Bill C-13 – Cyberbullying or legislative bullying?
BY SOLOMON FRIEDMAN
OTTAWA CITIZEN
DECEMBER 6, 2013
OTTAWA — Last month, the federal government tabled Bill C-13, a set of new provisions and amendments to the Criminal Code collectively touted as the “cyberbullying law”.
To underscore the purported focus of this bill, Justice Minister Peter MacKay announced the new legislation during Canada’s national Bullying Awareness Week.
However, Canadians should be aware that this bill does far more than address the problem of cyberbullying.
As with much of the recent criminal law amendments introduced by this government, this bill has been tabled in “omnibus” format — meaning that it addresses a number of diverse and seemingly unrelated topics.
By definition, omnibus legislation limits the opportunity for Members of Parliament — be they government MP’s or opposition critics — to scrutinize and debate specific portions of the proposed law.
Moreover, it limits the ability for ordinary Canadians to properly assess the legislation and voice their displeasure to their Parliamentarians. Instead, we are told that the legislation is a package deal — either take it or leave it.
Bill C-13 is an excellent example of the pitfalls of such an approach. On its face, it seems innocuous enough. After all, it is officially titled the “Protecting Canadians from Online Crime Act.” That seems like a good idea, doesn’t it?
Moreover, it has been touted as an antidote to cyberbullying: an unfortunate epidemic that has captured the public’s imagination through the tragic stories of young people who have had their lives snatched away — victims of cruel and merciless online harassment.
The government has explicitly tied its legislation to the memories of the victims of cyberbullying — invoking the now-household names of Amanda Todd and Rehtaeh Parsons at press conference after press conference.
On its face, legislation which makes our children safer and updates the Criminal Code to keep pace with changing technology should be applauded.
But … With this government it seems, there’s always a “but”.
Remember those “lawful access” provisions, much touted by former Public Safety Minister Vic Toews of “stand with us or with the child pornographers” fame?
Those were the proposed police powers that caused a virtual revolt in both the Conservative caucus and the government’s principal constituency. The possibility of unfettered and warrantless access to sensitive personal information inflamed the embers of the fundamental libertarian values that once guided the Reform party.
Well, lawful access is back. This time embedded in Bill C-13, with a few superficial changes, intended to mollify the Conservative base which soundly rejected the last attempt at imposing such measures.
Canadians weren’t fooled by Vic Toews and they shouldn’t be fooled by Peter MacKay either.
Indeed, two insurmountable problems remain with the “lawful access” laws as presently proposed in Bill C-13.
First of all, while Minister MacKay has stressed that judicial authorization — that is, a judge’s order — is now required for police to obtain sensitive and identifying information about Internet users, he is only telling half the story.
To underscore the purported focus of this bill, Justice Minister Peter MacKay announced the new legislation during Canada’s national Bullying Awareness Week.
However, Canadians should be aware that this bill does far more than address the problem of cyberbullying.
As with much of the recent criminal law amendments introduced by this government, this bill has been tabled in “omnibus” format — meaning that it addresses a number of diverse and seemingly unrelated topics.
By definition, omnibus legislation limits the opportunity for Members of Parliament — be they government MP’s or opposition critics — to scrutinize and debate specific portions of the proposed law.
Moreover, it limits the ability for ordinary Canadians to properly assess the legislation and voice their displeasure to their Parliamentarians. Instead, we are told that the legislation is a package deal — either take it or leave it.
Bill C-13 is an excellent example of the pitfalls of such an approach. On its face, it seems innocuous enough. After all, it is officially titled the “Protecting Canadians from Online Crime Act.” That seems like a good idea, doesn’t it?
Moreover, it has been touted as an antidote to cyberbullying: an unfortunate epidemic that has captured the public’s imagination through the tragic stories of young people who have had their lives snatched away — victims of cruel and merciless online harassment.
The government has explicitly tied its legislation to the memories of the victims of cyberbullying — invoking the now-household names of Amanda Todd and Rehtaeh Parsons at press conference after press conference.
On its face, legislation which makes our children safer and updates the Criminal Code to keep pace with changing technology should be applauded.
But … With this government it seems, there’s always a “but”.
Remember those “lawful access” provisions, much touted by former Public Safety Minister Vic Toews of “stand with us or with the child pornographers” fame?
