John McKay (Scarborough East, Lib.))

Mr. George Radwanski (Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada)

The Vice-Chair (Mr. John McKay)

Mr. George Radwanski

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1535

The Vice-Chair (Mr. John McKay)

Mr. Jim Lee (Assistant to the General President, Canadian Office, International Association of Fire Fighters)

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1540

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews (Provencher, Canadian Alliance)

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1545

Mr. Jim Lee

Mr. Vic Toews

Mr. Jim Lee

Mr. Vic Toews

Mr. Jim Lee

The Chair (Hon. Andy Scott (Fredericton, Lib.))

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Mr. Jim Lee

Mr. Chuck Cadman

Mr. Jim Lee

Mr. Chuck Cadman

Mr. Jim Lee

Mr. Chuck Cadman

Mr. Jim Lee

Mr. Chuck Cadman

The Chair

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

Mr. George Radwanski

Mr. Richard Marceau

Mr. George Radwanski

Mr. Richard Marceau

Mr. George Radwanski

Mr. Richard Marceau

Mr. George Radwanski

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1550

Mr. Richard Marceau

Mr. George Radwanski

Mr. Richard Marceau

Mr. George Radwanski

Mr. Richard Marceau

Mr. George Radwanski

Mr. Richard Marceau

The Chair

Mr. Derek Lee (Scarborough—Rouge River, Lib.)

Mr. George Radwanski

Mr. Derek Lee

Mr. George Radwanski

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1555

Mr. Derek Lee

Mr. George Radwanski

Mr. Derek Lee

Mr. Jim Lee

Mr. Derek Lee

Mr. Jim Lee

Mr. Derek Lee

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. George Radwanski

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1600

The Chair

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1605

The Chair

Mr. Paul Harold Macklin

The Chair

Mr. John McKay

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1610

The Chair

Mr. Normand Wong (Counsel, Criminal Law Policy Section, Department of Justice)

The Chair

Mr. Richard Marceau

The Chair

Mr. Richard Marceau

The Chair

Mr. Richard Marceau

The Chair

Mr. Richard Marceau

The Chair

Mr. Jean-Michel Roy (Committee Clerk)

The Chair

Mr. Jean-Michel Roy

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1615

The Chair

Mr. Richard Marceau

The Chair

Mr. Paul Harold Macklin

The Chair

Mr. Donald Piragoff (Senior General Counsel, Criminal Law Policy Section, Department of Justice)

The Chair

Mr. Paul Harold Macklin

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1620

The Chair

Mr. Paul Harold Macklin

The Chair

Mr. Paul Harold Macklin

Ms. Julie Besner (Counsel, Criminal Policy Section, Department of Justice)

The Chair

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 057

l

2nd SESSION

l

37th PARLIAMENT

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EVIDENCE

Monday, June 9, 2003

[Recorded by Electronic Apparatus]

¹  (1530)  

[English]

    The Vice-Chair (Mr. John McKay (Scarborough East, Lib.)): I'd like to call the meeting to order.

    I have no idea what number of meeting this is.

    Holy smokes, it's number 57. I think this is probably the hardest-working committee on the Hill, and I'll entertain a resolution to that effect.

    Andy Scott, who normally is the chair of this committee, is we hope on his way.

    Both witnesses today have appeared here before, I believe, and they both know they have 10 minutes each to make a presentation, after which we'll turn it over to committee members for questions.

    Is there any order or preference between the two of you, Mr. Lee and Mr. Radwanski?

    Mr. George Radwanski (Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada): I'm in your hands, Mr. Chairman.

    The Vice-Chair (Mr. John McKay): Well, if you're in my hands, Mr. Radwanski, then you'll go first.

    Mr. George Radwanski: I was afraid of that.

    Thank you very much for the opportunity to meet with the committee this afternoon. I appreciate having the chance to speak about Bill C-32.

    My concern with this bill is limited to one aspect, and that is clauses 4 and 5, the provisions creating a new exception to the Criminal Code's prohibition on interception of private oral communications and telecommunications.

    My concern is not with the intent of the bill but with the way in which the proposed amendments are phrased and what they would allow--the use and disclosure of private communications, legitimately collected in the course of intrusion detection activities, but used and disclosed for wholly unrelated purposes.

    Because the privacy of communications is recognized by our society as a fundamental right, the laws of Canada impose specific safeguards with regard to the interception of communications, especially by law enforcement authorities but also by private parties. At present, it is an offence under the Criminal Code to intercept a private communication except in certain limited and exceptional situations, as set out in the code.

