JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, October 4, 2001

• 0903

[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): Good morning, all. Welcome to the 24th meeting of the Standing Committee on Justice and Human Rights, which I now call to order.

Today we'll be hearing witnesses on Bill C-15A, an act to amend the Criminal Code and to amend other acts.

I would advise members that after we hear witnesses, we have a little business to attend to. We will also be hearing a group of witnesses not on our agenda for today as per the discussions of last night; that would be officials from the Department of Justice. We'll be discussing items that come from those discussions.

We have four witnesses from now until 11 o'clock. They are, representing the Victims of Violence Centre for Missing Children, Gary Rosenfeldt; the Canadian Resource Centre for Victims of Crime, Steve Sullivan; the Canadian Association of Internet Providers, Jay Thomson; and the Canadian Cable Television Association, Lori Assheton-Smith.

The order on my paper, which I think we will follow, starts with Mr. Rosenfeldt. I hope everyone understands that we wish you to keep your comments to roughly 10 minutes, and then we'll go to questions from members of the committee.

Welcome, and thank you for coming.

Mr. Rosenfeldt.

Mr. Gary Rosenfeldt (Executive Director, Victims of Violence Centre for Missing Children): Thank you very much, Mr. Chairman.

First of all, I would like to thank the committee for having these hearings. I think this is a very important subject. It's something that we at Victims of Violence have been talking about for quite a number of years, a lot of these changes that have to be made with regard to laws and the protection of young people with the introduction of the Internet in the last decade.

• 0905

I think my comments this morning are going to be rather brief, because we've gone through the changes, the part of the omnibus bill here protecting children from sexual exploitation. The things that concern us mainly are that area—children and the Internet, child sex tourism, and anything to do with the prevention of crimes against children.

For those of you who are not familiar with our organization, our main goal is the protection of children. We are a national organization, and we print and produce a lot of materials with regard to child protection.

I brought along some samples of a booklet that we produce, entitled A Parent's Guide: Your Child and the Internet. We distribute probably close to 100,000 copies of these, free of charge, throughout Canada every year. I don't have them in French, so I cannot have them distributed. However, I do have them here, and I would encourage all members of the committee to pick one up. I think you'll find it really rather interesting.

We also have a paper on child pornography and the Internet. Again, because of the time factor involved in our presentation here, we didn't have time to get it over to the committee. But I do have it available here in English.

As far as the actual bill and the information contained in the bill is concerned, we don't have any serious problems with anything being proposed by the minister with regard to the issues of our concern, which relate to the protection of children. However—and this is something we'd like to bring up at this time—we have a very serious problem with the age of 14 for consent for children in this country. It's a problem we're faced with all the time. The bill does have the age of 14 in there. We could never, ever, begin to support anything that stays with that age of 14.

Of course, I know the age of 14 is written throughout all this legislation specifically because all legislation in the Criminal Code relates to the same age, but if anything, I'd like to take this opportunity to state that we do not consider any young person in Canada at the age of 14 to be mature enough to make a decision on whether they want to have sex with an adult person. We don't have any problem with a two-year age difference being allowed with children, but the way the law stands today—and we object to it very strongly—a 14-year-old girl in this country can engage in sex with a 40- or 50-year-old man. I have a very serious problem with that.

What's really bizarre about all of this, too—and I'm sure the committee has gone through this with regard to child pornography with the case of the individual who was charged in British Columbia—is that he made a public statement on television that he couldn't figure out the law. To him it didn't even make sense. He said, I can have sex with a 14-year-old girl, but I can't record it on video. And actually, we tend to agree with him; there's something seriously wrong with a law that allows a mature adult person to have sex with a 14-year-old child.

If anything, then, that's our only concern with regard to all of the legislation, and with regard to the sexual exploitation of children.

I'll end my comments there. I'm willing to take questions in that regard. I cannot emphasize enough, though, our concern with regard to that age bracket.

Thank you very much.

The Chair: Thank you very much. I now call on Steve Sullivan.

Mr. Steve Sullivan (President and Executive Director, Canadian Resource Centre for Victims of Crime): Thank you, Mr. Chair, and thank you to the members of the committee for allowing us to come here and talk to you about this important bill.

I note you don't have much time to talk about it, really, but we're glad that we were able to come and share our thoughts on it.

Like Victims of Violence, we support the bill. I will go over just a few recommendations we have for amending it.

• 0910

I know you don't have much time to talk about it, but we're glad we were able to come and share our thoughts on it. Like Victims of Violence, we support the bill. I will go over just a few recommendations we have for amending it.

I handed out a copy of a paper we prepared last year called Child Sexual Exploitation on the Internet, and I provided it to you to give you a broader overview of the problem we're facing. I'm happy to know that some of the issues we raised in that report are covered off in the bill, but some of the others refer mainly to law enforcement, the approach that different countries take, I think with a much more unified approach by various levels of policing.

As well, there's the issue of a tip line. There's one in the United States. People can call to report what they believe to be child pornography on the Internet. I know the minister has spoken in the past about that, and it's something that is being considered.

Finally, we raise the issue of a national photo-image database that will assist law enforcement to identify victims, because, as you know, when police do find someone who has images on their computer, we're often talking about thousands of images. There's really no efforts being made, because of the extent of the problem, to identify who these children really are. Some of the images are 20, 30 years old; others are five days old. And there are children being abused right now. Unfortunately, there's no attempt being made to try to find out who these children are.

There are other countries that have begun this process, and I think it's something we should be looking at as well. So that issue is raised in our document.

I apologize if my voice sounds a little odd. If my voice wavers, please forgive me. I have a cold.

I sent up by e-mail some talking points earlier in the week. I don't know if that was provided to the members. It's in English only. It's only really talking points for myself. In there we talk about the very positive aspects of the bill, the issues related to child sexual exploitation on the Internet. We support those amendments, particularly the issue of luring.

As you know, the Internet now allows sexual predators to come into our homes and talk to our children. They don't have to go to the parks or the school grounds. They don't have to join the Boy Scouts any more. They can come right into our homes. And parents don't know about that. It's a growing area of concern, certainly. The Criminal Intelligence Service of Canada has noted a growth of the problem in Canada.

We've seen a parallel growth around the world, particularly in the United States, which takes a much more proactive law enforcement approach to this, puts more resources into it. The growth there is phenomenal. In 1999 the U.S. Customs set up a child pornography website for investigative purposes. In the first month they had over 40,000 hits. Within three months they had over 150,000 hits.

As you may know, the trade in distribution of child pornography prior to the Internet was pretty much under control by police, but with the Internet, it has grown to an unprecedented amount. It's being traded quite easily with the click of a button, not to mention the risks our children face by predators in chat rooms.

Mr. Rosenfeldt mentioned the issue of the age of consent. That's an issue of concern for us as well. I was glad to hear the minister talk about that when she was here on Tuesday. And the government is seriously considering moving in that direction, raising the age. So I won't dwell on it, but it is a serious issue of concern to us.

As you know, there are amendments to the long-term offender provisions in the Criminal Code to apply these new offences to those provisions—long-term offender being a designation a court can make so someone can have a period of supervision after they've served their jail sentence. We recommended those amendments also be made to the dangerous offender provisions. As I read the bill, those sections are not affected by this. I think it would be appropriate that if you have someone with a long criminal history who is now involved in child pornography, the crown who wants to go for a dangerous offender provision is allowed to do so.

One of the issues we often see with regard to child pornography offences, and related to criminal harassment as well, is that very often individuals get conditional sentences. I know this committee has a mandate to review the use of conditional sentences. I know you have some other pressing issues that will take your attention in the next little while, but I urge you, when you do have a chance, to begin those deliberations. You'll find that conditional sentences are becoming quite common for people involved in child pornography offences.

• 0915

On the issue of criminal harassment, we support the increase in the maximum sentence, but we should also realize that very few individuals get the maximum sentence right now. According to Stats Canada, between 1995 and 2000 we're looking at about a dozen offenders who got the five-year sentence.

So increasing the maximum will not really address the problems related to criminal harassment. Those problems are related more to law enforcement problems. It's a very difficult offence to prove, and much of the behaviour is considered by police to be nuisance-type behaviour.

We dealt with a lady who was continually receiving phone calls. The person wouldn't say anything, wouldn't make threats, wouldn't do any of the sorts of things covered in legislation. It took us a while to convince the police that this was serious, even though if you look at one incident, one phone call, it's not considered very serious.

So that is where the problems with criminal harassment lie, not with the maximum sentences—and again, the conditional sentences.

I recognize the committee doesn't have time at this point to review the issue of cyber-stalking, how more and more people are using the Internet to stalk people. The U.S. report to Congress on stalking and domestic violence says current trends and evidence suggest cyber-stalking is a serious problem that will grow in scope and complexity as more people use the Internet. Several U.S. states have specific cyber-stalking legislation or have amended their current legislation to include that kind of stalking.

Some of the things being done include threats; obscene e-mails; repeated e-mails; what's called “flaming”, which I understand is live-chat harassment; spamming, which is a multitude of junk e-mail being sent to someone; and electronic ID theft, where someone steals your identity electronically.

In one case out of California, where they have crafted new legislation, an individual pretended to be a woman he'd had a relationship with, and posted it in a chat room that she liked to be raped. He gave her address. Within a couple of weeks' period, six men showed up at her home and said they wanted to rape her.

So that's the new mode of stalking. Again, it's about control, it's about power. It's usually men who are doing it, who've had relationships that have been broken off.

So I would ask that this committee consider making a recommendation to the minister and the department that we examine the current Criminal Code provisions to see if this type of behaviour is being covered. It may be, but I think it's something we need to look at.

With respect to the sexual exploitation of persons with a disability, we support the expansion of those protections for witnesses.

I did notice that subsection 486(2.3) is not included in the bill. That's the provision that would prevent an accused from personally cross-examining a sexual assault complainant. I would recommend it be included in Bill C-15.

Finally, with the issue of miscarriage of justice, I have little knowledge of how the process works, and I won't speak to the process. What I would say is where that process begins and there is a review, victims of crime have an interest in it. We're recommending the bill be amended so victims are notified that an application has been made and what the progress and end result of that review has been. We know victims who have read about it in the newspaper, and it's been very disturbing. I'm not suggesting victims have a role in reviewing that conviction, simply that they're informed of what's happening.

Those are my comments, and I look forward to your questions.

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

And now the Canadian Association of Internet Providers, Mr. Thomson.

Mr. Jay Thomson (President, Canadian Association of Internet Providers): Thank you and good morning, Mr. Chairman, members of the committee.

My name is Jay Thomson and I'm president of the Canadian Association of Internet Providers, or CAIP, as we call ourselves. With me today, in the audience, is one of our board members, Mr. Ian Hembery, from AOL Canada, as well as representatives from some of our other members, who are here to help me and answer some questions later on if you'd like to hear from those who are actually in the companies.

CAIP is a national trade association representing Internet service providers, or ISPs. Our members, who include such large companies as Bell Canada, Telus, and AOL Canada, as well as many, many smaller ISPs, provide approximately 80% of the Internet connections in Canada.

• 0920

It's a pleasure for me to be here this morning, along with our colleagues from CCTA, with whom we've worked quite closely on this particular file, to offer our general support for the provisions of Bill C-15, which deal with child pornography and child-luring on the Internet. At the same time, I'd like to highlight for you our real concern that these provisions could have serious but clearly unintended consequences for ISPs and the Internet.

