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MINUTES OF PROCEEDINGS

Meeting No. 39

Monday, October 26, 2009

The Standing Committee on Industry, Science and Technology met at 3:31 p.m. this day, in Room 308, West Block, the Chair, the Hon. Michael D.Chong, presiding.

Members of the Committee present: Robert Bouchard, Gordon Brown, Hon. Michael D. Chong, Siobhan Coady, Marc Garneau, Mike Lake, Brian Masse, Anthony Rota, Dave Van Kesteren, Robert Vincent and Chris Warkentin.

Acting Members present: Phil McColeman for Mike Wallace.

In attendance: Library of Parliament: Alysia Davies, Analyst ; Dan Shaw, Analyst ; Dillan Theckedath, Analyst . House of Commons: Wayne Cole, Legislative Clerk.

Witnesses: Department of Industry: Janet DiFrancesco, Director General, Electronic Commerce Branch; Philip Palmer, Senior General Counsel, Legal Services; André Leduc, Policy Analyst, Electronic Commerce Policy.

Pursuant to the Order of Reference of Friday, May 8, 2009, the Committee resumed consideration of Bill C-27, An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.

The witnesses answered questions.

The Committee resumed its clause-by-clause study of the Bill.

On Clause 63,

On motion of Mike Lake, it was agreed, — That Bill C-27, in Clause 63, be amended by adding after line 38 on page 36 the following:

“(c.1) specifying purposes of electronic messages for the purposes of paragraph 6(5.1)(g);

(c.2) specifying the use that may be made of a consent and the conditions on which a consent may be used for the purposes of paragraph 10(1.1)(b);

(c.3) specifying functions for the purposes of paragraph 10(2.2)(g);

(c.4) specifying operations for the purposes of subsection 10(2.3);

(c.5) specifying programs for the purposes of subparagraph 10(2.5)(a)(vi);”

On motion of Mike Lake, it was agreed, — That Bill C-27, in Clause 63, be amended by replacing, in the French version, line 42 on page 36 with the following:

“e) définir « adhésion », « club », « asso-”

Clause 63, as amended, carried.

On new Clause 63.1,

Brian Masse moved, — That Bill C-27 be amended by adding after line 23 on page 37 the following new clause:

“ 63.1 Every three years after this Act comes into force, a review of the provisions and operation of this Act shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for that purpose.”

By unanimous consent, it was agreed, — That the amendment be amended by deleting the word “Every”.

After debate, the question was put on the amendment of Brian Masse, as amended, and it was agreed to.

On motion of Mike Lake, it was agreed, — That Bill C-27 be amended by adding after line 23 on page 37 the following new clauses 63.1 and 63.2:

“TRANSITIONAL PROVISIONS

63.1 A person’s consent to receiving commercial electronic messages from another person is implied until the person gives notification that they no longer consent to receiving such messages from that other person or until three years after the day on which section 6 comes into force, whichever is earlier, if, when that section comes into force,

(a) those persons have an existing business relationship or an existing non-business relationship, as defined in subsection 10(4) or (6), respectively, without regard to the period mentioned in that subsection; and

(b) the relationship includes the communication between them of commercial electronic messages.

63.2 If a computer program was installed on a person’s computer before section 8 comes into force, the person’s consent to the installation of an update or upgrade to the program is implied until the person gives notification that they no longer consent to receiving such an installation or until three years after the day on which section 8 comes into force, whichever is earlier.”

The Chair ruled the proposed amendment inadmissible because it was moved at the wrong place in the Bill, as provided on page 656 of House of Commons Procedure and Practice.

Marc Garneau moved, — That Bill C-27 be amended by adding after line 23 on page 37 the following new clauses 63.2, 63.3 and 63.4:

“63.2 For the purpose of subsection 10(3), a person who sends a message is considered to have an existing business relationship with a person to whom the message is sent if

(a) the person obtains the name, without consideration, from someone with whom they could have sent a message in the course of an existing business relationship;

(b) the person from whom the name is obtained has a family or personal relationship, as defined in the regulations, with the person to whom the message is sent; and

(c) when the message is sent, the person who obtained the name could have sent a message to the person from whom the name was obtained in the course of an existing business relationship.

63.3 Section 63.2 applies only to permit the sending of a single message.

63.4 If the person who sends or causes or permits to be sent the message has implied consent to do so as a result of the application of section 63.2, set out the name of the person from whom they obtained the name of the person to whom the message is sent.”