    Bill C-32 creates a new exception. If the bill is passed, the interception of private communications from, to, or through a computer system by a person in possession or control of the system will not be an offence under the Criminal Code if the interception is for the purpose of managing the system for quality of service, or protecting it against intrusion or attack.

    Intrusion detection involves monitoring computers and networks to protect them and the electronic data they hold from harmful attacks, such as unauthorized access to restricted systems or information holdings. Intrusion detection works by identifying unusual or unknown patterns or streams of traffic data, or by recognizing typical patterns of attack. It does not involve monitoring content. However, the possibility exists that in the course of investigating suspected intrusions, the content of a private communication may be intercepted. For example, it may not always be possible to determine that a stream of data is benign without access to the content of the communication.

    I want to emphasize that I am fundamentally in agreement with the intent of permitting intrusion detection activities. Owners and operators of computer systems must be able to ensure security against such intrusions as malicious software or denial of service attacks. From a privacy perspective, an organization that did not protect its network from unauthorized access or malicious attacks would not be fulfilling its obligations to protect personal information. This bill, however, takes this laudable goal as its point of departure and then goes much further.

    Proposed paragraph 184(3)(b) allows the private communication intercepted for the purposes of protecting the computer system to be used or retained if “it is to be disclosed in circumstances referred to in subsection 193(2)”. Subsection 193(2) in turn allows someone to disclose the communication in the course of a civil or criminal proceeding, or for the purposes of any criminal investigation.

    So this allows private communications to be disclosed for purposes wholly unrelated to detecting threats to networks. It effectively gives law enforcement agencies and other organizations a backdoor means of attaining access to private communications. An organization could deliberately read the contents of e-mail and use the contents for the purposes of a civil or criminal proceeding, all the while claiming that it had stumbled on the information in the course of trying to carry out intrusion detection.

    As I've said on many previous occasions, I've never raised privacy objections to genuinely needed law enforcement and security measures. But with this bill, we see once again an attempt to use a legitimate and necessary measure as a foothold to introduce an infringement of our privacy rights for entirely different purposes. The interception of private communications without a search warrant or consent is by its nature invasive of privacy and highly disturbing. In a free and democratic society like Canada, wiretapping and electronic eavesdropping carry extremely strong symbolic connotations, and must be carried out with the greatest possible restraint and sensitivity.

¹  (1535)  

    I would have no objection to this bill if it simply allowed interception of private communications for the very limited purposes of intrusion detection and the security of computer systems. In fact, I worked very closely with Michelle d'Auray, the Chief Information Officer, in discussing what would be reasonable and appropriate, but then, in the final instance, this other stuff appears to have been added.

    The challenge is finding the balance between the need to protect networks and data and unnecessary limitations on the privacy rights of Canadians. In my view, that balance is completely destroyed if legitimate intrusion detection activity becomes a back door for the collection of data for law enforcement or civil litigation purposes.

    The way to address this problem is simply by removing proposed paragraph 184(3)(b), or removing, in terms of the bill, paragraph 4(2)(b) of Bill C-32. The legislation has to be very clear that the only use that can be made of any intercepted communications is for the purpose of detecting and preventing harm to networks.

    Thank you again for this opportunity and for your attention. I would be very pleased to answer your questions. I'm not sure if that will be now or following the other presenter, but I understand the other presenter is speaking about setting traps. This also seems to be a form of setting traps, albeit electronic.

    Thank you very much for your attention.

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Radwanski. I don't know that the kinds of traps Mr. Lee will be talking about will be that hazardous to your health.

    Mr. Lee.

    Mr. Jim Lee (Assistant to the General President, Canadian Office, International Association of Fire Fighters): Good afternoon, and thank you very much.

    My name is Jim Lee, and I'm assistant to the general president for Canadian operations of the International Association of Fire Fighters.

    Before I accepted this job, I was a full-time professional firefighter with the City of Toronto for over 30 years.

    I'm pleased to have the opportunity to be here on behalf of our general president, Harold Schaitberger, and the 18,400 professional firefighters from coast to coast in Canada, to provide our position on Bill C-32 ,an act to amend the Criminal Code and other acts.

    I will preface my remarks by noting that they are limited to the section of the bill that deals with the “setting a trap” provisions of the Criminal Code.

    That said, I'm here to tell you very simply that the International Association of Fire Fighters supports 100% these particular provisions of Bill C-32. We commend the Minister of Justice for listening to our arguments and acting forcefully to address the serious and growing safety threat to Canada's professional firefighters.

