SEARCHING FOR EQUILIBRIUM:
CHILD PORNOGRAPHY AND PRIVACY LAW IN CANADA
Reem A-Hameed
2
As an advocate for children’s rights, Marian Wright Edelman once said, “If we
don’t stand up for children, then we don’t stand for much.” As online interactions become
an increasingly prominent part of our world, the onus to protect children in the vast
domain of the Internet becomes an increasingly prominent issue.
This paper is an examination of the lengths Canadians will go to in order to
protect our society’s most vulnerable and the prices we may have to pay do so. In the
face of legislation aimed to strengthen the fight against child pornography on the Internet,
Internet Service Providers are often placed in a difficult position when law enforcement
officials require information to further their investigations. In this paper, I will evaluate
current legislation and case law regarding child pornography in Canada. Furthermore, I
argue that solutions to child pornography such as MPP Laurel Baton’s Bill 37 and Project
Cleanfeed Canada may actually hinder child pornography investigations on a broader
scope because they do not facilitate a means through which law enforcement can
effectively pursue an efficient investigation.
Part I of this paper will give a brief outline of child pornography law in Canada. Part
II will discuss Privacy Law and the Personal Information Protection and Electronic
Documents Act, also known as PIPEDA. Part III will introduce precedent setting cases to
highlight the ways in which the courts have dealt and are dealing with the issues at hand.
Part IV will illuminate the issues that Internet Service Providers and law enforcement
officials face when dealing with child pornography crimes and Part V will be provide an
analysis of solutions that are currently being pursed by Parliament and ISPs.
I.
Introduction to Current Child Pornography Law
3
Section 163(1) of the Criminal Code of Canada defines Child Pornography as a
photographic film, video or other visual representation, whether or not it was made by
electronically or mechanically that shows a person who is, or is depicted as being, under
the age of eighteen years and is engaged in explicit sexual activity or the dominant
characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal
region of a person under the age of eighteen years; or any written material or visual
representation that advocates or counsels sexual activity with a person under the age of
eighteen years.1
The current legal status of child pornography in Canada came as a result of the
judgement in R v. Sharpe2, where John Robin Sharpe’s possession of pictures of boys
under the age of 14 engaged in sex led to child pornography charges. Also seized from
his home was a collection of his own stories entitled “Sam Paloc’s Boyabuse -- Flogging,
Fun and Fortitude: A Collection of Kiddie Kink Classics”.3 Sharpe challenged existing
legislation, stating that his rights to freedom of expression, s. 2(b) and liberty, s. 7 of the
Charter, were violated.4 The B.C. Supreme Court struck down section 163.1 and this
decision was upheld by the British Columbia Court of appeal.
The Supreme Court of Canada held that section 163.1 did create circumstances of
constitutional inconsistency, but these were justifiable under section 1 of the Charter of
1
Criminal Code, R.S.C. 1985, c. C-46, s. 163(1), online: Department of Justice Canada
<http://laws.justice.gc.ca>
2
R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45[Sharpe (S.C.C.)].
3
Ibid. at para. 3.
4
Johnson, Travis. “Child Pornography in Canada and the United States: The Myth of Right
Answers.” (Fall, 2006) 29 Dalhousie L.J. 375 at 2.
4
Rights and Freedoms.5 The inconsistencies were purportedly remedied by “reading in”
two exceptions into the definition of child pornography for:
(1) Any written material or visual representation created by
the accused alone and held by the accused alone,
exclusively for his or her own personal use; and (2) any
visual recording, created by or depicting the accused,
provided it does not depict unlawful sexual activity and is
held by the accused exclusively for private use.6
Furthermore, it was held that defences such as Sharpe’s artistic merit defense should be
interpreted liberally. 7 Mr. Sharpe was acquitted of several charges, however, it was held
that was not an offence under the law to possess material produced from one's own
imagination for one's personal use. In the broad landscape of Canadian child pornography
law, the Sharpe case spurned fiery debate all across the country and the legal response it
provoked in the name of human rights set the standard for the laws that exist today.
Supporters of the decision to reverse Sharpe’s acquittal argue that the protection of
children from sexual exploitation is more important than the freedoms afforded by the
Charter of Rights and Freedoms. On the other hand, if the law suppresses thoughts and
expressions concerning child youth and sexuality that involved no harm in production,
then it falls short of advocating harm.
8
The tension lies within the question of how far
Canadian legislation should go in order to protect the rights of the child.
The Sharpe case motivated the creation of Bill C-20, An Act to Amend the Criminal
Code (protection of children and other vulnerable persons) and the Canada Evidence
5
Sharpe (S.C.C.), supra note 2 at para. 2.
Sharpe (S.C.C.), supra note 2 at para. 129.
7
Sharpe (S.C.C.), supra note 2 at 128
8
Ryder, Bruce. “The Harms of Child Pornography Law.” (2003) 36 U.B.C. L. Rev. 101 – 135 at
4 [Ryder].
