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37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Tuesday, May 27, 2003

0840

The Chair (Hon. Andy Scott (Fredericton, Lib.))

Mr. Vic Toews (Provencher, Canadian Alliance)

The Chair

Mr. Svend Robinson (Burnaby—Douglas, NDP)

The Chair

Mr. Derek Lee (Scarborough—Rouge River, Lib.)

0845

The Chair

Mr. Svend Robinson

The Chair

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC)

The Chair

0850

Mr. Vic Toews

The Chair

Clerk of the Committee

The Chair

Mr. Donald Piragoff (Senior General Counsel, Criminal Law Policy Section, Department of Justice)

0905

0910

0915

0920

The Chair

Mr. Vic Toews

0925

The Chair

Mr. Donald Piragoff

Mr. David Daubney (General Counsel, Sentencing Reform Team, Department of Justice)

Mr. Vic Toews

Mr. David Daubney

Mr. Vic Toews

Mr. David Daubney

The Chair

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

Mr. Donald Piragoff

0930

Mr. Normand Wong (Counsel, Criminal Law Policy Section, Department of Justice)

Mr. Richard Marceau

Mr. Normand Wong

Mr. Richard Marceau

Mr. Normand Wong

Mr. Richard Marceau

Mr. Normand Wong

Mr. Richard Marceau

0935

Mr. Donald Piragoff

The Chair

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP)

Mr. Donald Piragoff

0940

Mr. Lorne Nystrom

Mr. Donald Piragoff

The Chair

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

Mr. David Daubney

Mrs. Marlene Jennings

Mr. David Daubney

Mrs. Marlene Jennings

Mr. David Daubney

Mrs. Marlene Jennings

Mr. David Daubney

Mrs. Marlene Jennings

Mr. David Daubney

0945

Mrs. Marlene Jennings

Mr. David Daubney

Mrs. Marlene Jennings

Mr. David Daubney

The Chair

Mr. Vic Toews

Mrs. Marlene Jennings

Mr. Vic Toews

Mrs. Marlene Jennings

Mr. Vic Toews

The Chair

Mr. Vic Toews

The Chair

Mr. Donald Piragoff

The Chair

Mr. Derek Lee

0950

Mr. Donald Piragoff

Ms. Rhonda Lazarus (Senior Counsel, Legal Services Branch, Treasury Board of Canada Secretariat)

Mr. Derek Lee

Mr. Donald Piragoff

0955

The Chair

Mr. Derek Lee

1000

Mr. Donald Piragoff

Mr. Derek Lee

The Chair

Mr. Vic Toews

Mr. Donald Piragoff

The Chair

1005

Mr. John McKay (Scarborough East, Lib.)

The Chair

Mr. John McKay

The Chair

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ)

The Chair

Mr. John McKay

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

The Chair

1010

Mr. Bernard Bigras

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

The Chair

Ms. Hedy Fry (Vancouver Centre, Lib.)

The Chair

Mr. Lorne Nystrom

The Chair

Mr. Vic Toews

1015

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

The Chair

Mr. John McKay

The Chair

Mr. Vic Toews

1020

The Chair

Mr. Bernard Bigras

The Chair

Mr. Paul Harold Macklin

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 048

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, May 27, 2003

[Recorded by Electronic Apparatus]

¾ (0840)

[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): I call to order the 48th meeting of the Standing Committee on Justice and Human Rights.

Today we're meeting to respond to a request of the meeting the Thursday before the constituency break, when Mr. Toews expressed concern about the process involving private members' business and advised us that he would be bringing forward a notice of motion, which he did, and I presume everyone has received it. I made a decision to call the meeting this morning to deal with his intervention of that Thursday. I will give Mr. Toews the opportunity to speak to his motion, but I reserve the right to pass judgment on its appropriateness under the Standing Orders.

Mr. Toews.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you, Mr. Chair.

The motion is asking the committee to clarify the application of Standing Order 97.1 with a view to permitting the committee to exercise all its options before the 30-day extension deadline provided for in the Standing Order. Standing Order 97.1 reads as follows:

A standing, special or legislative committee to which a Private Member's public bill has been referred shall in every case, within sixty sitting days from the date of the bill's reference to the committee, either report the bill to the House with or without amendment or present to the House a report containing a recommendation not to proceed further with the bill and giving the reasons therefor or requesting a single extension of 30 sitting days to consider the bill and giving the reasons therefor. If no bill or report is presented by the end of the sixty sitting days, or the thirty sitting day extension if approved by the House, the bill shall be deemed to have been reported without amendment.

Mr. Chairman, the Standing Order gives this committee two options, to report the bill to the House or to recommend not to proceed further with the bill. If the committee fails to exercise these two options, the bill is deemed reported back. The intent of this Standing Order was to protect a private member's bill from a negligent committee.

Let's consider the option where a committee has attempted to report a private member's bill to the House with amendment. If the sponsor of the bill disagrees with the amendments made by the committee, all the sponsor has to do is filibuster the motion to report the bill back to the House. When the deadline arrives, the bill is deemed reported without amendment, so it just frustrates the committee's intent. The ability to amend private members' bills at committee would, in fact, be lost.

So the interpretation I seek from the chair is as follows. I would argue that before the deadline to report is upon us, the committee must be allowed to vote on any outstanding motion to exercise one of the options in Standing Order 97.1. If it doesn't, the bill is deemed reported to the House without amendment. The interpretation I'm advancing to ensure that all motions and questions outstanding are dealt with by the committee would not prevent the committee from exercising its duties. In fact, the other interpretation would, the filibustering of the motion. The chairperson has essentially two options, one of which would cripple the ability of the committee with respect to the consideration of private members' bills. The other interpretation, which I favour and have advanced, would maintain the authority and independence of the committee, and I'd ask for the chair's ruling on that matter.

The Chair: Thank you very much.

Before I do that, I will entertain two or three interventions, no more than that. We don't have a great deal of time.

Mr. Robinson.

Mr. Svend Robinson (Burnaby—Douglas, NDP): Mr. Chairman, I wonder if you could clarify the agenda this morning. Will we be proceeding at 9 o'clock to the consideration of Bill C-32?

The Chair: Yes, that was the original schedule.

Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Mr. Chairman, I share a lot with Mr. Toews on this issue. Mr. Toews said the committee would be prevented from amending a private member's bill proceeding through in this way. Not only could the committee not amend it, we couldn't even adopt it clause by clause. In this particular case--let's tell it as it is--the mover of the bill has inserted himself on the committee considering the bill and, in what appears to be a patent conflict, is prepared, I think--I may be wrong--to filibuster the bill and bring it through to the deadline, at which point the committee will be prevented from adopting the bill or doing anything with the bill, so returning it to the House. We have a problem with the rules, we have a problem with how the member is, in my view, dealing with this.

It creates great difficulty for the chair, I understand that. There are a number of ways to go, but the chair is going to have to pick the way he thinks is best for, I guess, the House in this case. We're doing the work of the House. We may be prevented from doing the work of the House, but so be it.

