INDY Committee Meeting

STANDING COMMITTEE ON INDUSTRY

COMITÉ PERMANENT DE L'INDUSTRIE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 26, 1998

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[English]

The Chair (Ms. Susan Whelan (Essex, Lib.)): I call the meeting to order. Pursuant to an order of reference of the House dated Tuesday, March 17, 1998, this is consideration of Bill C-20, an act to amend the Competition Act and to make consequential and related amendments to other acts.

Mr. Werner Schmidt (Kelowna, Ref.): Madam Chair.

The Chair: Yes, Mr. Schmidt, go right ahead.

Mr. Werner Schmidt: Thank you. On the question of procedure, there are a number of amendments we were not privy to and have not seen copies of, so I'm wondering what the intentions are this afternoon. When we come to the sections that are being amended, will we be given time to read the amendment and have counsel and other people tell us what the proposed amendments will do? Because we have not had the opportunity to read these ahead of time. I know what my particular motion is, but there are at least— Would you explain that please?

The Chair: Your point's well taken. We have several witnesses before us from the Competition Bureau, and I propose that they take us through some of the testimony we've heard, before we begin clause-by-clause, to explain some of the recommendations we heard from witnesses. Then we will go to clause-by-clause, and everyone has in front of them a copy of all the proposed amendments. For example, clause 1 has a suggested amendment. I propose we have the member who is proposing that amendment speak to it, explain it, allow the bureau to respond, and then allow debate on it. Is that okay?

Mr. Werner Schmidt: Yes.

The Chair: I will now turn to the witnesses. We have with us, from the Department of Industry, Sandra Fraser, general counsel for the competition and consumer law division. From the Competition Bureau we have Mr. Konrad von Finckenstein, director of investigation and research, Competition Act; Mr. Don Mercer, head, amendments unit; and many more people.

Perhaps I can let you introduce them, Mr. von Finckenstein, if you would like to begin.

[Translation]

Mr. Konrad von Finckenstein (Director of Investigation and Research, Competition Act, Competition Bureau, Department of Industry): Thank you, Madam Chair.

[English]

With me is also Tom Wright, the head of the fair business practices branch; Nicole Ladouceur, a division chief in that branch; and Mr. Ray Pierce, a chief in the mergers bureau.

Thank you very much for giving us the opportunity to appear before you.

[Translation]

I would like to take this opportunity to answer some concerns that were raised by the witnesses before your committee. I would also like to talk briefly about the eight amendments and then answer your questions. My colleagues will respond to other concerns that come up during our discussions.

[English]

There are basically eight amendments I would like to comment on. There are two amendments regarding clause 47, wiretapping. The first amendment is proposed by Mr. Schmidt and it would narrow the use of wiretap for conspiracy to price-fixing and market-sharing. You will recall when I was before you I talked about it and said that was our intention and we would issue guidelines to that effect. Mr. Schmidt has now put this in the form of a legislative amendment, and we support that.

Second, I understand Mr. Shepherd will propose an amendment that would clarify that the use of wiretap against deceptive telemarketing will be limited to offences under subsection 52.1(3). In other words, it will not be used for subsection 52.1(2), which is a mere failure to disclose. Again we recommend that you adopt this amendment, because it makes it more precise what the telemarketing is aimed at.

I understand Mr. Bryden will put two amendments before you. The first one will be to clause 1.

The Chair: Mr. von Finckenstein—

[Translation]

Ms. Francine Lalonde (Mercier, BQ): We don't know where to find those amendments. Could you tell us what is the nature of the amendment Mr. von Finckenstein is talking about so we can follow it better. We haven't read it and don't know what it's all about.

[English]

The Chair: Madame Lalonde, as I explained, I am allowing the witnesses to speak generally at the beginning, then as we go clause by clause they will speak on every amendment that's being proposed. So this is just a general overview before we begin clause-by-clause.

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When we do clause-by-clause we'll be reading the amendments and we'll be on the exact place in the legislation. The department will respond and then we'll have debate on each clause.

Would you like to continue, please, Mr. von Finckenstein?

Mr. Konrad von Finckenstein: The first amendment by Mr. Bryden will be to section 1 of the act. It will define “business” to include fundraising for charitable and non-profit purposes. As I explained to you in my testimony, when these organizations engage in telemarketing and use deceptive means, we mean the act to apply, and Mr. Bryden's amendment clarifies that. Strictly from the point of view of law, I don't think it's necessary to understand it, but this does clarify it, and therefore I would not object to this amendment.

The second amendment by Mr. Bryden would add a new subsection 52(1.2), which talks about making misleading representations. His amendment has the purpose of saying representation also covers the act of permitting somebody to make that representation on one's behalf. Again, I think this is a clarification. Jurisprudence would have made it clear that permission is included, but I don't see any objection to clarifying it so when an agency hires somebody else to make representation on its behalf and this is in contravention of the Competition Act, it would be covered.

I understand Mr. Shepherd will put forward amendments regarding clauses 14, 17, and 55. These amendments deal with double-ticketing. The bureau's experience has been that this section does not need to be enforced because a merchant, out of good business practice, when there are two prices on a piece of merchandise will always charge you the lower one. For that reason we had originally proposed to delete this section. However, I have no problem with this section remaining in the act. If there is a real merchant who actually would not charge the lower price, they would have the ability to go after him.

I believe Mr. Harb will make some amendments regarding clause 19 to provide whistle-blowing protection. As you know, we believe from a strictly legal point of view this is not necessary. We have filed with you Mr. Dubin's report. You've heard from Mr. Dubin himself. There's ample protection in the law for whistle-blowing. On the other hand, clearly such an amendment would be an express encouragement by Parliament to report uncompetitive behaviour, and it would raise public awareness of the issue. It may also provide some further comfort and protection for those who speak out about possible violations of the act. For that reason, we are neutral to this amendment. It's up to the committee whether you want to pass it or not.

Other issues have been raised that we propose to deal with in the guidelines. I tabled those guidelines with you the last time, and I said we will be holding extensive consultation on those guidelines. They are there to serve the purpose of transparency, to make clear what the bureau's intention is when applying those laws.

However, there are a couple of points I will raise with you that I would like to point out. For instance, you have heard from people promoting mutual funds over the phone using telemarketing. They are perfectly legitimate businessmen who say they have problems complying with the act as it is because one of the things you have to do is state the price. Now the price for a mutual fund may not be known at a given time when you make that representation. Therefore, we propose to add one definition to the guideline for price explaining that you can do it by way of a reference price—i.e., if you're offering mutual funds you may not know the exact price but you know what the range is. As long as you do that, it will not cause any concern.

I have an amendment to the guidelines I introduced last time, and with your permission, Madam Chairman, I will distribute it to the members so they will know what it is.

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There was some question raised before you about the ten-year limitation on prohibition orders, as found in clause 11. We believe from a point of law, it's quite clear that they only apply to new provisions. They do not apply to old orders outstanding.

Let me explain why. Under the amendments before you, the court has quite a bit of flexibility on the type of order and the conditions that can be attached to an order. Under the old act, that was not possible. When we obtained some of these orders, they actually worked as a code of conduct for the industry. In those instances where the industry, on their own volition, adopted a code of conduct, we then had the order repealed.

Unfortunately, some industries have not adopted new codes of behaviour, particularly the real estate industry. Therefore, we don't think this outstanding order should be repealed until such time as the industry has on its own adopted a voluntary code. Once it has done so, under clause 11 they can apply to a court and the existing orders can be terminated.

The idea I would like to make clear to you is that it's our position that the limitation on prohibition orders found in clause 11 of the bill applies only to new orders, not to existing orders. In existing orders, you can make an application to have them terminated, and we would not oppose them provided the industry had taken the necessary steps to clean up its act.

One last point. The consultative panel and other stakeholders before you have raised the issue of jurisprudence. Certain sections are moved from the criminal regime to a civil regime, and they wanted to make sure that the existing jurisprudence regarding the interpretation of words in those sections would not be changed and would not have to be re-litigated.

The consultative panel, with we whom we met before we produced this bill in Parliament, strongly recommended that your committee make that clear in its report. So we would advocate that your report specifically state:

Where the law is reasonably settled in respect of the current provision, precedents should not be opened up again for debate simply because of the shift from criminal to civil adjudicative jurisdiction.

If you could find your way to putting that clause in your committee report, I think it would be very helpful to the bar and to the profession to know that by enacting this law it was not meant to reopen the existing jurisprudence regarding those sections.

That's basically all I wanted to say to you, Madam Chair, with regard to the amendments. Some other issues were raised before you, and my colleagues will, if you want, advise you of the position of the bureau regarding some of these issues.

Would you like me to ask my colleagues to pursue those issues, Madam Chair?

The Chair: Please.

Mr. Konrad von Finckenstein: Don.

Mr. Don Mercer (Head, Amendments Unit, Competition Bureau, Department of Industry): Thank you.

We're going to go through these in clause order. The first one I will handle is the issue of the title of the commissioner. The suggestion was made that—

Mr. Werner Schmidt: Excuse me. I have a procedural issue.

With regard to that proposed paragraph with regard to precedents, will that be dealt with at the end of our clause-by-clause or would you deal with that now? What would be your intention there?

The Chair: With Mr. von Finckenstein's last suggestion?

Mr. Werner Schmidt: Yes.

The Chair: Actually, I've just asked the researchers to take a look at it. I would propose we deal with it at the end. Do you want to deal with it now?

Mr. Werner Schmidt: No, I just want to know when we'll deal with it.

The Chair: Okay.

Mr. Mercer.

Mr. Don Mercer: The suggestion was made that the change of title from “Director of Investigation and Research” to “Commissioner” was not subject to consultation, and that it would be confusing.

Our experience has been that the title “Director” is itself confusing, and “Commissioner” better reflects the mixed law enforcement and policy role of the head of the Competition Bureau. This change also ensures consistency with comparable positions within the federal government—for example, the Commissioner for Federal Judicial Affairs, the RCMP Commissioner, and the Chief Commissioner of the Canadian Human Rights Commission.