6
5
Act.9 Which aimed to extend the definition of child pornography to cover more written
material, including fictional representations of child and youth sexuality.10
In his journal article entitled “The Harms of Child Pornography Law”, author
Bruce Ryder makes the following statement about Bill C-20 specifically and the child
pornography provision as a whole:
In summary, Bill C-20, like the child pornography
provision as a whole, is rendered incoherent by its
insistence on responding to very different kinds of
expressive material in the same way… To be effective, the
constitutional dialogue between courts and legislature must
be a genuine conversation founded on mutual respect and
mutual commitment to the rights and freedoms guaranteed
by the constitution. Bill C-20's provisions in relation to
child pornography are a direct affront to the Supreme
Court's ruling in Sharpe.11
Although Bill C-20 eventually became Bill C-12 and after a third reading, it died on the
paper order, Professor Ryder’s comments regarding the necessity to attain a balance that
takes constitutional freedoms into consideration is one that should not be taken lightly.
Child pornography is currently an indictable offence, for which any offender is liable
to imprisonment for a term of up to five or ten years, depending on the offence; or an
offence. For the offence of accessing child pornography in the context of the Internet, the
maximum penalty is a fine of $2000 and/ or imprisonment for up to six months. For an
indictment, the maximum penalty is imprisonment for up to ten years. 12 Cyber luring is
9
Bill C-20, An Act to amend the Criminal Code (protection of children and other vulnerable
persons) and the Canada Evidence Act, 2nd Sess., 37th Parl., cl. 7 [Bill C-20] (first reading 5
December 2002).
10
Ryder at 3.
11
Ryder at 6
12
Criminal Code, R.S.C. 1985, c. C-46, s. 163(1), online: Department of Justice Canada
<http://laws.justice.gc.ca>
6
punishable on summary conviction and the maximum penalty is a fine of $2000 and/or
imprisonment for up to six months. For an indictment, imprisonment is up to five years.13
The law was modified in June 2002, when Bill C-15A was given royal assent. Bill C15A deals with child pornography and exploitation on the Internet. Through the addition
of s. 172.1 to the Criminal Code, the electronic communication with a person believed to
be a child for the purpose of facilitating the commission of sexual offences the act of
cyber luring was specifically criminalized and banned.14
The latest attempt to strengthen the Canadian fight against child pornography
comes in the form of a private member’s bill, Bill 37, is the most recent indication that
Parliament is willing to take extreme measures to in the name of protecting minors.
Proposed by Etobicoke-Lakeshore MPP Laurel Broten, Bill 37 would require all
Ontarians to report online child abuses images to police or Children’s Aid societies.
"The reality is the abuse of a child - which is what is
happening when child pornography is being created - is
harmful and no less vile than if it was happening right in
front of your eyes," the Etobicoke-Lakeshore MPP stated in
an interview with a local newspaper.15 "We need to create a
collective understanding that you cannot be a bystander,
even if you're observing something through a computer."16
On March 20th, 2008, the Child Pornography Reporting Act, 2008 was debated in
Parliament and is currently in the hands of the Standing Committee on Social Policy.
Should this bill pass, the following amendments to the Child and Family Services Act
will come into effect.
13
Ibid. at s.172(1)
Bill C-15A. “Statutes of Canada” 2003. C. 13 at s.172
15
Shepard, Tamara. “Etobicoke: Broten’s Bill Targets Child Porn” The Etobicoke Guardian.
03/19/2008. Online. <http://www.insidetoronto.com/News/Etobicoke/article/44033>
16
Ibid.
14
7
i. A definition of “child pornography” will be added.
Subsection 3(1) of the Child and Family Services Act will include the following
definition:
“child pornography” means,
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic
or mechanical means,
(i) that shows a child engaged in, or depicted as
engaged in, explicit sexual activity, or
(ii) the dominant characteristic of which is the
depiction, for a sexual purpose, of a sexual
organ of a child or the anal region of a child,
or
(b) any written material or visual representation that
advocates or counsels sexual activity with a child
that would be an offence under the Criminal Code
(Canada).
ii. Parallel amendments to clause 37(2)(C) and subsection 72(1) to indicate that sexual
exploitation includes child pornography.
(c) the child has been sexually molested or sexually
exploited, including by child pornography, by the
person having charge of the child or by another
person where the person having charge of the child
knows or should know of the possibility of sexual
molestation or sexual exploitation and fails to protect the child;
8
iii. Any person who believes that a representation or material is, or might be, child
pornography shall promptly report the information to an organization, agency or
person designated by the regulation.
(2) Section 72 of the Act is amended by adding the
following subsections:
(1.1) In addition to the duty to report under subsection
(1), any person who reasonably believes that a representation or material is, or might be, child pornography shall
promptly report the information to an organization,
agency or person designated by a regulation made under
clause 216 (c.3).
iv. No person is required to seek out child pornography
v. It is an offence to fail to report information on child pornography, to provide on the
identity of a person who reports suspicions under subsection 72(1) of the Act or
who reports child pornography and to retaliate against persons who make reports.
The person convicted of such an offence is liable to a maximum fine of $50,000 or
to imprisonment of not more than two years, or both.
vi. Organizations agencies or persons designated by regulation to receive information
on child pornography shall inform a society or law enforcement agency if the y
believe, on the basis of the report, that a representation or other material is, or might
be child pornography. 17
I believe that there are merits to these proposed amendments, as they are clearly an
attempt to further clarify laws surrounding child pornography in Canada. To entrench a
definition of the offence into the laws serves to provide clarity for both the public and law
enforcement officials.