¾ (0845)

The Chair: Mr. Robinson.

Mr. Svend Robinson: On the procedural point, Mr. Chairman, leaving aside Mr. Lee's comments, which are of a substantive nature with respect to the bill itself, I would just draw to the attention of the chair to Standing Order 116, which very clearly states that “the Standing Orders shall apply so far as may be applicable, except the Standing Orders as to the election of a Speaker, seconding of motions, limiting the number of times of speaking and the length of speeches.” This is further clarified in Marleau and Montpetit. I would strongly urge the chair to recognize that under the provisions of the Standing Orders, this motion is not in order. If there are concerns with respect to the procedure on private members' business, the appropriate place to address them surely is the Standing Committee on Procedure and House Affairs.

The Chair: Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): I think there is an anomaly that's been created here. This is a new procedure, so to speak, that has been a creation of the House. Therefore, I would suggest that this committee is not seized of this matter, it is a matter that will rightly wind up before the procedure and house affairs committee. It has much broader implications than this committee and this particular private member's bill. To put it bluntly, this particular legislation would be unfairly targeted if your discretion were to punish this one bill. It will have implications for all private members' business, and it should be back before the procedure and house affairs committee.

The Chair: I share the concern of Mr. Toews, Mr. Lee, and I suspect most of the committee with the situation we find ourselves in, but I also share Mr. MacKay's view that this is not our decision to make. It is not our place to make these remedies.

I don't agree with Mr. Toews that the committee has two options. Clearly, the rules anticipated options other than reporting with amendment or reporting the bill or not. One of the options outlined clearly in the Standing Orders, as you read them, is that if no report is presented by the end of these days, it will be deemed to be reported without amendment. That is, in fact, one of the options that is available according to the Standing Orders, and we would be eliminating that option, and I don't think we have the authority to do that.

I also don't think this is the venue to deal with what is obviously a problem that was created with the best intentions. Let us remember that until this new rule took effect, a private member's bill might have sat in committee forever, and that was one of the ways private members' bills weren't dealt with. This rule was brought forward with the intention of making sure that didn't happen. It brings with it its own problems, and I accept that those problems exist and think they should be remedied. In fact, I would suggest that we, as a committee that has been faced with those problems, might wish to dedicate a meeting to the process issue, where everybody can get on the record.

As it stands, I cannot accept Mr. Toews' motion, for the reasons I've outlined and because to some extent, it represents closure on a private member's bill after 45 minutes of debate. Granted, Mr. Robinson has taken up those 45 minutes, but I think this place is familiar with a filibuster, and it is a legitimate part of this process. At some point it can be seen as being, let's say, out of control or obstructionist. At some point I'm sure all the committee members would feel that, but I wouldn't give that definition to 45 minutes. This very committee spent 28 hours, or something like that, on the young offenders legislation, and I didn't feel comfortable bringing closure on that.

For those reasons, I'm going to rule Mr. Toews' motion out of order.

¾ (0850)

Mr. Vic Toews: Thank you, Mr. Chair.

I would like to challenge the chair's ruling, and I want a recorded vote, please.

The Chair: I think everybody understands what this means. Mr. Toews is, in a very friendly way, challenging the chair's ruling, and so we're going to call a vote.

Clerk of the Committee: The question is that the chair's decision be sustained.

(Motion agreed to: yeas 11; nays 4)

The Chair: I think we all agree that Mr. Toews has a point, and I would advise the committee that it is my intention to call a meeting, as soon as our schedule allows, for the purpose of exploring and reporting to the House our legitimate concerns with the fact that this situation exists. I don't want that to be interpreted as reflecting particularly on Bill C-250, because Bill C-250 came into this committee with the rules as they exist, and so this isn't about that, this is simply about a procedure.

I'm going to suspend for five minutes to allow the panel who are here to deal with Bill C-32 to come forward.

¾ (0853)

¿ (0902)

The Chair: I call back to order the 48th meeting of the Standing Committee on Justice and Human Rights.

We're proceeding with Bill C-32, an act to amend the Criminal Code and other acts. I think that I should set this up a bit. From time to time the committee is seized of what we would refer to as housekeeping legislation. Generally, when the department puts forward such legislation, we expedite the process, because it is not contentious and all parties are of that view. We agreed to do this today. Members will know there are a couple of individuals and organizations who have asked for the opportunity to appear to speak to this, but we did agree at an earlier meeting that we were going to proceed in this fashion.

What I would like to do is allow the officials from the Department of Justice to present for 10 or 15 minutes and have members of the committee question the officials. Then, if there's something that takes this bill out of the ordinary in the context of the way we generally deal with such legislation, I would look to the committee for direction. Unless that happens, my guess is that we'll proceed, as we originally planned, to clause-by-clause. But we'll see what happens in the course of the deliberations here today.

Mr. Piragoff.

Mr. Donald Piragoff (Senior General Counsel, Criminal Law Policy Section, Department of Justice): Thank you, Mr. Chairman.

I'd just like to introduce the other witnesses who will be testifying before you today: Julie Besner, counsel with the Department of Justice; Michael Zigayer, David Daubney, and Normand Wong, also with the Department of Justice.

¿ (0905)

[Translation]

Good morning. I'm happy to provide you with more information about the changes being proposed for Bill C-32.

Bill C-32 amends the Criminal Code and other acts that the Department of Justice is responsible for. An amendment to the Financial Administration Act is also proposed. That is why Treasury Board officials are also with us this morning.

[English]

Bill C-32 poses some substantive amendments that I plan to describe in greater detail in a few minutes. These have to do with the deadly traps amendment and the proposals to address the use of information technology practices to protect computer systems. This bill also proposes a small number of clarification amendments that are non-controversial, but nonetheless very important to maintain the quality and clarity of our statutes. I may not describe all these to you, but I will take a few minutes towards the end to go over some of the key clarification amendments.

I'll begin, then, with the proposal that has thus far attracted the most attention, that is amendments to restructure the Criminal Code offence provision of setting a trap that is likely to cause death or bodily harm to a person. For some time now law enforcement agencies and other organizations, such as the International Association of Firefighters, have reported an increase in the use of deadly traps by criminals to protect drug production activities against rival gangs and against law enforcement officials. Examples that have been given are cut-away floors proximate to doors and windows, weapons, such as crossbows and shotguns, that fire when the door is opened, and incendiary devices designed to destroy evidence of drug production activities. Police and firefighters also report that these activities are often concealed in homes, thus exposing first responders, police, firefighters, ambulance attendants, etc., to greater risks when responding to emergency calls. Since the setting of traps has become a serious problem associated with criminal activities, such as drug labs, we have re-examined the existing deadly traps offence in the Criminal Code to see if it could adequately respond to the new and increasingly sophisticated ways in which traps are being used today. Our examination revealed that the provisions need to be restructured on several fronts.

