Since the introduction of Bill C-13, the Protecting Canadians from Online Crime Act, a number of misconceptions have developed around the intent and scope of this bill. I would like to clarify why this bill is necessary and why it is imperative that the bill address not only serious acts of cyberbullying but also the tools law enforcement officers need to investigate this and other online crime.
Why this Bill is necessary
Bill C-13 addresses a gap in the Criminal Code by making it illegal to distribute an intimate image of a person without their consent. But it is not enough to make this act a crime if we do not also update our current laws so that law enforcement authorities can, in fact, be allowed to conduct an appropriate and lawful investigation. In fact, a report prepared by a working group of Federal-Provincial-Territorial officials, released this past July, recommended both the creation of the new offence and modernizing the Criminal Code to provide police and prosecutors with judicially-authorized tools to investigate offences that are committed via the Internet or that involve electronic evidence. After all, there is no point in creating a law without giving law enforcement access to the very tools they need to investigate the offence.
In her November 28, 2013 statement on Bill C-13, the outgoing federal Privacy Commissioner Jennifer Stoddart commended the government "for recognizing the gravity of privacy intrusions online, and for proposing action to address the issue of cyberbullying." She also recognized that "law enforcement authorities need up-to-date tools to fight online crime at a time of when technologies are changing rapidly" and that this must be done in a way that respects Canadians' fundamental right to privacy.
This legislation respects privacy
It has been suggested that Bill C-13 is simply a new version of the old Bill C-30. To be clear, the new legislation does not include former Bill C-30's controversial amendments that would have allowed access to subscriber information without a warrant and would have called for telecommunication infrastructure modification to implement and maintain a technical capability to enable lawfully authorized interceptions. Bill C-13 simply aims to provide police with the necessary means to fight crime in today's high-tech environment while maintaining the judicial checks and balances needed to protect Canadians' privacy. There would still be a requirement for appropriate judicial oversight. Police could not access the different types of data included in the legislation without a judicial authorization.
The different parts of this legislation logically go together
There is a misconception that Bill C-13 is an omnibus crime bill. This is simply not accurate. Bill C-13 combines a proposed new offence of non-consensual distribution of intimate images to address cyberbullying with judicially-authorized tools to help police and prosecutors investigate the proposed new offence and other existing offences that are committed via the Internet or that involve electronic evidence. Both of these elements were recommended in the July 2013 Federal-Provincial-Territorial report on cyberbullying and the non-consensual distribution of intimate images.
It is already legal to provide information to the police
Some people mistakenly believe that the new legislation would allow the police to sidestep court authorization requirements by requesting voluntary disclosure or voluntary preservation of documents or data from organizations such as telecommunications service providers and banks. In this regard, the proposed legislation would not provide the police with any new powers. The Bill proposes small revisions to the current law, to make it clearer in what circumstances the police do not require production orders if a third party voluntarily assists in a police investigation by providing information.
As part of their general policing duties, police may already obtain information from a third party voluntarily without a court order. There is no need for the police to obtain production orders when persons were providing their assistance on a voluntary basis, as long as there was no prohibition against doing so, such as a duty to safeguard personal information under the Personal Information Protection and Electronic Documents Act.
Bill C-13 now explicitly refers to the protections from civil and criminal liability when a person chooses to provide voluntary assistance to the police—that is to say that a person who discloses information could not be sued or prosecuted for voluntarily providing information that they are not prohibited from disclosing. This protection already exists under the Criminal Code. This is not a substantive change, but was done to make the provision more transparent and understandable on its face.
This provision will also be amended to refer to the new proposed preservation demands and preservation orders into the Criminal Code, so as to clarify that a person may also voluntarily preserve data, so long as doing so is not otherwise prohibited.
Bill C-13 also proposes to clarify that voluntary cooperation with police is not restricted to when they are enforcing a federal law but that it also applies to police activities that do not directly relate to enforcing a federal law, such as contacting the next-of-kin of an accident victim, returning stolen property to its owner or contacting the home owner, in the case of a break-in.
Police are better able to keep Canadians safe and to investigate criminal activity when persons, groups and organizations are willing to assist them. The purpose of the current law and these updates relating to voluntary disclosure is to ensure that police and the public can continue to work cooperatively.
With respect to concerns that have been raised about tracking devices, it is important to note that the Bill retains judicial oversight for these devices. Police use a tracking device to track persons or things if the court has agreed to this activity and granted the necessary authority. Historical tracking data, which might show where a suspect has been in the past, would only be available to police subject to a valid judicial production order if there was reason to suspect that a criminal offence had been or will be committed. For real-time tracking of a person, Bill C-13 proposes to raise the level of judicial scrutiny from reasonable suspicion to reasonable belief. This is to reflect advances in technology which have increased the precision of tracking devices. I believe this represents a significant privacy safeguard for the use of this power.
It is already illegal to steal cable
Some reports have suggested that the new legislation would make it illegal to steal cable signals. In fact, the theft of telecommunications, including cable, and the possession of a device to obtain a telecommunication service without payment have long been offences under the criminal law.
The amendments proposed in Bill C-13 to these long-standing offences are amendments consistent with our efforts to modernize the Criminal Code and to make related provisions consistent with each other. This is not a substantive change.
It is important to note that the Bill would also make the offence of possession of software or other device to obtain a telecommunication service without payment a hybrid/dual procedure offence—this means that it would give prosecutors more discretion in their charging practices depending on the seriousness of the offence.
There have also been some concerns raised about the amendment to the definition of "identifiable group." The Bill proposes to amend the definition of "identifiable group" in the Criminal Code by including national origin, age, sex, and mental or physical disability in addition to the characteristics already provided by the Criminal Code, namely colour, race, religion, ethnic origin and sexual orientation. This would provide broader protection under the three Criminal Code offences relating to hate propaganda (i.e., genocide, public incitement of hatred, and wilful promotion of hatred). The modification to add age, sex and mental or physical disability aims to address what could be seen as a gap resulting from changes to the Canadian Human Rights Act to delete section 13 of that Act.
Cyberbullying goes far beyond schoolyard bullying and, as our Prime Minister stated, can amount to a criminal activity. With the click of a button, a person can be victimized before the entire world. As we have seen far too often, such conduct can destroy lives. The resulting harm of online bullying is even believed to be a factor in the tragic suicides of several Canadian teenagers. It clearly demands a stronger criminal justice response and Bill C-13 proposes what is needed to address this behaviour, no more, no less.
Our Government believes in standing up for Canadians—because it is a basic right for children to feel protected—be it riding a bike in the neighbourhood or surfing the net. Bullying and cyberbullying are complex social problems that require action on a number of levels, from addressing gaps in the Criminal Code to prevention and education programs.
It is my firm belief that we can do more, which is what the Protecting Canadians from Online Crime Act is all about. I urge Parliamentarians and all Canadians to support this important step in protecting our children and youth online.
The Honourable Peter MacKay
Minister of Justice and Attorney General of Canada