    Bill C-32, as you know, amends the existing Criminal Code provisions for setting a trap, as found in section 247, and indeed builds on those provisions with tough new punishments that directly address the setting of traps inside illegal drug operations.

    From the current maximum of five years for setting a trap, the bill specifically addresses illegal drug operations by introducing the offence of setting a trap in a place kept for criminal purposes, with a 10-year possible sentence that rises sharply to 14 years if bodily harm is caused and to life imprisonment if death results.

    Firefighters support these proposed amendments, and it is the position of the IAFF that Bill C-32 does adequately address this particular danger. Bill C-32 when enacted will result in safer workplaces for not only firefighters but anyone else who would be in harm's way as a result of these traps.

    Police and media in every part of Canada are telling us that illegal drug operations, whether indoor marijuana growing operations hidden inside residential homes or volatile chemical drug labs, are rising in number in Canada. Our own members see them almost daily in some parts of this country.

    We are hearing that more and more often it is criminal organizations that are behind these illegal drug operations, and that they will stop at nothing to protect their illicit ventures from anyone, including firefighters or police officers, who would interfere with that operation.

    Just last week in a Toronto suburb, drug officers entered a residence and found 164 full-grown marijuana plants growing in the basement. They also found a live seven-foot crocodile in that basement. One police officer said he didn't think the reptile was being used as security, but I'll let you be the judge of that. I would say a seven-foot alligator inside a drug house is a security system with teeth--just as Bill C-32 is a piece of legislation with teeth, as it directly addresses the dangers firefighters face when they respond to illegal drug operations.

    I don't mean to make light of this situation, because there have been many cases of firefighters being seriously injured by so-called booby traps at these drug operations. There have been some close calls as well. I know you will want to have some additional examples, and there is absolutely no shortage of those.

    For instance, in 1999 in Kelowna, British Columbia, a firefighter received a severe electric shock while responding to a fire at a residence being used as a marijuana operation. Like many of these indoor marijuana operations, it had an illegal hydro bypass, which not only leads to increased risk of fire but also jeopardizes the firefighters when they respond.

    Also in British Columbia, firefighters responding to a residence that turned out to be a marijuana operation found a crossbow mounted with a tripwire. It was not loaded at the time, fortunately, because it was aimed at chest level.

    In Brampton, Ontario, a firefighter was injured after he fell through the floor into the basement of a residence being used a marijuana grow operation. The floorboards beneath the windows had been cut away and a carpet was laid over the opening to conceal the danger.

    Canadian Press reported recently that a marijuana field in Nova Scotia was protected by shotguns, again mounted with tripwires. An individual was actually shot in the leg in that case. There was a similar report of a mounted gun from the Perth, Ontario, area a couple of years ago.

    These are just a few examples that come to light.

    As I noted, there have also been some close calls, which leads us to believe that perhaps it will only be a matter of time before there's a tragedy involving a firefighter. In that way, we are grateful that Minister Cauchon has taken action on this issue before it happens, before the family of a firefighter has to deal with the grief of a workplace tragedy that could have been prevented.

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    Should this legislation be enacted--and we hope it is enacted as soon as possible--those who callously would place firefighters in mortal danger by setting a deadly trap in order to protect their illegal enterprises will be put on notice that they will face severe and specific penalties for that criminal act. There is no doubt in my mind that should this legislation come into force, news of these tougher penalties will spread quickly among those in the drug production business. And I have no doubt that they will think twice before setting a trap to protect their illegal product.

    We believe with the effective deterrents Bill C-32 proposes, there will be fewer of these deadly traps waiting for firefighters inside illegal drug operations when this legislation is passed. And in our belief that means, quite frankly, the life of a firefighter--or firefighters--will be saved.

    In summary, the International Association of Fire Fighters fully supports Bill C-32, which we believe will increase firefighter safety, and we commend Minister Cauchon for acting quickly and decisively on this issue. We support the swift passage of this important legislation.

    I thank you again for this opportunity, and I would be pleased to answer any questions from the committee.

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Lee.

    Mr. Toews, seven minutes.

    Mr. Vic Toews (Provencher, Canadian Alliance): Thank you to both witnesses.

    I don't have any questions for Mr. Radwanski, but I do have just a comment for Mr. Lee.

    I note that you're very supportive of the legislation, and you indicate that the bill sets out very severe and specific penalties. My concern is, why are you satisfied with less for firefighters, given that the government could pass legislation that imposes minimum sentences?