The second issue we would like to deal with is the interim injunction, which is dealt with in clause 12. It has been suggested that interim injunctions should not be available in criminal prosecutions because the amendment to proposed section 34 will expand the scope and flexibility of prohibition orders.

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Our response is that the broadening of proposed section 34 does not detract from the need for interim injunctions in appropriate cases. The purpose of proposed section 33, which is the interim injunction provision, is to provide immediate and speedy recourse or remedy to prevent or stop criminal activity in appropriate cases and so minimize damage to competition.

I'd like to turn to Tom Wright for the third issue.

Mr. Tom Wright (Deputy Director, Investigation and Research, Fair Business Practices Branch, Competition Bureau, Department of Industry): Thank you, Don.

I understand you've heard representation as well that there's a weakening of the criminal provisions through clause 12. In particular, the concern is that through the addition of “knowingly” and “recklessly” to proposed section 52, we're weakening the criminal misleading provisions.

I guess I'd recommend that we look at this whole package as opposed to trying to take out discrete components. What we're talking about is setting up both a civil and criminal regime, which gives to us a more efficient, flexible and effective approach to dealing with the situation in the marketplace. A more rapid response through the civil provision enables us to deal with situations and have less victimization on the part of consumers, offering a better level of protection. We're talking about effective measures in the marketplace.

In addition, of course, for achieving this more effective change in the marketplace, we dispense with some of the stigma attached to criminal prosecutions in cases where individuals are engaged in activities that are not “knowing” and “reckless”, per se.

Mr. Don Mercer: Thank you, Tom.

The next issue we'd like to deal with is a group of issues related to recommendations that there be restitution in class actions and private access to the Competition Tribunal.

The right to restitution and the institution of procedures for class action suits and the ability of private parties to have access to the tribunal have all been raised as other means of making the Competition Act more effective. These suggestions are likely to be controversial and are going to require, we believe, extensive consultation. As the amendment process is ongoing, private-party access, among other issues, will be on the agenda for discussion during the next phase of reform.

Tom, I think there's an issue coming up for you.

[Translation]

Ms. Francine Lalonde: It's very hard to follow, Madam Chair. We don't work full time at studying and applying the law. Could you please give us a bit of help.

Mr. Antoine Dubé (Lévis, BQ): He's going too fast and the interpreter can't keep up.

Ms. Francine Lalonde: Going so fast doesn't help anything.

[English]

The Chair: Madam Lalonde, I asked them to appear today. Originally, they were just going to—

[Translation]

Ms. Francine Lalonde: But I want to understand them properly.

[English]

The Chair: Just a second.

Mr. Lastewka, did you wish to add something?

Mr. Walt Lastewka (St. Catharines, Lib.): I just want to make sure that Madam Lalonde and Mr. Dubé have the summary page the witnesses are speaking to.

The Chair: Is there a summary page?

Madam Lalonde, do you have the summary page?

Mr. Lastewka, what are you referring to?

Mr. Walt Lastewka: I thought there was a statement.

The Chair: Is there a statement? Does she have the statement?

Mr. von Finckenstein.

Mr. Konrad von Finckenstein: We handed out two documents. One, my statement, is what Mr. Schmidt has in his hands, and the second is one page on the definition of “price” that would go into the guidelines.

Those were the only documents we handed out, Madam Chair.

The Chair: Madam Lalonde, just to clarify, I asked the department to go through some of the testimony we heard and then go through why they're not proposing some of the amendments we'd heard. Then, as we go through clause-by-clause and the amendments members are making, they will again participate in that discussion.

This was just to remind everyone about what testimony we'd heard and what we're not doing. Then we'll do clause-by-clause. In case anyone had forgotten anything, this was to try to give us a little overview.

Mr. Wright, did you wish to continue?

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Mr. Tom Wright: Yes, thank you. If I may, I was going to try to address clause 13, which is the section dealing with telemarketing. My understanding is that you've heard testimony in regard to clause 13 that raises the issue that prices grossly in excess of fair market value constitute a problem. I'm suggesting that when you hear these kinds of concerns you take them in context and you recognize that clause 13 deals with the telemarketing offence.

What we're dealing with here is something that we would suggest is illegal and is conditional upon prior payment. The clause would suggest offering a product for sale at a price grossly in excess of fair market value where delivery of the product is to be conditional upon prior payment to the purchaser. In the case of telemarketing, you have a purchaser who has not seen the product, who has not had the opportunity to relate what they're being invited to pay. So I would urge you to take these considerations in the context of what's before you. It's a unique situation.

In addition, again on clause 13, I gather there's also been concern among some committee members and stakeholders who are of the view that the definition of telemarketing should be broad enough to include the Internet and other forms of electronic commerce.

The telemarketing provisions that we've set out in Bill C-20 are designed to focus on the abusive, intrusive aspect that we see through interactive telephone communications. The practitioners of this are able to use high-pressure tactics, which we just don't see in other fora, where the victims are vulnerable and have little time to reflect on the proposal. This kind of situation doesn't truly exist in the classic Internet environment. However, representations made over the Internet—and I'd like to remind you of this—are in fact subject to the same laws as other representations. We have already had success in court. We've already tested this hypothesis and have had successful prosecution of firms that are using the Internet.

I can invite Nicole Ladouceur to speak to some of the other efforts we have in regard to working with the Internet.

Ms. Nicole Ladouceur (Assistant Deputy Director of Investigation and Research, Fair Business Practices Branch, Competition Bureau, Department of Industry): Thank you, Mr. Wright.

Again, we have had an opportunity to test our legislation with respect to the Internet. As we know, this is a developing technology, and we are of course monitoring the situation in terms of law enforcement. In doing so, we do so in a cooperative effort with other countries. Canada participates regularly in international sweeps over the Internet, testing our legislation and strengthening our cooperative efforts around the world.

In a recent meeting in Washington dealing with cross-border crime, the issue about crime on the Internet came up. The question was put to the Department of Justice in the U.S. with respect to telemarketing and Internet to see if there was any possibility there of linking. So far the feeling is that for the time being, telemarketing is a very distinct offence and the representations made over the Internet are being captured by other broader framework legislation such as is the case in Canada.

The Chair: Thank you.

Mr. Tom Wright: Carrying on again, Madam Chairman, with clause 13 and the telemarketing area, I gather some issues have been raised and that you may have before you later today additional amendments being proposed that would suggest we otherwise deal with the disclosure requirements imposed by way of regulation. I'd like to reiterate that the disclosure obligations are designed to help consumers evaluate whether a telemarketing promotion is legitimate or not in a wide variety of situations.

We view the regulation-making capacity an important part of this. Flexibility is needed to be able to react efficiently and quickly in response to the new scams, which are notoriously difficult to predict. Significant limits, I might add, are imposed on the Governor in Council when making regulations. There are formal public consultative processes that must be followed. The authority to make regulation is not something that is taken lightly. And this kind of regulatory scheme is common in other federal legislation such as the Hazardous Products Act or the Narcotic Control Act.

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I just wanted to make sure that you had this particular concern in context as well. I think it's important to recognize the nature of fraudulent telemarketing.

An additional issue that comes up, again in clause 13, has to do with the notion of prior payment, and that it is perhaps being suggested to limit this to include prior payments to persons engaged in the contest. I think what we have to recognize is that we're dealing with fraudulent telemarketing, and if I understand the amendment that may be suggested by Mr. Jones later this afternoon, we would have the net effect, I think, of neutering this particular requirement in the statute. The amendment will allow illicit telemarketers to ask for payment to third parties and thereby escape the purpose of section 52.1. Such a loophole, as I mentioned, would neutralize the intended impact of this provision. In fact, this is how telemarketers seek to insulate their interests today, by setting up the structure that way. It's an important element, and if you wish we can go into it in more detail.

I also understand that, again in regard to clause 13, there is some suggestion, which may come forward later this afternoon, that we dispense with director and officer liability provisions. I would like to reiterate that the director and officer liability provisions are not unusual, particularly in the context of regulatory offences. For example, similar provisions do exist in the Canadian Environmental Protection Act and in the Bank Act, and frankly they exist as well in some provincial statutes such as the Quebec Consumer Protection Act.

The proposed subsection—and it's 52.1(8)—states that in situations where an officer or director is in a position to direct or influence the policies of the corporation, then that officer or director is responsible where the corporation commits an offence. And that is unless he or she can prove the due diligence. So we're talking about a directing mind, someone who's actually exerting influence, and we still have the opportunity for that person to demonstrate due diligence. Again, the way in which illicit telemarketing is structured makes this an important dimension in dealing with those who actually are the architects of this historical situation.

[Translation]

There is also another subject that often involves the concept of double-ticketing. I am going to ask Ms. Nicole Ladouceur, who looks after many of our activities with the provinces, to explain why that is not really a problem, our efforts being very well coordinated.

Ms. Nicole Ladouceur: For several years, there has been a federal-provincial committee, called the Consumers Measures Committee, the purpose of which is to harmonize federal and provincial laws and maximize cooperation.

The Competition Act is a framework law that concerns both the market and, at times, certain transactions that consumers might make in the marketplace. That is why we are very much involved with the Consumers Measures Committee.

Why are we so involved with the Consumers Measures Committee? Some provinces don't have a law and some do. However, it must be remembered that provincial laws do not have an extraterritorial scope while the nature of telemarketing is precisely that it sets up in one province and targets residents in another Canadian province or, in some cases, in the United States.

We believe that a federal framework law allows us to combat deceptive telemarketing much more effectively.

Mr. Don Mercer: Thank you very much, Nicole.

[English]

Ray is going to speak on the next coming issue.

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Mr. Raymond Pierce (Assistant Deputy Director of Investigation and Research, Mergers Branch, Competition Branch, Department of Industry): This relates to merger thresholds in the regulations. A number of issues regarding the pre-merger notification thresholds, additional exemptions that should be created from pre-merger notification, and the information requirements contained in the long form were raised during the committee proceedings.