The Chair ruled the proposed amendment inadmissible because it was moved at the wrong place in the Bill, as provided on page 656 of House of Commons Procedure and Practice.

Clauses 64 to 70 inclusive carried severally.

On Clause 71,

Siobhan Coady moved, — That Bill C-27, in Clause 71, be amended by replacing lines 30 to 33 on page 42 with the following:

“knowingly or recklessly send or cause to be sent, in the sender information or subject matter information of an electronic message, a representation that is false or misleading in a material respect.”

After debate, the question was put on the amendment of Siobhan Coady and it was negatived, by a show of hands: YEAS: 3; NAYS: 7.

The Chair ruled that the following three (3) amendments were consequential to the previous amendment and therefore they were also negatived:

That Bill C-27, in Clause 71, be amended by replacing lines 5 and 6 on page 43 with the following:

“made, in a locator, a representation that is false or misleading in a material respect.”

That Bill C-27, in Clause 73, be amended by replacing lines 34 to 36 on page 44 with the following:

“sent, in the sender information or subject matter information of an electronic message, a representation that is false or misleading in a material respect.”

That Bill C-27, in Clause 73, be amended by replacing lines 10 and 11 on page 45 with the following:

“use of a product, makes or causes to be made, in a locator, a representation that is false or misleading in a material respect.”

On motion of Mike Lake, it was agreed, — That Bill C-27, in Clause 71, be amended by adding after line 42 on page 43 the following:

“52.02 (1) The Commissioner may, for the purpose of assisting an investigation or proceeding in respect of the laws of a foreign state, an international organization of states or an international organization established by the governments of states that address conduct that is substantially similar to conduct prohibited under section 52, 52.01, 52.1, 53, 55 or 55.1,

(a) conduct any investigation that the Commissioner considers necessary to collect relevant information, using any powers that the Commissioner may use under this Act or the Criminal Code to investigate an offence under any of those sections; and

(b) disclose the information to the government of the foreign state or to the international organization, or to any institution of any such government or organization responsible for conducting investigations or initiating proceedings in respect of the laws in respect of which the assistance is being provided, if the government, organization or institution declares in writing that

(i) the use of the information will be restricted to purposes relevant to the investigation or proceeding, and

(ii) the information will be treated in a confidential manner and, except for the purposes mentioned in subparagraph (i), will not be further disclosed without the Commissioner’s express consent.

(2) In deciding whether to provide assistance under subsection (1), the Commissioner shall consider whether the government, organization or institution agrees to provide assistance for investigations or proceedings in respect of any of the sections mentioned in subsection (1).”

Clause 71, as amended, carried.

Clause 72 carried.

On Clause 73,

Mike Lake moved, — That Bill C-27, in Clause 73, be amended by adding after line 25 on page 45 the following:

“74.012 (1) The Commissioner may, for the purpose of assisting an investigation or proceeding in respect of the laws of a foreign state, an international organization of states or an international organization established by the governments of states that address conduct that is substantially similar to conduct that is reviewable under section 74.01, 74.011, 74.02, 74.04, 74.05 or 74.06,

(a) conduct any investigation that the Commissioner considers necessary to collect relevant information, using any powers that the Commissioner may use under this Act to investigate conduct that is reviewable under any of those sections; and

(i) the use of the information will be restricted to purposes relevant to the investigation or proceeding, and

(ii) the information will be treated in a confidential manner and, except for the purposes mentioned in subparagraph (i), will not be further disclosed without the Commissioner’s express consent.

(2) Subsection (1) does not apply if the contravention of the laws of the foreign state has consequences that would be considered penal under Canadian law.

(3) In deciding whether to provide assistance under subsection (1), the Commissioner shall consider whether the government, organization or institution agrees to provide assistance for investigations or proceedings in respect of any of the sections mentioned in subsection (1).”

After debate, the question was put on the amendment of Mike Lake and it was agreed to.

Clause 73, as amended, carried.

Clause 74 carried.

On Clause 75,

Mike Lake moved, — That Bill C-27, in Clause 75, be amended by

(a) replacing line 35 on page 45 with the following:

“74.101 (1) If a court determines that a person is”

(b) adding after line 7 on page 46 the following:

“(2) If a court determines that a person is engaging in or has engaged in conduct that is reviewable under subsection 74.011(2), it may order the person to pay an amount under paragraph 74.1(1)(d), and may issue an interim injunction under section 74.111, as if the conduct were conduct that is reviewable under paragraph 74.01(1)(a).”