    We place a high value on our firefighters and our police officers. There are certain crimes that attract minimum sentences--using firearms offences, for example, murder for example--and minimum penalties. The problem with increasing maximums is that the judges don't respond. Whatever the good intentions of the minister are, the judges simply don't respond.

    Wouldn't it be better to send from Parliament today a very clear message to the judges that our firefighters deserve better, that our firefighters deserve knowing that if their lives are placed in danger by these criminals there will be specific mandatory prison sentences instead of these criminals being eligible for house arrest, conditional sentences, suspended sentences, probation? Aren't your firefighters worth more than simply the lip service the minister is paying them?

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    Mr. Jim Lee: Oh, we think the minister has gone a long way toward protecting firefighters in Canada with the introduction of this piece of legislation. Obviously, you could always look for something better within the...whatever you ask for, actually. We're on the Hill every year, asking for a number of things that protect and represent firefighters in better ways, but again, we think Minister Cauchon has gone the extra mile on this one.

    Obviously, we hope judges will look at the minimum sentencing and dole those out in the event a firefighter is caught in one of those booby traps.

    Mr. Vic Toews: So when I go back to the firefighters in my riding and tell them their national organization said that this was good enough, that they don't want mandatory prison sentences for those who cause danger to firefighters, that's the answer I'm entitled to give on your behalf?

    Mr. Jim Lee: I guess you could tell them that we would definitely like to have mandatory sentences, but we understand where legislation goes, we understand the situation of the government, and we support the bill the way it's written right now.

    Mr. Vic Toews: Well, I want to tell you that the Canadian Alliance thinks firefighters are worth more than this Liberal government is prepared to give them. You can tell your firefighters we think a lot of them, and we want to see better protection for them.

    We may well wind up voting for it, but this isn't good enough for them.

    Mr. Jim Lee: We thank you for those comments.

    The Chair (Hon. Andy Scott (Fredericton, Lib.)): To Mr. Cadman.

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): I have just a couple of minutes left here, but just quickly to Mr. Lee, could you tell me...?

    For one thing, this is not directed towards firefighters only. Usually it's the police who are the first in, and I'm a little disappointed that--

    Mr. Jim Lee: Oh, I disagree with you on that, sir. It's not the police who are first in.

    Mr. Chuck Cadman: Well, no, when there's a fire, firefighters are the first in, but when it's busting grow operations and booby traps, usually the police are the first ones in, unless a fire is in progress.

    Mr. Jim Lee: And we're having fires in these operations on a daily basis.

    Mr. Chuck Cadman: Yes, and I understand that. I'm from Surrey, sir, and I understand all about grow operations, believe me.

    That brings me to the question I was going to ask. Have you anything statistically to bear out or to give us some kind of indication of how many times a year your members are called in to these situations? Can you give us just a general idea?

    Mr. Jim Lee: You know, it's very difficult for us to track this across Canada, but I can tell you, the document we brought forward to the federal government actually arose out of Surrey, B.C. It was the firefighters in Surrey who brought this issue forward.

    Mr. Chuck Cadman: Lorne West; I know Lorne well.

    Mr. Jim Lee: Yes. He brought it to our IAFF Canadian Policy Conference, and we acted on it.

    But I can tell you, this is a problem across Canada. In the B.C. lower mainland it is a big problem, but it is a growing problem across Canada.

    Mr. Chuck Cadman: Okay, but again, it just would be nice if we had some numbers--not that we're disputing any of this but just so people would get an understanding of how prevalent this problem is.

    Thank you, Mr. Chair.

    The Chair: Thank you very much.

    Monsieur Marceau.

[Translation]

    Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you, Mr. Chairman.

    Mr. Radwanski, I just want to make sure I understood. If we repealed paragraph 184(3) b) in clause 4 of the bill, you would feel comfortable in recommending the adoption of the bill. Is that right?

    Mr. George Radwanski: For me, it's not a question of voting or not, because I do not have the right to vote, unfortunately. But yes, for me, the problem is that this provision must not be invoked for reasons other than protecting people against electronic intrusion into their lives. If the provision is invoked for any other reason, it becomes a different matter all together.

    Mr. Richard Marceau: Fine, I understand. You are an independent officer of Parliament whose mandate is to advise and counsel members of Parliament. What you're saying is that with this simple amendment, you would feel confident that privacy rights are protected.

    Mr. George Radwanski: Yes, that's correct.

    Mr. Richard Marceau: So, you don't go quite as far as what the Canadian Bar Association recommended in terms of legislative amendments. You only read Ms. Kate Ker's letter, dated May 27, 2003.