Let me say at the outset that CAIP members take Internet content issues very seriously, and we have launched a number of our own self-regulatory and consumer awareness initiatives to help address concerns that Canadians have about illegal and offensive content. Last February, we joined the Government of Canada in the launch of its “Strategy to Promote Safe, Wise and Responsible Internet Use”—this document here. In fact, we were mentioned 19 times in this strategy document. This document outlines how the government, non-profit organizations, and the private sector are working, often together, to make the Internet a safer place for Canadians and their families.

For example, at that same event, we launched Protection Portal, a fully bilingual, educational, and public awareness website that profiles organizations, communities, and individuals who are addressing Internet content issues in a positive and constructive manner. One of those organizations is LiveWires Design in Vancouver, which uses computer games and cartoons to warn children about the dangers of luring on the Internet. I encourage committee members to visit the Portal, which is available through a link on our home page at www.caip.ca. We are also currently participating actively in a multi-sector group working on building a Canadian Internet child pornography hotline.

Mr. Chairman, while we strongly believe that responsible self-regulation is generally the most practical and effective means to address Canadians concerned about Internet content, we also recognize that there may be some matters where a combination of self-regulation and properly drafted legislation can be of great help to Internet users, law enforcement, and ISPs. This is why we generally support the relevant sections of Bill C-15.

We very much appreciate the minister's comments when she appeared before you on Tuesday and, in particular, her assurance that the intent of the bill is to target child pornographers and predators, and not ISPs. Nevertheless, we remain concerned that the language used in the bill is so broad that it could permit a court to hold ISPs liable for criminal acts of others over which they have no knowledge or control.

ISPs can play a number of roles in the Internet communications chain, but their primary function continues to be to act simply as conduits or facilitators of other people's content. This is similar to the role that telephone companies play with respect to phone calls and Canada Post plays with respect to mail.

I think it's fair to say, Mr. Chairman, that no one rightly believes that the telephone companies should be held liable for the content of the millions of phone calls taking place daily using their networks or that Canada Post should be held liable for the content of every letter it collects and delivers each day. To extend this even further, no one would rightly consider holding the government liable in the event someone transports illegal materials using the roads and highways the government has built and maintains. Nor does anyone rightly believe that the telephone companies or Canada Post or the government should be screening every call or letter or vehicle that uses their delivery system in order to guard against illegal content. ISPs are no different from the telephone companies, Canada Post, or even the government in these circumstances.

Bill C-15 would amend subsection 163.1(3) of the Criminal Code to add new offences for a person who “transmits” or “makes available” child pornography. Neither of these terms, however, is defined or circumscribed. As a result, we fear the bill could leave it open to a crown prosecutor to lay charges against an ISP for the transmission or making available of that person's illegal content and for a court to convict. Not only would this be unfair and unjustified, it would run contrary to the approach taken by other democratic countries, including the U.S. and the European Commission, and would place Canada at a competitive disadvantage in its efforts to be a leader in the Internet economy.

For these reasons, we urge the committee to amend Bill C-15 to ensure it does not create unintended liability for ISPs. To this end, we have attached to these speaking notes a suggested amendment, which we believe would accomplish this objective in a manner that is consistent with the language of the Criminal Code, as well as with other federal legislation. In fact, our proposed amendment mirrors quite closely a provision in the Copyright Act known as the “common carrier exemption”, which the Canadian copyright board has interpreted in a manner entirely consistent with what we are asking this committee to ensure—namely, that ISPs acting as mere conduits of other people's content are neither liable for that content nor expected to monitor it to avoid criminal liability.

• 0925

Lastly, Bill C-15 would also create a judicially ordered takedown regime for Internet content found by a court to be child pornography. This is a good concept. However, there are some small, but nevertheless serious, technical problems with some of the wording proposed. We have therefore also offered language that easily corrects these problems without changing the substance of the provisions.

In closing, Mr. Chairman, I'd like to thank you and the members of the committee for the opportunity to be here and the opportunity to reiterate that we at CAIP believe that what you are intending to do with these particular amendments to the Criminal Code is a good thing. We urge you, however, to ensure your good work in this respect does not have unintended, unfair, and anti-competitive consequences.

Thank you, and I look forward to your questions.

The Chair: Thank you very much.

Now we turn to the Canadian Cable Television Association, Ms. Lori Assheton-Smith.

Ms. Lori Assheton-Smith (General Counsel and Vice-President, New Media, Canadian Cable Television Association): Thank you very much. We're very pleased to be here today.

Good morning, Mr. Chairman and committee members. My name is Lori Assheton-Smith and I am general counsel and vice-president, New Media, for the Canadian Cable Television Association.

CCTA represents over 800 cable systems across Canada. Collectively our members deliver entertainment, information, and telecommunication services to approximately six million Canadian households, including over one million subscribers of cable high-speed Internet access services.

As a world leader in the provision of broadband Internet access, the Canadian cable industry is significantly interested in this bill. As Jay has just mentioned, we worked closely with CAIP in preparing our response to the bill and we do share their concerns and their general recommendations.

We are here today essentially for two purposes. First, we want to express our strong and unqualified support for the intent of the proposed changes to the Criminal Code that would criminalize the sexual exploitation of children on the Internet. Those who are responsible for the creation, dissemination, and consumption of child pornography should not be treated any differently under the law merely because they use the Internet to commit their offences.

In response to the presence of criminal activity on the Internet, cable ISPs have developed a close and cooperative relationship with law enforcement agencies across Canada. Our members consult frequently with local law enforcement and we provide technical expertise through established response teams and procedures. We will continue to work actively and cooperatively with law enforcement to enhance the efficiency and effectiveness of our joint efforts. As partners in the fight against child pornography, we are fully supportive of clear, fair, and appropriate measures to identify, investigate, and prosecute online perpetrators.

As noted by the minister in her comments to this committee on Tuesday, industry self-regulation and education of users are also key elements of an overall strategy to combat child pornography and sexual exploitation of children on the Internet. CCTA is a strong supporter of Industry Canada's strategy—the Strategy to Promote Safe, Wise and Responsible Internet Use—and we are an active participant in the task force to establish a national Internet hotline, which is expected to receive and deal with complaints regarding the online sexual exploitation of children.

In addition, CCTA members are founders and major sponsors of the Media Awareness Network, which provides individuals and families with information and education about safe and responsible Internet use. The cable industry has had decades of experience with self-regulation, and we expect that our excellent track record in this area will be mirrored in our response to the emerging challenges of the Internet environment.

The second reason for our appearance here today is to seek two short, but in our view very important, amendments to the bill, both of which we believe would provide greater clarity as to the intended scope and effect of the legislation.

The first amendment that we are seeking is to the section of the bill that creates new offences of “transmitting” and “making available” child pornography. CCTA is concerned that without legislative clarification these offences could inadvertently capture Internet service providers even where they do not themselves have actual knowledge of or control over illegal content. In our view an ISP should be no more liable for the content that flows through or is stored on its system than should the telephone company be liable for the content of telephone conversations that flow through its wires or for the voice-mail messages that are stored on its computer system.

We acknowledge in this regard the minister's comments to the committee that this bill is not aimed at Internet service providers. It is aimed at child pornographers who use the Internet to commit their crimes. She emphasized that ISPs will not be held liable where they have no knowledge of or control over illegal content. She also clarified that the legislation does not impose on ISPs an obligation to monitor the content on their systems.

• 0930

We very much appreciate the minister's statements clarifying the scope of the legislative intent with respect to Bill C-15. Notwithstanding her verbal assurances, however, CCTA remains of the view that it would be preferable to have the clarification of intent made explicitly in the legislation. CCTA is, therefore, proposing an amendment that would expressly relieve ISPs from criminal liability under section 163.1 of the code, where they merely act as ISPs, without any evidence of criminal intent.

To put it in practical terms, if an ISP merely provides the conduit through which another person transmits an illegal e-mail attachment, or if an ISP merely leases capacity on one of its servers used by a third party to post child pornography, that ISP would be exempt from criminal liability. Of course, if an ISP knowingly assists in the commission of one of the stated offences, or if it ignores a notice from a court that there is content on its system that constitutes child pornography under the Criminal Code, that ISP would properly be held liable for failing to take corrective action that is authorized by law and within its control. It would not in these circumstances be able to avail itself of the proposed exemption. In other words, the amendment we are proposing would still allow for the investigation and prosecution of any person, including an ISP, who should properly be held responsible for illegal content.

The specific language of our proposed amendment is set out in the written brief that has been provided to the committee in both French and English. As Jay mentioned, this language is based on a similar provision in the Canadian Copyright Act, which exempts common carriers from liability for copyright infringement by users, an exemption that has been interpreted by the Copyright Board to extend to ISPs. It is also consistent with the general approach to ISP liability for online content that has been adopted in a number of foreign jurisdictions, including, as Jay mentioned, the United States and the European Union.

The second amendment we are seeking is a change to the wording of proposed section 164.1, which creates a notice and takedown procedure for alleged child pornography that is hosted on Canadian servers. While we are supportive of the overall procedures set out in this provision, we have serious concerns with the wording of proposed paragraph 164.1(1)(b), which requires an ISP to ensure that the alleged illegal material:

is no longer stored on and made available through the computer system.

Our problem with the provision is this. The requirement to ensure that content is “no longer stored on” an ISP system would be almost impossible to comply with, for two reasons. First, content is often stored in multiple locations, including cache and backup servers. It would be highly impractical and burdensome for an ISP to permanently remove specific content from all of these locations. Second, it is virtually impossible for an ISP to guarantee that any content has been permanently removed from its system. Even if an ISP deletes the impugned content from its servers, the content could be re-posted with relative ease almost immediately, either within the ISP system or on another ISP system.

One journalist, discussing Internet traffic nearly three years ago, compared the task of monitoring third-party content on an ISP system to reading Shakespeare's complete works 3,200 times a day. Internet traffic has more than tripled since that statement was made. Clearly, it's simply not feasible for an ISP to actively screen the vast amounts of material on the Internet to ensure that specific content is “no longer stored” on its system.

In our view, a simple and appropriate way to address this concern is to amend the provision to remove the words “stored on and” from proposed paragraph 164.1(1)(b). This would recognize the difficulty in permanently removing content from an ISP system. At the same time, an ISP would still be required to disable access to particular content pending a judicial determination about the legality of the material in question. This would satisfy the public policy goal of ensuring that the allegedly illegal content is unavailable in its previous location for further consumption.

In conclusion, CCTA commends the government for taking this important step to protect the safety and well-being of children on the Internet. We do not take issue with the aim of the legislation, only its potential scope. In our view, the amendments proposed by CCTA would add technical and legal clarity to the legislation, recognizing the traditional treatment of telecommunications carriers with respect to the content on their networks. These amendments would also, we believe, more accurately and fairly reflect the intent of the government to render criminally liable only those persons who are criminally responsible.

Thank you for the opportunity to provide the committee with these comments. I would be pleased to answer any questions.

The Chair: Thank you very much. We thank all four witnesses for helping us in this undertaking.

I turn to Mr. Cadman, for seven minutes.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair. And I'd like to thank the witnesses for coming this morning on such short notice.

• 0935

I have just a couple of quick questions here for the communications people. The amendments you're suggesting, especially the last ones, are highly technical stuff. I'm just wondering how much consultation was done by the ministry with you folks to deal with some of these. Was this brought up before the bill was actually put together? And why wasn't it recognized at the time that there are some major technical problems you're going to run into?

Mr. Jay Thomson: We did have an opportunity to consult...[Technical Difficulty—Editor]

• 0936

• 0940

The Chair: Where were we? Mr. Cadman was putting a question, I believe, to Mr. Thomson.

Mr. Jay Thomson: Thank you.