17
Bill 37, Child Pornography Reporting Act, 2008. 1st Sess., 39th Leg. Ontario. (Second Reading
20 Mar 2008).
9
In a short telephone interview with Kelly Schmudt, Lauren Broten’s Chief-ofStaff, the following was statement regarding the duty to report imposed by Bill 37:
This bill makes it everyone’s responsibility to report
instances of child pornography. By extending the definition
of child pornography to include images created through an
electronic means allows the law to extend into the realm of
the Internet. Establishing an organization or regulatory
body where these images can be reported is important, as
well.18
Bill 37 was very well received and shortly after the second reading, news reports
indicated that opposition parties were willing to support the passing of the bill.19
However, New Democratic justice critic Peter Kormos questioned what the legislation
would achieve.20
Furthering this necessary line of questioning, I would like to broadly explore the
possible implications of legislation that imposes a duty to report any material that could
reasonably be child pornography. What would this legislation mean for subscribers to
child pornography websites, such as those on the Landslide Productions list? What would
this legislation means for Independent Service Providers, who have access to information
that would further child pornography investigations?
Extending the debate further to social networking sites, which many young children
have access to and are not specifically related to child pornography, questions arise such
as: Are social networking sites such facebook responsible for reporting anything that may
possibly fall under the definition of child pornography?
Telephone Interview with Kerry Schmudt, Laurel Broten’s Chief-of-Staff. 08 Mar 2008.
“Ont. Bill to Mandate Reporting of Child Porn One Step Closer to Becoming Law.” Canadian
Press. 03/20/2008. Online.
<http://canadianpress.google.com/article/ALeqM5jt7zwmAxvohAY1ya6gBgcI50JCeg>
20
Shepard, Tamara. “Etobicoke: Broten’s Bill Targets Child Porn” The Etobicoke Guardian.
03/19/2008. Online. <http://www.insidetoronto.com/News/Etobicoke/article/44033>
18
19
10
II.
Introduction to Canadian Privacy Laws: The Privacy Act and PIPEDA
In order to adequately address the issues surrounding Bill 37 with regards to
intellectual property, privacy concerns must first be addressed. Canada has two federal
privacy laws, the Privacy Act21 and the Personal Information Protection and Electronic
Documents Act.22
The Privacy Act23 came into effect in July of 1983 and it imposed obligations on 150
federal departments and agencies to respect privacy rights through limiting the collection,
use and disclosure of personal information.24 The Privacy Act also allows individuals to
access and request the correction of personal information about themselves that is held by
these federal government organizations. 25
Individuals are further protected by the Personal Information Protection and
Electronic Documents Act (PIPEDA), which lays out the boundaries by which
organizations in the private sector collect, use or disclose personal information in the
course of commercial activities.26 Akin to the Privacy Act, PIPEDA allows individuals
21
Privacy Act, R.S., 1985, c. P-21. Online: Department of Justice Canada
<http://laws.justice.gc.ca>
22
Personal Information Protection and electronic Documents Act. 2000, c. 5 Online: Department
of Justice Canada. <http://laws.justice.gc.ca>
23
Privacy Act, R.S., 1985, c. P-21. Online: Department of Justice Canada
<http://laws.justice.gc.ca>
24
Personal Information Protection and electronic Documents Act. 2000, c. 5 Online: Department
of Justice Canada http://laws.justice.gc.ca
25
“Privacy Legislation Fact Sheet” Office of the Privacy Commissioner of Canada. Online:
<http://www.privcom.gc.ca/fs-fi/02_05_d_15_e.asp>
26
Personal Information Protection and Electronic Documents Act. 2000, c. 5 Online: Department
of Justice Canada http://laws.justice.gc.ca
11
the right to access and request the correction of the personal information that these
organizations may have collected about them.27
PIPEDA’s substance and driving force are its Principles of Fair Information, which
comprise of ten principles that have been adapted from the Model Privacy Code of the
Canadian Standards Association.28 These principles include accountability, consent,
limiting use, limiting collection, individual access and challenging compliance, amongst
others.
At its conception, PIPEDA only applied to the usage, collection and disclosure of
personal information collected by the federally regulated private sector. This refers to
organizations such as banks, telecommunications companies and airlines. The Act has
now been expanded to apply to personal information collected, used or disclosed by the
retail sector, publishing companies, manufacturers and other provincially regulated
organizations.
29
For the sake of clarity, “personal information” entails any information
about an identifiable individual, either alone or in combination with the information it
accompanies.30 This includes names, addresses, telephone numbers and computer IP
addresses.
With regards to the issue of policing child pornography on the Internet, there has been
a lot of debate regarding whether PIPEDA permits a commercial entity, such as an
Independent Service Provider, to provide certain identifying personal information to law
“Privacy Legislation Fact Sheet” Office of the Privacy Commissioner of Canada. Online:
<http://www.privcom.gc.ca/fs-fi/02_05_d_15_e.asp
28
Ibid.
29
Ibid.