    Mr. George Radwanski: I'm trying to remember; I can't seem to recall it. What did she say?

    Mr. Richard Marceau: She basically shares your concerns, but she—

    Do we have the English version of her letter? Perhaps the gentleman can read it.

    Do you read French as well as English?

    Mr. George Radwanski: Yes, I understand and read French.

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    Mr. Richard Marceau: It might be a better idea if you had it before you. The letter is dated May 27 and was written by a member of the Canadian Bar Association.

    Mr. George Radwanski: In any case, frankly, in our analysis, it is enough to make the change we recommended.

    Mr. Richard Marceau: Fine. That's good enough, if you are happy.

    Mr. George Radwanski: Yes. The current wording has to be changed; that's what counts.

    Mr. Richard Marceau: Precisely. To conclude, if you advise members of Parliament, that means you can advise me as well. So, I would like to ask the following advice of you: if the government refuses to repeal that part of the clause, would you advise me, as a member of Parliament, not to support the clause?

    Mr. George Radwanski: Given my role, I would say that I could not support that provision without amendment, otherwise, it becomes like the lawful access initiative; it opens too many doors.

    Mr. Richard Marceau: Thank you very much.

[English]

    The Chair: Thank you, Mr. Marceau.

    Mr. Lee.

    Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.

    I have a question for Mr. Radwanski about the section dealing with interception of private communications. He certainly did not draft this, but he did make his attempts representing...or at least, in his capacity as Privacy Commissioner, to consult as the provisions were being drafted, I understand.

    I'm wondering if you have any concern about the fact that the section refers to the term “private communication” and the interception thereof. It refers to a “computer system”, which is defined in the Criminal Code in a fairly...in section 342.1 as meaning a device that:

(a) contains computer programs or other data, and

(b) pursuant to computer programs

(i) performs logic and control, and

(ii) may perform any other function;

    That's a pretty broad, loose definition. Now, here's my point. A private communication is almost anything communicated, and a computer is almost anything, including, if I may suggest, the operation at one of the large communications companies. I would just refer to Bell or one of the other telephone communications companies. The system that operates this myriad of communications is probably, by definition, a computer.

    So at the end of the day, any subcontractor from Belleville--no disrespect intended to Belleville--is going to be able to intercept a private communication for the purpose of managing, or protecting, or whatever. But the people who are out there working to protect us, including the police, can't even go near a place without a warrant.

    That's perhaps as it should be, but do you have any concerns that the contractor, and the subcontractor, and the service person, and all these people who are regular Canadians, for the purpose of protecting our computer systems, are going to be, without warrant, just generally out there intercepting? Although they're all well-intentioned now, I don't know, I'm just picturing the scene at the water cooler here. I mean, any old communication system now is essentially a computer system, so there's this huge open end here.

    Mr. George Radwanski: I hear what you're saying.

    Mr. Derek Lee: Okay. Do you have a response?

    Mr. George Radwanski: I do. I hope it's adequate to the question, because it's a very good question.

    The point is, if you make the change I'm recommending, which absolutely makes sure that it can't be retained or used for any purpose other than protecting the system or intrusion detection, somebody who, for those purposes, somehow overhears something or intercepts something and uses it in any way, which would include the water cooler, would be in violation of the Criminal Code.

    Obviously you can't prevent, when we talk about intrusions...or viruses, or moles, or whatever it might be. You can't prevent it without being able to intercept it. But normally the content then is irrelevant unless you find a virus, or intrusion detection of a hacking, and that doesn't involve content, per se. So if you limit it to that, I suppose there's always some risk, but the benefit certainly outweighs the risk in terms of protecting computer systems. If you open the door to this stuff about it being possible to retain it for use in a possible civil or criminal proceeding or criminal investigation, you're creating something entirely different. You're creating a back door where it becomes possible, whether for an employer or the state, to intercept communications, catch stuff, and say, “Whoops, imagine that; we thought it looked like a virus. Well, it's not, but it's something we can fire you for, or something we can arrest you for.” And they're off the hook. It would be very hard to defend against.

    So that's really where I'd draw the line. It's always a balance of benefit versus risk.

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    Mr. Derek Lee: Okay. Would this section, in your view, having looked at it carefully, also protect me, Derek Lee, as a hacker? I am in real life not a hacker. But if I were a hacker, and I wanted to protect my own computer system and all of the other computer systems that I formally and informally access--if I decided I wanted to get out there and start protecting my own little hacker system--could I operate under the guise of this section, protecting my own hacker computer system to go everywhere in any way, just to make sure that nobody was out there trying to get me, no one was trying to zap me, the hacker?