What I was saying is that we did have an opportunity to consult prior to the bill being tabled and certainly subsequent to the bill being tabled. When we did consult with Justice Canada officials prior to the bill being tabled, we did not see the actual wording that would be used.

With respect to those particular provisions dealing with the judicially ordered takedown regime, where we have some technical concerns, I would say that the wording that ended up being drafted and tabled was different from what we anticipated it would be. So these issues were not dealt with until after we saw the actual wording.

Ms. Lori Assheton-Smith: I'd echo that. I think when you're dealing with this area, it certainly would be helpful to get the input, the technical expertise, of the people who have the knowledge as to how it can actually be technically done. Unfortunately, we didn't have a very long opportunity before the bill was tabled to provide that sort of input, but we're trying to provide it now.

Mr. Chuck Cadman: Thank you.

Mr. Sullivan and Mr. Rosenfeldt, it appears you really don't have any problems with the majority of this bill. I'll assume that you've made representations to the minister on the age-of-consent issue and you intend to follow up on that.

Mr. Steve Sullivan: We've expressed our concerns.

Mr. Chuck Cadman: It's a little bit out of your area, but we may have some discussions later on the 690 sections of the bill. I wonder if you have any opinions on that, the wrongful convictions.

Mr. Steve Sullivan: On the process, not really. I think we agree with everyone that no one wants to see anyone wrongfully convicted and we need to have a process by which those cases can be reviewed. So as to the process, no. I just go back to my earlier point that I think victims have a role in being informed of what's happening and if there is a process and what the result of that outcome was. My experience with the process itself is very limited, so I can't offer any expertise there.

Mr. Gary Rosenfeldt: It's the same for Victims of Violence, really. Our concern really is the same as....

The Chair: We're having another technical problem.

• 0945

• 1006

The Chair: Order. I'm not sure who among us is superstitious, but those who are, please cross your fingers.

Send out for lunch, Mr. Technician. You're staying with us.

We'll press forward. This is a bit touch and go, so we'll just see what happens.

Monsieur Bellehumeur for seven minutes.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): I will be brief, Mr. Chairman. I think Mr. Thomson and Ms. Smith have answered all my questions on computers. My questions are more for the first two speakers, Mr. Sullivan and Mr. Rosenfeldt.

My question is on the age of consent. You say 14 is too low and the age of consent should be raised to 16. Among other things, the first witness said he did not believe a 14-year-old girl was mature enough to decide to have sex with an older man, a 40-year-old man, for example.

My mind is not fully made up on this issue, and I want to understand your reasoning. Your reason for saying that a 14-year-old girl is not mature enough to make such a decision must be that you feel she is not sufficiently developed and responsible to make an informed decision to engage in such an act, given that she is only 14. Is that in fact your reasoning?

[English]

Mr. Gary Rosenfeldt: Basically, that is what we're saying. We're saying that we do not believe a 14-year-old child has the capacity to make decisions that affect her for the rest of her life. On one hand, we're trying to protect children under the age of 18 against pictures being taken of them and distributed on the Internet. On the other hand, we're saying that a 14-year-old girl can engage in a sexual activity with a mature adult.

[Translation]

Mr. Michel Bellehumeur: Yes, I see.

[English]

Mr. Gary Rosenfeldt: It just doesn't make sense to us at all.

[Translation]

Mr. Michel Bellehumeur: Mr. Sullivan.

[English]

Mr. Steve Sullivan: On top of that, I think I'm more concerned with the intentions of the 40-year-old than those of the young girl or boy. As well, and Mr. Rosenfeldt touched on it, there's inconsistency in the way we apply the rules. If you're a child, prostitution is 18. If it's pornography, it's 18. But otherwise it's 14.

So it's the issue of consistency. And the motivations of the offender, I think, are of more concern to me than the young person's.

[Translation]

Mr. Michel Bellehumeur: So you are saying that a 14-year-old girl is not mature enough, not developed enough and not responsible enough to make a decision that is going to affect her for the rest of her life. Suppose that same 14-year-old girl kills her stepfather for all sorts of reasons I do not want to get into. In your opinion, should that 14-year-old girl be treated as an adult and given an adult sentence?

[English]

Mr. Steve Sullivan: I think...[Technical Difficulty—Editor]

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• 1043

The Chair: Welcome back, and welcome to our new surroundings.

I guess Mr. Bellehumeur is not here, but at the time we suspended, I believe Mr. Bellehumeur had asked a question of Mr. Sullivan. I think you remember the question; in fact, I think we all do.

Mr. Steve Sullivan: Thank you, Mr. Chair.

The question was dealing with a 14-year-old girl who murders her father and whether she should be tried in adult court. I guess my answer is, yes, sometimes—depending on the circumstances, obviously. If she has murdered her father because he has been abusing her for most of her life, then I would probably say no, but if there are other motivations, I think we have to look beyond the interests of this particular young person and say, as well, what are the interests of society? If this person is a danger, then it's not just about her any more; it's about all of us. That's why I say it depends on the circumstances as to what would be the appropriate sentence.

Mr. Gary Rosenfeldt: But if I could add to that, too, even if she were convicted of murder, the court would take into consideration the fact that she is 14 years of age, and the sentence would be less, again recognizing the fact that 14-year-olds do not have the full capacity of adults, in most cases.

The Chair: Thank you very much.

[Translation]

Mr. Michel Bellehumeur: Mr. Chairman, as you can see, I am back. I had to step out for a couple of minutes, and you went ahead without me. I am not impressed.

I have no further questions.

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[English]

Mr. Steve Sullivan: Basically, what I was saying with regard to the 14-year-old girl, and whether she should be tried in adult court, is sometimes. Depending on the circumstances it may be appropriate. Because it's not just about her any more, it's about society. If there is a concern for the protection of society, we have to look beyond the needs and interests of that young person—not to say we should ignore them, but we must look at the broader implications.

The Chair: Mr. John McKay.

Mr. John McKay (Scarborough East, Lib.): I wanted to address one question to Mr. Thomson and Ms. Assheton-Smith.

If I understand your initial submission, it is a cascading approach to knowledge. Your first choice would be that the amendment say “merely provides”, and if merely provides doesn't do it, then you'd like to see section 163.1 amended by adding the word “knowingly”. For whatever reason, the department has not included the word knowingly. I assume their argument is that knowingly is implied. Is that the nub of the argument?

A voice: You're right.

Mr. John McKay: So explain to me why you don't think having the word knowingly implied in the legislation is adequate for the apprehended liability that you have.

Ms. Lori Assheton-Smith: Essentially, our concern is that the word knowingly should be used consistently. There is an offence in the same section that uses expressly the word knowingly with respect to accessing, but that word is not used with respect to transmitting, or to making available. Our concern is that there may be an argument that a strict standard of liability is created for offences that don't use the word knowingly with respect to them.

We understand the department's position that knowingly is implied, and we understand that intention forms an element of any criminal offence. We're just concerned that knowingly is used differently with respect to one offence than with respect to the others in the same section. We'd like it to be used consistently so there's no confusion about the standard of knowledge that's required. Whether it's for accessing or transmitting or making available, the standard should be the same.

Mr. John McKay: I have one final question, Mr. Chairman, and that has to do with the role of organized crime in this kind of crime. Is there any tenable argument that organized crime might be the sub-provider of this kind of material, and therefore that the deletion or omission of the word knowingly is intentional on the part of the department in order to capture those kinds of providers whom you obviously don't represent, but to whom you might either knowingly, blindly, or unknowingly provide a larger network? Is there any argument to be made around that particular issue?

Ms. Lori Assheton-Smith: I think our point is that regardless of whether the ISP is what you might call a bad or a good ISP, the standard of knowledge that's required should be the same. The amendment we've put forward, or that we're proposing, makes it clear that provided all you're doing is acting as an ISP, and just providing the conduit or the storage capacity, and not acting in a criminally responsible manner, you would not be subject to liability under that section.

In our view this amendment will still allow what you refer to as an irresponsible ISP, or an ISP that is not taking the appropriate steps, to be brought forward under that section. I think it's really just a clarification that we're trying to put forward. We understand the intent and would like to have that intent made explicit in the legislation.

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Mr. Jay Thomson: If I could just add to that, this is a hypothetical area that Justice Canada officials have raised with us in the past.

Mr. John McKay: Do you mean, the area of organized crime?

Mr. Jay Thomson: I mean the concept of this renegade or bad ISP who's out there and is going to operate outside the law.

My first response is that we haven't seen any of those in Canada yet. What is the problem? We have very responsible ISPs in this country. In fact when you talk to law enforcement officials they will tell you they have a very good working relationship with the ISP community in Canada and receive a great deal of cooperation from them. I am concerned that there could be a move to adopt a position with respect to hypothetical ISPs that might impact on the vast majority of ISPs out there who are responsible citizens and good corporate citizens as well.

Mr. John McKay: Final final question. We're going to be under an enormous amount of pressure in the next few weeks and months to do something about terrorism, and I'm wondering whether your organization has given any thought as to how this section might apply to unintended consequences of terrorist activities.

Cyber-crime and the communications networks of terrorists clearly use the Internet. Clearly there is a component of the Internet that seems to be used for this kind of activity. I'm wondering whether, if you focused the lens on terrorism, you would still make the same arguments about the words knowingly or merely provides.

Ms. Lori Assheton-Smith: I think the concept is the same whether the illegal content is child pornography, illegal copyright, or false and misleading advertising. We've made these same arguments in other forums where the same concept of ISP liability for content has been discussed. I don't think these particular provisions have any bearing on terrorism—

Mr. John McKay: No.

Ms. Lori Assheton-Smith: —but certainly as ISPs we are turning our minds to other criminal activity on the Internet. I've been told that fraud right now is actually the greatest illegal activity, and that even in terms of warrants issued, that's really the issue they deal with on a more frequent basis than any other illegal content.

Certainly we are researching and discussing what the response is going to be with respect to security on the Internet. That's a very big issue, and we're talking to our members about it. They're dealing with it. I know they're cooperating with law enforcement on this issue today and will continue to do so.

Mr. John McKay: Thank you.

Mr. Jay Thomson: I'd echo those comments, but I'd just add, if I could, that prior to the Internet phenomenon, criminals communicated with each other by telephone, and the concept is the same. The telephone companies weren't considered liable for the content of those communications, even though they were criminal communications between criminals.

The Chair: Thank you, Mr. McKay. The rule is, you get only two final questions.

Mr. Bellehumeur, do you have anything else?

Mr. Owen.

Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you all for being here this morning and sharing your concerns with us.

First of all, with respect to “knowingly”, do I take it, Ms. Assheton-Smith, that if knowingly were deleted before the word “accessing”, that would deal with your concerns?

Ms. Lori Assheton-Smith: That would be fine, too.

Mr. Stephen Owen: My understanding of the reason for using it in that clause, or with reference to accessing, is that it is not to make knowingly accessing a crime distinct from just accessing—with the implied intention within it—but simply to make accessing a crime, but by defining taking down or transmitting—knowingly doing so—as the definition of accessing.

I understand why you may see some confusion in it, but I just wanted to make sure that—

Ms. Lori Assheton-Smith: No. I take your point and I do—

Mr. Stephen Owen: —if it were dealt with in a different way it would satisfy your concern.

Ms. Lori Assheton-Smith: That would go a long way to satisfying our concern, yes. The problem is that transmitting and making available are not defined either—I think that's part of the problem here—whereas accessing is clarified. In our view, transmitting and making available should be similarly clarified, whereas accessing should not, just to deal with them consistently.