The current Criminal Code offence provides for a maximum sentence of five years imprisonment for setting a trap that is likely to cause death or bodily harm to persons. While the threat of five years imprisonment may be sufficient to deter and punish the average citizen who would set a trap on his or her property, for example, to protect it against a trespasser, it would not be sufficient in cases where deadly traps are used to protect criminal operations, such as marijuana growing operations. Bill C-32, therefore, proposes to create a new offence, with a tougher sentence of up to 10 years imprisonment for any person who sets a trap in a place used to commit another indictable offence. If the trap that is set in such a location causes bodily harm to a person, it is proposed that a maximum sentence of 14 years imprisonment be applicable, compared to 10 years when a trap is set in any other location. In cases where a person's death is caused by a trap, the maximum sentence of life imprisonment could be imposed, regardless of the type of location. The purpose of these amendments is to ensure that those who set traps that injure or kill a person or simply set traps in order to protect their criminal operations face severe sentences, reflecting the seriousness of the harm caused.

When we examined the current trap offence provision in the Criminal Code, we also noticed that it needed fixing in other respects as well. Our rights under section 7 of the Charter of Rights and Freedoms to not be deprived of life, liberty, or security of the person require that the intent element of an offence be proven. Therefore, an offence provision, such as the current one in subsection 247(2), which says a person will be deemed to have intended to injure or kill a person by the mere fact of placing a trap or knowingly permitting a trap to remain, would likely be found to be unconstitutional if it were challenged

You will notice that the wording in the main offence has also been tightened. Redundant language, such as the phrase “causes to be set or placed”, has been deleted. This is not intended to suggest that a person who counsels another to set a trap could not be found criminally liable. The Criminal Code already sets out, in sections 21 and 22, principles respecting parties and liability, and these would apply equally to the new offence in section 247.

¿ (0910)

I want to take a minute to make an important point about the proposed penalties. The terms of imprisonment proposed are very much consistent with, in fact match, penalties an offender could receive if charged with and found guilty of other Criminal Code offences of equal gravity. I'm referring in particular to the offences of criminal negligence causing bodily harm and criminal negligence causing death at sections 221 and 220 of the Criminal Code. Some may suggest that these extra offences in section 247 create a redundancy. Although it is perhaps true that criminal proceedings could be instituted under one of the sections I have mentioned, the particular factual circumstances of each case, as well as the availability and quality of the evidence, are factors that would influence the prosecution in determining under which charge to proceed.

In addition to legality, there are also valuable policy objectives that can be realized by setting out the new deadly traps offence in the manner proposed. First, as a matter of good criminal law policy, it is important for the state to be clear in signalling to citizens what penalties they could face if they do certain prohibited activities. With respect to setting traps, I've already mentioned that the current maximum penalty of five years would provide a sufficient deterrent for the average citizen who sets a trap to protect against an intruder. Since it appears that the practice of setting deadly traps has become a more serious problem with organized criminals who are seeking to protect their unlawful activities, as opposed to legitimate property, it is important that a clear message be sent indicating that this act will attract much tougher penalties.

First responders are routinely the first to arrive at a scene following an emergency call. Should they be injured or killed as a result of a trap intentionally set to injure or kill a person, the person placing the trap should face a penalty that fits the crime. Police, firefighters, ambulance attendants, landlords, and even innocent neighbours would all be treated equally in respect of protection against these types of criminal activities. We believe this is a fair, balanced, and appropriate approach to the increased threat that is posed by the setting of deadly traps, one that can provide sufficient protection to first responders, while respecting the constitutional requirements concerning culpability.

I would now like to focus my comments on the protection of computer networks from cyber-attacks. The bill proposes amendments to the Criminal Code and the Financial Administration Act to allow the continued use of systems capable of detecting intrusions that could harm computers or the data they contain. Intrusion detection systems are important to safeguard the integrity of systems operations and ensure continuity of service. An intrusion by a hacker could result in the theft of private or classified information, and a virus or worm attack could destroy important data and disable vital networks.

For the past 10 years or so the use of firewalls and virus scanners has been an integral part of protecting the computer systems of both the government and the private sector. The legality of these measures has not, to our knowledge, ever been called into question. However, with the advent of more comprehensive protective measures, such as intrusion detection systems, there has been increased debate on this issue, in particular whether a private communication, as that term is defined in part VI of the code, is wilfully intercepted when a person employs such measures. In our view, this issue causes a legal uncertainty, and amendments proposed in Bill C-32 intend to clarify that a person using these types of network security measures are not breaking the law.

The proposed amendments would allow the public and private sectors to use reasonable measures to protect their computers from hackers and viruses. These amendments are important for the private sector, but they are also important for the government. The government not only has the obligation to protect government property, but more importantly, it has the responsibility to safeguard the information it is entrusted with, as this information affects the privacy of all Canadians.

¿ (0915)

This bill, therefore, proposes amendments to the Criminal Code to create an exception to the offence of intercepting a private communication similar to exceptions that already exist to ensure quality control in the communications industry, such as the telecommunications industry. I wish to note, however, that the exception will only be applicable to persons who intercept a private communication for the purpose of managing a computer system for quality of service or for the purpose of protecting the computer system against computer-related offences. The law is clear that it is illegal to intercept a private communication for any purpose other than that permitted by the Criminal Code. If anyone does so, he or she is committing a criminal offence. The proposed exception cannot be used to spy on employees or for any other purpose.

An amendment is also proposed to the Financial Administration Act to allow federal departments and crown corporations to take reasonable measures to manage and protect their computer systems, which may include the interception of private communications. In order to protect the privacy of Canadians, it is proposed that limits be imposed on the use and retention of the private communications that are obtained through the use of information technology management practices. The objective of these proposals is to ensure that the government, as well as the private sector, have the proper tools to protect computer systems from cyber-crime. This is exactly what the amendments to the Criminal Code and the Financial Administration Act included in Bill C-32 intend to do, in compliance with the Privacy Act and the Canadian Charter of Rights and Freedoms.

I mentioned at the beginning that this bill also proposes to amend the Criminal Code and other related statutes to clarify certain provisions. The majority of these amendments seek to eliminate certain legal uncertainties or linguistic discrepancies. As you know, the government regularly recommends such amendments to maintain the quality and clarity of our laws, as the chair indicated.

One such amendment consists of clarifying the law with respect to the use of reasonable force on an aircraft in flight. A review of our domestic laws following the terrorist attacks of September 11, 2001, revealed that further clarity is needed in relation to the use of reasonable force on board an aircraft in flight outside Canadian airspace. The amendments proposed in this bill will specify in the Criminal Code the principles of the Tokyo convention, which allows any person on board an aircraft to use reasonable force to prevent the commission of certain criminal offences that could endanger the safety of the aircraft or people on board. The rules that govern the use of force will not change under these amendments. The proposed amendments build on existing legal principles.

Another clarification in the bill would rectify a situation that is currently before the Supreme Court of Canada, coming from the Ontario Court of Appeal. It would address an anomaly in a search warrant provision that the Ontario Court of Appeal held was not constitutional. It was a search warrant provision concerning the seizure of firearms in circumstances where the firearms were a danger to the person or the public peace. The amendment to the provision would rectify it in line with the decision of the Ontario Court of Appeal.