    Mr. George Radwanski: Man, I'd be reluctant to give you legal opinion on that just off the top of my head, because it's pretty complicated, but I suspect you couldn't use a protection of the Criminal Code for the purposes of doing something that itself is criminal.

    But that's just off the top of my head. I'd have to really reflect on that and get advice.

    Mr. Derek Lee: Okay. I just thought I'd raise the issue.

    To Mr. Lee, just quickly, the Criminal Code already contains sections dealing with traps and setting of traps. You mentioned the problem of the crocodile. Would your members view the electric fence or guard dog as a device or trap that could cause bodily harm?

    Mr. Jim Lee: Yes, we would.

    Mr. Derek Lee: Do you think you're adequately protected against guard dogs, under this section?

    Mr. Jim Lee: Yes, we think we are. In actual fact, that happens on a regular basis. The doorknobs of these houses are electrified. They're not specifically aimed at firefighters. They're aimed at another criminal element, trying to stop them from stealing the product. But it's the firefighters and police officers who are being confronted with it, because a lot of these places are catching on fire.

    Mr. Derek Lee: Okay.

    Thank you, Mr. Chairman.

    The Chair: Thank you, Mr. Lee.

    Mr. Macklin.

    Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you.

    Following up somewhat on where Mr. Lee was in this process, I'd like to go to you, Mr. Radwanski, relating to perhaps clarifying your perspective on deleting the clause you're suggesting.

    Are you suggesting that if something criminal was found in this process, the government should really just turn a blind eye to the situation by deleting that section, and it should be ignored? I guess today the most obvious concern would be if someone found, in the process of going through this, child pornography, or evidence of fraud against the government. Would one simply turn the blind eye?

    What you're effectively doing, it appears, is asking us to shut the door so that this could not be pursued. How do you give us a sense of balance here? Obviously the government has quite an interest in making sure we are protective.

    Mr. George Radwanski: Again, it is a matter of balance, as you say, and I think one has to be very careful about the doors one opens.

    You know, always these days, whenever some new intrusion is being proposed...and we had the CCRA database, where we were going to track everybody's travel habits. The great example of why that was a good thing, apart from anti-terrorism, was that if you took enough trips to Thailand maybe you were a pedophile. These days everybody wants to use, because they're so abhorrent, child pornography or pedophilia as examples of the horrible things that could somehow slip through. The fact of the matter is, as I'm told by people who understand these things much more than I do, it would be very unusual for an intrusion detection system--one that is legitimately only that--to mistake, say, kiddie porn for a virus. So it's very unlikely that this kind of thing would legitimately happen.

    On the other hand, the downside is that it's very easy, once you go down this path, to use intrusion detection as an excuse to permit the state to intercept all kinds of communications and say, “We thought it was a virus, silly us,” and to catch people doing a variety of things.

    Frankly, I don't think there's a ton of other criminal activity that would be legitimately picked up by the intrusion detection process if it is limited, but there's a danger, on the other side, that if it's not limited we're going to see an awful lot of things misperceived as intrusions for purposes of catching people doing other stuff.

    So that's where I would draw the balance in this instance.

º  (1600)  

    The Chair: Thank you, Mr. Macklin.

    If there's no one else, I'm going to thank very much the panel. I apologize for being tardy. I would like to say it's the fault of the air service between Fredericton and Ottawa, but that's not actually true.

    So thank you very much.

    I'm going to suspend for a few minutes while the officials come to the end of the table, and then we'll proceed with clause-by-clause.

º  (1605)  

º  (1601)  

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º  (1606)  

    The Chair: I call the 57th meeting of the Standing Committee on Justice and Human Rights back to order. I'm going to begin consideration of clause-by-clause of Bill C-32.

    I understand we have two amendments, which I will get to when the time comes.

    (Clauses 1 to 3 inclusive agreed to on division)

    (On clause 4)

    The Chair: I understand that clause 4 has an amendment, which is identified as G-1.

    Mr. Macklin.

    Mr. Paul Harold Macklin: As you will recall, there was a letter sent to us as members by the Canadian Bar Association, asking that we reconsider and clarify the definition indicated in proposed paragraph 184(2)(e), which begins:

a person, or any person acting on their behalf, in possession or control of a computer system, as defined in subsection 342.1(2), who intercepts a private communication originating from, directed to or transmitting through that computer system

and so on.

