Remarks: Bill C-13, Protecting Canadians from Online Crime Act

Standing Committee on Justice and Human Rights
Sue O'Sullivan, May 29th, 2014 11:00 am

Introduction

• Bonjour, Monsieur le président et chers membres du Comité.
• Thank you for inviting me here today to discuss Bill C-13,the Protecting Canadians from Online Crime Act.

Mandate

• I would like to begin by providing you with a quick overview of my Office’s mandate.
• Created in 2007, the Office of the Federal Ombudsman for Victims of Crime:
• receives and reviews complaints from victims;
• promotes and facilitates access to federal programs and services for victims of crime by providing information and referrals;
• promotes the Basic Principles of Justice for Victims of Crime;
• raises awareness among criminal justice personnel and policy makers about the needs and concerns of victims, and
• identifies systemic and emerging issues that negatively impact on victims of crime.
• The Office helps victims in two main ways: individually, and collectively.
• We help victims individually by speaking with victims everyday, answering their questions, and addressing their complaints.
• We help victims collectively by reviewing important issues and making recommendations to the Federal Government on how to improve its laws, policies or programs, to better support victims of crime.

Bill C-13

• Bill C-13 covers a number of aspects relating to telecommunication and crime, including:
• creating a new criminal code offence for the non-consensual distribution of intimate images;
• modernizing the criminal code; and
• providing new investigative tools for law enforcement.
• Given my mandate and our limited time today, I will restrict my comments to those sections of the Bill that relate directly to victims, touching briefly on the importance of law enforcement having the tools they need to prevent further victimization.
• With that in mind, I fully support the provisions in Bill C-13 which create a new offence related to the non-consensual distribution of intimate images, as well as the accompanying Criminal Code enhancements related to this Offence, including:
• Empowering a court to make a prohibition order limiting access of an offender to Internet/digital networks
• Empowering a court to order the removal of intimate images from the Internet
• Permitting the court to order forfeiture of the computer, cellphone or other device used in the offences
• Provide reimbursement to victims for costs incurred in removing the intimate image from the Internet or elsewhere; and
• Empowering the court to make an order to prevent someone from distributing intimate images.
• This legislation, if passed, will help to provide tools necessary to assist in reducing cyber bullying and in providing victims with much needed supports.

Context – Scope of issue

• Cyber bullying is a relatively new but devastating issue.
• Canadians are struggling to find the best ways to understand it and, most importantly, how to stop it.
• The problem of cyber bullying is not a small one: In a 2007 survey of 13–15-year-olds, over 70 per cent reported having been bullied online and 44% reported having bullied someone at least once ¹.
• Canadian teachers have ranked cyber bullying as their issue of highest concern out of six listed options—89 per cent said bullying and violence are serious problems in our public schools. ²

Impact on victims

• I know you’ve had some witnesses come before you to discuss their personal and powerful experiences with cyber bullying.
• I would like to take a moment to acknowledge their bravery in coming forward to enrich this important public dialogue, despite how difficult it may be for them.
• I have learned, from speaking to victims directly, that despite how hard it might be, victims come forward to discuss and advance these issues for the greater good, to ensure that others don’t suffer the same pain they have.
• We know that any kind of bullying, including cyber bullying, can have serious and lasting impacts on victims.

Intimate Images

• What is unique about cyber bullying is the staggering speed and reach of the abuse.
• In mere minutes, intimate or personal images can be shared across networks and the world, forever exposing their victims.
• We also know that trying to contain an image that has “gone viral”, as they say, is no small feat, if not impossible.
• Even in situations where victims work with professionals to remove the image, one can never be sure that someone somewhere doesn’t have – and won’t re-circulate – those images.
• That feeling of being forever vulnerable and exposed, and the long-term impact of the associated emotional burden that comes with it, is something that we don’t truly understand yet.
• Technology and associated crimes are evolving faster than our ability to fully comprehend the lasting effects that these cases are having on victims.
• We know generally that victims of harassment report a loss of interest in school activities, more absenteeism, lower-quality schoolwork, lower grades, and more skipping/dropping classes, tardiness and truancy. ³
• Addressing the issue can be equally overwhelming.
• For this reason I support the Bill’s addition of “intimate images” to section 164.1 of the Criminal code, permitting a court to order the removal of intimate images from the Internet as well as the element of the Bill that empowers the court to make an order to prevent someone from distributing intimate images.
• In cases where an order has not been made, removing images is certainly not a straight forward task.
• For many, the thought of removing images from the Internet can be daunting; how does it work? How can I do it? Where can I turn for help?
• In many cases professional knowledge and service may be required in order to do it with any certainty or effectiveness
• However in cases where private companies are engaged, there can be significant costs and these costs should not be borne by the victims.
• It should never fall on a victims’ shoulders to absorb the costs of removing images; that is simply unacceptable.
• With that in mind, I support Bill C-13’s proposal to provide reimbursement to victims for costs incurred in removing the intimate image from the Internet or elsewhere.
• While I support these elements of the Bill relating to restitution I think there is a need to:
  • extend the period for which restitution can be sought;
  • consider alternative supports for victims who cannot carry the upfront costs of image removal; and
  • build in or consider specifically how and when victims will receive information and guidance as to what options are available in terms of removing images and when they can seek reimbursement.

