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Cyberbullying bill C-13 moves on despite Supreme Court decision

Justice Minister Peter MacKay arrives at a Commons Justice committee meeting Monday July 7, 2014 in Ottawa.

Adrian Wyld/THE CANADIAN PRESS

A federal cyberbullying bill that includes controversial new surveillance powers – and immunity for telecommunications companies that voluntarily hand over private data to police – has taken another step toward becoming law, despite a recent Supreme Court ruling that critics say is at odds with the bill.

Bill C-13, which had sat idle in Parliament since MPs adjourned for summer, passed in a vote at its report stage Wednesday shortly after a separate vote that capped the amount of time that will be spent in the House debating it.

(How are Canada's privacy laws about to change? Read The Globe's easy explanation)

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Bill C-13 makes it illegal to circulate an intimate image without the subject's consent, but also includes a host of new "lawful access" powers, such as new warrants for police access to online data, phone records or for digital tracking. Critics have warned the bill's thresholds for warrants are too low and that the cyberbullying law is too broad and vague.

The bill also grants immunity to telecoms that voluntarily hand over data, a sticking point raising privacy concerns. The Supreme Court's Spencer decision in June ruled that warrants are generally required when seeking subscriber information from telecoms.

In Wednesday's brief debate on the bill, Justice Minister Peter MacKay insisted C-13 is needed to give police the tools to fight cyberbullying, including high-profile cases such as Rehtaeh Parsons, Amanda Todd and Jamie Hubley. He brushed aside questions of whether the bill will be found unconstitutional in the wake of the Spencer decision.

"We believe strongly that this not only passes constitutional muster, but it does what it is intended to do, and that is allow police with judicial oversight to do proper investigations that protect the public at large," Mr. MacKay told the House of Commons.

Mr. MacKay insisted the bill "does not create warrantless access" to information, saying it's an "incorrect, factually wrong statement" to say otherwise. However, the bill plainly opens the door to police getting information without a warrant – through the immunity provisions that apply broadly, not just to telecoms, which received 1.2 million data request from law enforcement agencies in 2011.

"We know the Supreme Court has already quashed one of the clauses … because it provided access to data without a warrant," NDP MP Charmaine Borg said in the House, questioning Mr. MacKay. "… His bill allows people to have warrantless access to data with no judicial verification. Is he prepared to say that [the bill] is constitutional? Because the Supreme Court has already said that it is not." Mr. MacKay said the question was a "false dichotomy."

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