30
Personal Information Protection and electronic Documents Act. 2000, c. 5 Online: Department
of Justice Canada http://laws.justice.gc.ca
27
12
enforcement officials without a warrant. Most of the debate centres on section 7 of
PIPEDA, which reads:
7 (2) For the purpose of clause 4.3 of Schedule 1, and
despite the note that accompanies that clause, an
organization may, without the knowledge or consent of the
individual, use personal information only if
(a) In the course of its activities, the organization becomes
aware of information that it has reasonable grounds to
believe could be useful in the investigation of a
contravention of the laws of Canada, a province or a
foreign jurisdiction that has been, is being or is about to be
committed, and the information is used for the purpose of
investigating that contravention;
(b) It is used for the purpose of acting in respect of an
emergency that threatens the life, health or security of an
individual;31
Thus, since the conception of PIPEDA, Internet Service Providers are required to attain
the consent of its clients when disclosing their personal information, subject to a number
of exceptions, such as an investigation or a life-threatening emergency.
7 (3) For the purpose of clause 4.3 of Schedule 1, and
despite the note that accompanies that clause, an
organization may disclose personal information without the
knowledge or consent of the individual only if the
disclosure is ...
(c.1) made to a government institution or part of a
government institution that has made a request for the
information, identified its lawful authority to obtain the
information and indicated that
(i)
it suspects that the information relates to national
security, the defence of Canada or the conduct of
international affairs,
(ii) the disclosure is requested for the purpose of enforcing
any law of Canada, a province or a foreign jurisdiction,
31
Personal Information Protection and electronic Documents Act. 2000, c. 5, s.7, Online:
Department of Justice Canada http://laws.justice.gc.ca
13
carrying out an investigation relating to the enforcement of
any such law or gathering intelligence for the purpose of
enforcing any such law, or
(iii) the disclosure is requested for the purpose of
administering any law of Canada or a province32
The words “lawful authority” could refer to a law enforcement officer who is carrying out
a lawful investigation. In such a case, an organization may be able to disclose certain
information without consent, pursuant to s. 7 (3) (c.1) of PIPEDA. However, some law
enforcement officials have been acting on the assumption that PIPEDA authorizes the
disclosure of information. This notion is erroneous and has been compounded by law
enforcement officials who refer to "PIPEDA letters" demanding information from
Internet Service Providers in connection with child exploitation investigations.33
III.
The Challenge: Striking Balances
Delving deeper, it becomes clear that the challenge is striking a multi-jurisdictional
balance between the public right to privacy and the interests of children who are being
exploited on the Internet. Both issues hinge on the facilitation of a means through which
investigators can attain information without severely hindering the investigation.
Finding equilibrium in the interactions between PIPEDA, Bill 37 and the common
law is complicated and messy. The cases of R. v. Kwok and R. v. Smith exemplify the
problems that arise when dealing with Internet privacy in child pornography
investigations.
32
Ibid at s.7
R. v. Kwok. 2007. O.C.J. [Kwok] - I learned about this case while researching for this paper and
I have been unable to locate a copy of the case through Canlii, Westlaw or Quicklaw. However, I
did manage to find a draft copy of the case on line. (See Appendix A)
33
14
a. The case of R v. Arthur Kwok : Privacy Issues and Child Pornography.
Issues surrounding law enforcement erroneously citing PIPEDA in order to get
information for their investigations were raised in the R v. Arthur Kwok34 case, which was
tried in November 2007 and is currently under appeal. The facts of the case, briefly
stated, are as follows: Police Constable Paul Krawczyk signed onto the internet on June
24th, 2006 at Toronto Police Headquarters to perform undercover duties. He logged onto
two channels that he knew were used for the purpose of trading child pornography,
images, movies and to discuss the sexual exploitation of children.35 He noticed a user
named STEP TOSH on his screen, who invited him to exchange photographs using
“Hello”, which is a software designed to trade images of child pornography. Officer
Krawczyk testified that he later initiated a conversation in a private chatroom with STEP
TOSH. All interactions with STEP TOSH were recorded and the 14 images seen by the
Officer Krawczyk were filed and submitted as evidence in the proceedings. 36
In order to determine STEP TOSH’s identity, Officer Krawczyk used a trace
program called WHOIS, which would help him find out where STEP TOSH was
coming.37 WHOIS is a command program that is available to the public and Officer
Krawczyk used this program to ascertain that the person using the STEP TOSH nickname
was a Rogers Internet customer. Further, Officer Krawczyk was able to attain the user’s
unique Internet Protocol address. By inputting the I.P. address into a website called DNS
34
Ibid.
Ibid at para 5.
36
Ibid at para 5.
37
Ibid at para 8.
35
15
STUFF, he was able to find which company this particular I.P was registered to.
38
Using
all of these publicly accessible tools, Officer Krawczyk discovered that the I.P. used by
STEP TOSH was registered to a Rogers Cable customer in the Toronto area.