After debate, the question was put on the amendment of Mike Lake and it was agreed to.

Clause 75, as amended, carried.

Clause 76 carried.

Clause 77 carried.

On Clause 78,

Anthony Rota moved, — That Bill C-27, in Clause 78, be amended by replacing lines 30 to 34 on page 47 with the following:

““electronic address” has the same meaning as in subsection 2(1) of the Electronic Commerce Protection Act.”

After debate, the question was put on the amendment of Anthony Rota and it was negatived, by a show of hands: YEAS: 4; NAYS: 6.

Mike Lake moved, — That Bill C-27, in Clause 78, be amended by

(a) replacing line 1 on page 48 with the following:

“(2) Paragraphs 7(1)(a), (c) and (d) and (2)(a) to (c.1) and the exception set out in”

(b) replacing line 7 on page 48 with the following:

“marketed primarily for use in generating or searching”

“(3) Paragraphs 7(1)(a) to (d) and (2)(a) to (c.1) and the exception set out in”

After debate, the question was put on the amendment of Mike Lake and it was agreed to, by a show of hands: YEAS: 8; NAYS: 3.

Anthony Rota moved, — That Bill C-27, in Clause 78, be amended by replacing line 17 on page 48 with the following:

“through any means of telecommunication, for a purpose that is prohibited by subsection 6(1) of the Electronic Commerce Protection Act, if”

After debate, the question was put on the amendment of Anthony Rota and it was negatived, by a show of hands: YEAS: 3; NAYS: 6.

Clause 78, as amended, carried.

On Clause 79,

On motion of Mike Lake, it was agreed, — That Bill C-27, in Clause 79, be amended by replacing, in the English version, line 6 on page 49 with the following:

“reviewable under section 74.011 of that Act.”

Clause 79, as amended, carried.

Clause 80 carried.

Clause 81 carried.

On Clause 82,

On motion of Mike Lake, it was agreed, — That Bill C-27, in Clause 82, be amended by replacing lines 1 to 6 on page 52 with the following:

“(6) The Commissioner may disclose information, or may authorize any person acting on behalf or under the direction of the Commissioner to disclose information, in the course of proceedings in which the Commissioner has intervened under paragraph 50(c) of the Electronic Commerce Protection Act or in accordance with subsection 58(3) or 60(1) of that Act.”

Clause 82, as amended, carried.

Clauses 83 to 85 inclusive carried severally.

After debate, Clause 86 carried by a show of hands: YEAS: 6; NAYS: 5.

Clause 87 carried.

By unanimous consent, the Committee reverted to Clause 51 previously stood.

The Committee resumed consideration of the amendment of Mike Lake, — That Bill C-27, in Clause 51, be amended by

(a) replacing line 18 on page 29 with the following:

“the application or engaged in conduct that is reviewable under section 74.011 of the Competition Act, the court may order the person”

(b) replacing lines 24 to 27 on page 29 with the following:

“(b) a maximum of

(i) in the case of a contravention of section 6, $200 for each contravention of that provision, not exceeding $1,000,000 for each day on which a contravention occurred,

(ii) in the case of a contravention of section 7 or 8, $1,000,000 for each day on which a contravention occurred,

(iii) subject to subparagraphs (iv) and (v), in the case of a contravention of section 9, $1,000,000 for each contravention of that provision,

(iv) in the case of a contravention of section 9 resulting from procuring, or causing to be procured, the doing of an act contrary to section 6, and if a contravention of section 6 has resulted, $200 for each such contravention of section 6, not exceeding $1,000,000 for each day on which a contravention of section 6 occurred,

(v) in the case of a contravention of section 9 resulting from procuring, or causing to be procured, the doing of an act contrary to section 7 or 8, and if a contravention of either of those sections has resulted, $1,000,000 for each day on which a contravention of section 7 or 8, as the case may be, occurred,

(vi) in the case of a contravention of section 5 of the Personal Information Protection and Electronic Documents Act, $200 for each contravention of that provision, not exceeding $1,000,000 for each day on which a contravention occurred, and

(vii) in the case of conduct that is reviewable under section 74.011 of the Competition Act, $200 for each occurrence of the conduct, not exceeding $1,000,000 for each day on which the conduct occurred.