More specifically, it was suggested that the thresholds above which mergers should be notified should be increased consistent with inflation levels, and additional exemptions from notification should also be created. The act clearly states that we can handle these things through the regulations, and we intend to look at these issues more closely this fall. We're not opposed to doing these things, but it's something we need to take a closer look at.

It was also suggested that the information requirements in the long-form filing, which the bureau proposes to transfer to the regulations, create an additional burden on business in terms of the information they're required to file with the bureau. This is not the case. The information has been limited to what we consider to be key to our analysis at that stage of the review.

In addition, the long form will only apply to a very limited number of cases, the kinds of cases where right now we do a detailed review. Because of the technical nature of the information requirements, it was considered that putting these information requirements in the regulations would provide us with a more flexible vehicle to make changes in the future, if it's required. This is also consistent with other comparable legislation, such as the Investment Canada Act and the Hart Scott Rodino Act, which is the legislation in the United States that requires anti-trust filings.

Mr. Don Mercer: Thank you, Ray.

The next issue that has come on the table is the proposal to remove the availability of wiretapping; that is to say, interception of private communications without consent, on the authorization of a judge. This would be removed for bid-rigging and conspiracy, leaving it only for telemarketing.

We believe the amendments, which we understand will be put on the table by Mr. Schmidt and Mr. Shepherd, which would limit the application of wiretapping to price-fixing and market-sharing and to only to deceptive telemarketing under subsection 52.1(3), that is to say, the deceptive marketing practices part of the provision, would resolve the interests of stakeholders in this area.

The next issue is the bringing together of some points that are covered in the guidelines you have before you. These guidelines, which we tabled, I guess, on April 2, and on which we tabled the amendment today, are our response to many of the other issues that have been raised.

For example, the subjects covered in the guidelines include, of course, the clarification that proposed telemarketing provisions will apply only to live-voice communications, and we also point out some exceptions to the deceptive telemarketing provision; the price disclosure requirements for products such as mutual funds, which is the item we tabled today; and time limits for electing the civil or criminal track—you will recall that there was some debate on that issue, among certainly the stakeholders, some of whom wanted us to put a time limit on when we would make that decision, and we are dealing with our approach to that decision in the guidelines.

Then there are the circumstances surrounding the bureau's choice of civil or criminal track, and then I understand there are a couple of amendments that in fact would be coming forward from Mr. Jones, related to the deceptive telemarketing provision. The first would deal with customer-initiated calls, and the second would exempt of any consideration required to enter a contest from the prior-payment restriction. We believe those issues are adequately handled within the framework of the guidelines we have distributed to you.

I would like to remind you that the consultative panel that assisted us in developing the legislation, and which was a broad representation of business, academics, and the consumer community, urged us to introduce draft guidelines—

Mr. Janko Peric (Cambridge, Lib.): On a point of order, Madam Chair, I wonder how long we are going to go on with this philosophical—

Mr. Don Mercer: We've finished. I'm on the last point.

Mr. Janko Peric: Okay.

The Chair: Thank you, Mr. Peric.

Thank you, Mr. Mercer. I apologize.

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Mr. Don Mercer: I just want to point out that the panel urges the use of draft guidelines rather than the entrenchment of rigid interpretations in the act.

That does indeed finish our presentation today. Thank you for this opportunity.

The Chair: Thank you very much.

I just want some clarification from the testimony that we heard yesterday. We haven't had a chance to bring it forward.

In your guidelines you talk about how you'll not consider interactive telephone communications to have occurred with regard to a customer's interaction with automated, pre-recorded messages. I know that several members of the committee have great problems with that.

Mr. Don Mercer: I'm going to ask Tom to answer that.

Mr. Tom Wright: Madam Chair, I'm not sure I understand the fullness of the concern, but I think in essence, as I tried to outline earlier, what we're trying to deal with here in telemarketing is that an abusive, intrusive nature that surrounds someone who is calling a consumer, a person in their home, and being able to tailor their script and work with the individual to identify a weakness and an opportunity to truly take advantage of them is not the kind of situation we would expect to see in a pre-recorded message. It doesn't strike us as characterizing the same sort of situation.

The Chair: I'm just going to reiterate that I know several members of the committee have concerns and would not necessarily agree with that statement, Mr. Wright, in light of the fact that computers are now voice-automated and can reply to situations on the phone. You may not realize you're talking to a machine.

Mr. Konrad von Finckenstein: We tailored the legislation to deal with people who phone up lonely seniors, try to find a way into their confidence, establish a personal relationship, create a friendship, and then exploit it for commercial means. I'm not aware that there are any computers sophisticated enough to do that.

As Tom said, it's somebody who tailors his pitch specifically to a person. He probably makes two or three phone calls before he actually starts trying to get some money or something. He just literally establishes a personal relationship and exploits the loneliness of people.

The Chair: I'm not disagreeing with you. I'm just suggesting that you maybe want to look at your guidelines in light of the fact that we're talking about the future. Guidelines should not be for something that existed in 1997 or 1998, but for what could possibly be there in a couple of years' time. Or maybe they're out there but you may not have experienced that, whereas several members of the committee have experience with what would be pre-recorded messages. You may think you're talking to a person.

That's my comment on behalf of questions that have been raised several times on behalf of the evidence we heard on Monday afternoon. One of the reasons it was recommended by the witness, a well-respected professor, that we not include a live voice as an amendment was because of recorded messages. So by you saying you're not going to deal with recorded messages, you don't agree with him. So it just leads us to have some concerns because that was testimony we heard on Monday.

I realize they're guidelines. However, people are going to rely on your guidelines, and as other witnesses have said, they're already looking for ways to get around your guidelines.

Mr. Konrad von Finckenstein: Can I just say one thing? I mentioned to you when I appeared before you the first time that obviously these are guidelines that were drafted as of right now. First of all, the act has to be enacted. Once it is, I will hold public consultation on those guidelines and I will take any comments on board. If indeed, as Professor Ziegel has suggested, this is a problem, it may well be that the guidelines will have to be reconsidered in light of that.

The Chair: Thank you.

Madam Jennings.

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): I simply say that when you do hold your public consultations on the draft guidelines, you may want to invite Professor Ziegel.

The Chair: Thank you, Madam Jennings.

I now propose that we move to clause-by-clause.

Madame Lalonde.

[Translation]

Ms. Francine Lalonde: I would like to ask Mr. von Finckenstein a question because several witnesses, including some who represent business, asked when the decision to proceed by criminal or civil procedure would be taken. Just this morning, you sent us a brief from the Retail Council of Canada inviting—

[English]

The Chair: Madame Lalonde, just before you go into that, everyone should have before them two briefs, one from the Retail Council of Canada and one from the Canadian Survey Research Council. That's just in case you haven't seen them.

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I don't know if Mr. von Finckenstein can speak to them or not. I know one is dated May 22; it was not received in my office until 12.09 p.m. today.

Madame Lalonde, you may wish to ask your question.

[Translation]

Ms. Francine Lalonde: In its brief, the Retail Council of Canada expressed its satisfaction at the institution of the two-way approach based on both criminal and civil law. It goes on to say:

In our opinion, the Bureau's policy, which is to prosecute a small number of notorious cases in order to "send a message" to an industry about certain practices, is both unfair and ineffective. We hope that the existence of a civil procedure will allow the Bureau to act in more cases and make it easier to persuade those businesses to change their practices.

Further on, it says businesses have to be in agreement. The two approaches should not be maintained since then businesses won't cooperate.

I would like to know what you intend to do with that since it confirms the concerns I had at the beginning.

Mr. Konrad von Finckenstein: I'll ask my colleague, Mr. Tom Wright, to answer your question.

Mr. Tom Wright: We tried to take most of those issues into account in the proposed guidelines and, in that, I was told that the civil route would be taken

[English]

unless the criteria that we outline are fully satisfied. There will be a civil track unless sufficient information is warranting a pursuit of the criminal.

We also indicate here rather clearly that we would take a decision as quickly as possible with regard to which route would be followed in terms of pursing a particular case. I might add that the accused together with their lawyer will have a rather clear view of whether or not there is any likelihood of there being a criminal pursuit. I'd also add that it's generally the practice for counsel to seek without-prejudice discussions with the crown wherein there is a dialogue and an opportunity to understand what's going on.

I think we've tried in the guidelines to address this question. As the director has suggested, these will be the subject of consultation. So if there is an inadequate addressing of the concerns, we can always amend these guidelines to take it into consideration.

[Translation]

Ms. Francine Lalonde: Don't you think consumers or citizens would be concerned by that? Businesses might be, but everything will take place behind closed doors. The investigation process is private and anything that takes place between a lawyer and the Bureau is also private. So, citizens, consumers will have no way of knowing what is happening.

[English]

Mr. Konrad von Finckenstein: It's no different from what the act has right now. All our investigations are in private. What we're trying to do is make sure that Canadian consumers are fully informed and making intelligent decisions. We want to deal here with deceptive telemarketing.

Our approach is, as Tom says, that we assume it can be civilly remedied. We will work with that person either to get corrective action or take it to a tribunal and have the company ordered to make the necessary corrections. That will be public. The order will be public.

The criminal side is only reserved for those very egregious cases where people deliberately want to mislead. I'm of the firm view that the majority of misleading advertising cases by business are not where people go out deliberately to mislead. It's rare. They may be engaged in business practices that are a touch too sharp. They are trying to attract customers and they're going further than they should.

Don't forget that this is coupled with our whole program of public education and compliance whereby we actually sit down with companies and try to tell them first what the Competition Act says, and second, how they should structure their activities so to be in compliance with the act. All of it is very public.

• 1620

When we get an actual complaint, we do an investigation. We do that in private. You can't do investigations in public. We do that on both the criminal and civil sides. We will proceed with a civil remedy. It's quicker and it's less costly and also there is no victim. At the end of the day you get an order that tells you to cease and desist and maybe take some corrective action in terms of ads or something. You don't become a criminal, as you do right now, because you're convicted of misleading, save and except those few cases where people deliberately went out to break the law.

So we think these declarations actually will be of great benefit to the Canadian consumer because they will allow us to deal with a far larger number of cases, remedy these things, and put things to right that are really not criminal, but harm the consumer.