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Mr. Jay Thomson: I'm sorry to jump in here, but certainly if the word knowingly were removed from the accessing section, that would deal with the fear that the transmitting and making available sections are suddenly strict liability offences. It still doesn't satisfy us with respect to our initial position, which is that ISPs acting as conduits should just be removed entirely from the legislation so that they're not faced with the possibility of a prosecution and defending themselves and covering the court costs associated with defending themselves to ultimately find out that they are just a conduit and shouldn't have been there in the first place.

Mr. Stephen Owen: Yes. I appreciate that I'm only dealing with your minimum condition, not your maximum condition.

The other point I have, with respect to your concern about proposed paragraph 164.1(1)(c), is that you would have the words “where available” added to that. This is where you would provide the information necessary to identify and locate the person who posted the material.

Mr. Jay Thomson: Yes.

Mr. Stephen Owen: Looking at the latter half of proposed subsection 164.1(2), it specifically provides that a judge may order the custodian of the computer system to post the text of the notice. If the person cannot be identified or located, there could be an order to post. Does that not speak specifically to proposed paragraph 164.1(1)(c), therefore the words “where available” might be redundant because it speaks to the situation where they're not available?

Mr. Jay Thomson: Yes, it certainly does in a subsequent subsection. I think the addition of “where available” in proposed paragraph 164.1(1)(c) would certainly add some clarity.

Ms. Lori Assheton-Smith: I would echo that as well. I think part of the problem is that an ISP will not always be able to provide that information, and they don't want to find themselves not in compliance with the provision for the reason that the address or location of that person cannot be identified. They don't want to be offside of the court order.

Mr. Jay Thomson: What could happen here, or what proposed subsection 164.1(2) contemplates, is that this information is not available. But that doesn't remove the ISP from the responsibility of providing it. So there's the possibility that the ISP unable to provide that information could be held liable for its inability to comply with the act. That having been done, that's a case where the information is not available. So then the judge acts.

Mr. Stephen Owen: I'll restrain myself from using the word far-fetched, but I think that's where it's a theoretical concern.

Mr. Jay Thomson: Well, we certainly hope it's just a theoretical concern.

Mr. Stephen Owen: Thank you.

The Chair: Thank you, Mr. Owen.

The final question will be from Mr. Sorenson.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): I think the answer to Mr. Owen has basically addressed my question.

Again, this puts the onus on the judge to define what pornography is. Correct? And then it's up to you to remove them from the.... You wouldn't provide the service for them any more. So the definition is up to the judge.

I think we're all right.

The Chair: Okay.

Thank you very much to the witnesses for appearing today. My apologies for the technology. I also thank members for being patient.

Members, I have some business I'd like to conduct. Two clauses have been inadvertently placed in Bill C-15A. They should have been placed in Bill C-15B. Those are clauses 11 and 24. In other words, they should be in the second half of this split bill, and we'll have a chance to consider them then.

• 1100

This can be easily corrected today by the following motion:

That in Bill C-15A, clauses 11 and 24 shall be deleted and inserted into Bill C-15B, on page 5, as new clause 8.1 and new clause 9.1 respectively, and that the committee shall treat these changes as amendments in its report to the House on the bills.

The purpose is simple—namely, to avoid confusion that would exist between different editions of the two bills, and it will maintain a member's power to propose amendments to these clauses should they wish to do so when they come back.

So if I could have someone.... Mr. McKay.

Mr. John McKay: But it's conditional on the Minister of Justice buying the committee lunch.

The Chair: Since that requires the crown to spend money, it's out of order, but it does cause me to recognize that food is available to us in another room.

So if I have a motion to the effect.... We don't need a seconder, but we have one, in any case.

(Motion agreed to)

The Chair: Thank you. That helps us very much with our work.

Further to our discussions last night, we are calling to the table Mary McFadyen and Howard Bebbington from the Department of Justice.

I think it's safe to say that there were concerns expressed following the testimony of witnesses yesterday that caused the committee to decide that they'd like to call officials from the justice department and explore some of those issues prior to going to clause-by-clause, which is our intention immediately following their intervention.

I guess the best way to proceed is to have the officials make an opening statement. I think you are alert to the issues that are involved.

Without anything further, please proceed.

Ms. Mary S. McFadyen (Senior Counsel, Criminal Conviction Review Group, Department of Justice Canada): Thank you very much.

My understanding is that a question was raised as to whether the amendments to section 690 address the concerns that Joyce Milgaard raised yesterday.

Let me start by saying that the minister did undertake an extensive consultation process, and after receiving submissions from the provinces and various interest groups, determined that an independent body was inappropriate for Canada.

With respect to the recommendations in the Marshall inquiry and the Morin inquiry, she did follow them and consider them.

For instance, the Marshall inquiry had recommended that the provincial ministers and the federal minister meet to consider the creation of an independent mechanism. Back in 1991, a working group was set up, and they determined that the section 690 process, although it needed improvements, did constitute a sufficient independent body, because most of the prosecutions were provincial, and therefore the Minister of Justice or the federal Attorney General were not responsible for those prosecutions. However, the Marshall inquiry did recommend that such a review body be given investigative powers, and in fact this is what these amendments propose to do.

With respect to the Guy Paul Morin inquiry, one of the recommendations was that the Government of Canada should study the advisability of creating by statute an independent review board. That is what the minister did; she did consider that.

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With respect to section 690, as it stands now it's very vague. It didn't state when someone was eligible for a review.

The way in which we usually receive an application is that someone writes to the minister saying they feel they have been wrongly convicted, and then we have to go through the process of explaining to them that if they haven't exhausted their appeals, they have to go to the court, they can't apply to the minister. The proposed section 696.1 specifically states that you must have exhausted all judicial avenues of appeal. So it is very clear now that it is not an alternative to the judicial process.

The former section 690 only allowed for the review of indictable offences. As the new section is worded, we have expanded it to include summary conviction offences, because there are more offences that are treated as summary conviction, and they have a longer sentence that could be imposed upon the person. That was one of the features we borrowed from the British system. They also review summary conviction offences.

Section 690 as it now stands does not set out what you need to apply, how you apply, or what documents are needed. We have put in the section that these requirements will be set out in regulation.

One of the concerns of Mrs. Milgaard was that she did not know what was happening with the application. Right now section 690 does not say how an application is reviewed. The new section will allow us to put in the regulations what the process of review is. So applicants will know what takes place when an application is reviewed. That should clear up her concerns about the process being in secret.

With respect to powers of people investigating the applications on behalf of the minister, section 690 has none. We have provided in proposed section 696.2 that those investigating on behalf of the minister will have powers to compel documents and witnesses. We did borrow this from the U.K. system, but their statute only allows them to compel documents from public bodies, not to compel witnesses. So we've improved on that.

Remedies have not changed. We kept them the same. One of the concerns about section 690 now is that it does not set out when a remedy is granted to someone. We have followed guiding principles. Minister Allan Rock set them out in the Thatcher decision, in 1997 I believe. Now we have specifically set those out in the statute, so that the applicant will know what the considerations are when the minister considers granting a remedy.

As well, we've put in this section that the minister will be required to file an annual report with Parliament on her role in 690 review. Therefore she will be accountable.

So I think we have addressed the concerns Mrs. Milgaard raised. It should be less secretive. How one applies and how a case will be reviewed will be set out in regulation. She also referred to the fact that they filed a first application that was rejected, and the second one was accepted. We've set out what will be considered in granting a remedy, so that should alleviate those concerns.

Again, while the minister has rejected the idea of a totally independent body, we have borrowed some very good measures from the United Kingdom system.

Another concern that I believe was raised yesterday was that there will be an inquiry in Saskatchewan with respect to the prosecution of David Milgaard. I don't think we know when that will be heard. My understanding is that it will be after Fisher matter is completed, and it's still in the Court of Appeal, so it could be years. I don't think we're sure what the mandate of that review would be, if it will be simply the investigation or the prosecution of the case in Saskatchewan. It may be unwise to wait till then to make improvements.

So those are my comments.

The Chair: I thank you very much.

I go first to Mr. Fitzpatrick.

• 1110

Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance): The one area I would be wondering about that is envisioned under this legislation is this special unit or investigative group. Who would that be, and would that be their full-time job, and that sort of stuff?

Ms. Mary McFadyen: As the minister said on Tuesday, this will be a free-standing unit, so it will be independent of the rest of the department. The new independent adviser will report to her, and not through a line of officials to the department. So it would be a unit dedicated solely to reviewing these cases, reporting through the special adviser to the Minister.

Mr. Brian Fitzpatrick: I have a follow-up question on that. If this group did investigate a case and felt strongly that there was a serious injustice, and this matter should be reviewed, would the minister still have a lot of discretion as to whether she locks up that recommendation or not?

Ms. Mary McFadyen: Certainly, she would receive advice from the special adviser on whether or not the matter should be returned to the court system. I would assume she would have great confidence in this adviser and would heed the advice, but ultimately the decision would rest with the minister.

Mr. Brian Fitzpatrick: The advice, would that be public information?

Ms. Mary McFadyen: No, I believe it would be subject to solicitor-client privilege. People who apply under section 690 are protected by the Privacy Act, so the fact that somebody has actually applied is not public information that the minister can release.

Mr. Brian Fitzpatrick: But they could waive that, couldn't they?

Ms. Mary McFadyen: They could waive that, but I don't know if the minister would waive the advice she received on an application.

Mr. Brian Fitzpatrick: She would be using this thing too, would she? She would be hiding behind solicitor-client privilege?

Ms. Mary McFadyen: She would be the client of the lawyers giving her advice.

Mr. Brian Fitzpatrick: To be fair about it, Mrs. Milgaard and the other person who was here yesterday were concerned about the secrecy of the whole thing.

Ms. Mary McFadyen: Under this system one of the steps that's taken is an investigation, and all the information the minister bases her decision on is made available to an applicant. Therefore, they will know all the information that is available and will be able to make submissions to the minister before a final decision is made. So that will help with the openness of the process.

Mr. Brian Fitzpatrick: Would the applicant know what the advice was from the group to the minister? Would that be available at least to the applicant?

Ms. Mary McFadyen: Not the advice, but all the information that was available.

Mr. Brian Fitzpatrick: Well, I think they'd like to know what their determination was.

Ms. Mary McFadyen: If a decision is made that they're not happy with, when the minister renders a decision, it is subject to judicial review. Therefore, there is a way of disputing that, if you are not happy with the minister's decision.

Mr. Brian Fitzpatrick: I'm just trying to envision why that would be necessary, if you had the group that investigated and came out with a recommendation, why that wouldn't almost automatically kick in a review of the whole situation, and why we must have this go through the political realm. It's just a concern that I would have on it.

Ms. Mary McFadyen: You mean once the group and official adviser have made a recommendation to the minister?

Mr. Brian Fitzpatrick: Yes.

Ms. Mary McFadyen: I'm not sure what you're asking.

Mr. Brian Fitzpatrick: What if, for example, they made a very powerful recommendation—let's use the Milgaard case or some of these other cases we had—that there was strong evidence showing that this person was falsely convicted, and they recommend that remedial action take place, and so on? It just bothers me that this sort of recommendation or advice would still be in secret and it still would be in the hands of the minister. I would like to think some mechanism would kick into place to start dealing with this problem, if that was their finding or their conclusion.

Ms. Mary McFadyen: Again, I would say that if advice goes to the minister to make a referral, I would hope she would pick people she had faith in, and so she would accept a recommendation.

As to whether or not the recommendation would ever be made public, I guess that would be a decision for the minister to make.

