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The cyberbullying bill committee

Critics of Bill C-13 say the bill is too broad as the federal government struggles to justify its lawful access provisions.

Computers in a dark room

When even the Boys and Girls Club of Canada has problems with your cyberbullying legislation, you know things aren’t going quite as planned. In the first two weeks of committee testimony on Bill .C-13 — the Protecting Canadians from Online Crime Act — there were few supportive witnesses.

The bill, more commonly known as the Conservatives’ cyberbullying bill, makes a new criminal offence of the distribution of intimate images, as well as making sweeping changes to how law enforcement can obtain and use Canadians’ personal data.

The latter part proved the most controversial, as National reported when the bill was first tabled. Witnesses before the committee were generally supportive of the cyberbullying provisions. Fahd Alhattab, a representative of the Boys and Girls Club of Canada, told Parliamentarians that: “we think that this legislation is obviously more appropriate as a response than the use of criminal pornography charges.”

David Fraser, a partner at McInnes Cooper, generally echoed the sentiment. “There is a gap we should fill, which is the malicious dissemination of intimate images without the consent of the person depicted in them, regardless of the age of the person depicted in the image,” he told the committee.

But it was on the minutiae where the witnesses had problems with the bill. Fraser underlined the ‘recklessness’ standard in the act which criminalizes not just the sharing or publication of intimate images, but also the recklessness in failing to obtain consent — “Which, in my view, is too low,” Fraser said. “We shouldn’t inadvertently criminalize behaviour that’s not blameworthy. Someone finds a picture online of someone naked — I understand that there are pictures of naked people on the internet — and forwards it to a friend. That person knows nothing about the circumstances in which the photo was taken. It could be a professional model, it could have been taken by the person in the photo itself.”

But much of the attention was focused on the lawful access provisions of the bill. All the witnesses present agreed that, given the sections dealing with police provisions needed changing, and needed to be considered separately.

Feminist advocate Steph Guthrie — who supported criminalizing what she calls “cyber sexual assault” — told the Parliamentarians that the bill ought to be split up. “It pains me to say that after a year of arguing for legislation that criminalizes cyber sexual assault, that I cannot support the legislation as written.”

Alhattab had similar concerns. "Young Canadians deserve to be protected from cyberbullying, but they also deserve to have their privacy protected,” he said.

Michael Geist, the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, wrote that C-13’s “lawful access provisions are the source of genuine privacy concerns.” Michael Spratt, lawyer at Webber Schroeder Goldstein Abergel, proclaimed that “Conservatives have tried to slip a wolf into the hen house.” Parry Aftab, internationally renowned cyberbullying expert and privacy lawyer, wrote: “I don't want cyberbullying victims, or hostile sexting victims or any victims to have to give up their privacy rights as a Canadian to be protected from digital hate and harassment. It's not fair. It's not right. It's not Canadian.”

Justice Minister Peter MacKay, facing committee the week prior, told the committee that the powers were essential. “It is an era where crucial evidence can be deleted, sometimes inadvertently, sometimes deliberately, with a keystroke.  Police, I suggest strongly, need this power,” he said.

They were referring to the broad lawful access changes that were tacked on to the bill. Most notably, C-13 expands the circumstances where police can request warrantless data from telecommunications companies, widens immunity for the companies that do so, and creates a new transmission warrant that will lower the evidentiary threshold — to “reasonable grounds to suspect.”

Those three provisions — read together, and in conjunction with Bill S-4 — have opposition MPs, and privacy lawyers, sincerely worried.

S-4 is the Digital Privacy Act, which expands Personal Information Protection and Electronic Documents Act (PIPEDA) to carve out new situations where corporations and government can request Canadians’ information, without a warrant and without notification.

All this plays out on the backdrop of revelations from the Privacy Commissioner that just a few Canadian telecommunication companies were saddled with over a million requests from various wings of the Canadian Government, and voluntarily coughed up data in nearly two-thirds of the cases.

Bill C-13 removes language in the Criminal Code requiring that a data request by law enforcement made to a telecommunications company be under the auspices of an ongoing investigation. If it becomes law without amendment, the bill will allow officers to request that data under several new scenarios, as laid out by PIPEDA’s section 7.

Further, as was noted by former Privacy Commissioner Jennifer Stoddart, it opens up the clause to be used by a host of public and peace officers who, under the Criminal Code, could be a wide range of government officials — from municipal officials to representatives of the Department of Fisheries and Oceans.

Capping off the expanded section is complete civil and criminal immunity to any telecommunications company that furnishes the requester with their customers’ data — so long, the law states, as it’s information the company “is not prohibited by law from disclosing.” That’s a distinction, Fraser says, that doesn’t mean a whole lot.

“There’s not enough clarity as to what legally prohibited means in that legislation,” he says. “The two can be complicit and overreach without consequence on both sides, and even act in bad faith on both sides.”

MacKay maintained that the bill in no way expands police powers to receive data without a warrant. He went so far as to say that “Bill C-13 does not include any provision that would allow the warrantless access to subscriber information.” That argument has raised the question from both parliamentarians and lawyers: Why add provisions to the Criminal Code that have no real effect?

After the committee, the parliamentary secretary to the minister of justice, Bob Dechert, asked Fraser to suggest improvements to the bill, signaling that the government may be open to amending the legislation to address privacy concerns.