As you can see, Bill C-32 contains a number of amendments. Some of these are simply stylistic or address discrepancies, others, as I have indicated, are important.

Thank you, Mr. Chair.

¿ (0920)

The Chair: Thank you very much.

I want to go the regular route until we find out we don't need it.

Mr. Toews.

Mr. Vic Toews: I think my comments are fairly brief. I have one comment, one question.

As to the comment, I note the increase in the penalties to the maximum available for the deliberate causing of harm, death or injury to a firefighter who responds to a fire or explosion that is deliberately set. Ladies and gentlemen, this deals with a case where someone is deliberately setting traps, knowing they're likely to cause injury or death. What the government amendment is doing is raising the maximum, knowing full well the courts will not respond to those kind of amendments. We've seen no evidence, where governments increase maximums, that courts act correspondingly. They simply carry on with what they've been doing in their sentencing. If this government were truly serious about protecting our firefighters, there would be minimum mandatory prison sentences for people who do this to our firefighters.It is a disgrace that we don't take the steps to protect our firefighters to the degree they deserve.

The second issue I want to raise and leave a question on is the civil enforcement of restitution orders. I've a concern with this. Perhaps I misunderstand what is happening, but as I understand it, a criminal court makes an order of restitution to a victim. Let's say that victim is an elderly senior lady in the north end of Winnipeg who has just had her house broken into by a member of a street gang, and damage has been caused in her house. The member of the street gang is convicted, and the court orders restitution. Do we seriously expect that senior citizen in the north end of Winnipeg to bring a civil action against a street gang member?

This isn't a civil matter, it is a criminal matter, and it needs to be dealt with and enforced as a part of a criminal order. It should never be the responsibility of the citizen to enforce what is part of a criminal order. So I'm hoping this has nothing to do with pushing that responsibility off onto our citizens, our courts still have the authority to order restitution and to collect that restitution, and where that restitution isn't paid, there is a criminal breach, a breach of probation, a breach of the conditional order. If all we're talking about is a restitution order, this is meaningless, because these restitution orders in the civil context are never enforced. If there is some exception that the witnesses are aware of, that's fine, but from the statistics I am aware of, these are never enforced. If we care about victims, civil restitution is meaningless.

Let's ensure that the courts, through the criminal process, enforce these, so that street gang members are held accountable through the criminal courts and that senior citizen in the north end of Winnipeg doesn't have to go to a civil court to enforce an order against a street gang member. That may as well be signing that senior citizen's death warrant. If we don't have problems with street gangs in Ottawa, Mr. Piragoff knows Winnipeg very well, and we have serious problems. The street gang situation is out of control. It sends a chill into the enforcement of law in our society if we view this as a civil matter and not a criminal matter, as it should be.

That's my question and my comment.

¿ (0925)

The Chair: Mr. Piragoff.

Mr. Donald Piragoff: Thank you, Mr. Chair.

The proposed amendments take away nothing from the existing criminal remedies on probation or court orders. The proposal to create a civil remedy is in addition to any other criminal remedy that may exist. I'd ask my colleague Mr. Daubney to comment more specifically on the purpose of this amendment.

Mr. David Daubney (General Counsel, Sentencing Reform Team, Department of Justice): As my colleague said, what we're doing here is ensuring that those victims to whom restitution is ordered by the court through either a probation order or a conditional sentence order--and this happens quite often--have the same remedy as those who get a stand-alone restitution order in filing those orders with the civil court, so that it can be enforced as a judgment of that civil court.

I just remind the members that one of the amendments in Bill C-41 in 1995 was to introduce these stand-alone restitution orders under section 738, and subsection (2) of that section said that provinces could make regulations saying whether they wanted them to be enforced through a probation order, a conditional sentence order, or a stand-alone order. No province has passed such a regulation, so the court has the option of having a stand-alone restitution order or tacking it on as a condition of either a probation or a conditional sentence order.

Mr. Vic Toews: So there's nothing that prevents a court from making a restitution order as part of a probation order or a conditional sentence, and that can be enforced then through the criminal courts if the time period for the payment expires.

Mr. David Daubney: Well, this is the issue. It can only be enforced through a probation order or a conditional sentence for the length of that order. As you know, the conditional sentence maximum length is two years less a day, a probation order is three years.

Mr. Vic Toews: So what you're telling me is that if the authorities don't make any move to enforce it within the time of the conditional sentence and that expires, the only remedy the victim has is not to go back to the courts, because the offender has not complied with it, but to go through the civil courts.

Mr. David Daubney: They don't, really. All that has to happen is filing the order with the civil court, which gives the victim all the benefits as if she had gone to court and got a judgment. It's the equivalent of a civil judgment. That means the victim is protected in those cases beyond the expiry date of the probation or conditional sentence order. She has whatever the length of time in the provinces is, 20 years usually, for a writ to be enforced. It could be registered against the property of the offender or enforced in any other way.

Mr. David Daubney: This is something victims have asked for, Mr. Toews, and we've responded.

[Translation]

The Chair: Mr. Marceau.

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you, Mr. Chairman.

My question is probably for Mr. Piragoff and it concerns section 4 of the bill. I read with great interest—and I hope that you have been provided with a copy—Kate Ker's letter. She is the President of the National Criminal Law Section of the Canadian Bar Association. She raises several concerns about the wording of section 4 of Bill C-32. She writes about the very general scope of the suggested section. What would you say in response to the reservations that she raises in her letter?

[English]

Mr. Donald Piragoff: I've not had access to her letter. However, officials with the Department of Justice have been in contact with the Canadian Bar Association and have consulted with them. I believe that was two weeks ago. As I understand it, there was a discussion about the wording. My colleague Mr. Wong I believe was a party to those discussions with the Canadian Bar Association, and he may be able to enlighten you further.

¿ (0930)

Mr. Normand Wong (Counsel, Criminal Law Policy Section, Department of Justice): Unfortunately, I haven't read the letter either, but in relation to paragraph 184(2)(e), we believe we've restricted it. It says intercepting a private communication for the purpose of managing a computer system for quality of service or protecting it from certain criminal code offences. It's much more restrictive in that sense than the Canadian Bar Association has expressed.

[Translation]

Mr. Richard Marceau: They made their comparison and so did Mr. Piragoff. He said that it is similar to paragraph 184(2)(c). However, the wording in 184(2)(c), which is about intercepting communications, is much more specific than that of paragraph 184(2)(e).

It appears that the proposed paragraph 184(2)(e) is much more restrictive than what is already in the code. If we compare it to what already exists, as Mr. Piragoff himself did, one can see that the proposed wording is much broader and raises issues regarding the protection of privacy, to the extent that the Privacy Commissioner asked to appear before this committee. I hope, in passing, and this is a message I'm sending to all my colleagues, that we will take the time to hear him.

Why is paragraph 184(2)(c) so specific whereas the new paragraph 184(2)(e) is so broad?