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Mr. Brian Fitzpatrick: I guess I'm just biased because I'm an opposition member and we don't always get our way on certain things. So I'm a little bit cynical about that sort of thing. Once it gets into the political realm, and what considerations get going on it and so on.... There's a legitimate injustice here. I'd like to see the thing addressed and not be hung up in the political world of Ottawa for a year or two just while they're deciding what they should do with it. It's just a concern.

The Chair: I think it's a tough question to ask our witnesses to respond to. I think we understand your position.

Mr. Brian Fitzpatrick: But this is what the people yesterday were raising, too, that kind of concern.

The Chair: Thank you very much.

Monsieur Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Thank you, Mr. Chairman.

Yesterday, after our meeting and after hearing what the two witnesses had to say about section 690 of the act, I reread that section. I also reread sections 696.1 and following in the minister's bill. Apart from indicating the type of form to be used, giving details about how to fill it out, indicating what to write—all that to be prescribed by the regulations—and stipulating that the minister shall submit an annual report within six months after the end of each financial year, there is not much new in connection with section 690.

You said earlier, Ms. McFadien, that one of the new features had to do with the minister's new role in the investigation. The minister also had powers of investigation under section 690. It was "after inquiry". I recognize that the provision did not come right out and say that it was the minister who investigated. It was the department. It was people from the department who did the investigating. So there is not much new that I can see, except that some things have been put in writing that were already being done anyway. There is practically nothing more.

One of the main criticisms of section 690 was that people found it extremely long. It went at a snail's pace, to quote yesterday's witness. I see nothing in the bill to speed things up.

On the issue of independence, you say the investigators will be independent. What I read in subsection 696.2(3) is that “the Minister of Justice may delegate in writing to any individual the powers of the minister”. The expression “to any individual” does not automatically exclude people from the department and anybody who might have a connection with the Department of Justice or who might have had contracts with the Department of Justice or whatever. As far as independence goes, that would not satisfy the witnesses we heard yesterday.

This is my last question. I am told there are people from the department who went to England to see how things are done there. I assume this happened before the department made its decision and before it received briefs from interested parties, as you said earlier. Have you suggested to the minister, in the appropriate manner, adapting what happens in England to the Canadian system?

[English]

Ms. Mary McFadyen: I'll try to follow all your questions here.

With respect to the forms and the documents that are needed, which you've referred to, they'll be set out in regulations. Certainly the same documents we do require now will be required then and it will be more clearly set up. And we're hoping that will expedite the process because it should assist applicants in getting their applications ready.

With respect to investigative powers, those were something that those investigating cases on behalf of the minister did not have. That was also a problem in reviewing these cases, because sometimes it was difficult for us to get documents and difficult for us to interview witnesses who had information critical to the case. So we're hoping that by having these powers it will assist in getting these cases done more quickly.

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With respect to the officials who travelled to the United Kingdom and reviewed the thing, certainly I know the minister went with officials and had a very good conversation with the chairman and other commissioners. You had asked me what we had recommended to her in our advice, and I can say that options were set out that the minister considered and she made the ultimate decision, reviewing, as she has said publicly before, the appeal powers to an independent body through some modifications.

With respect to an independent investigator, which you had mentioned, certainly there will be people employed in the department to assist investigators and counsel. Because it will be set off, like the minister said, separate and reporting directly to her—it will not report through other people in the department—that should also speed up the process and have it be more independent. Also, people from outside the department will still be used to help the minister with these cases if there's any perception of a conflict.

[Translation]

Mr. Michel Bellehumeur: That is fine. I just want to understand. What I understand is that the minister will indeed mandate any individual to investigate, but that people from the department will also be part of the group that does the investigating. We may have to come back to the issue of independence, because that is not all that independent.

[English]

Ms. Mary McFadyen: Again, it could be delegated to counsel investigators who are employed in this special unit set up to review these cases and to report directly to her. That is true.

[Translation]

Mr. Michel Bellehumeur: What guarantee is there that all of that will speed things up? You have told us two or three times that you hope this will speed things up, but nowhere does it say that a decision must be made as soon as possible or anything like that. It is still the same as section 690. The decision is made after inquiry. Right? There is no guarantee that this will speed up the process.

[English]

Ms. Mary McFadyen: We're certainly hoping that these improvements will speed it up, because the process should be more open. Also, the final result is that the minister is accountable to Parliament because there will be the requirement to file an annual report. Therefore there should be some pressure for these things to be dealt with quicker.

The Chair: Thank you, Mr. Bellehumeur.

Mr. MacKay, Pictou—Antigonish—Guysborough.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC/DR): Thank you, Mr. Chair. Thanks also to the witnesses for being here.

This is obviously one of the more controversial sections of the Criminal Code because of the impact it has on a person's life if wrongfully convicted, so I take heart from the fact that it now has been expanded. Do you foresee, as has been the case in the U.K., that there will be an incredible increase as a result of expanding this to include summary offences?

Similarly, I have concerns that I think are in line with my colleagues' about this degree of political interference that can still exist. Should there be an element of failure on the part of the justice system that led to the wrongful conviction there's going to be a natural tendency to show reluctance, I would suggest, which has been the case. I suspect when the 690 review of the Stephen Truscott case begins there will be evidence brought forward to suggest that there was very much a political element to decisions that were taken in the justice system.

When the minister has the final say, you've indicated, Ms. McFadyen, that there is no perception of conflict. There's a natural perception of conflict, whether it be the crown office or whether it be the chief crown for the country, if there has been a failure. Were it not for organizations such as AIDWYC, the DNA testing in the Milgaard case would never have occurred. This is where the essential element of having a completely independent arm, as they do in the British example, really does its good work, where they are mandated to look for every bit of evidence wherever they can find it.

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Sadly, in most of these cases when there has been a wrongful conviction it seems a natural course that the person charged, or the wrongfully convicted, has very little access to funds. I don't see anywhere in this legislation any concrete references to resource allocation. I don't particularly agree that it is less secretive. Perhaps you could point to some provisions where it becomes more public. What sort of budget allocation is contemplated here, in a round figure? In the U.K. I understand they have approximately five million pounds set aside for their arm's-length organization. Perhaps you could just address those questions.

Ms. Mary McFadyen: I believe your first question was whether we anticipate that by expanding to summary conviction offences the number of applications we receive will increase. The answer is yes, we do. Right now we probably receive only two or three requests dealing with the summary conviction offence that we have to advise are not qualified. But once these provisions come into play, we certainly expect an increased number of applications.

With respect to the reluctance of the minister to interfere in a court decision, certainly the minister is of the opinion that she is fairly able to review these cases—she reviews them as the Minister of Justice, not as the Attorney General of Canada—and that she is able to review them properly. It should help that the standards are set up as to what is considered, before remedy is granted. Again I think it has to be remembered that the minister refers it back to the courts. Once the threshold set out in the considerations is met, the matter is referred back to the court, and the court will decide whether or not the person should be acquitted of the offence.

Mr. Peter MacKay: If I could stop you there for a moment, the minister has no discretion to enter an acquittal.

Ms. Mary McFadyen: No, because it's important that the executive and the judicial system are kept separate. Therefore, she does not have the power to enter an acquittal. It has to go back to court, where the court will fully hear all the evidence and make a determination.

With respect to actually being less secretive and more open to the public, we're hoping that the amendments will make it more open to the applicant. Because of the Privacy Act, when someone applies under section 690, that information cannot be made public. We can make it public to you, for instance, if you are inquiring on their behalf. Then we can tell you what's going on in the case. Unless the Privacy Act is amended, certainly the minister has to keep these matters in confidence.

With respect to resource allocation, I'm not able to answer at this time. But if you want that information, I can undertake to provide it to you in writing.

Mr. Peter MacKay: If we could return for a moment to the entry-level standard for consideration, what is that criterion? In Great Britain it appears to be substantial merit, which is fairly broad. Is it similar to that?

Ms. Mary McFadyen: I think there is a real possibility that the conviction would not be upheld if a reference were made to the court.

Mr. Peter MacKay: So it's not new evidence, as in the United States? The United States standard is there has to be some new evidence—

Ms. Mary McFadyen: For them to get a new appeal. Yes, that's their requirement. Ours is worded “new matters of significance that were not considered by the courts or previously considered by the Minister in an application”.

Mr. Peter MacKay: Do you have that section reference?

Ms. Mary McFadyen: Section 696.4.

Mr. Peter MacKay: Thank you.

The Chair: Thank you, Mr. MacKay. Your time has elapsed.

Mr. John McKay.

Mr. John McKay: Thank you for appearing before us on this short notice.

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I think there is a consensus on the committee that section 690 as it presently operates is awful. You've come before us with something of a response to awful. You're telling us that there will be new forms, and the forms will be more accessible; that there will be expanded investigative powers; that there's subpoena power that doesn't exist; that there's a response to Parliament that didn't previously exist; and you've expanded from indictable-only offences to presumably elective offences and summary offences. In some respects, that is the minister's response to what is arguably a really awful system. I don't think we need to educe much evidence that the system is really not working.

It doesn't address the sense of inherent conflict—the inherent bias that a reasonable person in the public might well perceive. The distinction of whether one is acting as chief law officer of the country versus Minister of Justice is lost, I think, on most people.

This person who is the special investigator or special adviser is still, I'm assuming, an employee of the crown—an employee of the minister's department. The apprehension and I think the reality is that this will be an in-house investigation of something that has gone wrong in the criminal justice system for which most people would perceive the Minister of Justice has ultimate responsibility, even though her argument is that much of it is in provincial jurisdiction—again, a delegated jurisdiction, but still a provincial jurisdiction. It's now the police investigating the police. One can reasonably anticipate what the response is going to be.

The other thing that's going to be playing in the minister's mind is her role as a member of the cabinet. The apprehension of liability is well founded. Both the Truscott and the Milgaard case will involve significant sums of money. A reasonable person might well conclude that the minister is not going to want to find any misapplication of justice here because it's going to cost money. I'd like you to address the apprehension of bias, which I think is well founded.

The second thing I'd like you to address is the role of the special investigator. What is his or her status in terms of the Inquiries Act? I don't quite understand it. If there is a status under the Inquiries Act, is the report therefore necessarily going to be a public report? If there is no status of this special person, then it's really not an inquiry; it's something less than an inquiry. If in fact there is no status under the Inquiries Act, this would feed the issue of apprehension of bias.

If you could address these two concerns, I would appreciate it.

Ms. Mary McFadyen: With respect to the apprehension of bias, as you correctly pointed out, most of these cases are provincial prosecutions.

When the minister looked at the United Kingdom's system, what made them create an independent body was that most of the cases were IRA cases and dealt with allegations of misconduct of the police. The home secretary, who reviewed these cases in Britain and decided whether cases should be returned to the courts, was also responsible for policing. So there was a real apprehension of bias there.

In Canada the minister reviews these as the Minister of Justice, not as the Attorney General of Canada. They're two separate entities, even though they're served by one member of cabinet. The prosecution of most of these cases are provincial prosecutions, and she's not responsible for the police. Therefore, that apprehension should not be there.

With respect to the special adviser's position, he would be reporting directly to the minister. The section in here that deals with the powers of investigation that the minister is able to delegate sets out that she would be delegating to people who are investigating on her behalf—counsel, the special adviser, or investigators. That would help, hopefully, to get these applications dealt with more comprehensively and quicker than they are now, because that power isn't there now.

• 1135

With respect to the public report, the amendments call for the minister to file an annual report in Parliament every year on her work under this, so there is some accountability. Hopefully, that will appease the public and make sure these cases are dealt with properly.

Mr. John McKay: I note your use of the word “hopeful” throughout your presentation, and I hope you're right. On the other hand, there's a great deal of evidence to suggest otherwise.