The Chair: Thank you, Madam Lalonde.

I'd like to move to clause-by-clause. What I'd like to propose, unless there's any other amendment I'm not aware of—Madam Lalonde and Monsieur Dubé, I don't have any proposed amendments—I will group the clauses together, if that's not a problem, where there are no amendments. Is everyone in agreement with that?

Some hon. members: Agreed.

The Chair: Okay. We'll move now to clause 1. Mr. Lastewka.

Mr. Walt Lastewka: Thank you, Madam Chair.

There's an amendment to clause 1, and I'm moving this amendment on behalf of my colleague, Mr. Bryden, who has appeared before the committee and is here with us today.

I move that Bill C-20, in clause 1, be amended by adding after line 6 on page 1 the following:

(1.1) The definition “business” in subsection 2(1) of the act is amended by adding the following after paragraph (b):

It also includes the raising of funds for charitable or other non-profit purposes.

The Chair: Thank you, Mr. Lastewka.

Mr. Bryden, do you wish to speak to that?

Mr. John Bryden (Wentworth—Burlington, Lib.): Yes.

I appeared before the committee and spoke to this issue during second reading. The amendment is designed to bring under the Competition Act non-profit organizations or not-for-profit organizations that are engaged in fundraising. I took advantage of the opportunity presented by Bill C-20 because it provides a civil remedy, as well as a criminal remedy, that will give the Competition Bureau and the Government of Canada far more opportunity to address the problem of misrepresentation by charitable and non-profit organizations, both deliberately and accidentally.

I'll add that I had in my office just recently a senior citizen who was brought in by Svend. They came in with two plastic bags full of fundraising solicitations. There were 248 items of mail this senior citizen had received in the course of three months. She had contributed to not a charity, but one not-for-profit organization only, a sum of $8,000 in the course of that three months, as a result of the misrepresentations that were made by that organization. So it's to address that kind of situation that I propose this amendment.

I thank the officials for giving me assistance in finding the correct wording.

The Chair: Mr. von Finckenstein, is there any comment?

Mr. Konrad von Finckenstein: No. As I mentioned in my opening remarks, this is a clarification that is not strictly required by jurisprudence, but I don't think it does any harm and may help bring advantage to charitable organizations and non-profit organizations, if they have to comply with the act.

(Amendment agreed to)

(Clause 1 as amended agreed to on division)

(Clauses 2 to 11 inclusive agreed to on division)

(On clause 12)

The Chair: On clause 12, Mr. Lastewka.

Mr. Walt Lastewka: Madam Chair, I move that Bill C-20 in clause 12 be amended by adding the following after line 24 on page 8:

(1.2) For greater certainty, a reference to making of a representation in section 52, 52.1, 74.01 or 74.02 of the act, includes permitting a representation to be made.

• 1625

[Translation]

Ms. Francine Lalonde: We don't have that.

[English]

The Chair: Madam Lalonde, there is a revised version of what was in these sections that you would have. There are a couple of changes in minor words. Do you not have that?

[Translation]

Mr. Antoine Dubé: The page is missing in French.

Ms. Francine Lalonde: What—

[English]

The Chair: Is the French not the same? Is there no French?

[Translation]

Mr. Antoine Dubé: There isn't any.

Ms. Francine Lalonde: Is this it?

[English]

The Chair: Do you have it? Okay, Mr. Bryden.

Mr. John Bryden: Are you going to move the amendment?

Mr. Walt Lastewka: So moved, Madam Chair, on behalf of my colleague, Mr. Bryden.

The Chair: Thank you, Mr. Lastewka.

Mr. Bryden.

Mr. John Bryden: The senior citizen I was referring to spent $8,000 on one organization. The organization was called Canadian Family Publishers and it had a Toronto address. When my staff phoned that Toronto address there was only a 1-800 number. We wanted to find out more about this Canadian non-profit organization. The voice that answered said “I'm sorry, there is no one in the office just now because of the Memorial Day holiday.”

In other words, Madam Chairman, it was a Canadian organization that was using an American organization to direct-market into Canada. This particular non-profit organization was using both direct marketing brochures and telemarketing, as well as personal appearances.

My second amendment is to address this, because when Canadian organizations use American for-profit direct marketers, be they telemarketers or otherwise, I could not see in the current legislation any way of getting at these organizations if they went abroad for their direct marketing. I found, indeed, that literally hundreds of non-profit organizations in Canada use American direct marketers and market into Canada. Just look at the envelopes and you'll see the postmark is Fort Erie or Windsor, because they bring the mail in bulk to those two stations.

This amendment is designed to put the onus on the organization that is purchasing the services of a telemarketer or a direct marketer in the United States to obey the spirit of the Competition Act and not make representations, or to permit misrepresentations by the for-profit telemarketers and direct marketers by using the United States.

The Chair: Thank you very much, Mr. Bryden.

Mr. von Finkenstein, do you wish to add anything to that?

Mr. Konrad von Finkenstein: No. As I mentioned before, this is a clarification. That's why it's worded “for greater certainty”, and I've no problem with it.

(Amendment agreed to)

(Clause 12 as amended agreed to on division)

(On clause 13)

The Chair: I understand, Mr. Jones, you have several amendments to clause 13.

Mr. Jim Jones (Markham, PC): In proposed subsection 52.1(1), we're saying in the statement in this section that telemarketing “means the practice of using” and we're inserting the words “live voice” interactive telephone communications for the purpose of—

[Translation]

Ms. Francine Lalonde: Could you go a bit slower. The interpreters are having trouble keeping up.

[English]

Mr. Jim Jones: I didn't hear you.

Ms. Francine Lalonde: Please speak more slowly, because the translator has problems following you.

Mr. Jim Jones: Okay.

The Chair: Maybe, Mr. Jones, you could actually move the amendment first and read your amendment.

Mr. Jim Jones: I move that Bill C-20, in clause 13, be amended by replacing lines 4 and 5 on page 10 with the following:

means the practice of using live voice interactive telephone communications—

[Translation]

Ms. Francine Lalonde: The interpreter just said that he doesn't have the amendment in the booth and so he can't read it.

[English]

The Chair: The interpreters don't have the amendments in the booth, so they can't be read. We can correct that right now, and that's what one of the clerks will do.

[Translation]

Mr. Antoine Dubé: We don't have it either.

[English]

The Chair: We will deal with each amendment, amendment by amendment. Are we going to take one to the booth? The translator doesn't have one in the booth.

• 1630

Mr. Jones, I think you've now moved the first amendment. Is that correct?

Mr. Jim Jones: Yes.

The Chair: Do you have any comments on that?

Mr. Jim Jones: Yes. This amendment speaks to the concerns raised by the Canadian Chamber of Commerce, the Canadian Bar Association, and the telemarketing industry. This provision leads to the implications for the Internet. In a recent journal, Dan Burk warned of the pitfalls of attempting to regulate the Internet in a piecemeal fashion, which this would be. If Internet regulation is the desired end goal then it must be achieved in a comprehensive legislative format with hearings dedicated to Internet regulations.

The Chair: Thank you.

Mr. von Finckenstein, I know that you spoke briefly to it before.

Mr. Konrad von Finckenstein: Yes, he and I had discussion of this very point. As I told him, our guidelines make it clear that we believe these sections will be applied to live voice and they were meant for that. As you so eloquently made the point, it may be that in future we will have computers that can simulate voices, etc. In our guidelines, as we set them out, it will be live.

I leave it up to the committee whether they want to adopt the amendment or not. It reflects what's our present intention. I cannot surmise as to what will be the future should we have computers that can simulate live voices.

The Chair: Thank you, Mr. von Finckenstein.

Mr. Schmidt.

Mr. Werner Schmidt: Madam Chair, I thank you for the opportunity.

I would strongly urge that the committee not accept this amendment for two primary reasons. One, I think the legislation then becomes dated almost immediately and does not anticipate future developments. Guidelines do. We had really good testimony on this yesterday afternoon from Professor Ziegel, I think it was. I would vote against this.

The Chair: Mr. Lastewka.

Mr. Walt Lastewka: I don't want to take extra time, but I was going to say exactly the same as Mr. Schmidt said.

(Amendment negatived)

The Chair: Mr. Jones, you have another amendment.

Mr. Jim Jones: Yes, it's that Bill C-20 in clause 13 be amended by replacing line 18 on page 10 with the following:

purposes of the communications; and

The Chair: Do you want to complete that amendment? Can you read the entire amendment in English, Mr. Jones?

Mr. Jim Jones: It continues, by replacing lines 24 to 28 on page 10 with the following: “ery.”

The Chair: I believe it's just to clarify the English based on the first amendment.

I think what happened is in a later amendment, Mr. Jones, you have proposed to remove “ery”. What you're proposing to do is erase lines 24 to 28 and just replace it with “ery”.

He wants to delete basically proposed paragraph 52.1(1)(c). The proposal is that after proposed paragraph 52.1(2)(a) there would be an “and”, which is “after purposes of the communication”, and at the end of 52.1(2)(b) it would end after “delivery” and the “and” and part (c) would come out. That's the amendment that's now before us, so that we all understand.

• 1635

[Translation]

Ms. Francine Lalonde: Can I ask a question so I can understand the meaning of the amendment? Does that mean "its delivery" has to be removed?

A voice: Yes.

Ms. Francine Lalonde: So it's not to be substituted.

[English]

An hon. member: Should that be removed altogether?

The Chair: No, it's going to end after “its delivery”. There will be no—

[Translation]

Ms. Francine Lalonde: So, nothing is changed.

[English]

The Chair: No. If you'll note in proposed subsection 51.2(2), there's (a), (b), and (c); (c) will come out, all of (c).

Mr. Jones, can you please explain your amendment?

Mr. Jim Jones: This amendment has been included because both the Chamber of Commerce and the Canadian Bar Association were consistent in calling for it. Their belief is that this is a fundamental change to the act, and therefore should be handled as an amendment to the act so as to allow for a fuller public discussion.

