Thank you, Mr. Chair, colleagues.
I am pleased to be joined by Justice Canada officials. We are here to answer questions with respect to Bill .
I am very pleased to be before the committee to speak to Bill .
Chair, colleagues, I submit to you that Bill is an important piece of legislation aimed at protecting Canadians from crimes that are committed over the Internet or online. It does so in full compliance with Canadian law.
One of the ways in which Bill accomplishes this important goal is by proposing a new criminal offence aimed at a particularly contemptible and insidious form of cyberbullying involving the non-consensual distribution of intimate images. It has literally resulted in the devastation of lives, the loss of lives. I can't help but think of young Rehtaeh Parsons, Amanda Todd, Todd Loik, and others who have fall victim to this insidious type of activity.
The second way in which Bill accomplishes this goal of protecting the public is by proposing changes that would ensure that the Criminal Code and other federal legislation is able to keep up with the high speed of technological change. The need to modernize is deeply embedded in this overall intent.
In this vein, Bill proposes some minor updates to existing offences while at the same time modernizing the judicially authorized powers that police use, to investigate crimes committed, using electronic networks or that of electronic evidence. I stress for emphasis that “judicially authorized” authority is invoked here.
Turning first to the issue of cyberbullying, as I mentioned, the bill proposes a new Criminal Code offence prohibiting the non-consensual distribution of intimate images. Essentially this offence would prohibit the sharing of sexual or nude images, as defined, without the consent of the person depicted. It is a very nasty, cruel attempt to humiliate or worse, and has, as I mentioned, a pernicious effect that has become all too prevalent, particularly amongst young people.
This proposed new offence would fill a gap in the criminal law, and respond directly to one of the recommendations made by federal, provincial, and territorial officials in the June 2013 report on cyberbullying and non-consensual distribution of intimate images.
It may be of interest to note, Chair, that this report received unanimous support from federal, provincial, and territorial ministers of justice and public safety. These sections around intimidation, harassment, and related sections in the current Criminal Code context go back to age of the rotary dial telephone, so the need for modernization is real.
The proposed bill has a three-part definition of intimate images. In short, an intimate image is one that depicts nudity or sexual activity, was taken in a private setting, and one in which the depicted person has a privacy interest. This approach, like the existing voyeurism offence in section 162, is similarly designed to protect the privacy of the person depicted.
Clearly this Criminal Code section and the accompanying sections are not the entire answer. It will require a much more holistic strategy, as members of this committee are aware. There is much public information-sharing and education involved. We need to reach out to the schools. We need to have law enforcement and the justice system itself more broadly involved. There have been numerous public information efforts undertaken, including pink days and anti-bullying days that are dedicated at various sports and entertainment venues. It will require that holistic approach.
The bill also includes a number of complementary amendments related to the proposed new offence.
For example, the court would be authorized to order a person in possession of intimate images to enter into a recognizance to keep the peace, when there are reasonable grounds to believe that the person would commit the proposed new offence.
In addition to pre-emptive action, such as peace bonds, which have that ability to deter, the court would also be authorized to order the removal of non-consensual posted intimate images from the Internet.
Further, Mr. Chair, upon conviction under this new offence section, the court could order a seizure of equipment—a computer or a hand-held device—make a prohibition order restricting the offender's access to the Internet or other digital networks, and order the offender to pay restitution to permit the victim to recoup expenses incurred by securing the removal from the Internet of non-consensual posted intimate images.
This bill also proposes to modernize investigative powers. These updated tools would assist police in the investigation of not only the proposed new offence, but also all online crimes and any crimes that involve digital evidence, such as, for example, fraud or the distribution of child pornography. These amendments are long overdue, I suggest, and police report that over 80% of major crimes now leave electronic evidence.
While Canadian law enforcement continues to use investigative tools that pre-date the Internet and were primarily designed to collect physical evidence, there's great work being done, as I'm sure the committee is aware, at the Canadian Centre for Child Protection. They do tremendous work and outreach with police forces across this country and with victims.
I would like to be clear that while some of these amendments were previously introduced in a former bill, Bill does not contain the most controversial aspects of warrantless access. Mr. Chair, in particular Bill C-13 does not include any provision that would allow the warrantless access to subscriber information or that would impose obligations related to telecommunication infrastructure modification.
These amendments relate to investigative powers and were strongly recommended by the same FPT working group that recommended the new proposed offence to respond to cyberbullying and the non-consensual distribution of intimate images. This working group recognized that the important link exists between the proposed new offence that affords the protection and ensuring that police have the necessary tools with which to investigate it and other related online criminal activities. It is, I would suggest to you, very much intertwined—the new offence and the ability to police and enforce under the current provisions.
To give you a quick example of why these modernizing amendments are needed, we need to look at basic but essential telecommunications data, a phone number and an IP address. To obtain a phone number, police can then use the existing built-in production orders in the number recorder warrant, proposed subsection 492.2(2). This is granted by a court on reasonable grounds to suspect. That is the standard. To get the same type of information in an Internet context, such as an IP address or an e-mail, police currently have to use a general production order, which is granted on reasonable grounds to believe, which is a different, higher standard.
