Albert Einstein wrote, “It has become appallingly obvious that our technology has exceeded our humanity.” Einstein never saw a cell phone or surfed the web but his words strike painfully true when we reflect on the tragic and avoidable deaths of Retaeh Parsons and Amanda Todd, two young Canadian women who took their own lives to escape the psychologically devastating effects of “cyber-bullying.”
“Cyber-bullying” is the use of technology to support deliberate, hostile, and often repeated behaviour by an individual or group to hurt others. In plain English this means using texts, emails, and the Internet to torment another human being. Examples range from sending intimidating messages to distributing or publishing intimate pictures online. While some cases of cyberbullying do meet the requirements of existing Criminal Code offences (e.g. criminal harassment, uttering threats, counselling suicide, and child pornography), the Code was not written with today’s technology in mind; the fit can be awkward and the investigative tools are woefully out of date. It is a matter of general agreement that Parliament needs to do something about it.
Enter Bill C-13, the Protecting Canadians from Online Crime Act, a justice bill now between second and third readings in the House. The Bill traces the recommendations of the CCSO Cybercrime Working Group, a report directed by provincial ministers of all political stripes, and seems to do as advertised. It updates existing offences to be more in line with 21st century realities. For example, the offence of deliberately spreading false information “by letter, telegram, telephone, cable, radio or otherwise” with “intent to injure or alarm” is already good law that could address egregious cases of cyber-bullying. In C-13, Parliament observes that the telegram is probably not the weapon of choice among today’s cyber-bullies and so the Bill substitutes the word “telecommunication” to capture the cell phones and other devices that are. In addition, a new offence of “distributing intimate images without consent” has been created to deal with this particularly vile use of technology, and this change has also met with general approval.
However, the Bill has its detractors. In general its opponents claim that C-13 uses popular support for anti-cyberbullying laws to ram through a package of legislation that is mostly unrelated to cyberbullying and a threat to Canadians’ privacy. However, a close reading of the Bill fails to uncover support for this view.
When it comes to police investigative tools, one of the main yardsticks for privacy is the grounds required to justify a search. The two standard benchmarks are “reasonable grounds to believe” and “reasonable grounds to suspect.” One of the complaints about C-13 is that it reduces the preconditions for a search to this second lower hurdle. Putting aside for the moment that there is nothing inherently unconstitutional about the reasonable suspicion standard (see, for example, R. v. Kang-Brown, [2008] 1 SCR 456, ¶25), Bill C-13 does not lower the bar for police searches. The two new warrant provisions that allow police to search for intimate images distributed without consent adhere to the higher “reasonable belief” standard. The warrant provisions in the new Bill that do adopt the lower “reasonable suspicion” standard are not new at all. For example, tracking warrants (think “GPS on a suspect’s car”) have always been available on the lower standard and remain so under C-13. The only change, consistent with the raison d’etre of the bill, is to add tracking opportunities for telecommunications, but this explicitly excludes any search that reveals “the substance, meaning or purpose of the communication.” In other words, the standards for intercepting private communications in Canada are not lowered by Bill C-13.
The only other new “power” given to police is the “preservation order.” This allows police who want to get a warrant for computer data to order the custodian not to erase it while the warrant is being prepared, but the requirement of judicial authorization, as with all of Bill C-13’s components, remains in place.
Another apparent complaint about the Bill is that it “streamlines” the wiretap provisions of the Code. The Bill does do this, but not in a way that impacts even indirectly on privacy rights or search standards. Wiretaps, to put it bluntly, are the hardest warrants to obtain, and properly so. Generally speaking, the authorities may only intercept private communications when other investigative techniques are insufficient and a Superior Court judge decides that it would be in the best interests of justice to let them do so. In addition to the wiretap order itself, there are almost always accompanying ancillary orders that are required to complete the investigative plan. For instance, warrants to install recording devices, assistance orders, tracking warrants, etc., are all common components of an investigation that employs wiretaps. Bill C-13 will simply provide express authority for what has become the common practice in most provinces, namely, having a single judge grant all the necessary orders in the form of a single authorization on the basis of a single affidavit and application. That’s the “streamlining” in Bill C-13 and it boils down to making the application process more efficient with no change in the applicable standards for granting a wiretap authorization.
Beyond that there are small housekeeping changes to the Code, all of which seem quite reasonable and, at a minimum, within the purview of an elected Parliament to enact. For example, the law against spreading hate propaganda currently covers colour, race, religion, ethnicity, and sexual orientation. Bill C-13 adds nationality, age, sex, and disability. The Bill provides restitution for victims who must pay to remove offensive material from the Internet out of pocket. It adds distribution of intimate images without consent to the long list of exceptions to the spousal incompetency rule, and allows for judicial orders (without laying a charge) to remove those images from the web and even to prevent them from being posted in the first place.
All in all, the Bill represents an overdue tune-up of a Criminal Code that is lagging well behind the blistering pace of technology. When examined closely, the criticisms of C-13 have more bark than bite, but they have at least served to draw public attention to an important Bill and promote healthy debate on competing issues of real importance to Canadians. In other words, the system is working. And of course, eventually Bill C-13 will pass. Hopefully, for the many Canadians facing the anguish of cyber-bullying, the wait won’t be too long.
Myths and Facts About Bill C-13,
Protecting Canadians from Online Crime Act
Myth: Bill C-13 will make it illegal to steal cable signals.
Myth: Bill C-13 is trying to hide controversial elements from Bill C-30 in the initiative to address cyberbullying.
Myth: Bill C-13 is an omnibus crime bill that deals with more than cyberbullying.
Myth: Bill C-13 is adding new “surveillance” powers, which will inevitably result in an increase in the tracking of Canadians and/or the interception of their communications.
Myth: The proposed section 487.0195 of the Criminal Code would allow the police to sidestep court authorization requirements by requesting from organizations (banks, telecommunications service providers, etc.) voluntary disclosure, or voluntary preservation, of documents or data.
View the facts here.
About the Author
Robin Flumerfelt is counsel with the Crown – Criminal Law Office.