Bill C-22 (Historical)

An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service

This enactment imposes reporting duties on persons who provide an Internet service to the public if they are advised of an Internet address where child pornography may be available to the public or if they have reasonable grounds to believe that their Internet service is being or has been used to commit a child pornography offence. This enactment makes it an offence to fail to comply with the reporting duties.

Protecting Children from Online Sexual Exploitation Act

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, as I mentioned in my speech, there are countries that have done much more than we have done.

I did review my speech from last November and I felt guilty that it was so strident in criticism of the government's inaction that maybe I was responsible for the prorogation and the lack of achievement here. As my father used to say, a half loaf is better than none. Therefore, my speech was less critical of the government.

Let us get the act and then let us get on the government's back, and really not the justice minister's back but the Minister of Industry's back, about what we are doing about controlling the Internet while providing safeguards for free speech and safeguards, as the member for Marc-Aurèle-Fortin said, against self-incrimination. There has to be a broader review of the criminal and quasi-criminal nature of Internet service providers nationally and internationally as they pertain to Canada.

With respect to this bill, I would say a quarter loaf is better than none, so let us get it passed.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, the member will know that the bill also provides for a number of areas where regulations have to be promulgated for this legislation to come into force. This is an opportunity for the government not to enact the legislation. With respect to the regulations, clause 13(a) of the bill refers to “designating an organization for the purpose of section 3”, the reporting agency, and clause 13(b) refers to “respecting the role, functions and activity” of that organization. This bill has not even been vetted properly. It is not efficient.

With all due respect, it appears to me that the government has been negligent in providing a bill that could effectively deal with the situation and give us an instrument which can be dealt with, with the urgency that it requires.

We have dealt with car racing and other minor amendments to the Criminal Code. There is no question in my mind that a bill to do with the protection of children deserves some urgency better than what has been demonstrated by the government at this time.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, the member's long service on the much coveted committee on the scrutiny of regulations has come to bear on that question. I was on that committee for six months; it felt like twelve.

The member asked a very important question. Regulations are either a real incentive and a prize in a piece of legislation because they allow some flexibility with the naming of authorities, naming of quasi-criminal power, as long as it is not delegated too much. There can be some good aspects to regulations promulgated to a bill. The ones that are dilatory the member has canvassed.

We have to take the government at face value and on good faith that it wants to fill the act with cogent and efficacious regulations that put the spirit of the act into compliance and go after the goal, which is not to have 9% of the world's child pornography Internet sites being provided from Canada. That is remarkably bad and the government cannot be proud of it.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Mr. Speaker, the question I would like to ask my Liberal colleague is quite short.

He seems to be very familiar with the legislation. I would like to know if he understands clause 7 in the bill, which states:

Nothing in this Act requires or authorizes a person to seek out child pornography.

I would like him to explain the meaning of this clause.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, that is simply the limit of the law.

This is a bit of a quasi-criminal statute and it says that there is a limit to the duty on the ISP and that limit is basically reporting. It is a step forward. It is not saying that ISPs have a duty to be the investigator and seek out where exactly the sites are, and who provides them, but to report them to the authorities. I would think that is appropriate. It is a great question for committee.

It seems to me that we would want police officers, constables and other persons as defined in the act, to do the investigations. We do not want the ISPs doing the investigations for a number of reasons: first, they may not have that authority because they are not peace officers under the Criminal Code; second, they might screw up the investigation, leading to acquittals; and third, they might charge more to all of us for that service.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, all our speeches on this bill can be summed up in one word: finally. Finally, the government has taken action on an issue that was easy to act on. It could have done something much sooner, when it knew it had the unanimous agreement of the House, but it did nothing for four years.

The government started by introducing a bill that died on the order paper. It reintroduced the legislation in the first session, but the bill could not move forward because of the prorogation. We would have thought the government could have introduced a bill that could pass easily, seeing as how it is so important.