The next step Officer Krawczyk took was to make an attempt to discover
subscriber information, using his knowledge of the I.P. address. He contacted the Rogers
Cable Authority requesting the subscriber information. Officer Krawczyk testified that in
his request he stated:
…That he was conducting an investigation in relation to
child sexual exploitation under the Criminal Code. He
indicated that he was making a request in accordance with
section 7(3) (c.1) of PIPEDA, and that his authority to
make this request stemmed from his appointment as a
police officer… In describing his prior experience in doing
this type of undercover work, the officer stated
that…subscriber information in similar situations was
always sought by use of a Criminal Code search warrant.
His evidence reflected that his practice of acquiring
information changed when he was advised by someone
employed by the police that the Superintendent of the
RCMP sent an e-mail directive that the subscriber
information could be obtained by sending a letter of request
on the authority of PIPEDA.39
Officer Krawczyk testified that he believed that he was enabled to do so pursuant to
section 7(3) (c.1) of PIPEDA. On his third PIPEDA request to Rogers Cable, the name
Jessie Kwok was provided, along with an address.
Since he is not bound by PIPEDA
as a law enforcement official, Officer
Krawczyk was completely within his rights to ask for the information. However, ISPs
such as Rogers Cable are bound by PIPEDA, hence, they have a duty to hold information
unless an exception to the privacy law arises. Upon further evaluation of section 7(3) of
38
39
Ibid at para 9.
Ibid at para 9.
16
PIPEDA, it becomes clear that nothing in the provision required Rogers Cable to disclose
the information. Furthermore, section 7(3)(c ) requires that Rogers Cable disclose
information if it is in compliance with a warrant. In this case, the obligation to disclose
arises from the warrant, not PIPEDA. Officer Krawczyk’s testimony indicates that he was
erroneously citing PIPEDA as a statute that required Rogers Cable to surrender the
information.
Furthermore, Gorewich J. referred to BMG Canada v. John Doe
40
, where von
Finklestein J. found that ISP account holders have and expectation of privacy and that
their identity will be kept private and confidential. This expectation is based both in
sections 3 and 5 of PIPEDA. This expectation of privacy underpins the necessity of
ensuring that when acquiring information from ISPs, law enforcement officials should be
cognisant of the rights of the individual they are investigating.
At paragraph 26 of his judgement, Justice Gorewich discusses the issue regarding
the Internet subscriber’s expectation of privacy. He recognized that Officer Krawczyk’s
basis for using the act to acquire information was anecdotal. In his judgement, he stated
that
It goes without saying that the use of PIPEDA is easier and
involves less labour than the preparation of a warrant and
the submission for judicial authorization. The subscriber, in
this case….has an expectation of privacy in respect of this
personal information. …shortcuts , such as those set out in
s. 7(3)(c ) of PIPEDA in the circumstances of this case
must be used with great caution, given the notions of
freedom and democracy we have come to expect in our
community…the police should have procured a warrant to
obtain the subscriber information...I therefore find that
there has been a s.8 violation41
40
41
BMG Canada Inc. v. John Doe (F.C.), 2004 FC 488 (CanLII).
Kwok at para. 35
17
Thus, Gorewich set a precedent, establishing that the use of s. 7(3)(c) of PIPEDA to glean
information is not legal or scrupulous. PIPEDA is not to be used as a shortcut in
substitution of a warrant when requesting information from ISPs, even if it the purpose is
to facilitate a child pornography investigation.
b. Precedent in the Making: The Robert Norman Smith Challenge
As I write this, the landscape of child pornography legislation and Internet privacy
laws is shifting rapidly. The case Robert Norman Smith, a Toronto actor who was
featured in Alexander Keiths beer commercials, is currently on trial in Ontario Superior
Court on one charge of possession of child pornography and one charge of making child
pornography available.
42
He has pleaded not guilty to both charges. According to news
reports:
The Toronto investigation began in the fall of 2005, with
police developing a system of searching that allowed them
to view IP addresses of people sharing or making available
certain child-pornography files.
Using a publicly available database, investigators were then
able to determine which providers owned the IP addresses.
On Nov. 22, under one search warrant, they got the name
and address information from Bell that led them to Mr.
Smith, and in February the next year, under another
warrant, they conducted a search of his north Toronto
home.43
Kari, Shannon. “Ex-Pitchman’s Trial Could Set Precedent” National Post. 09/04/08. Online:
<http://www.nationalpost.com/news/canada/story.html?id=431469>
43
Blatchford, Christie. “A Precedent on Internet Privacy in the Making.” Globe & Mail.
09/04/08.
42
18
At first, Bell Canada refused to hand over the information, pursuant to PIPEDA, which
forced the police to attain a warrant for the information, invoking s. 7(3) (c) 44. On April
8th, 2008, Smith launched a constitutional challenge stating that the first warrant violated
his rights under S. 8 of the Charter, which protects people from unreasonable search and
seizure. 45
Since this is the first time a Canadian superior court has had to make a decision
regarding Internet privacy with regards to the release of identifying information to law
enforcement officials, it will affect the methods police use to probe child pornography
investigations. Superior Court Justice Robert Clark will steer the direction towards which
future investigations will be conducted. Coupled with the possible enactment of Bill 37,
it is clear that issues surrounding child pornography and Internet privacy are relevant,
shifting and pressing. Before an analysis of the implications and possible solutions of
both Bill 37 and the Robert Smith case can occur, the perspectives of both sides must be
clearly flushed out.