I appreciate the fact that the U.K. experience is viewed through a particular lens of terrorism, IRA terrorism in particular. This leads me to a question I asked earlier, and that again relates to the fact that we're going to be under significant pressure to deal with the reality of terrorism in this country. Frankly, we'll mostly get it right, but we will also get some of it wrong, and I think Mr. Lockyer and company are going to have a lot more business.

Just think back to the FLQ situation a number of years ago, where there were people who were rounded up under the War Measures Act, people who had only a marginal relationship to the insurrection that occurred. My view on this is that this is an opportunity, frankly, to get it even more right. In our enthusiasm for security, Canadians' rights will in fact be diminished, and in that diminution some wrongful convictions may well be entered, in which case a system that is more removed from the minister's purview might well be...there is even more of an argument to put a person at arm's length at this point.

The Chair: Thank you, Mr. McKay.

Ms. Mary McFadyen: Well, the comment I can make to that is that, as you initially said, the present section 690 system does need improvement. We have put into the amendments certain improvements we think will assist. Certainly that doesn't stop the issue from being revisited at a later date, but these improvements will certainly assist now. We're very hopeful.

The Chair: Thank you very much.

Mr. Fitzpatrick. You have three minutes.

Mr. Brian Fitzpatrick: A concern I have with the legislation is the new situation we're into. I definitely feel we're going to see some special laws in regard to terrorism and possibly some curtailment of civil rights as we know them in this country. Innocent people will be impacted negatively by this sort of thing. I am concerned about that because I think the Minister of Justice will be the agent prosecuting those sorts of offences. It's not going to be left to the provinces. Maybe I'm wrong on that point, but I would suspect it's going to be a federal agency that will be dealing with that sort of thing, so that's a concern I have.

To be very specific, I'm trying to envision how this process works. I envision that as soon as it comes into being, there could be literally thousands of applications coming to the Minister of Justice's office. I'm trying to figure out.... She's not going to order an independent investigation on every application that hits her desk—or I hope she's not, or we'll have to build two or three more floors on the Justice Building to handle all this. What mechanism or process do you see the minister's office using to separate the wheat from the chaff, so to speak, on this matter and really deal with cases that have merit?

Ms. Mary McFadyen: With respect to the number of applications we receive, the United Kingdom receives about a thousand a year. Right now we usually receive about seventy requests a year for review. We certainly anticipate that when these amendments come in, we'll get more than that.

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Again, to separate the wheat from the chaff, when an application is received, when all the documents are there, and when they've raised something that may be new, we go through a preliminary assessment stage. At that stage, if there is nothing that could have affected the trial verdict, the case ends there. If there is something that makes it look as if the conviction is a little dicey, then we would proceed to a full investigation. That's how those cases are being weeded out.

Mr. Brian Fitzpatrick: I just have one more follow-up on this.

As to this secrecy and privacy thing, I think we're in the 21st century. We're not in the time of the Star Chamber or other times. Under the guise of protecting privacy, government has often sacrificed accountability in this society of ours.

Maybe if I were working on the government side or if I were a person working in the justice department, I would like some of these privacy provisions a lot. From the standpoint of the public at large, I'm not exactly sure if some of these things are all that great an idea.

I guess I'm somewhat puzzled. If an applicant made an application to the minister, an investigation was carried out, and recommendations were made to the minister, why can those recommendations not be made public? What great injury is it going to cost Canadian society to have those recommendations made public other than some fallout that might affect a few people who are just trying to cover their hind ends?

I'm being rather blunt about this. I cannot see any compelling reason other than some technical, legal stuff about solicitor-client privilege. It seems to me that it is just putting up a roadblock to keep information, information that people should have access to, from getting out.

The Chair: Thank you, Mr. Fitzpatrick.

Ms. Mary McFadyen: The way the Privacy Act reads now, this is for the protection of the applicant. People apply in confidence. There may be reasons we don't understand—

Mr. Brian Fitzpatrick: Let me interrupt you on that, because if they waive—

The Chair: Mr. Fitzpatrick, you get three minutes. You've used it.

Mr. Brian Fitzpatrick: Okay. But if they waive that privilege...okay.

Ms. Mary McFadyen: Under the Privacy Act, if the person consents to the information being made public, it can be made public. Certainly we've had many applicants apply, and they have asked us not to release anything to the public, but that can be waived. Certainly the protection in the Privacy Act is for the applicants, not for the Minister of Justice.

Also, there are other people to consider, the victims, for instance. If someone applies for a review and they've been through the court system, those people also have to be considered, the victims and the witnesses of the crime. But again, the Privacy Act can be waived by the person.

The Chair: Thank you.

Mr. DeVillers. Or is he not there? Monsieur Bellehumeur or Mr. DeVillers? Sorry, I thought he was hiding behind your head, Denis.

Michel.

[Translation]

Mr. Michel Bellehumeur: At any rate, it will be very, very short. I want to give those from the government the chance to ask more questions, if they have any. I am just looking for clarification.

Earlier, you said to Peter that you wanted to answer his question about the annual budget in writing. Is that because you have forgotten what the annual budget is, or because the department has not looked into that?

[English]

Ms. Mary McFadyen: When we looked at the options available, we looked at costs. I just don't have those figures with me. It certainly has been anticipated, the cost. I will undertake to supply that to you.

[Translation]

Mr. Michel Bellehumeur: That is fine.

The Chair: Thank you.

Mr. Owen, over to you.

[English]

Mr. Stephen Owen: Thank you for appearing before us today.

As was mentioned in one of the commentaries, it might be helpful when we think of the minister making a political decision to consider that there's a certain distinction. When a minister makes a decision politically—in the pure sense—it's simply a policy decision by the Minister of Justice, who happens to be part of the cabinet, while when the government as a whole makes a political decision, the decision is by its very nature partisan. So when a minister makes a decision based on a statutory power of decision-making, that's a very different thing from a political decision in the usual sense, because there is of course a duty of fairness involved, as has been mentioned, and the decision is subject to judicial review. I think we have to differentiate between political decisions that are partisan and those that are subject to judicial review. This kind of decision is accountable in that sense.

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The second issue is the investigative phase of these processes. If you consider a police investigation, for instance, the police report and the report to crown counsel are not made public. The crown counsel may accept the recommendations or alter or reject them, but there's a very good reason the police report itself is not made public, and that's because it's an investigative process; it's not in any way an adjudicative process.

An investigative process has to follow whatever leads an investigator may have, and they can be great hypothetical situations. If that information is made immediately available to the public, great harm could be done to individuals who are suspects in the sense of some hypothetical possibility that has to be chased down in the investigation but comes nowhere near to any kind of standard that would be necessary to go forward.

So yes, the applicants themselves could waive the privilege, but it's not the applicant's privacy privilege alone. It's a broader range of people who might be caught in that investigative process, and the speculation that's followed up in a thorough investigation. So there is some difference there, which is why police reports, for instance, are not made public.

The Chair: Is there a response?

Ms. Mary McFadyen: I have no response to this.

The Chair: Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

I have a quick question with respect to the independent special adviser. Is there a reason that special adviser is appointed from outside the department? How is that appointment process going to take place? Again, if this is about impartiality, perceived or real, with that individual, upon appointment, reporting directly to the minister, I'm very concerned we're setting up another scenario such as we've seen with the ethics counsellor, where nobody knows what is said, nobody knows what transpires. It becomes a game of a former friend whispering in the ear. This doesn't instill a great deal of confidence on a matter of extreme life-altering importance—whether a person was wrongfully convicted.

You can see, at least from the public's perspective, that this would be suspect. There would be a great deal of concern about the impartiality of that advice.

Ms. Mary McFadyen: I think you're correct. I think one of the apprehensions was that departmental officials were reviewing these and reporting up the line to the minister. That is why the minister announced she would be appointing an independent special adviser from outside the department—to help the public realize that it will be an independent—as I think she said—fence around it, reporting directly to her, not through the department. That certainly is one of the reasons the appointment will be made from outside the department.

Mr. Peter MacKay: Is it an order-in-council appointment?

Ms. Mary McFadyen: I believe it will be an order-in-coucil appointment.

With respect to being accountable, the requirement of an annual report would certainly assist. The minister would be responsible for how conviction reviews are dealt with. So there is some accountability.

Mr. Peter MacKay: So she'll come and give a full accounting to Parliament and tell us exactly what went into the investigation.

Ms. Mary McFadyen: There is a requirement for an annual report, yes.

Mr. Peter MacKay: Okay.

Just changing gears for a second, looking at the sections pertaining to the Internet provisions, is there a reason why in the major section there is a reference to “knowingly”, whereas in the following sections, particularly those dealing with transmitting, distributing, and selling, that word seems to be absent?

Mr. Howard H. Bebbington (Counsel, Criminal Law Policy, Department of Justice Canada): Mr. Chair, if I may, this is not an area within the expertise of Ms. McFadyen. Her expertise is the criminal conviction review. If the committee wishes, we do have other justice experts who could speak to that question—

Mr. Peter MacKay: Sure. I thought that's what we were doing.

Mr. Howard Bebbington: —if they're available and ready.

The Chair: Peter, we'll entertain the question because you put it, but after this I would like to, in fairness to the people we've invited, stick with section 690, as I think that's what we've—

Mr. Peter MacKay: Sure.

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Ms. Lisette Lafontaine (Senior Counsel, Criminal Law Policy, Department of Justice Canada): I apologize; I missed your question. Would you mind repeating it, please?

The Chair: Introduce yourself please, for the purposes of—

Mr. Howard Bebbington: May I introduce Lisette Lafontaine, senior counsel with the criminal law policy section. Her area of expertise is the amendments relating to child protection and luring.

Perhaps Mr. MacKay could repeat the question, though, if it's the chair's will to deal with this at this moment in time.

The Chair: I'll take one question. But let's remember, these people are going to be here for clause-by-clause.

Mr. Peter MacKay: In the sections dealing with luring, in the main section, it uses the qualifying language of “knowingly”, whereas in a subsequent section it deals with transmitting, distributing, and importing, and it does not use that same language. It doesn't use the word “knowingly”, which is of significance, in my mind.

Ms. Lisette Lafontaine: None of the child pornography offences you are referring to include the word “knowingly”. There is never “knowingly” within the offence. And when we talk of “accessing”, it's only the offence of accessing—the same with the offence of transmitting, and the offence of making available.

Where you see the word “knowingly” is when we define what “access” is, and we define “accessing” as knowingly causing child pornography to be transmitted. So it's included not in the definition of the offence, but in the definition of the word “accessing”.

The reason we don't define “transmit” or “making available” is because they are the normal meanings of the words, and there is no need to define these words.

The Chair: Thank you very much.

Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Mr. Chair.

The Chair: Welcome back, Mr. DeVillers.

Mr. Paul DeVillers: I've been waiting on it.

My question deals with some of the discussion we had yesterday, and involves timing.

Ms. McFadyen, you mentioned there were options put to the minister for a range of things, including setting up an independent body similar to what they have in England. How long a process would it be to set up that type of body?

Ms. Mary McFadyen: With respect to the U.K. system, I recall 1993 was when the royal inquiry was completed and a report came out recommending an independent body. I think it was set up and started working in April 1997.

Mr. Paul DeVillers: So by the time they had the legislation in place and had the—

Ms. Mary McFadyen: Five years.

Mr. Paul DeVillers: —personnel, etc., it was about a four- to five-year process.

On the report to Parliament, the provisions in the draft of the bill, what's your view on how much accountability that will put in, and how much openness it will provide?