    The question they raised was with respect to the management of that computer system, in other words, the quality of service and so forth...they felt should have a better-defined means of asserting that. The proposal brought forth is shown in front of you as amendment G-1, where it is substituting lines 34 through 38, on page 2, with a two-part answer to that question.

    It reads:

if the interception is reasonably necessary for

(i) managing the quality of service of the computer system as it relates to performance factors such as the responsiveness and capacity of the system as well as the integrity and availability of the system and data; or

(ii) protecting the computer system against any act that would be an offence under subsection 342.1(1) or section 430(1.1).

    At this time I would ask the officials if they'd like to give further details on this for clarification.

    The Chair: Does anyone have any questions of the officials?

    Mr. McKay.

    Mr. John McKay: The bar was concerned about the functional ability of the network. They were concerned that with the ever-expansive interpretations of section 184, this apparently circumscribing concept would be less and less circumscribed so that more and more abuse would occur.

    You've drafted it to say, “the computer system as it relates to performance factors such as the responsiveness and capacity of the system as well as the integrity and availability of the system”, and I'm just wondering why you didn't choose the phrasing that the bar appears to be directing itself to, which is the “functional ability” of the network. You've almost expanded it while appearing to narrow it.

º  (1610)  

    The Chair: Mr. Wong, I believe.

    Mr. Normand Wong (Counsel, Criminal Law Policy Section, Department of Justice): Actually, Mr. Chairman, the definition we came up with came from consultations with other technical people, outside the Department of Justice as well, to come up with something that was narrower. We thought the CBA proposed definition was a good start, but what they were really after was the performance factors--the rate of data flow, the transmission rates; really, the capacity of the system and the responsiveness.

    From this we thought we could better articulate what exactly they were getting to. The meanings put in front of you in proposed subparagraph 184(2)(e)(i) we tried to put in terms of more descriptive language, instead of “volume” and “flow”.

    So instead of using information or technical terms that really only technical people could understand, we tried to make it something all readers could understand .

    The Chair: Anyone else on amendment G-1?

    (Amendment agreed to on division)

    The Chair: Monsieur Marceau.

[Translation]

    Mr. Richard Marceau: Mr. Chairman, before moving on to the amendments, I just wanted to know whether the privacy commissioner had any amendments to put forward. Is it too late for that? Is it too late to put forward amendments? If so, can I propose one?

[English]

    The Chair: Speak to me again, Richard.

[Translation]

    Mr. Richard Marceau: I did not prepare any amendments because I wanted to hear what the Privacy Commissioner had to say. My question is : is it too late for me to propose an amendment to clause 4 of the bill?

[English]

    The Chair: You can propose an amendment from the....

[Translation]

    Mr. Richard Marceau: Mr. Chairman, could I do that, since—

[English]

    The Chair: We carried Mr. Macklin's amendment to clause 4. That's where we are. We have not carried clause 4 as amended.

[Translation]

    Mr. Richard Marceau: At this point, Mr. Chairman, in view of the Privacy Commissioner's suggestion, I would like to propose that  the bill be amended in clause 4 by withdrawing paragraph 184(3) b), in accordance with that suggestion.

[English]

    The Chair: We have one small technical problem. If you delete proposed paragraph 184(3)(b), then you need to delete some other sections, Richard, because they refer to “only if”, there's an (a), there's an “or”....

    Mr. Jean-Michel Roy (Committee Clerk): May I explain about the wording?

    The Chair: Go ahead.

[Translation]

    Mr. Jean-Michel Roy: I will read the exact wording in English.

[English]

After that I will explain in French.

    Basically, what you intend to do is amend clause 4, in English on page 2, by amending lines 43 to 47. You're replacing it with:

used or retained if it is essential to identify, isolate or prevent harm to the computer system.

[Translation]

    In French (in English on page 2), you ask: That Bill C-32 be amended in clause 4, by amending lines 43 to 47 with the following: “used or retained if it is essential to identify, isolate or prevent harm to the computer system.”

º  (1615)  

[English]

    The Chair: Richard.

[Translation]

    Mr. Richard Marceau: Mr. Chairman, I do not want to repeat the arguments made by the Privacy Commissioner; he is much more eloquent than I am with regard to such matters. He told us why the amendment should be made and that is why I would like to move it. I move that Bill C-32 be amended in clause 4, in English on page 2, by amending lines 43 to 47 with the following:

used or retained if it is essential to identify, isolate or prevent harm to the computer system.

[English]

    The Chair: Does anyone else want to speak to the amendment?

    Mr. Macklin.