IV.
Perspectives: Law Enforcement
In Robert Smith’s case, if Judge Clark agrees that Mr. Smith had a reasonable
expectation of privacy and grants him standing, it would mean police forces across the
country, who daily obtain subscriber information under PIPEDA requests, would have to
44
Personal Information Protection and Electronic Documents Act. 2000, c. 5 Online: Department
of Justice Canada http://laws.justice.gc.ca
45
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
19
revert to the old, labour-intensive system of seeking search warrants every time they want
customer information from ISPs. 46
On April 2nd, 2008, the CBC reported that Royal Canadian Mounted Police were
complaining that the two major ISPs in the region require a search warrant before
handing over customer information.47 This hinders child pornography investigations and
exacerbates the back-log in cases that need to be investigated.
Additionally, search warrants are problematic for police probing Internet crimes
simply because they are more time-consuming. Compounded with resource issues, such
as being understaffed, getting a search warrant means the investigation is held up for days
or even weeks.
Police constable Blair Ross, who works on child pornography cases in P.E.I, stated in
a CBC news interview that:
As it stands here now in Atlantic Canada, the internet
providers will not provide that unless we obtain judicial
authorization, in other words, a warrant," said Ross.” So
before we even begin to investigate we have that hurdle to
jump over, which is time consuming.48
The argument here is that more criminals would be caught if the police were allotted the
ability to obtain information without a search warrant.
I support the notion that law enforcement officials should have access to
subscriber information in order to facilitate more effective investigations. However, I
believe that judicial authorization or a warrant is in place to protect the rights of citizens
Blatchford, Christie. “A Precedent on Internet Privacy in the Making.” Globe & Mail.
09/04/08.
47
“Search Warrants For Child Porn Too Slow”. CBCnews.ca. 02/04/08 Online:
http://www.cbc.ca/canada/prince-edward-island/story/2008/04/02/childporn-warrants.html
48
Ibid.
46
20
from unreasonable search and seizure, which is guaranteed by section 8 of the Charter of
Rights and Freedoms.49 The Charter and its constitutionally entrenched rights should not
be seen as an obstacle to an investigation or a hurdle to jump over. Abiding by the
Charter when conducting investigations is part and parcel of enforcing the law and
protecting the rights of the public.
a. Perspectives: Internet Service Providers and Subscribers
Independent Service Providers are bound by PIPEDA and as such, should technically
request a warrant in the event that police officers request information for child
pornography investigations. While the testimony of Officer Krawczyk in the R. v. Kwok
indicated that some ISPs do not necessarily follow this rule consistently, the point is that
they should not be disseminating information without a warrant. It must be noted, though,
that PIPEDA does not generally require ISPs to disclose information.
While I am sure that the ISPs are aware of the importance of complying with police
officers’ requests in order to capture criminals who attain and distribute child
pornography over the Internet, their priority is to ensure that their customers are satisfied.
This entails protecting their information and ensuring that it is only released based on
statutory exemptions listed in PIPEDA.
The two largest ISPs in Canada are taking a proactive approach to the issue of child
pornography, which will be further elaborated in Part V of this paper.
49
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
21
V.
Attaining Equilibrium: Deconstructing Solutions and Remedies
a. Section 7(3)(c ) of PIPEDA needs further clarification by the courts.
Officer Krawczyk’s statement in the R v, Kwok case is indicative of the fact that
the question of whether companies can provide police with information without a warrant
still remains to be clarified. I believe that the Court of Appeal has an opportunity to
provide further insight into the true boundaries with regards to balancing the privacy
concerns of subscribers and the rights of children on the Internet.
Furthermore, the R v. Smith case presents an opportunity to further clarify the
grounds by which ISPs can provide information and the extent to which law enforcement
can attain identifiable information without a warrant. I believe that shedding light on this
grey zone will facilitate more effective solutions to the issues because the boundaries by
which law enforcement can operate will be defined. The resources expended in the quest
to identify what the boundaries are would be better allotted to directly combating child
pornographers.
The proposition of Bill 37 and the implementation of Project Cleanfeed Canada
are two interesting solutions that could illuminate the murky boundaries that currently
exist between law enforcement, ISPs and subscribers. While they do have their
downfalls, the fact that we are currently sitting on the cusp of a changing approach to
child pornography in Canada also presents an opportunity to present solutions that may
prove to be quite effective.
22
b. Bill 37
To reiterate, Laurel Broten’s Bill 37 would redefine child pornography in the
Criminal Code and would create a duty to report any instances of child pornography to
law enforcement. Further, the bill proposes that the fine for failure to report is $50,000
and up to two years in jail50. Does creating a duty to report child pornography change the
dynamics of the interactions between law enforcement and ISPs?
In a telephone interview with a representative from Laurel Broten’s office, I asked
how Bill 37 would impact the responsibilities of Internet Service Providers bound by
PIPEDA. My question was answered by a curt, “This bill makes it everyone’s
responsibility. Yours. Mine. Everyone’s.” 51 Any of my further attempts to get answers
regarding the bill were met with the same uniform answer. While the interview left many
of my questions dangling, I was motivated to delve into the substance of the proposed bill
to see whether we were standing at the brink of a solution or if this is just another
anorexic solution to an obese issue.
