Cyberbullying bill draws fire from diverse mix of critics

Justice Minister Peter MacKay probably expected to take some shots from the opposition over Bill C-13, colloquially known as the cyberbullying bill.

But he may not have been expecting to take so much friendly fire from his own base.

After all, it's a rare piece of legislation that can unite groups as disparate as the Council of Canadians and the National Firearms Association. And yet the bill, which went to third reading last week after the Conservative government voted to shorten time for debate, has done just that.

Sheldon Clare is president of the National Firearms Association, the country's biggest gun owners' organization and the same group that persuaded MacKay to pose in a sweatshirt with its rifle logo a few weeks ago.

Justice Minister Peter MacKay, centre, wears a pro-gun t-shirt as he poses with Erica Clarke, left, and Kurtis Gaucher at a Conservative Party Fundraising event in Edmonton. Clarke, who works for the National Firearms Association, posted the photo to her Facebook page. (Facebook)

But if the minister thought his gesture would win the group over on Bill C-13, he was mistaken, says Clare.

"We think that this is probably the most draconian step towards police interference in people's lives since George Orwell revealed the potential for it when he wrote 1984."

Clare says his organization's members care about more than just gun rights. "We value privacy highly," he said.

"I think this really enables a lot of fishing trips into people's private lives, into their financial records and their personal situations, and this is not the thing that we want to have in a free and democratic society, and I hope the government will go back again, and re-evaluate what they're doing, and completely rejig it to something that's more appropriate for a free society."

Different bills, similar podiums

Bill C-13, the Protecting Canadians from Online Crime Act, is the Conservatives' second attempt at a law that would expand the ability of police to monitor Canadians' online activities.

Its first incarnation was as Bill C-30, the Protecting Children from Internet Predators Act. It was widely panned for saying nothing about either children or internet predators, while instead containing reams of expanded police powers, including surveillance without a warrant.

Justice Minister Rob Nicholson, right, and Public Safety Minister Vic Toews introduce bill C-30 in 2012. The government was forced to abandon the bill over privacy concerns, but many of its provisions have returned in C-13, critics say. (Fred Chartrand/Canadian Press)

Support began to crumble when Vic Toews, public safety minister at the time, told critics they "could either stand with us or with the child pornographers." The bill was denounced as an attempt to use the emotive issue of protecting children to pass legislation aimed at undermining privacy protections. The government quietly dropped the bill in 2012.

But Michael Geist, Canada Research Chair in internet law at the University of Ottawa, says a common thread is using people's fears about their children to promote the bills.

Geist noticed MacKay has been using a blue podium to make his pitches for C-13 that is a near identical copy of the one used by Toews to promote the failed C-30. Toews's lectern bore the slogan "Protecting children"; MacKay's says "Protecting Our Children."

"At least there's one government recycling program," Geist said.

When is 'voluntary' really voluntary?

When the Conservative government moved to shelve Bill C-30, then Justice Minister Rob Nicholson stated the government had "listened to the concerns of Canadians who have been very clear on this.

"We will not be proceeding with Bill C-30. And any attempts to modernize the Criminal Code will not contain… warrantless mandatory disclosure of basic subscriber information," he said.

'What's going to happen, inevitably in my opinion, is that fishing expeditions and snooping will become much more common.'- Derek From, Canadian Constitution Foundation

True to its word, the government did not try to reintroduce the requirement that telecom providers disclose information about their customers without a warrant. Instead, the bill guarantees telecoms who voluntarily disclose information about their customers can't be sued for doing so.

But lawyers say that may be a distinction without a difference. Derek From of the Canadian Constitution Foundation says the word "voluntary" is misleading.

"When the police come to you and say: 'Voluntarily disclose this information,' don't forget that it's the police that's asking. It's not some guy down the street asking for information. I'm not sure there can ever truly be a voluntary, non-coercive disclosure to the police."

Indeed, it recently emerged that telecommunications companies received no fewer than 18,849 "voluntary" requests between April 2012 and March 2013 from just one government department: the Canada Border Services Agency. Ninety-nine per cent of those requests had no judicial authorizations, and the companies provided information in 99.98 per cent of cases.

From says the no-liability guarantee for telecoms only ensures they will be even less likely to say no.

"What's going to happen, inevitably in my opinion, is that fishing expeditions and snooping will become much more common."

Geist agrees: "This sort of thing encourages fishing because there's really no downside to asking for voluntary information."

'We should not have to choose between our privacy and our safety.'- Carol Todd, victims' rights advocate

But he says that aspect of the bill may ultimately prove more ineffective than intrusive, partly because big telecoms are increasingly feeling consumer pressure not to disclose, even when they have legal protection. The trend to protect consumers' privacy from government snooping can be seen most clearly in the new iPhone 6, which has made security against government surveillance a selling point.

Moreover, Geist says, a recent Supreme Court decision enshrining Canadians' privacy rights means police themselves will probably be reluctant to use the new provision.

"If the court says that there is a reasonable expectation of privacy, the failure to respect that makes it less likely that the evidence will be admissible.

"And if police know upfront that failure to obtain a warrant may jeopardize the evidence that they've obtained, it would be rather reckless, I would think, on the part of law enforcement to seek that information voluntarily when they know it may undermine their case on a later date."

Victims advocates split on the bill

The government may have at least expected to enjoy the support of families victimized by cyberbullying. But the families of victims Amanda Todd and Rehtaeh Parsons are divided.

Parsons's father, Glen Canning, urged MPs to support the bill as is.

Todd's mother supported the cyberbullying provisions in the bill, but shares the view of the Canadian Bar Association that they should stand alone, and not be attached to a much bigger bill about police surveillance.

"I don't want to see our children victimized again by losing privacy rights," Carol Todd told a Commons committee.

"I am troubled by some of these provisions condoning the sharing of the privacy information of Canadians without proper legal process. We are Canadians, with strong civil rights and values. A warrant should be required before any Canadian's personal information is turned over to anyone, including government authorities….  We should not have to choose between our privacy and our safety."

Although Bill C-13 has already made it further than Bill C-30 ever did, public opposition or a grassroots revolt could yet send the bill back to committee or kill it completely, as happened with Bill C-30.

Sheldon Clare of the National Firearms Association says the party needs to remember that its grassroots include people who are opposed to more intrusive government.

"The Conservatives seem to have forgotten you're supposed to dance with the one that brought you. If they don't remember that, I think they're making a big mistake to believe they can count on the votes of Canadian gun owners."

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