Canadian Lawyer

OPINION Back Page By Jim Middlemiss W hat is it about Conservative crime legislation that seems to bring out the worst in Canadian legal pundits? Take bill C-13, the "protecting Canadians from online crime act" the government introduced last fall. It was inspired by the shocking and tragic case of Rehtaeh Parsons, the Nova Scotia teen who was cyber-bullied after alleging she was raped. She suffered the indignity of her assailants sharing pictures online of their heinous act and killed herself after hitting roadblocks in her bid to seek justice. Her case parallels that of Amanda Todd, a British Columbia teen who committed suicide after topless pictures of her were shared on the Internet and she was cyber-stalked by a blackmailer who sought to elicit more photos. Bill C-13 seeks to tackle the growing problem of cyber bullying and other online crime. It amends a number of acts from the Criminal Code to the Canada Evidence Act and creates a new offence of "non-consensual distribution of intimate images." There are new investigative powers around search warrants and production orders and it provides police with tools to tackle cybercrime. Critics responded as usual when a Conservative government takes steps to rein in criminal activity — complaining the law goes too far and captures activity not intended. Everyone from privacy commissioners to civil rights activists, defence lawyers, and IT lawyers were quick to pan the legislation. Concerns in media reports ranged from fears the law would impede paparazzi from shooting topless pictures of celebrities on Canadian beaches (you're kidding, right?) to worries it will impact press freedoms and free speech. Others criticized the Conservatives for overkill and using the bill to deliver police more powers than needed to curb cyber bullying. For example, the law allows police access to metadata, often an investigative treasure trove, and permits them to seize devices such as computers and cellphones suspected of being used in such crimes. Some even decried the law claiming it amounted to an omnibus crime bill, and was another example of the Conservatives running roughshod over Parliament. It's a far cry from an omnibus bill, since much of the law is focused on a single topic. Take one of the most infamous omnibus crime bills in Canadian history, Bill C-150, The Criminal Law Amendment Act, 1968-69, from then-Justice minister Pierre Trudeau. With the stroke of a pen, Trudeau allowed abortions and contraception, implemented drinking-and-driving offences, decriminalized homosexuality, created false advertising and animal cruelty laws, and sought to regulate lotteries and guns. At the time, Trudeau said he was "bringing 50 F e b r uary 2014 www.CANADIAN L a w ye r m a g . c o m the laws of the land up to contemporary society." It was met with much criticism and months of debate, but 45 years later, many of the amendments seem tame by today's standards. Bill C-13 is also modernizing laws to keep up with contemporary society and online crime. Even if it was omnibus crime legislation, why should that matter given the nature of the harm it addresses? The reality is legislative time is finite. If governments attempted to create a new bill for every single societal ill without lumping some together, there wouldn't be enough time to pass all the laws. Legislation is designed to address problems, which in this case is the very dark side of the Internet. Nary a month goes by without a police force somewhere in Canada announcing it has busted an Internet child pornography ring. Revenge porn, where jilted lovers post naked pictures of their exes, is becoming a growing concern. A 2007 Kids Help Phone survey of 2,474 young people aged 13-15 found 70 per cent of respondents were bullied online and 44 per cent reported bullying someone at least once. A 2011 follow-up survey found cyber bullying was most rampant on social media, and text messaging had surpassed e-mail as the second-most-common bullying platform. Then there is the increase in online fraud and theft. In December, retailer Target Corp. said hackers stole information on more than 40 million credit cards. According to the 2013 Norton report from Symantec Corp. cybercrime last year cost 24 countries more than US$113-billion, including US$3-billion in Canada. An estimated seven million Canadians were victims. More than 68 per cent of Canadian adults say they have experienced cybercrime in their lifetime. Yes, this legislation goes beyond cyber bullying, because online crime is about more than that. The real problem is many folks don't like a tough-on-crime agenda. They would rather coddle criminals than hold them accountable. Take the recent fiasco between judges and the federal government over the victim's fine surcharge program, which some judges are refusing to enforce. Their mocking of the law is offensive to victims. Prime Minister Stephen Harper is remaking the justice system to give victims a bigger role. That's the heart of the problem for many critics. Traditionalists believe the justice system should focus only on the accused and victims are secondary. That's a dated view. The Rehtaeh Parsons of the world can no longer be ignored. I for one welcome bill C-13 and predict in 45 years people will look back and wonder what the hullabaloo was all about. Jim Middlemiss can be followed on Twitter @JimMiddlemiss. Sara Tyson Conservatives' cybercrime bill laudable

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