The Chair: Mr. von Finckenstein, can you please explain the department's position on this?

Mr. Konrad von Finckenstein: This deals with proposed paragraph 52.1(2)(c), which requires that disclosure is made in a fair, reasonable, and timely manner, and also refers to the product as may be described by regulation. The effect of Mr. Jones' amendment would be that you cannot prescribe by regulation what a product is. The purpose for it being in there is to give some ability to describe what products, and there may be some discussions as to what is a product that is covered by telemarketing or not. Here the Governor in Council would have the ability to pass a regulation defining what is a “product”, so that when you talk about new media things, software and hardware mixed together, you can determine whether that is a product or not or something that is marketable, something that will be used to steal from consumers. This would allow you, by regulation, to prescribe some of these products. Your amendment would deprive the crown of the ability to prescribe such products.

The Chair: Madam Jennings, did you have a comment?

[Translation]

Ms. Marlene Jennings: I would like to clear things up for Ms. Lalonde if she didn't understand the amendment proposed by Mr. Jones. He proposes removing—

Ms. Francine Lalonde: That's not written there.

Ms. Marlene Jennings: No, it's not written because it says "replace", but it really means everything in the section from paragraph c) on is to be eliminated.

[English]

(Amendment negatived)

The Chair: Mr. Jones, you have another amendment on clause 13. Mr. Bryden has identified it as PC-3.

Mr. Jim Jones: Yes. It is that clause 13 be amended by replacing line 40 on page 10 with the following:

amount by the participant to the person engaged in the telemarketing contest, or

The Chair: Mr. Jones, would you like to explain that amendment, please?

Mr. Jim Jones: This amendment is to prohibit prior payments by the participant to the person engaged in telemarketing contests. This was a requirement of the Canadian Chamber of Commerce and the Canadian Bar Association. Also, the amendment requires that telemarketing contests, which are presently legal, should be deemed illegal under Bill C-20. This was also requested so as to prevent the rewarding of a discount in a telemarketing contest being interpreted as prior payment.

The Chair: Is that it, Mr. Jones?

Mr. Jim Jones: Yes.

The Chair: Mr. von Finckenstein.

Mr. Konrad von Finckenstein: As we pointed out, we have a lot of problems with this amendment because it really would create a loophole. If a telemarketer could ask that payment be directed not to himself but to a third party, it would completely bypass the provisions of the telemarketing. This is quite common that people set themselves up with two companies, and one company sells and the other one receives the payment. With this amendment there would not be a crime under the act. So we would be very much opposed to this amendment.

(Amendment negatived)

• 1640

The Chair: Mr. Jones, you have a fourth amendment.

Mr. Jim Jones: The purpose of this amendment is that Bill C-20 in clause 13 be amended by replacing line 33 on page 11 with the following:

No person shall be convicted of an

and by replacing line 36 on page 11 with the following:

The commission of the offence;

(b) for the purposes of paragraph 3(b), no person who responds to consumer inititated inquiries regarding a contest, lottery or game of chance, skill or mixed chance and skill will be deemed to be engaging in a telemarketing; and

The Chair: And (c)—

Mr. Jim Jones: I didn't have that in mine.

The Chair: I have a longer amendment. Do you have paragraph (c)?

Mr. Jim Jones: I have it here:

(c) for the purpose of paragraph 3(b)(i), the words “prior payment” shall not be interpreted as prohibiting the awarding of a prize which constitutes a discount from the price otherwise payable, nor shall the paragraph be interpreted as prohibiting a contest, lottery or game of chance, skill or mixed chance and skill that requires consideration to enter, provided that the contest is lawful except for this section.

The Chair: Mr. Jones, would you like to speak to that amendment?

Mr. Jim Jones: The purpose of this amendment is to provide further clarification to what is or isn't a telemarketing situation, because at present a very broad definition of telemarketing exists. It's important to clarify that simply because an advertiser responds via live voice to consumer-initiated inquiries regarding a contest, the contest will not be considered a telemarketing contest.

The Chair: Thank you.

Mr. von Finckenstein.

Mr. Konrad von Finckenstein: My colleague Mr. Wright will answer the question.

Mr. Tom Wright: With regard to consumers initiating the inquiry, we tried to address that in the guidelines to give some clarity to customer relations lines. In point of fact, in the guidelines we also try to point out that customer-initiated calls aren't an issue unless there's a pattern of representation. And in point of fact one can conceive of a situation wherein a consumer is induced to make the call but then with a pattern of representation one can find oneself fully in the midst of inappropriate telemarketing, and we would certainly wish that the provisions of the act apply.

With regard to the second element you're describing, the awarding of a prize that constitutes a discount from the price, it seems to me that if in fact one distinguishes between the prize as being the right to a discount and the actual exercising of that, then there isn't a problem. So I don't think you would need the amendment in order to be able to award prizes that constitute discounts. I think that would be quite acceptable. So we would not be supportive of there being a need for the amendment.

(Amendment negatived)

The Chair: Mr. Jones, before I move to your next amendment, I must apologize. I did receive notification from Mr. Bellemare of another amendment, which most of you do not have before you. I will move to Mr. Bellemare. It's on clause 13 as well.

[Translation]

Mr. Eugène Bellemare (Carleton—Gloucester, Lib.): Thank you very much, Madam Chair, and I apologize for not preparing my amendment in writing. I'm going to read it very slowly.

• 1645

[English]

The Chair: Just a second, please, Mr. Bellemare. If anyone is following in Bill C-20, I want to make sure we're at the same clause. We're still on clause 13.

Mr. Eugène Bellemare: Yes.

The Chair: Would you like to read your amendment?

Mr. Eugène Bellemare: Fine.

I move that Bill C-20, in clause 13, be amended by replacing paragraph 52.1(3)(d) with the following:

(d) offer a product for sale at a price grossly in excess of its fair market value.

What I've done is remove the original text, which would have read:

(d) offer product for sale at a price grossly in excess of its fair market value, where delivery of the product is, or is represented to be, conditional on prior payment by the purchaser.

If I may speak to it very briefly, I'm making reference to the statements made by Professor Ziegel, when he was a witness, when he stated that the proposed text of paragraph 52.1(3)(d) needs amending because it suggests that it is not objectionable to use telemarketing to sell a product at a price grossly in excess of its fair market value, so long as the purchaser is not required to pay the price prior to delivery of the product. In the case of a consumer transaction, the time of payment for the product should be irrelevant if the consumer is unlikely to appreciate that he or she is being gouged.

The Chair: Mr. Bellemare, for the department, I don't know if you were aware that Mr. Ziegel corrected it when he was at the committee yesterday. In his original statement, it was identified incorrectly as paragraph 52.1(2)(d). He did clarify that yesterday, that he was referring to paragraph 52.1(3)(d).

Do you have any response to that?

Mr. Konrad von Finckenstein: Yes, Madame Chair.

As I told you when I appeared before you the first time, we want to ensure that consumers have correct information so that they can make a judgment. If they want to buy at a price grossly in excess of its fair market value, that's up to the consumer. This section deals with the fact that you can't do it where delivery of the product is or is represented to be conditional on prior payment by the purchaser. By taking that paragraph out, you basically put in a provision saying you cannot offer through telemarketing a price grossly in excess of its fair market value.

That's not at all what this legislation is about. This legislation is about not making things conditional; you don't trick people. But we're not trying to regulate prices and we're not trying to forbid somebody selling something at grossly excessive prices. It is up to the consumer to make up his or her mind whether he or she wants to buy a product at the price at which it's being offered.

This section says when you have an excessive price and you insist on payment beforehand and you do that through telemarketing, then it's a crime. But the mere fact that somebody phones you and says I have this bridge to sell you for $5 million— Then it's up to the consumer to say yes or no.

I don't think we would support this amendment.

The Chair: Mr. Bellemare.

Mr. Eugène Bellemare: Mr. von Finckenstein makes reference to grossly overpriced, and he says: this is not our view; this is not really what we're looking at. But he puts it in his clause when he says “offer a product for sale at a price grossly in excess”. Why did he put it in in the first place? If he's right, then he should have dropped this and just referred to payment ahead of time.

I'm saying if something is absolutely overpriced and you have a vulnerable person saying they'll buy it, is the time factor important, that the person pay in advance? But if the person pays after the fact, upon receipt, for example, that's no more a crime? I don't understand that at all.

• 1650

The Chair: Mr. von Finckenstein, before you respond, it leads me to a question of clarification. Are we saying that telemarketing, regardless if the price is reasonable, is okay if you pay in advance?

Mr. Konrad von Finckenstein: There's a huge perfectly legitimate telemarketing industry in this country that are selling their products through telemarketing, and there's absolutely nothing wrong with it. What we're trying to do is deal with those people who use telemarketing to deceive or to trick people. So this legislation is drafted to walk that fine line: we don't want to hamper the perfectly legitimate telemarketing industry that sells their products through the means of a telephone, but we want to go after the scam artists.

If you sell something and you insist on price beforehand, the consumer hasn't seen the product, etc., then the price of the product has to be reasonable in comparison to its fair market value. That's what we're saying. If you're asking an excessive price and it's payment beforehand, there's no legitimate reason for doing that. Therefore it would be an offence under the act.

Mr. Eugène Bellemare: Chairman, I beg to disagree.

Mr. von Finckenstein gave an example: I have a good bridge to sell you, a nice bridge to sell you for $5 million. I say okay. It's $5 million, and I send him a cheque and then the next day I get the bridge. The guy at the door brings me a miniature bridge, a toy. I say whoa, this is not what I bought. According to Mr. von Finckenstein, if I paid ahead of time, that would be a crime; but if it's not ahead of time— It's a question of time. When is exactly the cheque made: is it prior, is it during the sale, or is it after I receive the invoice? To me, I'm being gouged, whether it's before, during, or after.

Mr. Konrad von Finckenstein: Taking the very example that you quote, if you get your miniature bridge and you haven't paid yet, you're going to send it back rather than paying, because you realize you're not getting value for money. That's what this is getting at. But when you paid beforehand, the person is probably gone and you can't recover, etc. The only hope you have is that we will catch him and put him in jail.