This is not only an inconsistent treatment of similar types of information, basic information, it also means that in many cases police, in the context of an Internet crime, will not be able to meet the threshold to begin an investigation. Bill proposes to correct this.
In terms of reasonable grounds to suspect, I want, Mr. Chair, if I could, to take you through a few of these modernization proposals. One of these proposed new tools is data preservation. Essentially, the data preservation tools are known as “not delete” orders, which would allow police to ensure specific computer data is safeguarded while they apply to the court for proper authorization to acquire that data in order to preserve important evidence. We have police officers, I know, who are part of this committee and can speak to that important preservation exercise.
These tools will provide essential support in the investigation of offences where much of the evidence is in electronic form. It is an era where crucial evidence can be deleted—sometimes inadvertently, sometimes deliberately—with a keystroke. Police, I suggest strongly, need this power.
The data preservation scheme includes a number of important safeguards. For example, once a preservation demand or order has expired, the individual in question is required to delete all the information he or she preserved unless retaining it is part of his or her normal business practice.
Bill also proposes to update the existing judicially supervised production order scheme. These amendments would result in a comprehensive tool kit that would include a general production order, which is comparable to a search warrant, and four specific and more narrowly focused production orders that will often help police initiate their investigations.
The four specific production orders contemplated by Bill would allow police to obtain four types of information: first, data to determine whether someone or something was at a specific moment in time, so it's tracking data; second, data that relates to the occurrence of telecommunications, such as an email associated with the telecommunications, so it's transmission data; third, data to trace a telecommunications item in order to determine the identity of a suspect; and finally, basic financial information such as a bank account number or the mere existence of an account of a particular person. It should be noted that this production order for financial information is already in existence.
The bill also proposes to modernize two existing judicial powers, warrant powers: the tracking warrant and the number-recorded warrant. These warrants are unique in that they allow police to collect the type of information in real time, and although the bill has been criticized in the media in particular for lowering judicial scrutiny, I would submit and point out that the proposed tracking-warrants amendments that apply to the tracking of individuals actually raise the standard of judicial consideration from “reasonable grounds to suspect” to “reasonable grounds to believe”. This increased privacy protection recognizes advancements in technology and their impacts upon individual privacy. However, police continue to be able to track things under the existing “reasonable suspicion” standard.
Finally, the bill also proposes amendments to achieve some efficiencies with regard to wiretap applications. These amendments will ensure that Canadian courts in all jurisdictions will use the same processes when they seek to obtain court orders related to wiretap authorization. The proposed amendments would create a single application for judicial warrants and orders that are related to the execution of wiretap authorization. This new process would clarify that the judge who issues a wiretap authorization can also issue the other supporting warrants or orders without requiring a separate application. In some jurisdictions, police have to go before several judges for these related powers, such as tracking warrants, a process that not only is inefficient but that also prevents the judge from getting the full picture of the investigation.
Lastly, Mr. Chair, I would like to take just a moment to address a few of the misconceptions that have been reported on Bill .
Some have mistakenly led others to believe that the proposed legislation would encourage telecommunications service providers and banks to disclose information on their customers without authorization. I want to be very clear. The proposed legislation would not provide the police with any new powers for voluntary disclosure, nor does the bill propose to create a mechanism to bypass the necessary court oversight. To start the provision in question, proposed section 487.0195 is a “for greater certainty” provision and as such cannot grant police any additional powers. These provisions exist to clarify what is already part of the law. As part of their general policing duties, police may already obtain information from a third party voluntarily, without a court order, if—and this is the important part—the person or organization is not otherwise prohibited by law from providing this information. For example, they can already assist police in providing information if they are not prohibited by their duties under the Personal Information Protection and Electronic Documents Act, the PIPEDA. Persons who assist police in that fashion are protected from liability in those cases.
To be clear, this power exists in common law already. The 2004 clarifying amendment was meant to preserve this common-law power. It is found re-enacted here in this bill, and is intended to do the same. The proposed amendments in Bill are not designed to alter this in any way but are meant to make the provisions clearer and more transparent.
It was also suggested that the bill creates new warrants for police to obtain metadata using a lower threshold production order. This is also incorrect. Metadata refers, as members would know, to a large class of information that has been described as data about data. Examples of metadata include background information about an electronic document such as software, the type that it uses, its size, kilobytes, the size of characters it contains, etc. In relation to an electronic photo, it can include the number of pixels, the type of camera, and perhaps the date, the time, and the location the photo was taken. Some have suggested that metadata may contain personal information about people. It should be noted that Bill does not propose to capture this type of information according to its proposed definition of transmission data.
In fact, the definition of transmission is narrowly defined and captures only data that relates to the act of telecommunication. The definition of transmission data is the modern equivalent of phone-call information, not what is actually contained in the conversation, and these proposals are meant to ensure consistent treatment of similar information.