[English]

Mr. Normand Wong: I think part of the problem with paragraph 184(2)(c) is that it's very directed towards technology, and technology evolves so quickly that we are looking more at a purpose restriction: try to restrict something to the purpose you use it for, so that it won't be technology-dependent. So we tried to restrict it as much as possible in relation to the purpose a person would be using it for, instead of a specific technology, because of the evolving nature of new communications technology. It's very hard to pinpoint it without having to come back to you every six months to update it.

[Translation]

Mr. Richard Marceau: Can you tell me what quality service management for computers is?

[English]

Mr. Normand Wong: A computer system is useless if it's not up and running and running efficiently. It's also susceptible to attack if it's down. So quality of service has to do with making sure the system is running optimally. An example of a quality of service check might be where an e-mail router is clogged with large attachments or something and is affecting the whole network. It would be a routine quality of service check for a system administrator to go into the router and figure out what's clogging it up. They may inadvertently intercept private communications in those instances, and we want to make sure they're not committing an offence in doing so.

[Translation]

Mr. Richard Marceau: Why doesn't the wording you have proposed indicate that the only grounds for intercepting private communications would be to protect the network against acts listed as offences in the Criminal Code? Why isn't it clearer?

[English]

Mr. Normand Wong: It does say that in the second portion. There are two purposes for which you can intercept private communications. The second is protecting a computer system against acts that would be offences under sections 342.1 and 431.1. Those are the offences in the Criminal Code that deal with computer networks.

[Translation]

Mr. Richard Marceau: Let's say I'm a manager and I want to check the computer's service quality myself. In order to do so, I randomly choose e-mails that have been sent from one person to another. I want to do this because I'm quite fond of the secretary working on the third floor. I could easily say that I need to check the system to make sure all is in working order.

I think that this exception is quite broad, at first blush. Anybody could say they needed to check quality service management for the system by randomly choosing e-mails to intercept. In my opinion, anyone wanting to read e-mails being sent and received could use that in their defence.

¿ (0935)

[English]

Mr. Donald Piragoff: In the circumstances described, if the purpose of the monitoring is not within the four corners of the statute, the person would be committing a criminal offence. If the person were targeting a person's e-mail because he had a particular attraction to him or her and not for legitimate purposes of protecting the system, the person would be outside the protection of the Criminal Code and committing a criminal offence.

With respect to the differences between the existing code and the proposed, the easiest way to describe them is to compare the language, which has been mentioned, but I don't think has been quoted. The provision in item 184(2)(c)(ii), the provision that exists right now for the telecommunications industry, says it's permitted if the interception is “in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks”. Of course, a telephone company will do random monitoring of their service to ensure that it is operating properly. The technology is different with respect to computer systems, not random security measures or random monitoring. The firewalls are in operation 24 hours a day, seven days a week, because they are trying to protect against intruders. There is a different purpose. The telephone company is simply checking its quality of service, the IDS systems are not random, they are there 24 hours a day, seven days a week. That's why there's a difference in language.

Second, a lot is being placed on the existing words for telephones, “mechanical or service quality control checks”, and the proposed bill before you simply says “for the purpose of managing the computer system for quality of service”. Frankly, there's not much difference in the language. The language “managing the system for quality of service” is the language used by the computer industry. We thought it would be more appropriate to use language technicians understand, as opposed to using outdated language as enacted in 1973 for the telephone companies. I think that answers the CBA concerns.

The Chair: Thank you.

Mr. Nystrom.

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP): I just wanted to raise one brief question. With the section regarding the use of force to restrain someone on an aircraft who's in the process of committing harm and so on, I'm wondering if you can just tell us in layman's language what this really means in respect of the change in the law compared to what we have today, what it will look like in the future, and what kinds of activities this would cover that are not covered now.

Mr. Donald Piragoff: It doesn't include anything that's not covered now. It clarifies that the basis for protection of persons on planes, whether it be passengers or air marshals, for example, is firmly rooted in Canadian law and not Canadian law through interpretation of international law. There is an international convention, the Tokyo convention, that provides that persons on board aircraft, whether they be passengers, air marshals, or flight crew, have the authority to restrain passengers, to take reasonable measures to protect the safety of the aircraft. That's under international law, which can be used as a defence under Canadian law, but it's incorporated through the common law. Rather than having to rely on interpretations and Canadian common law, which may incorporate international law principles, we're going to make it very explicit in the Criminal Code. Currently, if the aircraft is in Canada, Canadian law clearly applies. If it's outside Canada, it's been a combination of Canadian law and international law. Now the Criminal Code will make it clear that persons on a Canadian aircraft outside Canada are protected if they take measures to protect that aircraft.

¿ (0940)

Mr. Lorne Nystrom: I certainly have no problem with what you're doing, but I wanted to ask one other question. Has there been any problem so far with the status quo? Has there been a case that has prompted this clarification?

Mr. Donald Piragoff: Not to my knowledge.

The Chair: Thank you very much.

Ms. Jennings.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): I want to clarify the amendments that allow for civil enforcement of all restitution orders. As it now stands, without these amendments, if there's a restitution order that is not complied with, the individual who would benefit from that restitution order has no protection, can't go before a civil court. Is that what the situation is right now? We know Canada is one of the places where there's a lot of telemarketing fraud, a lot of our seniors are bilked of money. If our police forces identify the telemarketing fraudsters, they're pursued before criminal court, are found guilty, are sentenced to a certain time of incarceration, and there's a restitution order, what happens now if it's not obeyed? The offender serves out the sentence, serves out the probation, if there's any probation, the warrant completely expires. What happens for the victim of that fraud? Is there any way they can enforce that restitution order?

Mr. David Daubney: It will depend on how the restitution was ordered. If it was under a stand-alone order, that order can be filed as a judgment of the civil court and enforced under the various remedies that are available for enforcement of a civil judgment.

Mrs. Marlene Jennings: And if it's not a stand-alone order?

Mr. David Daubney: If it's under a probation order, the probation officer can take steps to enforce that order for the period of time the order is in force.

Mrs. Marlene Jennings: What steps?

Mr. David Daubney: You often see, where it is done under a probation order or a conditional sentence order, a schedule of payment. His job really is to monitor that those payments are being made. When he has his periodic meetings with the offender, that's an issue he keeps his finger on.

Mrs. Marlene Jennings: Let's say the person's been sentenced to five years. They serve six, eight, or twelve months, and are then released into the community. They're being supervised by a probation officer, there was a restitution order, there's a schedule of payments, and the person doesn't pay. Perhaps they're brought back into the system.

Mr. David Daubney: They could be, through a breach of probation.

Mrs. Marlene Jennings: But once that five-year period expires, what happens then?

Mr. David Daubney: They've only really got the five-year period during which the person is under the control of the court for a combined conditional sentence, two years, and probation order, three years, which is fairly common. During the conditional sentence period the probation officer--because they're the people who supervise conditional sentences, called conditional sentence supervisors in that guise--could bring the offender back to court for a breach of the conditional sentence order.

¿ (0945)

Mrs. Marlene Jennings: Criminal court.