I do not think I will ever head a minority government, but I would like to humbly make a suggestion in case there is another minority government. It seems to me that one of the first things a minority government should do is get down to work on legislation, introduce bills that have broad support and start accomplishing things. That is not what this government did. It leaves things until the end.

It is funny, because on the morning the government introduced this bill, I happened to be talking to a legal counsel for a large police force. He asked me what we were doing with Bills C-43 and C-48. One of those bills was replaced with the one that is before us. Finally, this government has done something.

Obviously, this bill will have to be studied in committee. Since it is short, I took the time to read it before coming into the House. I have said in the past that I hate the way federal bills are written, but we cannot change tradition. They seem to be deliberately written so that most people cannot understand them at all. That way, the federal government can always claim the law says something and spark a political debate that the average person who wants to keep informed cannot follow. I have always said, and I still believe, that poorly written laws are first misunderstood and then poorly applied. I get the feeling that that will be the case with this legislation unless we make it a bit clearer.

Basically, the bill is good and that is why we will vote in favour of it. However, that is also why we want to make it clearer, so that the people who can take action realize what we want them to do. When an Internet provider receives an indication that someone is accessing child pornography through the service provided, the provider should be able to seek out that material and remove it. Basically, that is what we want. Everyone agrees that this is a good principle. We are very accommodating in terms of freedom of expression and freedom of publication. There are limits, however, and child pornography is one of them. These limits need to be enforced in this extraordinary new medium, the Internet.

Clause 3 states:

If a person is advised, in the course of providing an Internet service to the public, of an Internet Protocol address or a Uniform Resource Locator where child pornography may be available to the public, the person must report that address or Uniform Resource Locator to the organization designated by the regulations, as soon as feasible and in accordance with the regulations.

This assumes that the person is advised. There is no question of that in the bill. Clearly, this means that if someone from the public informs the provider that there is child pornography on its server, that person is obligated to do something. That person must inform the organization that will be created. This will slow down the enforcement of the act. At the rate this government moves, I have a feeling that the organization will not be ready even by the time my granddaughters—beautiful twin girls whose first birthday is next week—are old enough to use the Internet. I really hope it will be created, because I do not ever want them to see child pornography on the Internet. I am more worried about the old men who look for such images.

I just do not have faith in this government. Whenever it spots consensus on something urgent, it chooses to wait until the end of the session, then tries to rush everything through. If I have time, I will talk about one urgent situation people are dealing with now.

I will now read clause 4:

If a person who provides an Internet service to the public has reasonable grounds to believe that their Internet service is being or has been used to commit a child pornography offence, the person must notify an officer, constable or other person employed for the preservation and maintenance of the public peace of that fact, as soon as feasible and in accordance with the regulations.

As I understand it, this is about the server, the person providing Internet service to the public. I would have thought that person should notify the new organization. When someone notifies an Internet provider that child pornography is available on its server, the address must be provided to the organization designated in the regulations.

Suppose that instead of doing that, the person complied with clause 4 and provided the information to a police officer. The police officer would find the address or organization in question to which the problem should be referred to remove the child pornography from the Internet. We all agree on that point.

There must be some details about computers that I do not understand. Clause 5(1) reads as follows:

A person who makes a notification under section 4 [the server that notified the police officer] must preserve all computer data related to the notification that is in their possession or control for 21 days after the day on which the notification is made.

The person has to preserve the data. If that person is smart enough, he or she will not allow public access to the data, but the data must be preserved because the police will need them to conduct an investigation.

Clause 5(2) reads as follows:

The person must destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under subsection (1) as soon as feasible after the expiry of the 21-day period, unless the person is required to preserve the computer data by a judicial order made under any other Act of Parliament or the legislature of a province.

The intent is that this person will remove the data and that it will no longer be available on the server. We also want the regulatory body to verify if it is child pornography. Action must be taken quickly. You have to be an optimist to believe that a new organization will act swiftly. This body has not yet been created. A number of organizations have been created and they are not working as quickly as we had hoped.