Those were the proposed police powers that caused a virtual revolt in both the Conservative caucus and the government’s principal constituency. The possibility of unfettered and warrantless access to sensitive personal information inflamed the embers of the fundamental libertarian values that once guided the Reform party.
Well, lawful access is back. This time embedded in Bill C-13, with a few superficial changes, intended to mollify the Conservative base which soundly rejected the last attempt at imposing such measures.
Canadians weren’t fooled by Vic Toews and they shouldn’t be fooled by Peter MacKay either.
Indeed, two insurmountable problems remain with the “lawful access” laws as presently proposed in Bill C-13.
First of all, while Minister MacKay has stressed that judicial authorization — that is, a judge’s order — is now required for police to obtain sensitive and identifying information about Internet users, he is only telling half the story.
Ordinarily, for police to obtain search warrants or production orders, they must demonstrate to a judge that they have “reasonable grounds to believe” that an offence has been committed and that the search will reveal evidence of that offence.
Not so for the lawful access provisions. Instead, the law would only require “reasonable grounds to suspect” that an offence has been committed. While this may seem like mere semantics and legal hairsplitting, it is much more than that.
As any lawyer or experienced police officer will tell you, there is a world of difference between reasonable belief and reasonable suspicion. Reasonable suspicion is precisely what it sounds like — an officer’s suspicion, a hunch, or a feeling.
Canadians should ask themselves: are we prepared to trust our sensitive personal data to the intuitions of police officers? We demand a higher standard when it comes to searches of our homes and our computers. Should the identifying data held by Internet Service Providers be any different?
There is a second fundamental problem with the newly-revived lawful access provisions. As Bill C-13 now stands, ISPs can now voluntarily give customer information to police without any criminal or civil liability.
In some ways, this is even more troubling than the reduced standard of proof. After all, as leaked NSA documents revealed, in the United States there is a disturbing trend of major Internet companies — Google, Facebook and others — voluntarily providing data to national security agencies, protected by similar lawful access provisions.
Canadians who sign contracts with ISPs expect that their personal data will be guarded and not shared without their consent. As it is now drafted, Bill C-13 will serve to break that trust and expose customers to government snooping, all without proper notice or judicial authorization.
At its core, Bill C-13 is not about cyberbullying. It is about bullying legislators and the Canadian public into accepting laws that are fundamentally misconceived and wrong-headed.
We urge our children to stand up to bullies. We should do the same.
Solomon Friedman is a partner with Edelson Clifford D’Angelo Friedman LLP. He can be reached at solomon@edelsonlaw.ca or 613-237-2290. Follow Solomon on Twitter at twitter.com/firearmslaw or at his website,affordabledefence.com.
Not so for the lawful access provisions. Instead, the law would only require “reasonable grounds to suspect” that an offence has been committed. While this may seem like mere semantics and legal hairsplitting, it is much more than that.
As any lawyer or experienced police officer will tell you, there is a world of difference between reasonable belief and reasonable suspicion. Reasonable suspicion is precisely what it sounds like — an officer’s suspicion, a hunch, or a feeling.
Canadians should ask themselves: are we prepared to trust our sensitive personal data to the intuitions of police officers? We demand a higher standard when it comes to searches of our homes and our computers. Should the identifying data held by Internet Service Providers be any different?
There is a second fundamental problem with the newly-revived lawful access provisions. As Bill C-13 now stands, ISPs can now voluntarily give customer information to police without any criminal or civil liability.
In some ways, this is even more troubling than the reduced standard of proof. After all, as leaked NSA documents revealed, in the United States there is a disturbing trend of major Internet companies — Google, Facebook and others — voluntarily providing data to national security agencies, protected by similar lawful access provisions.
Canadians who sign contracts with ISPs expect that their personal data will be guarded and not shared without their consent. As it is now drafted, Bill C-13 will serve to break that trust and expose customers to government snooping, all without proper notice or judicial authorization.
At its core, Bill C-13 is not about cyberbullying. It is about bullying legislators and the Canadian public into accepting laws that are fundamentally misconceived and wrong-headed.
We urge our children to stand up to bullies. We should do the same.
Solomon Friedman is a partner with Edelson Clifford D’Angelo Friedman LLP. He can be reached at solomon@edelsonlaw.ca or 613-237-2290. Follow Solomon on Twitter at twitter.com/firearmslaw or at his website,affordabledefence.com.