    Mr. Paul Harold Macklin: I would ask for Mr. Piragoff's answer to the question that's been raised, because I think in fact it really does go to the question of, what do we wish to do with respect to crimes, or apparent crimes, that we find being committed in this process?

    The Chair: Mr. Piragoff.

    Mr. Donald Piragoff (Senior General Counsel, Criminal Law Policy Section, Department of Justice): Thank you, Mr. Chairman.

    Let me start first with the effect of the proposed deletion of that proposed subparagraph, with what it would mean. It would mean that if someone in the government or in the private sector in the course of operating their IDS system found, in addition to a virus on the system, for example in an e-mail, child pornography as well in an attachment, they would not be able to use the child pornography for the purposes of a prosecution. They could not notify the police, and neither could they use the evidence of the child pornography for disciplinary proceedings for the employee. That would be the effect of Mr. Radwanski's proposal.

    It would change the existing policy in the Criminal Code--it's been there for 25 years as not simply the policy of the government but the policy of Parliament--that if in the course of doing something lawful...such as the telephone company testing its line, or when in the old days you had to go through an operator. If someone happened to hear a crime or conspiracy to commit murder, that operator or that line person could tell the police, “I heard someone planning to commit a crime.”

    Now, that is the existing law that would continue for telephones. What Mr. Radwanski is saying is that if in the course of protecting your computer system you happen to trip over child pornography, evidence of fraud, evidence of murder, or any other crime, you, as the person who finds or trips over this information, are not able to call the police. You are not able to use that information for any disciplinary purposes and must destroy it because the information is not “essential to identify, isolate or prevent harm to the computer system”.

    The Chair: Thank you very much.

    You've heard the amendment and an explanation.

    If there's no one else, I'm going to call the question on Monsieur Marceau's amendment.

    (Amendment negatived)

    (Clause 4 as amended agreed to on division)

    (Clauses 5 to 8 inclusive agreed to)

    (On clause 9)

    The Chair: I understand for clause 9 we have an amendment, which is indicated as G-2.

    Mr. Macklin.

    Mr. Paul Harold Macklin: The essence of this amendment is really to have the French and English versions actually using the same terminology.

    If you look at subclauses 9(1) and (2), you'll see that in the English version we use “charged” in subclause 9(1) and “accused” in (2). And yet in the French version, we use “accusé” for both.

    What this is intended to do, then, is amend clause 9 so that there is consistency in terms of the English and French words being used. Therefore, the term “charged with” is being substituted for “accused of”.

º  (1620)  

    The Chair: Any questions?

    (Amendment agreed to [See Minutes of Proceedings])

    (Clause 9 as amended agreed to)

    (Clause 10 agreed to)

    (Clauses 11 to 21 inclusive agreed to on division)

    (On clause 22)

    The Chair: Mr. Macklin.

    Mr. Paul Harold Macklin: Clause 22 was placed in this bill with a certain anticipation and belief that has since changed, and I would ask the officials to clarify the details of that change in position.

    The Chair: Are you directing your enquiry to anyone in particular, Mr. Macklin?

    Mr. Paul Harold Macklin: I'm not sure who would like to reflect on that--Ms. Besner, perhaps?

    I know everyone is eager; they just don't want to take over from one another.

    Ms. Julie Besner (Counsel, Criminal Policy Section, Department of Justice): Clause 22 was related to clauses 9 and 10, I think, with respect to the preliminary inquiry scheme that changed somewhat since Bill C-15A came into force.

    Clause 22 comes under the Youth Criminal Justice Act. We thought this amendment was needed consequentially. However, with the coming into force of the new Youth Criminal Justice Act on April 1, the triggering mechanism for how an election for preliminary inquiry is put to a young offender is different from that for adults, as contained in the Criminal Code.

    So this provision is no longer needed. The mechanism will operate as intended without this amendment.

    The Chair: Thank you very much.

    Any further questions?

    (Clause 22 negatived)

    (Clauses 23 to 25 inclusive agreed to on division)

    The Chair: Shall the title carry?

    Some hon. members: Agreed.

    The Chair: Shall the bill carry?

    Some hon. members: Agreed.

    The Chair: Shall I report the bill with amendments?

    Some hon. members: Agreed.

    The Chair: I'm advised we don't even have to ask for a reprint; there aren't enough amendments.

    Tomorrow it's Bill C-205, first thing, at 9 o'clock. Then we will execute what we--

    An hon. member: Execute?

    The Chair: [Inaudible—Editor]...I think is what I was getting to.

    The meeting is adjourned.