Mr. David Daubney: Yes. And the same judge who heard the matter initially and imposed the conditional sentence can put the person in jail for the balance of the term or change the conditions in some way.

During the probation part of that five-year period, in your example, a breach of probation charge could be laid--that's a separate charge--and the restitution part could be enforced in that manner.

What we are adding here, as additional protection for a victim, is the ability to register both of those orders as civil judgments. It's not a big deal, you just go to the court clerk. Most provinces are doing that on behalf of the victim now, and have been since 1995. The last time I checked, several of them were waiving the fees for filing. So there's no cost to the victim, there's only a benefit to the victim here. We view this, and I think most observers do, as a positive development.

Mrs. Marlene Jennings: So in fact, if this amendment goes through, it gives an added benefit to the victim, whether that person has been victimized by a street gang, by telemarketing fraudsters, or by some other criminal offender.

Mr. David Daubney: That's right.

The Chair: Mr. Toews.

Mr. Vic Toews: On the point raised by Ms. Jennings, my concern is that usually the probation orders or the conditional sentences aren't five years, they're shorter, six months. The probation officers simply don't have the time.

Mrs. Marlene Jennings: You don't have to explain it to me, Mr. Toews.

Mr. Vic Toews: So the time expires, a civil order is filed, and in those provinces that have not initiated a program of enforcing it directly the victim then has to undertake the enforcement proceedings.

Mrs. Marlene Jennings: So we pressure the provincial governments to follow the lead of those who have in fact--

Mr. Vic Toews: All I'm suggesting is that where an order has been made by a court, there's been a breach in that order, and there's been contempt of the court, the contempt needs to be dealt with by the court that made the order. I'm not going to suggest an amendment here, but this is simply shuffling the problem off to the civil courts and onto the victim. It needs to be amended so that the court has jurisdiction to consider a breach of probation notwithstanding the fact that the probation period has already expired. We can't do that under the present legislation. This amendment, while it's a nice step, doesn't address the problem with the victim having to become involved in the enforcement directly, because most of the victims simply forgo that. That's my comment. I don't want to say anything else.

The Chair: You're not proposing an amendment?

Mr. Vic Toews: I'm not proposing an amendment, but I'm concerned that this is simply inadequate.

The Chair: Does anyone wish to respond to Mr. Toews, other than Ms. Jennings?

Mr. Donald Piragoff: I think the debate we've had this morning on this issue is important. We'll take it back to the provinces with respect to the differences in provincial policies on enforcement, and also we'll look at the suggestion that there may be other ways of enforcing restitution orders we could look at, so as to maybe come back to this committee with a future bill to address this problem.

The Chair: Thank you very much.

Mr. Lee.

Mr. Derek Lee: Thank you, Mr. Chairman.

I want to ask about clause 20 of the bill. It involves the Financial Administration Act. If exemptions from the application of the restrictions under the Criminal Code dealing with interception of private communications have been addressed earlier in the bill, why is it necessary to place an authorizing section in the Financial Administration Act? As I read it, it says any public servant can intercept my phone call if it has anything to do with protection of a computer system. That seems to be a fairly significant breach of the protection of private communications.

As I read the clause, I either get lost or I can drive a truck through it. Can somebody help me out with that?

¿ (0950)

Mr. Donald Piragoff: Mr. Chairman, I'd like to introduce Rhonda Lazarus, legal counsel with the Treasury Board, to answer this question.

Ms. Rhonda Lazarus (Senior Counsel, Legal Services Branch, Treasury Board of Canada Secretariat): You've asked a couple of questions. If we have an amendment to the Criminal Code so that it's no longer a criminal offence for somebody to intercept in the course of protecting their computer systems, why do we need an amendment to the Financial Administration Act? There are two legal issues we were addressing. One is that we don't want somebody who is protecting their systems to be committing a crime in doing so. And of course, the Criminal Code is aimed not only at the public sector, but also at the private sector.

The other issue has to do with the Charter of Rights and Freedoms. It deals specifically with the federal government, which is why it's done under the Financial Administration Act. As you know, when we are taking steps to protect our computer systems, to manage our information technology systems, sometimes we are intercepting private communications, and with those private communications, a citizen would have a reasonable expectation of privacy. In order for us to deal with that protection of our systems in intercepting a private communication, the government requires either the consent of the person or a reasonable statutory authority. Because we've been told it's very difficult to obtain meaningful consent from the general public over the Internet, we have decided that we want to have a reasonable lawful authority in a statute that will give greater certainty to us, so that we know we're not going to be contravening section 8 of the Charter of Rights and Freedoms.

Your second question was whether this is something we could use to monitor your telephone call or intercept communications with the public. We have taken great steps to protect the privacy of citizens in doing this. Again, the authority that's given in this section is for a limited purpose. The interception still has to be in accordance with paragraph 184(2)(e), the amendment to the Criminal Code. In addition, there are provisions that restrain and constrain the use and retention of information that is gathered in the course of undertaking those intrusion detection activities.

Mr. Derek Lee: That's a very good answer. If I could just take it one step further, however, am I correct or incorrect when I interpret this as authorizing any public servant to listen to my phone call--not intercept my e-mail--in the context of protecting somebody's computer system? How many are there in the country, how many thousands, federal, provincial, municipal, anywhere? There must be about two million of those great Canadians out there, all of whom are going to be authorized to listen to my phone calls. Am I wrong in interpreting it in that way?

Mr. Donald Piragoff: Let me clarify proposed section 161. It is limited to the protection of computer systems of the departments or crown corporations, it is not talking about telephone or telecommunications systems, and the language says that in the English lines 9 and 10 of the draft. Second, the only way an interception in these circumstances would be legal would be if it complied with paragraph 184(2)(e) of the Criminal Code, which we've already discussed. That means it has to be done in the course of protecting the computer system.

When we talk about interceptions, we're not talking about a situation where a public servant, a security officer, can target a particular communication and say, I want to listen to it. This is a firewall, it detects that there's something wrong with this e-mail, that it could have a virus. When it scans all the bits and bytes, it detects that there's something wrong in the logic of this e-mail, and so the alarm goes off. The system throws a copy of this e-mail to the side, and a human individual can then check the system electronically, or in some cases may actually decide to open up the e-mail and see what's in there, because electronically, they can't figure out what's there. Then, of course, they have written text they can read. It's not a wilful interception as with the police, where you know you want to go after a communication of a particular individual. Interceptions here are generally inadvertent, they happen in the course of protecting the system. When the alarm goes off, there's something wrong with an e-mail, it should be checked.

There are two important parts to this, and I want to deal with this question of privacy. One deals with how the actual interception can occur, and generally, it's by inadvertence, it's secondary to the way the system weeds out these bad e-mails, for example. The second part of this amendment--and it's both in the Criminal Code provision and in the Financial Administration Act--is that it puts a limit on the ability of the private sector or the government, with regard to the Financial Administration Act, to retain that information. It provides that the information, the contents of the e-mail, can only be retained to the extent necessary to protect the information. So if there is extraneous information in the e-mail, talking about your mother, your father, your lover, whatever, that stuff should be destroyed. The part that is harmful to the system, a virus or something wrong with the logic, can be retained.

