Appearance before the House of Commons Standing Committee on Justice and Human Rights (JUST) on 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

June 10, 2014
Ottawa, Ontario

Opening Statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)

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Introduction

Good morning Mister Chair and Members of the Committee.

Thank you very much for your invitation to present our views on Bill C-13, the Protecting Canadians from Online Crime Act. 

With me this morning are Patricia Kosseim, Senior General Counsel and Megan Brady, Legal Counsel.

The Office of the Privacy Commissioner is mandated with overseeing compliance with two Acts of Parliament: the Privacy Act, which governs the federal public sector and the Personal Information Protection and Electronic Documents Act, which governs the private sector. 

Today, I will first address the cyberbullying aspect of the bill, and then turn to the elements that introduce new investigative powers, as both aspects implicate privacy.

Intent of the legislation

The OPC unequivocally welcomes the government taking action to address online bullying and abusive use of intimate personal images.

This is a pressing social issue that is of serious concern to Canadians.

It is clear that internet use has shifted many of our traditional views about privacy. 

Better education, legal reform and public discussion must all play a part in addressing the problem. 

A holistic approach is needed that includes public awareness, such as the government’s new Stop Hating Online initiative, as well as a strong emphasis on digital literacy education. 

It is important that children, parents and teachers all have access to educational resources that help explain online risks, and teach responsible use of technology and ethical behaviour in online interactions.

The government has signalled a commitment to digital literacy as part of its recent Digital Canada 150 strategy and we would like to see continued dialogue and outreach to youth and educators as part of that effort.

Cyber-bullying clearly presents grave risks to individual dignity and privacy for all citizens who use social networks and communication online.

We believe the criminalization of non-consensual distribution of intimate images and extending existing Criminal Code provisions related to harassing communications sends a clear signal.   

We need to ensure that cyberbullying carries serious consequences.

That said there are still clearly some complex privacy questions attached to many of the proposed measures, particularly those concerning some of the new investigative powers.  We agree that the laws need to be modernized but we have concerns about some of the specific proposals contained in this Bill.

Given the technical aspect of these amendments, my Office has provided you with a written submission outlining these aspects in detail. 

Let me now summarize our main concerns briefly.

Parliamentary scrutiny

I would begin by reiterating my view that, given the complexity of the issues you have been presented with in the course of your study, I would recommend dividing the Bill into its constituent parts. 

From a privacy perspective, the offence provisions are largely uncontroversial and could be quickly dealt with by this House and sent on to the Senate for review. 

On the other hand, given that sensitive personal information and significant police powers are at play, the lawful access components deserve very close scrutiny and would benefit from a focused and targeted review.

Thresholds for authorization

Accessing data is significantly more intrusive than its preservation.  While “reasonable suspicion” may be an appropriate threshold for preserving data, we believe that Parliament should closely scrutinize the proposed threshold for judicial authorization to access certain data. 

The divergence from the constitutional default of “reasonable and probable grounds” requires full explanation and justification by government and merits a cautious approach. 

There are a wide range of new powers attached to Bill C-13 under which sensitive information would become more accessible to law enforcement and a wide range of other governmental authorities at a lower legal threshold of reasonable suspicion.  

Transmission data provides a useful example of how authorities can obtain sensitive records via a reduced legal threshold under the new regime. 

“Reasonable suspicion” to access “transmission data” uses the precedent of the standard currently required to use a dial number recorder (DNR). 

However, the information and records comprising “transmission data” as it is defined in the Bill can be significantly more revealing than a record of telephone calls.

We believe suspicion is too low a threshold for such potentially revealing information in a digital era when every transaction, every message, every online search and every call or movement leaves a recorded trace. 

As a result, we suggest that the bill utilize the traditional standard of “reasonable and probable grounds” to believe for the provisions under which access to information would be granted. 

That is the standard which should hold until a more compelling case for the use of a reduced legal threshold is presented and thoroughly examined.

Powers extended to both police and public officers

Second, there is the broad range of authorities who can rely on these powers. 

The investigative powers and provisions in C-13 see both “peace officers” and “public officers” at all levels of jurisdiction in Canada broadly empowered with the whole range of new techniques. 

In addition to police officers, these individuals include mayors, wardens, reeves, sheriffs, certain airline pilots, customs officers, fisheries officers and any federal or provincial officer. 

While many law enforcement and security agencies have robust accountability mechanisms, other government bodies implicated by this definition have no dedicated review and no transparency requirements.  We find this to be of particular concern.

We would recommend retaining clear designated categories for “public officers” rather than adopting an open-ended definition. 

In this way, the departments and agencies authorized by law to make use of these tools are clearly indicated and specifically limited to those whose legislated duties require access to the new powers.

Legal immunity for disclosures made to government

Thirdly, there is the key question of legal immunity. 

Bill C-13 contains an amendment specifying that a person or organization enjoys legal immunity should they voluntarily preserve data or provide a document at an investigator’s request without court authorization. 

We are concerned this broad language could lead to a rise in additional voluntary disclosures and informal requests.

This is of particular concern with private-sector companies that are otherwise prohibited from disclosing personal information without consent under PIPEDA or substantially similar legislation.

In essence, this could amount to permissive access without court approval and oversight.

Canadians expect that their service providers will keep their information confidential and that personal information will not be shared with government authorities without their express consent, clear lawful authority or a warrant.

Accountability and transparency

Finally, there is the question of accountability and transparency mechanisms for new forms of surveillance. 

There are no requirements in the Bill to report on the extent of the use of any of the new powers. 

That is of serious concern, especially given the range of officers who can exercise these powers and the possible effects of extending legal immunity.

In many other jurisdictions, ongoing reporting is part of the oversight structure. 

We believe Canada should have similar ongoing measures for reporting.

Thank you and I look forward to your questions.