Bill C-13: Voluntary Disclosure - Rob Nicholson's Misstatements

Rob Nicholson.jpg

Earlier this week Justice Minister Peter MacKay introduced Bill C-13, the Conservative's much touted cyber bullying legislation.  It’s a massive bill which would amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act.

The Conservatives have offered up C-13 as a necessary tool to address the serious problem of online harassment. And there’s a justifiable and strong will among Canadians to modernize the Code to tackle the serious problem of Internet harassment and abuse.

However, only a small part of C-13 actually deals with the problem of cyber bullying.  As I wrote earlier this week C-13 is a wolf in sheep’s clothing.  The majority of C-13 is actually devoted to expanding police powers relating to the search and seizure of personal Internet data.

As I wrote in iPolitics today, new laws are needed to stop cyber-bullying. Unfortunately, most of C-13 has little to do with protecting victims. Instead, this bill would recklessly expand the surveillance powers of the state. It sacrifices personal privacy. It limits or eliminates judicial oversight. It is inconsistent with recent Supreme Court jurisprudence. It's a dangerous bill.

The Conservative party’s arguments in support of C-13  are equally dangerous - they misstate and misrepresent the legislation and its potential impact on the privacy interests.

Voluntary Disclosure

One of the troubling aspects of C-13 is the provisions that would expand the ability of police to obtain Internet data in the absence of any judicial oversight.

During the first debate on C-13  Minister of Defence Rob Nicholson defended the voluntary disclosure provisions, saying:

Mr. Speaker, it is certainly politics as usual for the Liberal Party. I will give the member this: certainly his comments are completely consistent with the Liberal approach over the last seven and a half years, which is to look for anything, any excuse, anything the Liberals can hang their hat on to oppose government legislation that would either crack down on crime or would update the Criminal Code, and in this case, go against cyberbullying. They are always looking for something, and the ironic part about it is the part that this individual is criticizing. He has got it way off base.

In terms of the bill, the old Bill C-30 that he referred to, the provisions that he and others criticized the most are not in the bill. The provisions here need judicial authorization.

I bring the hon. member's attention to one section that was actually passed by a Liberal government. He had a problem with the voluntary production of preservation orders. I would refer him to section 487.014, which says:

For greater certainty, no production order is necessary for a peace officer or a public officer enforcing or administering this or any other Act...to ask a person to voluntarily provide to the officer...

We are only adding it to preservation orders. What is this individual's problem? It is already in the Criminal Code.

The problem with Mr. Nicholson’s statements is that they are simply untrue.  

Obfuscation on the part of the Conservatives about C-13 should not be surprising.  After all not only is C-13 itself an expert lesson in trickery and deception - its a trojan horse.

Escaping the notice of Mr Nicholson, the voluntary disclosure provisions proposed in C-13 remove the necessity for a police officer to actually be enforcing the Criminal Code before seeking disclosure of personal Internet data.  Further, the bill provides blanket civil and criminal immunity for any telecommunications company who feeds information to the police.

487.0195 (1) For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.

(2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.

The Criminal Code currently limits the ability of police to seek voluntary disclosure of data by a telecommunication company to circumstances where they are engaged in legitimate investigations (‘enforcing or administering this or any other Act of Parliament’).  

This very reasonable limit on police power serves to prevent fishing expeditions and the mass collection of data.  C-13 expands the permitted scope of voluntary disclosure by removing the requirement that police actually be engaged in an investigation.  

In essence, the police will now be able to ask companies to turn over data on anyone, anywhere, at any time, for any reason (or no reason).

The limitation of any liability for complicit telecommunications companies makes matters even worse.  Simply put, the C-13 leaves no legal incentive for companies to be cautious in the dissemination of data — and no recourse for individuals whose privacy is compromised.

This is all especially troubling given the recent evidence that the Conservative government was complicit in spying activities on Canadian soil.

Mr. Nicholson misleading defence of C-13 demonstrates that he is either grossly uninformed about his own party’s legislation or he that he takes his audience for fools.  

Bill C-13 does not “only adding it to preservation orders” to the voluntary disclosure regime.  It does much, much more -  it represents a dangerous erosion of personal privacy.  

Mr. Nicholson's statements only serve to better expose C-13 for what it is - a trojan horse for expanded police power.