Ms. Mary McFadyen: I would hope it would provide more openness, because if the minister has to report on the progress of cases throughout every year, it will certainly be open then to Parliament to say if things aren't moving fast enough. So I think it will provide accountability and assist in making the system more efficient until the cases are dealt with.

Mr. Paul DeVillers: But would some of the information the witnesses were complaining about not getting under the present system be available in this report to Parliament?

Ms. Mary McFadyen: No. Because the report would be filed in Parliament, I think we'd have to again be aware of privacy considerations, so we would have to be careful what names were mentioned—applicants, victims, everybody. But when an application is reviewed, all the information.... The way it's set up now, in the investigation phase matters are investigated to see if there is a case to be sent back to the courts. All the information on which the minister will base her decision is shared with the applicant. Therefore it will be open to the applicant, not necessarily to the public.

Mr. Paul DeVillers: Thank you.

The Chair: Thank you very much.

You have a short question, Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: I have a short response to Mr. Owen's analogy about police investigations and the role of the crown in pursuing those charges.

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My observation is that once an investigation has taken place by the police and so on, and it gets to the crown to decide whether they proceed or not, there is no great secrecy about what the recommendation is, whether they go ahead or they don't go ahead with it. They don't get into all the details of the witnesses and everybody else in the thing, but as to whether there are grounds to proceed with this thing or not, that is usually quite easily accessible to anyone. And I don't know why you couldn't, at the very minimum, have that information available.

The independent investigator examined this matter and found there weren't sufficient grounds to proceed any further, or, yes, there were sufficient grounds to proceed further without bringing out a bunch of names and witnesses and everybody else on the thing. I don't see what the big deal would be about that. But that's just a commentary, that's all.

The Chair: Thank you, Mr. Fitzpatrick.

Ms. Mary McFadyen: Certainly whether or not the minister proceeds to an investigation, that information's available to the applicant. But because of the Privacy Act now, it would not be available to the public.

The Chair: Thank you very much.

Mr. John McKay.

Mr. John McKay: I want to go back to one of the questions I asked earlier, on which I wasn't quite sure I understood your response. Can you succinctly outline the difference between this special adviser and a person appointed under the Inquiries Act, in terms of authority, their ability to reach into other areas of evidence, a reportability and accountability function, its relationship to privacy, and who would actually by paying this person? Could you chart those two for me?

Ms. Mary McFadyen: In this scenario, as the minister announced, with the administrative changes that will be made to the unit along with the legislative amendments, the special adviser will be set up to manage the review unit, be in charge of how these cases are reviewed, and the special adviser will report to the Minister of Justice and be responsible for the Minister of Justice.

With respect to the Inquiries Act, the amendments give the minister the ability to take the powers of investigation that are under the Inquiries Act and delegate them to whoever to investigate these cases on their behalf. Those powers of investigation will be given to people investigating the cases from the minister.

Mr. John McKay: The powers of investigation are going to be delegated to the special adviser?

Ms. Mary McFadyen: They may also be delegated to counsel and investigators reviewing the cases.

Mr. John McKay: If you had an appointment under the Inquiries Act, would your reporting function be exactly the same?

Ms. Mary McFadyen: If you were delegated the authority to investigate, so that you could subpoena witnesses and documents through under Inquiries Act, you would do your investigation and you would report back to the special adviser and they would report to the minister their findings.

Mr. John McKay: So the inquiry itself would be much more of a public—

Ms. Mary McFadyen: No. Again, all the information determined during the investigation would be available to the applicants and their counsel, but not necessarily put in the public domain because of the Privacy Act.

Mr. John McKay: So then you would have a reporting function from the inquiry person, up to the special investigator, then to the Minister of Justice.

Ms. Mary McFadyen: Because the special adviser is going to be in charge of this review unit for the minister and report directly to the minister, people investigating the cases will report to the special adviser, who is responsible to the minister. This should speed up the process, because right now there are different levels of the Department of Justice it goes through before it gets to the minister, and those levels will be deleted.

The Chair: Thank you, John.

And a final question to Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman.

I'm not going to badger the witnesses, because I think they have a job to do and I think they're doing it very well. A lot of the nuances of this I don't understand, not being a lawyer, but the general drift of the whole thing I'm not satisfied with. I'm not satisfied with this explanation. I think the witnesses.... And there, again, please don't kill the messenger. But I'm not satisfied with it because I don't feel comfortable with the fact that we haven't really addressed the possibility of delays. Even with reporting every year to Parliament, and Parliament says this one's been hanging on for five years, so what? Nothing happens.

After 23 years, and 13 years with the former bill, if this one isn't vastly improved, we're going to be in the same thing. I'm sorry, I I'm not satisfied.

Thank you.

• 1200

The Chair: Thank you very much. Thank you very much to the witnesses and members and colleagues.

Now I will turn the committee's attention to the bill and we will proceed to clause-by-clause. There's nourishment in the back for those would like it. Please feel free to take advantage.

I would ask the officials from the Department of Justice who will be participating in clause-by-clause to please join us.

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The Chair: I'd like to call the meeting back to order, given my confidence that members of the committee have the capacity to, in this case, vote and chew food at the same time.

I'm sure I'm going to forget at the end of the exercise, so I'm going to do it right now. I'd like to acknowledge the work of staff in dealing with our little technical glitch this morning, so that we were able to bring things around and get our work done. So on behalf of all members of the committee, to all the people involved, including the technician who's probably still down there working, our thanks—good work.

Now turning specifically to the bill, we'll be doing clause-by-clause on Bill C-15A, an act to amend the Criminal Code and to amend other acts. Pursuant to Standing Order 75(1), the consideration of clause 1 is postponed.

(Clauses 2 to 4 inclusive agreed to)

(On clause 5)

The Chair: I understand there are two amendments to be entertained in clause 5. The first is identified as PC/DR-1. Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

This amendment is intended to address, I would deem it, the unintended liability that could attach to an Internet service provider with respect to the transmission of what would be deemed pornographic or offensive material.

By reference, section 163.1 uses the word “knowingly” with respect to the crime of accessing child pornography on the Internet. This same word does not appear in subsequent sections. The section here in question deals with transmitting, making available, distributing, selling, importing, or possessing. I would urge the committee to consider, for reasons of consistency and fairness, for protection and certainty, inserting that word in such a way that the requisite mens rea is attached to those acts. Some might say it is redundant, but I would say it would provide a certain comfort level that is necessary here for Internet providers.

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The point they made when they were before the committee quite simply is they're taking steps. They're certainly making efforts not to be complicit in any sort of transmission. But the crown, should they be overzealous in pursuing a charge, would be required to prove that there was knowledge, that the knowledge element existed for the act to have occurred.

The Chair: Comments? A response.

Mr. Stephen Owen: I want to say, Mr. Chair, that the use of the word “knowingly” does not appear in the offence. The offence is every person who accesses. It's just in the interpretation section that the word “knowingly” is used to actually define what “access” means, that being “who knowingly causes child pornography to be viewed by, or transmitted”. So it does distinguish it in that sense.

One of the difficulties of adding “knowingly” in front of transmitting the other offences is it could throw into confusion, at least doubt, the necessary mens rea intent in other offences in the code. The more we put “knowingly” in, the more it might put into doubt that it is an implied aspect or essential element of any of the not strict liability offences in the code.

Here it's clearly just in the interpretation section, and it's to be particularly helpful to non-professional people, members of the public, who might be confused about what accessing means. Accessing is a strange term. It's not one that has a specific dictionary clarity to it, as “transmitting” does, or “making available”, for instance. There's no doubt about what those mean on a technical basis. “Access” is thought to need some greater definition.

The Chair: Thank you, Mr. Owen.

On the amendment identified as PC-DR amendment number one, we're still on the first one.

[Translation]

Mr. Michel Bellehumeur: I realize that it is the first one, but it is number 2 according to our papers.

[English]

The Chair: Sorry, we're dealing with PC-DR amendment number two.

(Amendment negatived) [See Minutes of Proceedings]

The Chair: We now turn to amendment PC-DR 1. Mr. MacKay.

Mr. Peter MacKay: Mr. Chair, this amendment similarly is intended to specifically exempt or provide greater clarity on the aspect of the liability. It would set out in section 163.1 that the mere provision of the means to facilitate telecommunications on the part of Internet providers or on the part of Internet facilitators would not attach criminal liability if, as it is normally followed, they took the normal precautions.

This is simply an attempt to provide a greater sense of security that we're not shooting the messenger here, we're not attaching criminal liability to what they do in their everyday businesses by providing the service by which pornographic material might be transmitted.

The Chair: Thank you, Mr. MacKay.

Comments? Mr. McKay, Scarborough.

Mr. John McKay: Your argument was that the phrase “knowingly” was put in the definition section and therefore there was inappropriate placement of the word “knowingly”. I think I understood that to be the essence of your argument. And the offence itself has the word “knowingly”.

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What is the argument as to why “merely provides” shouldn't either be put in the definition section or be part of the offence section? If it is inappropriate for the definition section, why is it not therefore appropriate for the offence section?

Mr. Stephen Owen: Excuse me. Is this question on the amendment that we've already voted on?

Mr. John McKay: No. We're on PC-DR 1 now. We were on PC-DR 2. Now we're back to one.

Mr. Stephen Owen: I'm not sure I follow you, Mr. McKay.

Mr. John McKay: I'm not sure I follow myself.

The Chair: Maybe he overestimated his food and voting at the same time thing.

Mr. John McKay: Maybe we should all just take a siesta and be done with it, the integration of North America.

Your argument on the first amendment was that “knowingly” in a definition section is an inappropriate place—

Mr. Stephen Owen: No. It was the right place for it.

Mr. John McKay: It was the right place, so if it was to be put in anywhere, it was to be in subsection 3.

Mr. Stephen Owen: No. The appropriate place, I would suggest, is where it resides—

Mr. John McKay: Which is—

Mr. Stephen Owen: —which is in subsection 4(2), which is an interpretation section.

Mr. John McKay: Then why is it that “merely provides” in this amendment would not go in the interpretation section?

Mr. Stephen Owen: This amendment that's now being suggested?

Mr. John McKay: If you're going to get any more certainty or any more clarity, why would you not put it in the interpretation section?

Mr. Stephen Owen: This is quickly exceeding my technical grasp of the subject. I'm going to ask our expert to answer the question.

Ms. Lisette Lafontaine: Mr. Chairman, the way the amendment is drafted, it would exempt the ISP from criminal liability, whether they have knowledge of the offence or not. The offences have been drafted in a way that the ISP cannot be found guilty if they are merely a conduit or they merely provide the means or facilities without knowing the content of the material that goes through their system. There is no requirement in the bill that they monitor or that they try to know what is going on. If they do not know, they cannot be found guilty, because these offences are all mens rea offences.

The way the amendment is drafted, regardless or not of whether the ISPs know what's going on and are willing participants, they would still be exempt from criminal liability. While the policy is to exempt them when they are innocent parties to that, they should not be exempt if they have knowledge of it. And this is what the amendment would do. It would exempt them even if they knew what was going on.

We think that the amendment in the bill as drafted would protect the ISP in all cases where they do not know what's going through their system, but not if they were willing participants to the offence and they were offering their services for the transmission of child pornography. In that case they would not be protected. If they know what is going on and they are willing participants, then they would be guilty. That's the reason why, if we were to accept this amendment, it would be a different situation from the one that is provided in the bill.

The Chair: Thank you, Mr. McKay, Scarborough East.

Mr. MacKay, Pictou—Antigonish—Guysborough.

Mr. Peter MacKay: I just want to be clear on this. By having the word “knowingly” in the interpretation section, I'm not sure I follow Mr. Owen's argument that this would somehow lead to a contamination of other mens rea types of offences in the code if we were to insert the actual word “knowingly” in the body of the section itself.