To conclude, Mr. Chair, I want to emphasize that this package of reforms is a targeted approach to serious forms of cyberbullying. All of the amendments to the investigative powers have been proposed here to provide police the appropriate tools to investigate crime in this Internet age, while at the same time minimizing the privacy impacts on Canadians.
I thank you for your consideration, and I look forward to your questions.
I can talk about Bill . Bill is another bill, and it's not our bill. That's the bill for the , I believe, so that's his responsibility. You'd have to ask other officials or other staff, Mr. Chairman, with respect to that bill.
In terms of the interplay, as the minister said, the Criminal Code provision enacted in 2004 was enacted for the purpose of clarifying that when Parliament enacted production orders in 2004, the enactment did not have a negative effect on the common law power of citizens to voluntarily provide information to the police, whether it be telcos or whether it be a person at the door. When the police come knocking at the door saying that there was a big ruckus across the street last night and asking if they saw anything, the person at the door has the choice of saying that they don't want to talk to them or saying, “Yes, I saw a lot and here's what I'm telling you.” That person would be protected. That's the common law power. It's in section 25 of the Criminal Code.
There was a concern about having a power to compel people to provide information: would this have a negative effect on the voluntary ability of people to provide information? So section 487.014 was created at the time, for greater certainty. As it says, “for greater certainty”, the fact that there is a production order does not affect the ability of people to voluntarily provide information, and that provision also said that people who provide voluntary information get the benefit of section 25 of the Criminal Code. Section 25 of the Criminal Code is the provision that says if you do something that you are authorized by law to do, you are protected from civil or criminal liability.
What the new amendment does is update the existing section 487 provision to do two things. One, because there are other types of tools that have been created by the bill, such as preservation orders, if a company voluntarily preserves data, this makes it clear that not only in providing the data but also in preserving the data voluntarily, one would be protected from civil or criminal liability.
The current situation right now with many of the telcos, for example—you wanted to know the relationship, Mr. Casey—is that there is no ability to compel a telco or an ISP to preserve information. The authorities have voluntary cooperation from some telcos and some ISPs, but not all. Nevertheless, we do have some who do voluntarily cooperate with the police and will voluntarily preserve data while waiting for the police to come back with a search warrant or a production order.
This would, then, extend the immunity provisions to also include those individuals who voluntarily preserve data, to ensure they are not liable civilly or criminally because they voluntarily cooperated with the police. That's the relationship between the two, Mr. Casey.
In terms of what the authority is, as to when telcos or other companies are authorized or compelled to provide information, one would have to look at PIPEDA, and again, that's not in my purview of expertise.
I can't comment with respect to the Amanda Todd case because, as you know, the British Columbia Attorney General has laid charges in relation to that case in respect of a person in the Netherlands, so that's an ongoing investigation.
The other part of your question was around what the United States or other countries have to assist them that we do not have.
Specifically, Bill would enact a lot of investigative tools, things such as the preservation order, the order that says “do not delete this data until we come back with a production order or a search warrant to actually access it”. That is a power that the Americans have had for many years, for at least for 15 or 20 years. We don't have that power.
That's also a power created by convention in the Council of Europe, a convention that, as the Minister indicated, we have signed but not yet ratified, and we will be the last of the G-7 to ratify it, if Parliament passes this bill.
Other provisions that would assist would those allowing the obtaining of transmission data. Basically that's data not with respect to the actual content of an e-mail, but one where it was sent, the route it took going through Rogers, through Bell, through Telus, through AT&T, going from the sender to the person who received it.
In the case of a cyberbullying situation, you have an e-mail that is received by the potential victim, and let's say that e-mail was part of the Bell network. You go to Bell network and Bell network says, “Well, that came from Rogers”. And then Rogers says, “Well, we were just a link in the chain. It came from AT&T”. Then you have to go to AT&T and say, “Well, are you their end point?”, and AT&T says, “Oh, no. That came from another service provider”.
These tools would enable the police to have all these ISPs preserve that data so that it's not routinely deleted, which is part of their practice, because they only hold it for a certain period of time. It would also allow them to get a transmission production order to say they're not asking for any of the content of the e-mail, but just want to know where the e-mail comes from. Did it come from across the street and go through all this routing, or did it come from another province or another country? That's all the police are asking.
Later on in the investigation, when they start to realize that maybe this were not just a suicide, that there may have been some criminality involved, that someone had encouraged someone else to commit suicide, then when they have a higher level of evidence and actually have reasonable grounds to believe, they can go to the ISP with a search warrant or a production order and say they now want to see the contents of the e-mail.
As the Minister said, it's a ramping-up system where at the first level, all you have is some suspicion that these e-mails might involve criminality, but you don't know that. All you want to do is to follow some leads, so you use the first tools to get the leads. When you get more evidence and you have more of a foundation for moving from suspicion to reasonable grounds to believe, then you start going after information that has a higher privacy standard, such as e-mail contents.