(Amendment negatived)

The Chair: We will now go back to Mr. Jones. You have a fifth amendment on clause 13.

Mr. Jim Jones: I know how you feel.

I move that Bill C-20, in clause 13, be amended by deleting lines 10 to 20 on page 12.

The Chair: On the copy I have, it says 10 to 21.

Mr. Jim Jones: Mine says 10 to 12 on this one.

The Chair: By deleting lines 10 to 21 on page 12. Is that correct, or am I reading it incorrectly, Mr. Jones?

Mr. Jim Jones: Lines 10 to 21 on page 12, yes.

The Chair: Okay, I just wanted to clarify that. Thank you. Mr. Jones, would you like to explain that amendment?

Mr. Jim Jones: Yes. This paragraph allows for the prosecution of officers and directors of a company even if the corporation itself has not been convicted. It seems most illogical to go down this road.

The first thing to determine with the Competition Act should be whether or not a company is in violation. If this is determined to be the case, then and only then should the directors or officers be held liable.

The Chair: Mr. von Finckenstein or Mr. Wright?

Mr. Tom Wright: Madam Chairman, I tried to explain a little earlier the perspective we had on this. What we're trying to target here are those officers or directors who actually are in a position to influence. They're the directing minds. These are the people who are able to set this up and control it and frankly be responsible for it. So it's a very focused clause.

I might also add that in the clause there is very clearly a due diligence defence.

And the third point I would make is that this is in fact the way in which practitioners out there now in the illicit end of this business operate to shelter themselves. We would very much like to be able to cut through it and deal with those with whom we truly should deal.

• 1655

So I would not support the amendment.

(Amendment negatived)

The Chair: Mr. Jones, I understand you have one further amendment to clause 13.

Mr. Jim Jones: Right.

I move to amend Bill C-20 in clause 13 by replacing line 43 on page 12 with the following:

the person from the offence;

Really, it's just changing the word “telemarketing” to “offence”.

The Chair: Is there a reason for that change?

Mr. Jim Jones: The purpose here is to allow the courts to base sentencing on any fraudulently or illegally realized profits. The way it is written now, “telemarketing” in place of “offence”, would leave companies liable to larger fines based on profits not necessarily earned in an illegal fashion.

The Chair: Mr. Mercer?

Mr. Don Mercer: Sure.

Your concern, Mr. Jones, is already covered in Bill C-20. Proposed subsection 52.1(10) starts with:

In sentencing a person convicted of an offence under this section

So it's an issue already covered.

The Chair: Does that clarify it?

Mr. Schmidt? No?

I'm not sure I understood that either, Mr. Mercer. Maybe you could just explain that again.

Mr. Konrad von Finckenstein: The section deals only with somebody who's convicted of an offence, and then allows the judge in sentencing to look at aggravating factors. You have committed an offence. What have you done? You look at the use of lists that have been previously used. You look at the characteristics of the person to whom it was directed—for instance, seniors—and you look at how much that person actually got from his overall activities.

Whether the sentencing is going to be harsh or lenient depends on how much money that person made overall. You may only convict him of this one count, but he has been carrying on telemarketing for the last three years, and has actually made a fortune. Therefore, you would apply a harsher sentence than otherwise.

This allows the judge to take into account the whole context of the activities of the accused when convicting him with regard to one specific offence.

(Amendment negatived)

(Clause 13 agreed to on division)

(On clause 14)

The Chair: I understand you have an amendment, Mr. Shepherd.

Mr. Alex Shepherd (Durham, Lib.): Yes.

I move to amend clause 14 by replacing line 7 on page 13 with the following:

14. Section 53 of the Act is

The essence of this is that this clause repeals two sections of the act, 53 and 54. The effect of this amendment would be not to repeal section 54, which deals with the issue of double-ticketing.

I think we heard from a number of interveners who spoke that in spite of the fact that there may not have been a lot of convictions in this section over the last few years, there was a utility to maintaining it within the act. There was a thought process that within the industry, it acted as a police watchdog.

In addition, some people have also mentioned, although I understand it's dealt with in other sections of the act, that the use of banned codes is now becoming more prevalent. The thought process is that this would also have an impact in possibly policing those areas. We heard that in Australia there's a general provision, not legislated but within their consumer protection industry, to allow people to get the product for free. In fact, that isn't what this addresses, but it allows an interpretation under the guidelines to address that.

Interestingly enough, just in the last week, I think, the Canadian Consumers' Association approved, among a number of their users, that in fact this would be a similar process in Canada. So it's useful to maintain it within the bill. Some of the other clauses will also deal with the same issue—I think there are two or three other clauses—but that's the essence of the amendments.

• 1700

Mr. Konrad von Finckenstein: As I mentioned, Madam Chairman, we have not used this section for some time, but it is believed that there is some utility left in it; there may be occasions to use it. So I'm not opposed at all to retaining the section.

The Chair: Okay. All those in favour of Mr. Shepherd's amendment? All those opposed?

[Translation]

Ms. Francine Lalonde: Just a minute, Madam Chair.

[English]

The Chair: I'm voting—

[Translation]

Ms. Francine Lalonde: I apologize, but I have a language problem.

[English]

The Chair: Madame Lalonde, we've started voting. I have to finish the vote.

[Translation]

Ms. Francine Lalonde: I have a language problem. Excuse me. The French says the opposite of the English. If you could take a look at the French. You keep section 53 in the act and delete section 54 so it stays in the original act, but in French, it says that section 53 of that act is repealed. It's not section 53 that's repealed, but section 54.

[English]

The Chair: In English it reads “Section 53 of the act is repealed”.

[Translation]

Ms. Francine Lalonde: That's right.

[English]

The Chair: And in French it will read—

[Translation]

Ms. Francine Lalonde: It's section 54 that's repealed.

[English]

The Chair: It's not being repealed, so section 54 can stay. It's the same in English and French. Correct me if I'm wrong.

The Clerk of the Committee: Yes, it's okay.

The Chair: It's okay. The clerks are telling me it reads the same in French as it does in English. In English we're repealing section 53; we're taking out any reference to section 54 in both English and French.

Madame Lalonde.

[Translation]

Ms. Francine Lalonde: I said it was the way the amendment was written that caused the confusion.

Mr. Antoine Dubé: It's misleading.

Ms. Francine Lalonde: Thank you.

[English]

The Chair: It changes it a little bit, yes.

All right, so I'll call the vote.

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 14 as amended agreed to) [See Minutes of Proceedings]

(On clause 15)

[Translation]

Ms. Francine Lalonde: I have a question, Madam Chair.

The Chair: Yes.

Ms. Francine Lalonde: At b), still in French—

Mr. Antoine Dubé: It's clause 15.

Ms. Francine Lalonde: It's not in clause 14 but in clause 15.

Mr. Antoine Dubé: We're not there yet.

Ms. Francine Lalonde: Are we there yet?

[English]

The Chair: Clause 15? We're just moving there right now. Madame Lalonde, you have a question on the French?

[Translation]

Ms. Francine Lalonde: In English, it says:

[English]

“for a term not exceeding one year or to both.”

[Translation]

However, in French, it says: "ou l'une de ces peines".

[English]

The Chair: Are we talking about clause 15?

[Translation]

Ms. Francine Lalonde: They're not written the same way. OK. It wasn't written the same way. It was reversed. Thank you. It's OK.

[English]

(Clauses 15 and 16 agreed to on division)

(On clause 17)

The Chair: Mr. Shepherd.

Mr. Alex Shepherd: Once again, this is to do with double-ticketing. The amendment is that Bill C-20 in clause 17 be amended by replacing lines 21 and 22 on page 13 with the following:

17. Sections 56 to 59 of the Act are repealed.

17.1 Section 60 of the Act is replaced by the following:

Defence

Section 54 does not apply to a person who prints or publishes or otherwise distributes a representation or an advertisement on behalf of another person in Canada if he or she establishes that he or she obtained the recorded name and address of that other person and accepted the representation or advertisement in good faith for printing, publishing or other distribution in the ordinary course of his or her business.

• 1705

I think what's trying to be done here, in addition to re-establishing double-ticketing, is to ensure that people who publish flyers and so forth that may have relied on other information are not caught up in the legislation.

Mr. Konrad von Finckenstein: The effect is consequential to the changes he just made to section 13. By resuscitating section 54, you have to make the consequential change in section 17. You also have to resuscitate the defence for people who issue flyers so they don't get caught by section 54.

Having made the change that section 54 is not repealed, you also need these sections now to bring this thing back to the status quo.

(Amendment agreed to)

(Clause 17 as amended agreed to on division)

(Clause 18 agreed to)

(On clause 19)

The Chair: On clause 19 we have an amendment to be proposed. Mr. Harb.

Mr. Mac Harb (Ottawa Centre, Lib.): Thank you very much.

To sum up this amendment to clause 19, it will provide incentives and protections for employees or retailers who aren't aware of wrongdoing.

The Chair: Mr. Harb, just before you go any further, I was having everyone read their amendments in full.

Does everyone have Mr. Harb's amendment in front of them?

Mr. Harb, please move your amendments without reading them or just with reference to them.

Mr. Mac Harb: I don't want to read them, unless you want me—

The Chair: I just want you to move them officially before you start discussing them.

Mr. Mac Harb: Okay.

I'd like to move the amendment— Do you want me to read the whole amendment, Madam Chair?

The Chair: No, that's okay.

Mr. Mac Harb: Deem the amendment read, as it has been distributed in both official languages.

The Chair: Now you can proceed.

Mr. Mac Harb: To summarize, this amendment does three things. First, it provides incentives and protection for employees, contractors, or retailers who report to the Competition Bureau wrongdoing, price-fixing, or other issues that are contrary to the law. It also provides a deterrent to employers or suppliers who may be thinking about taking action against employees or contractors.

This amendment came about as a result of lots of consultations with many people in the community and throughout the country who often decided to go to the media rather than coming to the Competition Bureau with information concerning issues of price-fixing, for fear of retribution and sanctions or discrimination.