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Mr. Stephen Owen: My comment in that respect was assuming that “knowingly” was in the actual description of the offence rather than in the interpretation section.

Mr. Peter MacKay: But if it's a mens rea offence and it's implicit that there has to be knowledge, what harm would flow from having it stated explicitly?

Mr. Stephen Owen: I think there may be a concern that if you didn't then put “knowingly” in every other section of the code, you might start to build up an assumption that where it doesn't exist somewhere and doesn't exist somewhere else, maybe there's a difference, and it's not implied throughout the code.

Mr. Peter MacKay: But this is fairly specific material here. We're talking about provision of the facility of transmission. It doesn't bear, I would suggest to you, on other sections of the code. Inserting it here doesn't mean a person is then going to argue that because it appears in this section it therefore now must be interpreted in every other section of the Criminal Code where there's a mens rea attachment.

Mr. Stephen Owen: Well, my suggestion is simply that we should not be making knowledge redundant in mens rea offences. Inserting it in the description of an offence—in the offence wording any place in the code—is, I think, inappropriate.

Putting it, in the previous situation, in an interpretation section, in the sense of helping define and understand what “accessing” means—because it's a difficult concept in this context—I think is quite appropriate. But I don't think we should be inserting it in front of the actual offence anywhere in the code.

Mr. Peter MacKay: You don't think there could ever be any confusion about “transmitting knowingly”?

Mr. Stephen Owen: I'll ask advice from people with greater technical knowledge than I have, but it seems to be a pretty straightforward definitional concept.

Mr. Peter MacKay: Or “making available knowingly”?

Mr. Stephen Owen: Right.

Mr. Lynn Myers: Mr. Chairman, on a point of order.

The Chair: Mr. Myers.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): This discussion is very interesting, but we've already voted on it. We're on PC-DR 1, are we not?

The Chair: Correct.

Mr. Lynn Myers: So while the “knowingly” discussion is interesting, we've already dealt with it.

Mr. Peter MacKay: Are you in a great rush? I thought that's why we had officials here.

Mr. Lynn Myers: No, but I thought you had already had the opportunity to explore it and was hoping that had taken place. But if we go back and revisit every one, if that's your wish, I guess we....

Mr. Peter MacKay: Because there are three, and that might take a lot of time.

Mr. Lynn Myers: Well, yes, that's a real threat.

Mr. Peter MacKay: It would take a lot of time.

The Chair: I think, Mr. MacKay, we're engaged here. It's a second amendment, it's PC-DR 1. I think we're ready for the question.

Mr. Peter MacKay: Okay, I'll follow that direction, Mr. Chair, by all means.

The Chair: Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: I just have two points that I wanted to clarify with Madame Lafontaine.

Concerning the amendment here involving the Internet provider and the knowledge required to make it an offence for them to be participating in it, I'm just curious: if an employee of the Internet provider has knowledge of it but the management of the Internet provider is not aware of that sort of thing, is the company or the Internet provider liable or subject to prosecution?

Ms. Lisette Lafontaine: I think we would have to prove that the management was aware of it and were agreeing to let their server be used for that purpose. The fact that an employee is doing it may make the employee liable, if he is assisting in the transmission of child pornography and knows that's being done. But I think this is criminal, and you would have to prove that the person is guilty.

Are you talking of the corporate liability?

Mr. Brian Fitzpatrick: Vicarious liability.

Ms. Lisette Lafontaine: There is still a requirement that you'd have to prove the owner or the corporation liable. I'm not an expert in corporate law, but there is still a requirement that the directors of the company have knowledge in order to be held criminally liable.

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The Chair: Mr. McKay.

Mr. John McKay: I would excuse Mr. Myers if he has urgent business. I'm under no such similar urgency.

The motion before us says “merely provides”, and the testimony you heard this morning was that the representatives of the telecommunications industry are concerned there will be an inadvertent liability. You say as a matter of policy that will not occur. That statement plus a loonie will get you a cup of coffee at Tim's and the local courts here in Ottawa. Go through with me again why this is not a concern in the mind of the department.

Ms. Lisette Lafontaine: It is not a concern just because of the application of mens rea and the elements you have to prove in order to bring people to a guilty verdict under any of these offences. You would have to prove knowledge, and this is why we think they are protected. The way it is drafted, they could not be held liable if they did not have knowledge.

The kind of exemption Mr. MacKay's motion has designed is not even given to police forces. Possession of child pornography is an offence. Police forces regularly deal with child pornography. They are regularly in possession of child pornography, and they do not have this exemption. If they were ever charged they would have to rely on the “public good” defence.

In that case we propose to give to the ISP an exemption that has never been given, even to police officers. It's a pretty broad exemption and also an exemption that in some cases.... I know most of the ISPs would not act that way, but there is still the possibility of an ISP being a willing conduit for child pornography and yet being exempt from liability. The people who posted it might be liable, but the ISP would not be.

We think these are the proper words and that the common meaning and the interpretation the courts have given to mens rea would sufficiently protect the ISP.

Mr. John McKay: Just for the purposes of the record, is your view that the testimony of the two witnesses here this morning and their apprehension of liability is not well founded?

Ms. Lisette Lafontaine: I think they want to have an absolute guarantee of being covered completely, but I don't think they are at serious risk. It is currently an offence to distribute child pornography, so they could have been caught under that offence. We've added offences, but you could still argue that they would be distributing child pornography, and yet they have never had any problem in that regard. The ISPs have never been involved in any case, because it is recognized that they don't have knowledge of what's going through their systems.

(Amendment negatived) [See Minutes of Proceedings]

(Clauses 6 and 7 agreed to)

(On clause 8)

The Chair: On clause 8, we have an amendment identified as CA-1.

Mr. Cadman.

Mr. Chuck Cadman: Thank you, Mr. Chairman. I don't anticipate there's going to be as much discussion on this as on the last ones.

This merely provides for a consecutive sentencing on a luring conviction. I go to the reasons for change in our binder that said this would deal more specifically with the problem of luring on the Internet. It would send a strong message to those who would use the Internet for child sexual exploitation purposes.

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I think we really want to put some teeth into this, because we know that many of these people who do these things are repeat offenders—they do it over and over again—and I think we have to put deterrence there. So I'm suggesting that we go with consecutive sentencing on conviction.

(Amendment negatived) [See Minutes of Proceedings]

(Clause 8 agreed to)

(Clauses 9 and 10 agreed to)

The Chair: Clause 11 is the one that was pushed forward into Bill C-15B by the earlier motion, so I would assume that we would now negative clause 11, having decided to take it from this bill and place it in Bill C-15B.

Mr. Brian Fitzpatrick: Clause 11 is not there any more.

The Chair: For purposes of the exercise we're going through right now, it was here and we wanted to push it forward. A motion was put, and now we're eliminating it from this bill.

(Clause 11 negatived)

(Clauses 12 to 23 inclusive agreed to)

The Chair: Clause 24 is the second half of the two changes we made earlier this morning, so it should not carry.

(Clause 24 negatived)

The Chair: Thank you very much for your consistency.

Shall clauses 25 through 72 carry?

Mr. Michel Bellehumeur: No.

The Chair: No?

[Translation]

Mr. Michel Bellehumeur: Not section 72, because that will depend on section 73. Sections 72 and 73 have to be discussed together.

[English]

(Clauses 25 to 71 inclusive agreed to)

The Chair: Do we have an amendment to clause 72?

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: I have no amendments to sections 72 and 73, but I would like to make a comment that flows from yesterday's discussion. I know that Peter has an amendment to section 73. The explanation from yesterday's witnesses and from the department have left me no better informed, and I do not feel ready to vote on sections 72 and 73.

This is still exploratory. I do not intend to debate it, but do the government's members feel better informed by what we heard yesterday, or do they still feel, as they did yesterday, that we should perhaps divide the bill once again? We could have a Bill C- 15A-1, say, which would deal separately with the whole issue of applications for ministerial review and miscarriages of justice.

I think we should decide on that before voting on Peter's amendment. I know it is more complex than that. That is why I have not tabled any amendments. I think it is more complex than to say it is an independent tribunal, because there is the whole investigation issue, as we were told this morning.

[English]

The Chair: Essentially, you'll have your opportunity to express yourself on clause 72 when I call the vote. We appreciate very much your intervention in terms of the argument you've put.

To inform the committee in advance of voting on clause 72, I would have to rule the amendments that are put in clause 73 out of order, because it's calling for a tribunal. It would then call upon the committee to pass an amendment that would in fact incur cost to the crown. Therefore it's out of order. I only inform you of that in advance of voting on clause 72, to be fair.

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Now I welcome and appreciate Monsieur Bellehumeur's intervention, and if there are no other interventions, I will call the question on clause 72. He's provided an opportunity for members who would not like to pass clause 72, bringing to their attention the fact that they can do that—and I'm sure they knew that.

Mr. John McKay: As it stands, I find section 690 pretty disturbing. Is there any way we could excise this, go on, finish the bill, and then come back on this and in a less formal way determine some direction the committee might wish to go?

The Chair: The way to excise this from a bill is to defeat it.

Mr. Bellehumeur.

Mr. John McKay: I didn't mean to excise it from the bill, just from the discussion.

[Translation]

Mr. Michel Bellehumeur: Mr. Chairman, this was apparently discussed yesterday at the House leaders' meeting. I was not at all aware of it, but Mr. Boudria—and I would like the government side to confirm this—apparently said Bill C-15A could be split into Bill C-15A-1 and Bill C-15A-2, and he was just waiting for instructions from the committee.

I think that even on the government side, people are considering the possibility of delaying part of the bill, given that we don't have the information we need to decide this morning whether or not we should vote in favour of that.

In all sincerity, I would be uncomfortable voting against clause 72 and clause 73, because I realize that this is a step forward. The way it is going to operate is described further, in writing, and we have forms. I think that a constituent will have a better idea of which way to go. However, this does not respond to the major issue of how one should go about correcting a miscarriage of justice. For this reason, I would prefer that we did not decide on clauses 72 and 73. I would like us to withdraw this part of the bill, divide the bill up or something. I'm sure that the government can show us something, because we discussed this yesterday, at the House leaders' meeting.

[English]

The Chair: There will be an opportunity to undertake the strategy that you would like to employ at the report stage. I understand Mr. McKay's intervention, but I do not see any other interest in that particular approach at this point, Monsieur Bellehumeur, and I'm going to call the question on clause 72.

(Clause 72 agreed to: yeas 9; nays 6)

(Clause 73 agreed to on division)

(Clauses 74 to 95 inclusive agreed to)

(Clause 1 agreed to)

The Chair: Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill carry?

Some hon. members: Agreed.

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The Chair: On division.

Shall I report the bill, with amendment, to the House?

Some hon. members: Agreed.

The Chair: And shall the committee order a reprint for use at report stage?

Some hon. members: Agreed.

The Chair: Thank you very much.

Members of the committee, could I have your attention just before leaving, since we won't see each other again until after the break? When we return we will be hearing witnesses on Bill C-15B beginning Tuesday at 9:00 a.m., maybe 9:30 a.m., depending on availability of rooms.

On the basis of the discussion that took place in the spring, we have identified witnesses so we could get started and give them notice, and so on. On Tuesday, during the course of the day—we'll be giving out the work plan and we'll be giving out the list of witnesses we'll be hearing—please indicate to staff any additional people you would like to hear or your satisfaction with the list so that they can in fact build on that.

With that, I call the meeting adjourned to the call of the chair.