Protecting Canadians from The Protecting Canadians from Online Crime Act - LawNow Magazine

Protecting Canadians from The Protecting Canadians from Online Crime Act

criminal law As an intended ode to victims of cyber-bullying, The Protecting Canadians from Online Crime Act (Bill C-13) came into force on March 10, 2015. However, this legislation gives police the discretion to search Canadians’ personal information and stored data with what should be deemed as an alarming new set of powers to search. The new section of the Criminal Code reads:

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction.

The new provision is clearly intended to address a particular mode of cyber-bullying: that being the public sharing of “intimate images.” Anyone with a decent-sized However, police discretion ought to be questioned. They are humans, after all. heart and any speck of gumption in their soul would surely support the intention of Bill C-13. We no longer live in a world where only certain families in the neighbourhood have dial-up Internet access, and the majority of individuals don’t look through their library’s card catalogue to find a book. People Google, images are shared at lightning speed, and with one click you can publicly transmit anything you want to the rest of the world. It’s been an obvious and almost inevitable outcome of this tech-savvy, share-everything, world we now live in that images are being posted without the subject’s consent, possibly affecting their reputation, well-being, marriage, or career. But despite the well-intentioned nature of Bill C-13, this is not a time to bow our heads in support. The police have now been given titanic latitude in searching our personal property and data, and to make an arrest.

The new Section 162.1(1) includes recklessness as sufficient to prove knowledge or intent. This casts a wide net and gives the police the power to arrest and search any individual who they think may meet that criterion. For most adults, this legislation is not a threat to our personal livelihood: most adults aren’t running home at night and posting “intimate images” of people they know for fun, without due care or regard. But young people do. Young people are constantly sharing and re-sharing images, often thoughtlessly, on all kinds of social media and public forums of an often inappropriate nature. These young persons are now subject to an almost unfettered police power to be subject to arrest, and have their phones and other devices searched meticulously. Those photos on their phones of them and their friends smoking weed last Friday night? Oh those might be in police possession. Those private messages you sent to your partner last night? The police might read them.

Young people are constantly sharing and re-sharing images, often thoughtlessly, on all kinds of social media and public forums of an often inappropriate nature.Even knowing this, many Canadians would be comforted by the fact that this all rests on the discretion of the police, who are thought of as heroes in shiny armour. Without question, police are invaluable in their efforts and interventions; a police force is necessary. However, police discretion ought to be questioned. They are humans, after all.  Almost weekly it seems, there is a horrible example of the frailty of police discretion in the United States, with story after story of shootings that occur between white police officers and black citizens. Here at home, the Toronto Star published an expose by Jesse Mclean entitled “Hundreds of Officers in the Greater Toronto Area disciplined for ‘serious’ Misconduct in the past five years” (Sept 19, 2015). Mclean exposes many officers, including one who “drives a homeless aboriginal man several kilometres out of town and leaves him to walk back at dusk along a busy highway in near-freezing temperatures.” And as Mclean points out, “they’re all still cops.”

What then, are we to make of the new Bill C-13?  The thought behind the legislation, and the devastating examples of suicides resulting from cyber-bullying should not be forgotten or minimized. However, when Canadians’ privacy interests are subject to police discretion (not to mention search warrants, production orders and arrests) is it enough to say that it was Parliament’s thought that counts? Because now, every person who recklessly disseminates an “intimate image” into cyber space is subject to a real risk of arrest and having their privacy interests violated by police. The difference in Bill C-13’s purpose and practicalities is stark when it comes to ‘Protecting Canadians.’
As the new Bill C-13 powers soon become exercised by the police, perhaps Canadians should consider the immortal words of Antoine Dodson to protect themselves from the legislation, “hide yo kids, hide yo wife.”

Authors:

Melody Izadi
Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.
 


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