This would ensure that there is in the act a protection for those who come forward with information. What is not in the act is protection for those who might be subject to sanctions by an employer or supplier.

I have with me a letter that was sent to the committee on May 13 from the Public Interest Advocacy Centre. Unfortunately, it's in English. I thought the clerk would have translated it in French and distributed it to all of the members. For the benefit of my colleagues I will only read two lines of it, with your permission.

• 1710

The organization represents over 800 individual and group members, representing over 1.5 million Canadians. They support this amendment. I will read only those couple of lines where they say:

We strongly support this proposed amendment. Often the only persons who are aware of an offence are employees or others who are vulnerable to retribution by the company in question should they act in the public interest by advising the competition authorities of a violation of the law. It is essential that such persons be protected from retribution.

I think the clerk has copies in English of this particular letter.

I hope my colleagues will support this amendment, known as the whistle-blower's protection mechanism.

The Chair: Thank you, Mr. Harb.

Mr. Dubé, do you have a comment?

[Translation]

Mr. Antoine Dubé: I understand the idea and I'm very much in favour, because it's an improvement, but I'm playing the Devil's advocate a bit. Let's take the example of an employee who has problems with his employer and is looking for ways to protect his job and keep from being fired. According to what I've heard, there is quite a long delay. Wouldn't it be possible for someone to use that to protect his job when he should be fired? I wonder.

Mr. Mac Harb: That comes under provincial, not federal, jurisdiction, and it's not in the amendment I propose myself. I propose the introduction of a penalty for employers who discriminate against employees who expose wrongdoings or illegal activities.

Mr. Antoine Dubé: That doesn't really answer my question. I said I was playing Devil's advocate. So, could an employee not use it to delay his firing?

[English]

The Chair: I think if you read in the first line that's being proposed in proposed subclause 66.1(1), it's “Any person who has reasonable grounds”. You have to have reasonable grounds to bring this forward.

I'd like to hear from the director, Mr. von Finckenstein, if I could.

Mr. Konrad von Finckenstein: As I said, we are neutral to this provision, because we feel that there's ample provision in the law for whistle-blowing and to protect whistle-blowers.

On the other hand, the way this law is structured right now, it provides that people may notify the Competition Bureau and that what they say will be kept confidential. We have given undertakings of confidentiality. It establishes a prohibition on employers, an offence, and it also says that nothing in here impairs any rights that people have in law or under their collective agreement.

So the main purpose of the law as drafted, as far as I can see, is to heighten the effect that there is a provision for whistle-blowing, and whistle-blowing is something Parliament encourages people to do if they know their employers are—

If you enact this provision, I don't think it will do any harm. It may make it clear that whistle-blowing is something Parliament encourages, and it may give some encouragement to people to come forward. It will also act as a restraint on employers who may be tempted to fire their people if they whistle-blow, because it's now a specific offence, making it clear that you cannot do that. So I leave in your hands whether you want to enact it or not.

The Chair: Thank you.

[Translation]

Ms. Jennings.

Ms. Marlene Jennings: I just wanted to say that I support this amendment on several fronts. First, I have less concern with it than Mr. Dubé. If an employer has good and reasonable grounds for firing or disciplining an employee, nothing prevents that employer from acting even if someone has reported his company to the Competition Bureau for unfair practices. That's perfectly clear.

It could happen that a bad employee knows his company has carried on practices that contravene this act. Knowing that his employer intends to fire him, he might think he can protect his job by reporting the company, but that is not the case. As long as the employer has reasonable grounds for disciplining him, he can do so.

• 1715

I would like to answer Mr. von Finckenstein's comment. It's not quite true that the present law gives enough protection, because it doesn't provide for any penalty for an employer who fires an employee who has reported him.

According to labour law, the employee could certainly protest his firing by lodging a complaint with the Labour Standards Board, but the present law does not provide for that.

It's not only a matter of making the public aware of the fact that such people can be protected, but also of curbing employers who punish whistle-blowing employees. I think that's very important.

[English]

The Chair: Thank you, Madam Jennings.

Madame Lalonde.

[Translation]

Ms. Francine Lalonde: Basically, I agree, but since this concerns labour relations, it comes under provincial jurisdiction. Are there any other federal laws that have provisions like that? Basically, I agree. It's just a technical problem.

[English]

Mr. Konrad von Finckenstein: If I may, Madam Chair, this is a criminal offence. The act creates a criminal offence. It does not deal at all with employer-employee relations.

(Amendment agreed to)

(Clause 19 as amended agreed to)

(Clauses 20 to 46 inclusive agreed to on division)

(On clause 47)

The Chair: Mr. Schmidt.

Mr. Werner Schmidt: Thank you, Madam Chair. Do you want me to read the amendment here?

The Chair: Yes, please.

Mr. Werner Schmidt: I move that Bill C-20, in clause 47, be amended by replacing lines 7 to 9 on page 38 with the following:

(conspiracy) of the Competition Act in relation to any of the matters referred to in paragraphs 45(4)(a) to (d) of that Act, section 47 (bid-rigging) or 52.1 (deceptive telemarketing) of that Act.

The Chair: Mr. Shepherd's amendment is also on line 7. Are we going to do these separately? Yes, we're going to do them separately. Mr. Shepherd has an amendment to line 7, as well, but I guess we'll do them separately.

I'm trying to get clarification from the clerk on how we're going to handle this.

Mr. Werner Schmidt: I think they're exactly the same.

The Chair: Mr. von Finckenstein.

Mr. Konrad von Finckenstein: Mr. Schmidt's amendment clarifies bid-rigging for section 45 and limits it.

Mr. Shepherd's amendment, instead of referring to section 52.1, makes it subsection 52.1(3). It's a further clarification on Mr. Schmidt's amendment.

Logically, you should deal with Mr. Schmidt first, and then Mr. Shepherd afterwards.

The Chair: Okay, we'll do that, then.

Mr. Schmidt, would you like to state your amendment?

• 1720

Mr. Werner Schmidt: Yes.

The short, colloquial version is that what this amendment does is limit wiretapping to bid-rigging and market share—that is, price-fixing and market share. That's really what it does.

The original intention of my question was that the way wiretapping was, it could go all over the place. The bureau director now tells us clearly that this is not what he wants. That's not what I want either.

I want to thank the bureau people and the legislative counsel who went through this and found a way to actually change the legislation so that this is not now regulated but in law. I really appreciate that, very much, because I think that's the right way to go. I think it captures the full intention of restricting wiretapping to where it ought to be restricted, and does it by law rather than by regulation.

The Chair: Just before the department speaks to it, I want clarification. Is Mr. Shepherd's amendment built on Mr. Schmidt's amendment? Were they aware of each other's amendments?

Mr. Konrad von Finckenstein: No.

Mr. Werner Schmidt: I wasn't, no.

The Chair: I have the department supporting both amendments, so I'd like some clarification.

Mr. Konrad von Finckenstein: It's a different point. He is clarifying the wiretapping regarding telemarketing, and he is clarifying the wiretapping regarding conspiracy.

The Chair: Okay.

With regard to Mr. Schmidt's amendment, then, the department's in favour of it?

Mr. Konrad von Finckenstein: You can see by virtue of Mr. Schmidt's amendment that wiretapping for conspiracy is now limited to the grounds set out in paragraphs 45(4)(a) to (d).

If you look at these paragraphs in the act, (a) is prices, (b) is quantity or quality of production, (c) is markets or customers, and (d) is channels or methods of distribution—or to use the shorthand Mr. Schmidt does, it's conspiring to either fix prices or fix markets. For only those two limited purposes can you wiretap.

That's the effect of his amendment, and we support it.

The Chair: Madam Lalonde, you had a question?

[Translation]

Ms. Francine Lalonde: In French, it only talks about paragraphs (4)a) to d); it should also read "45", because that's what it says in English. Could you tell me again— What is taken out, 45(4)a) to d)? Is that section 45 of the present act?

[English]

The Chair: In the French, it starts with “l'article 45”, and then goes on to define paragraphs (4)(a) to (d) later. I think it's just the way it's been worded in French.

Are they the same or are they different, Madam Ladouceur?

[Translation]

Ms. Francine Lalonde: So, it's (4) and not 45.

[English]

The Chair: Madam Ladouceur is going to speak to that.

[Translation]

Ms. Nicole Ladouceur: You'll see at amendment G-6:

says, of "(conspiracy) of the Competition Act in relation to any of the matters referred to in paragraphs 45(4)(a) to (d) of that Act—

So, the French version is grammatically correct, and so is the English version.

Ms. Francine Lalonde: It should say "45(4)a) to d)".

Ms. Nicole Ladouceur: That's what it says. It says paragraphs (4)a) to d).

Mr. Konrad von Finckenstein: It isn't necessary to say section 45. It's understood that "paragraphs (4)a) to d)» means paragraphs 45(4)a) to d).

[English]

The Chair: No, you already have it in the English and the French. It's just in a different order. We refer to section 45 in both the English and the French.

Mr. Konrad von Finckenstein: Absolutely. It's just a different way of drafting in English and in French. The meaning is exactly the same.

The Chair: But I believe, Mr. von Finckenstein, you're saying we don't even have to have section 45 there.

Mr. Konrad von Finckenstein: No, I'm speaking to her specific question. She said “alinéas (4)a) à d)”, and I said, no, you don't have to put section 45 in there because it's in the introductory part of the French.

• 1725

The Chair: Right. That's what I explained a few minutes ago. That's what I thought I did a few minutes ago. It was at the beginning of the section in French.

[Translation]

Ms. Francine Lalonde: That means that in the amendment to section 47 of the bill, beside "45 (conspiracy)" it would say "(4)a) to d)".

Mr. Konrad von Finckenstein: Of section 45.

Ms. Francine Lalonde: So, that limits it a lot. Before, it was all of section 45. Now, its only 45(4)a) to d).

Mr. Konrad von Finckenstein: Exactly. The intent is to limit it.

Ms. Francine Lalonde: And do you agree with that?