(1.1) The purpose of an order under paragraph (1)(b) is not to punish but to promote compliance with this Act or section 5 of the Personal Information Protection and Electronic Documents Act, or conduct that is in conformity with the purposes of section 74.011 of the Competition Act, as the case may be.”

“under paragraph (1)(b) for each contravention or each occurrence of the reviewable conduct;

(a) the purpose of the order;

(a.1) the nature and scope of the contravention or reviewable conduct;”

(d) replacing line 11 on page 30 with the following:

“contravention or from engaging in the reviewable conduct;”

(e) replacing line 16 on page 30 with the following:

“tion or the reviewable conduct.”

After debate, the question was put on the amendment of Mike Lake and it was agreed to.

On motion of Mike Lake, it was agreed, — That Bill C-27, in Clause 51, be amended by

(a) adding after line 27 on page 29 the following:

“(1.1) The purpose of an order under paragraph (1)(b) is to promote compliance with this Act and not to punish.”

(b) replacing line 31 on page 29 with the following:

“(a) the purpose of the order;

(a.1) the nature and scope of the contravention;”

Clause 51, as amended, carried.

By unanimous consent, the Committee reverted to Clause 2 previously stood.

Anthony Rota moved, — That Bill C-27, in Clause 2, be amended by replacing lines 4 and 5 on page 2 with the following:

““computer program” means a computer program within the meaning of subsection 342.1(2) of the Criminal Code that has as its primary function:

(a) collecting personal information through keystroke logging or other means;

(b) displaying pop-up ads, without the consent of the site owner;

(c) modifying settings that specifically relate to the computer’s access to, or use of, the Internet, including settings that relate to the user’s home page, connection provider, proxy or bookmarks;

(d) preventing an authorized user’s reasonable efforts to block the installation of software or to disable software;

(e) communicating a false claim that computer software will be disabled by the user's actions;

(f) removing, disabling or rendering inoperative security, antispyware or antivirus computer software;

(g) assuming control of the user’s computer in order to

(i) transmit or relay commercial electronic mail or a computer virus from the user’s computer,

(ii) accrue unauthorized financial charges,

(iii) open a series of advertisements on the user’s computer, or

(iv) use the user’s computer for the purpose of causing damage to another computer, including launching a denial of service attack;

(h) inducing a user to install software by intentionally misrepresenting that installing that software is necessary to safeguard security or privacy or to open or play content of a computer program; or

(i) any other purpose prescribed by regulation.”

After debate, the question was put on the amendment of Anthony Rota and it was negatived, by a show of hands: YEAS: 5; NAYS: 6.

On motion of Mike Lake, it was agreed, — That Bill C-27, in Clause 2, be amended by replacing, in the English version, line 4 on page 3 with the following:

“the telecommunications service provider owns,”

On motion of Mike Lake, it was agreed, — That Bill C-27, in Clause 2, be amended by replacing, in the English version, line 17 on page 4 with the following:

“the defence of Canada is not considered to be a commercial electronic message.”

Robert Bouchard moved, — That Bill C-27, in Clause 2, be amended by adding after line 17 on page 4 the following:

“(5) An electronic message described in subsection (2) or (3) that is sent by a political party or organization, or by a person who is a candidate — as defined in an Act of Parliament or of the legislature of a province — for publicly elected office, is not considered to be a commercial electronic message.”

The Chair ruled the proposed amendment inadmissible because it proposed a substantive amendment to the Bill by way of a modification to the interpretation clause, as provided on page 656 of House of Commons Procedure and Practice.

Marc Garneau moved, — That Bill C-27, in Clause 2, be amended by adding after line 16 on page 4 the following:

“a body established by an Act of Parliament or a provincial or territorial legislature to regulate a profession, or an affiliated entity of such body.”

On motion of Mike Lake, it was agreed, — That Bill C-27, in Clause 2, be amended by adding after line 17 on page 4 the following:

“(5) For the purposes of this Act, a reference to the person to whom an electronic message is sent means the holder of the account associated with the electronic address to which the message is sent, as well as any person who it is reasonable to believe is or might be authorized by the account holder to use the electronic address.”

Clause 2, as amended, carried.

The Short Title carried.

The Title carried.

The Bill, as amended, carried.

ORDERED, — That the Chair report the Bill, as amended, to the House.

ORDERED, — That Bill C-27, as amended, be reprinted for the use of the House at report stage.

At 5:30 p.m., the Committee adjourned to the call of the Chair.

Michelle Tittley
Clerk of the Committee

2009/11/03 1:37 p.m.