One other exception I want to note is that this bill retains the current policy of the Criminal Code, which is the following, and I want to be clear about this. If a private sector security agent or a government security agent, when opening the e-mail, because it has set off an alarm that there's something wrong with the logic, finds that there is illegal content, for example, the e-mail has an attachment to it that has child pornography, concerns a fraud on the government, or contains a conspiracy to murder someone, the government is able to call the RCMP or the private sector security agent is able to call the police and say they have found illegal material in the course of the security check. The bill also protects that.

So there are two purposes to this bill. One is to ensure that the interceptions that happen inadvertently in the course of protecting the system are legal. Second, any information that is retained is only retained for the purpose of protecting the system, with the one exception that if illegality is discovered, the normal rules of the Criminal Code apply, which means you can use that information.We want to make sure there's a balance between the right to privacy of the individual and the public interest in protecting systems, protecting the privacy of data held by private and public systems, but also protecting the public, in that if illegality is revealed, that information can be used by the authorities for prosecution.

¿ (0955)

The Chair: I'm going to give you quite a bit of latitude here, because we may go to clause-by-clause today.

Mr. Lee.

Mr. Derek Lee: Mr. Chair, this discussion is very helpful for those who would be analysing this statute for privacy issues.

I'll just conclude by asking one other short question. I understand the intent of the drafted and expressed protections, but as I read this section, Mr. Piragoff, and get down around lines 12 and 13--and you've pointed out that it could be a private sector person working for the federal government, so the 2 million people have just become 2.3 million--it says, “including the interception of private communications”. As I read it, that includes a telephone conversation, even though the whole process is intended to protect the computer system. As I read this section, some department that's dealing with heavy volumes in its computer system, trying to figure out why, may start monitoring, may start listening to phone calls. It appears to authorize eavesdropping on phone calls as well as opening up e-mails and other data. I'm just wondering whether the facilitation attempted here is potentially an over-facilitation, and I'm only speaking in the context of privacy protection.

À (1000)

Mr. Donald Piragoff: This is a good concern, but when you read those lines you refer to, they say “may take reasonable measures for such purposes”, and these must be measures that are within the law. The law is very clear in part VI of the Criminal Code as to what is or what is not a legal interception. Clearly, section 184 basically prohibits all wire-tapping, except what is specifically permitted. So general language like this, “may take reasonable measures”, would not include taking a measure that would violate the law, because if you were to otherwise violate the law, it would not be a reasonable measure. That's the way it was intended, and I think that's the way it'll be interpreted, but I do take your point, Mr. Lee.

Mr. Derek Lee: Thank you, Mr. Chair.

The Chair: Thank you.

Mr. Toews, for three minutes.

Mr. Vic Toews: As I understand it, Mr. Piragoff, when a company owns a computer system and allows employees to use that computer system in the course of their employment, sending e-mails back and forth, that system, despite the fact that private individuals are using it, is still the property of the company. That company could do random checks on all the e-mails without violating the Criminal Code, could it not? It makes it clear from the start that all these are public as far as the company is concerned, although private within the corporation. For example, if the company suspects that there's some illegal activity, as you've pointed out, perhaps child pornography being downloaded onto one of the computers, it wouldn't have to go out and notify the police, but could simply do the search itself, as it's their system. Am I correct in that interpretation?

Mr. Donald Piragoff: The private sector's in a different situation from government, in that the charter doesn't apply to the private sector. The relationship of employees with private sector employers is different from that in government. Of course, we have the charter on our shoulders, which the private sector employee does not. Generally in the private sector, employers are able to monitor their systems because they have the consent of their employees. It is their private property. They obtain consent from their employees with respect to the use of their private equipment. They set policies as to what is proper and improper use. So one of the conditions of employment is that the employee knows the employer may be taking certain measures to protect their property, which includes random monitoring if necessary. The government is in the same situation, but we also have the charter, which says there should be some legal authority, because that's the way the charter operates. That's why we're making it clearer in the code and the Financial Administration Act, to ensure that the government also deals with the charter.

The Chair: Thank you very much.

Mr. Marceau has asked me to advise the committee that he wishes to have us call other witnesses. We originally determined that this wouldn't be necessary. I'm looking for direction from the committee. Does anyone else feel, on the basis of new information that's been put to the committee, there's a need to change that earlier decision?

Mr. McKay.

À (1005)

Mr. John McKay (Scarborough East, Lib.): When did we decide we weren't going to call other witnesses?

The Chair: We didn't decide we weren't going to call other witnesses, we decided in a business meeting earlier that we were going to do this in a day, that we would call officials and then go to clause-by-clause. We've done it a couple of times, in my experience here. That was the way it was presented, as a housekeeping item, and it's up to the committee to decide whether it is enough so to dispense with today. I'm in your hands.

Mr. John McKay: The other witnesses who have indicated a desire to appear are Mr. Radwanski and the Canadian Bar Association?

The Chair: Correct. It's on the record, I guess, that both of them have been mentioned here this morning.

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Mr. Chairman, I didn't attend this morning's discussions but I know that Mr. Marceau expressed his concern about, among other things, section 4's impact. The Canadian Bar Association shared their analyses of the bill with us and certain directions we could take, and I think it is important that we consider them so that we can truly understand their point of view.

Second, I am quite certain that the Privacy Commissioner could give us his perspective on the bill's scope and the impact it might have on people's daily lives. I'm not just thinking of section 4 but also of other sections that my colleague Derek Lee spoke about this morning. I wasn't here for very long but it seems to me that this is not an insignificant bill or a housekeeping bill. This is a bill that will have a significant impact on people's privacy and I think it is important that we listen to some witnesses, namely the Canadian Bar Association and the Privacy Commissioner.

[English]

The Chair: Thank you, Monsieur Bigras.

If no one else expresses that sentiment, I'm going to go to clause-by-clause.

Mr. McKay.

Mr. John McKay: Mr. Radwanski is an officer of Parliament, and he has from time to time expressed some energetic skepticism of government initiatives in areas of privacy. He usually is a very thoughtful witness. What's the hurry here? Where's the pressure to make this thing move along, other than from our self-imposed desire to deal with what appears, on the face of it, to be an innocuous bill? Those are two fairly significant witnesses, and I'd like to hear what they have to say. I don't really have an opinion about this bill, but I think it's important to hear from people who can contribute to this dialogue.

The Chair: Would anyone else like to weigh in?

Mr. Macklin.

Mr. Paul Harold Macklin (Northumberland, Lib.): There obviously are some concerns, but we had already set out a plan. I guess the question is whether the evidence today raises issues we haven't had satisfactory answers to that would require other witnesses to come forward to clarify or to assist. Quite frankly, I think the answers have been full, but I think it's just a question of our work plan, at the end of the day, and whether we feel we have issues that need further clarification where additional witnesses would help.