Mr. Konrad von Finckenstein: Yes.

Ms. Francine Lalonde: Why?

Mr. Konrad von Finckenstein: Because we always said our intention was to use this power only in that case, the case where somebody tries to fix prices in the marketplace.

[English]

The Chair: Does that answer your question, Madam Lalonde?

[Translation]

Ms. Francine Lalonde: That answers my question. Thank you.

[English]

(Amendment agreed to)

The Chair: Mr. Shepherd, you also have an amendment to clause 47.

Mr. Alex Shepherd: Once again, I move the replacment of line 7 on page 38 with the following:

(conspiracy) or 47 (bid-rigging) or subsection 52.1(3) (de-

Now the process of this is that the original provisions apply to all aspects when talking about telemarketing, whereas this zeros in on the wiretapping provision only for deceptive telemarketing as defined in the act, which is defined under proposed subsection 52.1(3). So those specific aspects of telemarketing are what in fact this has zeroed in on, as opposed to some of the general disclosure provisions.

Prior to the amendment, “wiretap” referred to the general disclosure provisions in addition to those conditions related to deceptive telemarketing. Now, the wiretap provision only relates to those things that are specifically defined as deceptive telemarketing under the act.

The Chair: Mr. von Finckenstein.

Mr. Konrad von Finckenstein: It was never our intention to do anything more than to have wiretapping under deceptive telemarketing. Therefore, we fully support this precision that Mr. Shepherd has introduced. Thank you.

(Amendment agreed to on division)

The Chair: Mr. Jones, you also have an amendment to clause 47.

Mr. Jim Jones: Basically, I withdraw my amendments because they were the same as Mr. Shepherd's.

The Chair: Okay. Thank you, Mr. Jones.

(Clause 47 as amended agreed to on division)

(Clauses 48 to 54 inclusive agreed to on division)

(On clause 55—Order in Council)

The Chair: On clause 55, we have another amendment proposed by Mr. Shepherd.

Mr. Alex Shepherd: This is the final tranche of the double-ticketing provision, which is that clause 55 be amended by replacing on line 26 on page 39 with the following:

(2) Sections 12, 14 to 17.1, 19, 22, 39, 41, 42

So I think that basically clears the double-ticketing provision.

The Chair: It's a consequential amendment because of the very first amendment on double-ticketing. Correct?

Mr. Alex Shepherd: That's right.

(Amendment agreed to on division)

(Clause 55 as amended agreed to on division)

The Chair: Just before we move to the next part, in Mr. von Finckenstein's opening comments he recommended that we should include in our report that the following paragraph be included in the committee's report. I'll just reread it. It's in his opening comments at the bottom of page 7 in English:

Where the law is reasonably settled in respect of a current criminal provision, precendents should not be opened up again for debate simply because of the shift from criminal to civil adjudicative jurisdiction.

• 1730

Ms. Bonnie Brown (Oakville, Lib.): I so move.

The Chair: So moved by Ms. Brown.

Mr. Schmidt.

Mr. Werner Schmidt: I just have a clarification. I know Mr. von Finckenstein gave us some indication before, but I'd like to ask him if he could clarify exactly what is meant by “precedents”.

Mr. Konrad von Finckenstein: The various sections that are moved from the criminal to the civil regime have wording in them on which there has been litigation regarding the specific meaning of those words. Now that the offence has been moved from a criminal to a civil regime, it does not mean the interpretation of those words in previous cases that elaborated on how to interpret those words does not apply.

Mr. Werner Schmidt: Okay, that clarifies it.

Thank you, Madam Chair. That was very good.

The Chair: Mr. von Finckenstein.

Mr. Konrad von Finckenstein: In the last amendment we passed by Mr. Shepherd, we just noticed there is a mistake. The French version does not have the same cross-references as the English one. If you look at the English one, it refers to sections 12, 14, 17.1, 19, 22, 39, 41, and 42. For some reason, the French version does not contain the reference to section 42. It should include section 42. I would suggest that one of your members move to correct that oversight.

The Chair: Mr. Shepherd, will you add that to your amendment? Mr. Shepherd adds that to his amendment.

(Subamendment agreed to)

The Chair: Okay, it's corrected.

Just before we deal with Ms. Brown's recommendation that she moved, I'm going to continue on with the rest of the bill, and then we'll add that to the report.

So I'll just delay that, Ms. Brown.

Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill carry as amended?

Some hon. members: Agreed.

Ms. Francine Lalonde: On division.

The Chair: On division.

Shall I report the bill with amendments to the House?

Some hon. members: Agreed.

The Chair: On division.

Shall I order a reprint for use at report stage?

Some hon. members: Agreed.

The Chair: And now, shall Ms. Brown's recommendation be part of the report?

We have to have a second report, I've been informed, Ms. Brown, so we will use your recommendation, if you would move it, as a second report. We can't include in the bill's report something that's not part of the bill.

Ms. Bonnie Brown: Okay. I move, Madam Chair, that this be the basis of a second report and be reported to the House.

The Chair: Okay. Is there any further discussion?

Mr. Werner Schmidt: Madam Chair, this is interesting.

[Translation]

Ms. Francine Lalonde: What is the recommendation?

[English]

The Chair: Madame Lalonde wants me to read it again.

Do you have the statement by the director, soon to be the commissioner?

[Translation]

Ms. Francine Lalonde: At what page?

[English]

The Chair: It's on page 6 in the English at the bottom. It's probably on page 7 in the French.

I've made a slight amendment to it, I guess. That's what the researcher is telling me.

Where the law is reasonably settled in respect of a current criminal provision, precedents should not be opened up again for debate simply because of the shift from criminal to civil adjudicative jurisdiction.

Mr. von Finckenstein, I think we need to have some clarification.

[Translation]

Ms. Francine Lalonde: This will surely not be adopted unanimously, because that's the heart of the problem.

[English]

The Chair: We haven't even passed it yet.

[Translation]

Ms. Francine Lalonde: Pardon?

[English]

The Chair: We haven't even passed this yet.

[Translation]

Ms. Francine Lalonde: I know.

[English]

The Chair: Maybe the researcher could explain why he's changed it.

Mr. David Johansen (Committee Researcher): I believe it's because some of the criminal provisions under the current act would be moved over to the civil track procedure, and they want to make sure that any of the jurisprudence for the current criminal provisions would continue to apply.

The Chair: Is that correct? So the wording change is acceptable?

Mr. Konrad von Finckenstein: Absolutely. Actually it's an improvement.

The Chair: I knew it was.

Are there any other questions?

[Translation]

Ms. Francine Lalonde: I'm totally against it.

[English]

The Chair: You're still against. Okay.

• 1735

Mr. Werner Schmidt: I have a technical question. Does this mean we have to have 500 copies printed of the second report? I hope not.

The Chair: No.

Mr. Werner Schmidt: Good, because as a single-page report there really just—

The Chair: We wouldn't want to print 500 copies of one page, would we?

Some hon. members: No.

The Chair: This committee is very resourceful. We wouldn't do that.

I need a motion to report Ms. Brown's recommendation. I thought we just did that.

Mr. Mac Harb: I moved it already. I moved that the report of Ms. Brown be attached, included along with the—

The Chair: It has to be separate. I just need a motion that it be reported to the House.

Mr. Mac Harb: I move that Ms. Brown's report be reported to the House.

(Motion agreed to on division)

[Translation]

Mr. Antoine Dubé: With dissidence.

Ms. Francine Lalonde: No. It'll have to wait in the House.

Mr. Antoine Dubé: I won't take that chance.

[English]

The Chair: So we can report it to the House? You're not opposed to that? Okay.

Mr. Werner Schmidt: Madam Chair, may I make a comment?

The Chair: Mr. Schmidt.

Mr. Werner Schmidt: I would like to commend the officials as well as yourself, Madam Chair, and the other members of the committee for the smoothness with which this clause-by-clause went. This is an extremely significant act, and there were a number of amendments in here. I think it's really to be commended that this committee went through it the way it did. I think you deserve a commendation.

Some hon. members: Hear, hear.

The Chair: Thank you.

I also want to thank all of the committee members and the officials for working and helping us through this. We tried to take our time with this legislation and allow witnesses and amendments to come forward. I appreciate the consultation by the different members from the bureau with members of the committee, the resolutions we were able to come up with today and the work throughout.

We wish you well in the Senate proceedings, and we look forward to reporting it back to the House and moving on.

I am now going to Mr. Lastewka.

Mr. Walt Lastewka: I wanted to comment that the cooperation of all the groups and all the parties during the deliberations made it much easier to have dialogue with the department, to look at amendments, to change amendments and so forth. I think that's a good lesson for all of us, to be able to go in more detail into the proposed changes, and then when we get to this point to be able to be satisfied that we've thoroughly reviewed each of the items. So I think everybody needs to be commended on that.

The Chair: Thank you.

Madam Lalonde.

[Translation]

Ms. Francine Lalonde: I would like to thank the Bureau, but I must repeat my deep concern. I know that it's not your intent to weaken the act, but when you make a law, you have to think about the trend it creates. I unfortunately think that it will weaken the Competition Act and its application.

[English]

The Chair: Thank you, Madam Lalonde.

Madam Jennings, do you have a further comment?

[Translation]

Ms. Marlene Jennings: Since my colleagues couldn't refrain from saying a few words, I'd like to add my comments.

I think we've just strengthened the Competition Bureau's ability to control and apply all the provisions against unfair telemarketing practices, etc. It's precisely the experience of the Bureau and of the Director of Investigations that made it possible for the government to target so well the amendments needed to control and apply the law properly. So, I must congratulate the Competition Bureau, its chief and the rest of its staff. I must reiterate my profound conviction that we did not weaken the act, but strengthened it.

[English]

The Chair: Thank you, Madam Jennings.

• 1740

Again, we want to thank you, Mr. von Finckenstein and all your colleagues, for being with us.

This meeting is adjourned for five minutes and then we have a steering committee meeting. We're going in camera in five minutes. We'll suspend for five minutes.

[Proceedings continue in camera]