Restitution

• It is my understanding that under the proposed legislation, restitution can only be sought for costs incurred up to the time of sentencing.
• This can be problematic for a few reasons.
• One – if the victim does not have sufficient funds to pay for the professionally-assisted removal of an image themselves, then they may not pursue that option given the risk that there may not be a conviction or that they may not successfully be reimbursed through restitution.
• Secondly, even where a victim may be willing to take the risk, not all victims will have the required funds available or own a credit card they could use to temporarily cover the expense.
• In other words, victims who do not have the funds to cover the costs initially – or funds to cover the costs for a long enough period to receive a reimbursement – will not be able to access the same level of service and protection as other victims, thereby creating an unfair imbalance in the system in terms of the supports offered to victims.
• Finally, depending on the length of time it takes the victim to become aware of the option of professional assistance and/or that company to complete and invoice the work, it is likely that some expenses may be incurred only after sentencing. As I understand the Bill, victim expenses occurring after sentencing would not be eligible for reimbursement.
• While I support the intentions behind the Bill, I would recommend that the Committee consider amending this area of the Bill C-13 to better meet the needs all victims, no matter their financial means, in terms of the support they may receive with respect to removal of images.

Information

• In cases where a victim has the means and option to pursue professionally-assisted removal of images and subsequent restitution, ensuring that victims are provided with information concerning these rights and processes far enough in advance will be key.
• It is not clear to me how and at what point, if any, victims will be advised of their rights to seek a removal order or file for restitution.
• I realize these are details relating to the implementation of the Bill and that they may be addressed only at that stage.
• However, I do feel it important to note for Members that without sufficient advanced knowledge of these rights and options, victims may miss out on important opportunities to address the damage done and receive the supports they need and deserve.

Investigative tools and privacy

• Before concluding, I would like to touch briefly on what appears to be the most controversial aspects of the Bill – those which relate to investigative tools and the balance of powers and privacy.
• Privacy matters and technical investigative tools do not generally fall within my mandate.
• It’s worth noting that, among the victims we have spoken with, there is no clear consensus on this element of the Bill. I have spoken with victims who very much support further measures to assist law enforcement in their investigations and find the tools included in this bill to be balanced and necessary.
• And I have, like you, heard opposing points of view from victims who don’t wish to see these elements of the bill proceed for fear they will impinge on Canadians’ privacy rights.
• From my own perspective, I would say that there is a balance to be struck and that the dialogue Canadians are having is indeed a valuable one.
• Law enforcement officials need the right tools at their disposal to quickly and effectively investigate these cases in order to help reduce cyber bullying in general as well as to protect potential victims.
• I believe there are some important tools in Bill C-13 to assist law enforcement in their investigation in these matters and generally support the proposed legislative changes that assist in ensuring that the data needed for investigations is preserved. Without this, there can be no evidentiary basis for important cases to proceed.
  

Conclusion

• In conclusion, I support many aspects of Bill C-13 and commend the government for bringing to the table legislation that could assist in addressing cyber bullying incidents as well as providing victims with support in removing their intimate images from circulation.
• As stated however, I would recommend that the provisions relating to restitution be amended to ensure that all victims, no matter their financial situation, be entitled to the same rights and opportunities to professional assistance and reimbursement of costs and that it be made clear how, and when, victims will be informed of their rights.
• Thank you for your time.
• I welcome any questions you may have.

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1 Sourced from Red Cross website: http://www.redcross.ca/what-we-do/violence-bullying-and-abuse-prevention/educators/bullying-and-harassment-prevention/facts-on-bullying-and-harassment, but originally cited as being from: Lines, Elizabeth. (2007, April). Cyberbullying: Our Kids’ New Reality. Kids Help Phone. http://definetheline.ca/dtl/cyberbullying/cyberbullying-in-canada/

2 Sourced from Red Cross website: http://www.redcross.ca/what-we-do/violence-bullying-and-abuse-prevention/educators/bullying-and-harassment-prevention/facts-on-bullying-and-harassment, but originally cited as being from: N.S.T.U. Cyberbullying Statistics, “National Issues in Education Poll,” Canadian Teachers’ Federation (2008). http://definetheline.ca/dtl/cyberbullying/cyberbullying-in-canada/

3 Sourced from Red Cross website: http://www.redcross.ca/what-we-do/violence-bullying-and-abuse-prevention/educators/bullying-and-harassment-prevention/facts-on-bullying-and-harassment#_ftn1, but originally cited as being from: Pepler, D. & Craig, W. (2000). Making a difference in bullying (Report #60). Ontario: LaMarsh Centre for Research on Violence and Conflict Resolution and Queen’s University.