The Chair: All the members of the committee are capable of determining whether the discussion this morning has brought to our attention issues that cause them to wish to pursue this further or, as we originally planned, we should move directly to clause-by-clause. At this point I see Mr. McKay and Monsieur Bigras who believe we should not go to clause-by-clause, and I don't see anybody else. That means, I would believe, we should go to clause-by-clause.

Mr. Bigras, one last shot.

À (1010)

[Translation]

Mr. Bernard Bigras: Mr. Chairman, Mr. MacKay is right. This is not an insignificant change. In principle, House committees are supposed to do substantive work. Our committee must hear the Canadian Bar Association, that represents 38,000 Canadian lawyers, to hear what they have to say about this important bill which has raised concerns. The members of the committee should not limit themselves to what they have heard today. I think that democracy must have its voice. As the justice committee, we have the responsibility to hear this association that has something to say. If it has something to say, it must have access to the forum our committee represents, in order to be heard on this issue. This is an issue of fundamental democracy.

[English]

The Chair: That's a spirited intervention. I'm looking for any others.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): I'm content with the answers given to us this morning. I would like to have seen Mr. Radwanski, as well as representation from the Canadian Bar Association, prior to hearing from our officials. Certainly, both have raised concerns. We have heard them referred to, but we haven't really heard them. I have some difficulty with the consequence of going to clause-by-clause until we have.

The Chair: Okay, that's three.

Let's just recap where we are today. We have done this before, we're not breaking new parliamentary ground here. From time to time the department bring forward legislation they would describe as not particularly contentious, and we take the department at their word in that case, and I'm sure that's what their intention was here. We then decide whether in fact what they've presented is non-contentious. Democracy, Monsieur Bigras, will be served by what this committee decides today.

Ms. Fry.

Ms. Hedy Fry (Vancouver Centre, Lib.): I just want to agree with Mr. Maloney. I think it might be interesting to hear Mr. Radwanski and the Canadian Bar Association, as he requested. I think Mr. Lee's questions did raise some concerns, and I didn't really think they were adequately answered. I would like to hear some other people speak to this issue.

The Chair: Mr. Nystrom.

Mr. Lorne Nystrom: I've believed for the last couple of hours we should hear from Mr. Radwanski and the Canadian Bar Association. We should be prudent and cautious. It's better to do it before the fact than after the fact. I hope that doesn't sound too conservative, I think it's just wisdom. Unless you know things, Mr. Chair, we don't know, I think it's wise to be prudent.

The Chair: No, I would be the first to admit....

Mr. Toews.

Mr. Vic Toews: I guess this deals not just with this particular bill, but with bills generally and the workload of this committee. Without a doubt, this committee is one of those with the largest workloads in Parliament. Sometimes we exercise our judgment and decide not to hear from certain witnesses, because we do need to keep this agenda moving. We have all kinds of things we haven't touched on, conditional sentencing and matter after matter, which are, in my opinion, much more significant than this bill.

There are shortcomings I've identified in this particular bill. I'm generally satisfied with the explanations of Mr. Piragoff and the others, though I still have some concerns. If we say, all right, let's open it up to witnesses, then let's open it up to witnesses, because there are victims' groups who have asked to be heard, and we have put these groups off because of the workload and that. I can't now agree to hearing some witnesses, I don't care how important they are as individuals or associations. We need to hear from the other side if we're hearing from one side, and this opens it up.

My thought is that maybe we should be looking at somehow splitting this committee to deal with witnesses, because we simply can't keep up with the workload. We are getting further and further behind. If we don't deal with these kinds of bills a little more quickly, we're going to have to do something else. I know justice rushed is probably justice denied as much as justice delayed is justice denied, but we have to find a happy medium here . We have the nation's business to take care of, and we have to move along.

À (1015)

The Chair: For those who want specifically to call Commissioner Radwanski and the Canadian Bar Association, I hope it is accepted that this doesn't necessarily limit the witnesses we would call on the basis of the same arguments that were put to call them. Those same arguments can be put to call others, clearly.

I want to make sure everybody is on the table, and I want to put this to a vote, because I've lost count.

Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): I just want to reinforce what Mr. Toews says. I attended and spoke at a police victims services symposium this past weekend, and some concerns were expressed to me on restitution. Those people asked me specifically if there was going to be an opportunity to say anything to this committee, and I told them exactly where we were at. So if we're going to open it up, I'm going to go back to them and ask them to come here.

The Chair: Mr. McKay.

Mr. John McKay: I don't disagree with Mr. Toews' analysis. You can't be half pregnant, you either have to open it up or you close it down today. I don't really contest much of what was said here today, but there does seem to be a general sentiment out there that other people would like to have their say. If you put three lawyers in a room, you'll get five opinions, because they're all appealing each other. It's almost the nature of the beast. The curse of this committee is that what appears to be a relatively uncontroversial, insignificant piece of legislation has implications and ramifications for others, not necessarily the department, that turn out to be much larger than initially thought.

Yes, we did set up a work plan, and I'd love to be through that and on to the next one. On the other hand, there are certain senators in our caucus who are fond of reminding us how we botch certain things they have to correct, which doesn't sit too well with me, and I don't really care to hear from them again on that point. So the caution issue is the one that prevails for me.

The Chair: If I read Mr. Toews' sentiments correctly, he's saying we should move quickly to other business, because we are such a busy committee. I do hear some desire to explore some of the issues that have been put forward by the Canadian Bar Association and by the Privacy Commissioner. Is it possible, speaking specifically to what Mr. Toews has referred to, our busy schedule, to decide that we would hear four witnesses rather than 20, not going directly to clause-by-clause now? I say this seriously. In the interest of getting the work done and recognizing that five or six members of the committee have expressed concern about particular things, can I ask the committee to entertain the possibility that we have one more day? We would hear a couple of witnesses you wish to identify, the Privacy Commissioner, the Canadian Bar Association, and then go to clause-by-clause. Then we would get to satisfy ourselves that we've heard out the people we should hear out on both sides of the equation. Does that not seem a fair way to proceed?

Mr. Vic Toews: I think so, Mr. Chair. At the risk of putting a test to Mr. McKay's proposal that you can't be half pregnant, this is about one-fifth pregnant, if we're getting four witnesses out of 20, but that is a reasonable compromise. But given the workload, let's not get too bogged down in details. This matter still goes to the House and can be reviewed there as well.

À (1020)

The Chair: Monsieur Bigras, moving off sex now.

[Translation]

Mr. Bernard Bigras: Thank you, Mr. Chairman.

You have shown leadership in proposing a good compromise. I would like to emphasize that this is not about delaying our work, it is about getting more information. I think you have suggested a good compromise. How many witnesses have requested to appear before this committee? Two or three? Fine.

[English]

The Chair: What we are going to do is have one more day and call the witnesses Mr. Toews and Mr. Cadman have referred to.

Mr. Paul Harold Macklin: What about the victims group?

The Chair: Well, they can....

If that's the case, I thank the panel for coming. The fact that we're having another day is no reflection on the quality of the answers, I'm sure.

The meeting is adjourned.