Since this bill imposes a duty to report any instances of child abuse to a regulatory
body, law enforcement officials could argue that ISPs technically have the knowledge
regarding who accesses and distribute child pornography. As such, they have a
responsibility to report such activity and facilitate a means through which investigations
can ensue. This bill places the interests of the child at the fore and alludes that privacy
issues should take a backseat in the name of children’s rights.
50
Bill 37, Child Pornography Reporting Act, 2008. 1st Sess., 39th Leg. Ontario. (Second Reading
20 Mar 2008).
51
Telephone Interview with Kerry Schmudt, Laurel Broten’s Chief-of-Staff. 08 Mar 2008.
23
In response, NDP member Peter Kormos questioned the effectiveness of Laurel
Borten’s bill stating in an interview with the Etobicoke Guardian that the bill is just “feel
good legislation’’. 52 He argued that increased police resources, stronger laws in countries
where abject poverty fuels child pornography and strengthened international agreements
between countries would have a more profound impact on the issue. In many ways,
Kormos is correct.
The moral underpinnings of the bill are laudable. However, it fails to adequately
tackle the issue of child pornography beyond a superficial level because it does not truly
facilitate a means through which those who commit the crime can be stopped. While I do
believe that it is necessary to emphasize that this is an issue that pervades and poisons our
communities, placing the duty to report on the public does not change the fact that the
cases that ongoing investigations are perpetually hindered.
Increasing the penalties for the failure to report child pornography may act as a
deterrent, however, there is no guarantee that the courts will actually implement the
penalty. Since the possession of pornography is equated with the sexual exploitation of
children, a high penalty should exist and should be supported by the courts.
Although the substance of the bill is intended to make the Internet a safer place for
children, it offers very little towards striking a balance between the rights of subscribers
and the rights of children online. Further, it places the duty to report instances of child
pornography on the public, but does not provide a means through which investigations
52
Shepard, Tamara. “Etobicoke: Broten’s Bill Targets Child Porn” The Etobicoke Guardian.
03/19/2008. Online.
http://www.insidetoronto.com/News/Etobicoke/article/44033
24
can be facilitated in a more effective manner other than the proposition of a regulatory
body.
c. CyberTip.ca : A Pre-emptive Strike
CyberTip. Ca is an organization that is maintained by Child Find and its mandate is to
enable ISPs to voluntarily block access to child pornography websites. Canada’s largest
ISP providers have entered into an agreement with Cybertip.ca.53
The initiative, dubbed Project Cleanfeed Canada was launched in January 2007
and exemplifies the notion that ISPs are concerned about issues concerning child
pornography. Project Cleanfeed Canada is modeled after British Telecom's Project
Cleanfeed, which has blocked access to child pornography in the United Kingdom for the
past two years.54 According to Michael Geist in an article written for the Toronto Star on
December 4th 2006,
Under the plan, Cybertip.ca will identify a list of websites
that contain child pornography and the ISPs will use
filtering technology to block access to those sites. The
block list will only contain foreign-based websites with all
Canadian-based sites referred to law enforcement to pursue
legal action.55
Once again, without further clarification of the issues surrounding s. 7(3)(c ) of PIPEDA,
law enforcement will encounter the same issues that cause a bottle neck in the number of
cases that actually make it through the legal system. I perceive Project Cleanfeed as a
Geist, Michael. “Child Porn Plan A Risk Worth Taking.” Toronto Star. 04 Dec 2006. Online:
<http://www.thestar.com/article/154517>
54
Ibid.
55
Ibid.
53
25
preemptive move on the part of ISPs to prevent future privacy concerns with regards to
their subscribers. If their subscribers do not go on websites that contain child
pornography, then they will not be asked for the identification information of their
clients.
Cybertip.ca has instituted the following measures to reduce the likelihood that the
block list will extend beyond clear cases of child pornography.
i.
The block will be narrowed to images of children
12 and under to avoid tagging something potentially
lawful
ii.
Experts will review the inclusion of all sites in
consultation with law enforcement. The organization will
consider integrating further judicial consideration into the
process.
iii.
An appeals process will be established to enable
sites to challenge their presence on the block list. That
process will include reviews from both Cybertip.ca and
an independent examination from the National Child
Exploitation Co-ordination Centre.56
These measures are an attempt to ensure that
Cybertip.ca has also undertaken measures to address concerns regarding its own
accountability. The organization features an independent board of directors and it
answers to public and private funders who are anxious to limit the prospect of legal
Geist, Michael. “Child Porn Plan A Risk Worth Taking.” Toronto Star. 04 Dec 2006. Online:
<http://www.thestar.com/article/154517>
56
26
liability that could stem from over-blocking (the federal government provides
approximately 60 per cent of its funding).57
Furthermore, although the contents of the block list will remain hidden out of fear
that public distribution would provide a directory of child pornography, Cybertip.ca plans
to release regular reports that will disclose the size of the list and the ISPs participating in
Project Cleanfeed Canada. According to Prof. Michael Geist,
For the moment, Project Cleanfeed Canada deserves
cautious support precisely because it is narrowly tailored to
non-Canadian sites, clear cases of child pornography and
has been voluntarily implemented with a handful of checks
and balances. There are unquestionably some risks that
require careful monitoring, but the project deserves the
benefit of the doubt.58
While it is clear that current child pornography legislation still needs to grow in order to
tackle the issue with adequate force, proposed solutions such as Project Cleanfeed
Canada forge ground that makes ISPs and individuals accountable for their actions.
The other side of this coin is that fact the “secret list” of child pornography sites
poses discrimination issue with regards to sites being unknowingly blacklisted.
Furthermore, social networking sites like facebook, MySpace and Blogger may contain
information that would have these site fall into this blacklist. Another problem that may
arise from Project Cleanfeed is the effectiveness of site-specific blocking. In both of the
precedent setting cases cited above, the interactions took place in Internet chat rooms and
images were exchanged over BiTorrents. This posits the question of how effective sitespecific blocking would be on a broader scope.
Geist, Michael. “Child Porn Plan A Risk Worth Taking.” Toronto Star. 04 Dec 2006. Online:
<http://www.thestar.com/article/154517>
58
Ibid.
57
27
I agree with Professor Geist in his cautious support of Project Cleanfeed. Despite
the obvious risks, it does present a backdoor solution to privacy issues that have been
arising as a result of PIPEDA and the need for law enforcement officials to get access to
information that is pivotal to their investigations.
VI.
Conclusion
While Bill 37, Project Cleanfeed are all opportunities to fight child pornography, they
do not offer a means through which law enforcement can effectively investigate child
pornography instances on the internet. The Robert Smith case, however, has the
opportunity to catapult the law towards an effective balancing act that can ensure that
privacy rights are respected while the Internet is safeguarded against child pornography
because the courts can clarify s. 7(3)( c) of PIPEDA.
Current issues surrounding the eradication of child pornography in Canada hinge on
the clarification of the legislation surrounding the rights of law enforcement officials to
attain information from ISPs when conducting child pornography investigations. As I
write this paper awaiting the verdict of the precedent-setting case of Robert Norman
Smith, Professor Bruce Ryder’s opinion regarding the recognition of constitutional
freedoms rings true in my mind. The courts need to strike the difficult, albeit necessary
balance between protecting the rights of children through facilitating smooth
investigations versus the need to respect the privacy rights of internet subscribers.
28
Bibliography
LEGISLATION
Bill C-15A. “Statutes of Canada” 2003. C. 13
Bill C-20, An Act to amend the Criminal Code (protection of children and other
vulnerable persons) and the Canada Evidence Act, 2nd Sess., 37th Parl., cl. 7
[Bill C-20] (first reading 5 December 2002).
Bill 37, Child Pornography Reporting Act, 2008. 1st Sess., 39th Leg. Ontario. (Second
Reading 20 Mar 2008).
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
Criminal Code, R.S.C. 1985, c. C-46, online: Department of Justice Canada
http://laws.justice.gc.ca
Privacy Act, R.S., 1985, c. P-21. Online:
http://laws.justice.gc.ca
Department
of Justice Canada
Personal Information Protection and Electronic Documents Act. 2000, c. 5 Online:
Department of Justice Canada http://laws.justice.gc.ca
JURISPRUDENCE
BMG Canada Inc. v. John Doe (F.C.), 2004 FC 488 (CanLII)
R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45
R v. Kwok, 2007 Ontario Court of Justice (Draft)
JOURNAL ARTICLES
Johnson, Travis. “Child Pornography in Canada and the United States: The Myth of
Right Answers.” (Fall, 2006) 29 Dalhousie L.J. 375
Ryder, Bruce. “The Harms of Child Pornography Law.” (2003) 36 U.B.C. L. Rev. 101 –
135.
SECONDARY MATERIALS
Blatchford, Christie. “A Precedent on Internet Privacy in the Making.” Globe & Mail.
09/04/08.
29
Geist, Michael. “Child Porn Plan A Risk Worth Taking.” Toronto Star. 04 Dec 2006.
Online: <http://www.thestar.com/article/154517>
Kari, Shannon. “Ex-Pitchman’s Trial Could Set Precedent” National Post. 09/04/08.
Online: http://www.nationalpost.com/news/canada/story.html?id=431469
“Privacy Legislation Fact Sheet” Office of the Privacy Commissioner of Canada. Online:
<http://www.privcom.gc.ca/fs-fi/02_05_d_15_e.asp
“Search Warrants For Child Porn Too Slow”. CBCnews.ca. 02/04/08 Online:
http://www.cbc.ca/canada/prince-edwardisland/story/2008/04/02/childporn-warrants.html
Shepard, Tamara. “Etobicoke: Broten’s Bill Targets Child Porn” The Etobicoke
Guardian. 03/19/2008. Online.
http://www.insidetoronto.com/News/Etobicoke/article/44033
Telephone Interview with Kerry Schmudt, Laurel Broten’s Chief-of-Staff. 08 Mar 2008
30
Appendix A
R v. Kwok, 2007 Ontario Court of Justice (Draft)