Suppose that action is taken quickly and that it is child pornography. It will be taken off the site. Perhaps they will search for the person who put the pornography on the site, who committed the offence.

That is the end of it. The person does not keep the data. That worries me. I understand that they should not put it back on the server and that it should be removed immediately. Nevertheless, this is rather inconsequential to our approval.

Some things really intrigue me. The member for Brome—Missisquoi spoke about clause 7, which reads: “Nothing in this Act requires or authorizes a person to seek out child pornography.” In other words, we do not want anyone to feel obligated to report child pornography or to look for it. We are not obligating everyone to do so. However, people are being encouraged to report child pornography to an organization that will ensure that it is removed from the site.

These sections are fine. The same goes for clause 8, which protects a person who makes a report against civil suits. It is obvious that a person who reports child pornography should not be threatened with civil or criminal proceedings because of their report.

Now for clause 9: “For greater certainty, nothing in this Act affects any right of a person to be protected against self-incrimination.”

For those who do not know what self-incrimination is, here it means when an individual testifies and is required to provide relevant information that could incriminate them, we want them to feel free to tell the truth and request protection against self-incrimination.

In this case, I do not really see under what circumstance there might be any self-incrimination. The person making the report might say that they visited a site but did not pay for it. I do not see what protection they would need, but it is good to give them that protection just in case because we want to encourage them to report the site.

This protection against self-incrimination has existed for a long time in English law, including criminal law. I have never understood this odd mechanism whereby we ask a question of an individual who refuses to answer it because the answer might incriminate them. They are then told that they are required to tell the truth but that they will receive protection by virtue of objecting. That means their testimony cannot be used against them.

This mechanism becomes quite complicated during a trial, especially if it concerns any criminal activity. Shortcuts have been taken and have become commonplace. I am sure people are familiar with the phrases “to seek court protection” or “to seek protection from the law”. When a person seeks and is granted court protection and is prepared to tell the truth, but is aware that their testimony could incriminate them, they would like their testimony not to be used later to incriminate them. In this case, this always takes place during the cross-examination.

Protection against self-incrimination consists in not answering questions, but here we are asking someone to report something on their own initiative. I agree that if a person says they used a credit card to pay for a certain site, that the person should be protected because they are serving the public good by allowing the site to be removed.

Clause 9 represents a very good intention that should be better explained. We should find a more modern way to ensure this right, which has always been expressed in such a complicated manner. My explanation is no exception.

Offences are created. Here again, we really need an explanation. We understand that the law has already been amended to make putting child pornography on the Internet a crime, which we agree with. In any case, if it is not one, it would have been a good opportunity to say so here and it is still a good opportunity to say so now.

Clause 11 states: “Every person who knowingly contravenes any of sections 3 to 6 is guilty of an offence and liable on...conviction—”

But how can someone contravene that? The person is not obligated to notify their Internet provider, but if they do, I do not see what infraction they could have committed under clause 3. Maybe the fact that they did not communicate the address as quickly as they could have could be seen as a contravention.

Essentially, these clauses encourage good citizens to get child pornography websites taken off the Internet.

Since our time is limited and we are at the end of a session, the Bloc Québécois is willing to give its consent to this, just as it was ready to support a number of causes presented by the justice minister. However, we are against some of them. If he wanted to, he could easily understand why we are in favour of some of them and against others. I think that he needs to understand some principles and forget the propaganda.

We are in favour of legislation that will reduce crime. We are in favour of measures that help find and convict criminals. We are not for criminals' rights. The rights exercised in court do not belong exclusively to criminals. They are rights that belong to everyone, should we ever be unjustly charged.

But here, the methods used are based on one philosophy only, fear of punishment.

We are convinced, and my professional experience tells me, that the fear of punishment is not a deterrent for criminals. Heaven knows my law practice has been diverse. I was the one who helped create the Carcajou squad with Mr. Duchesneau and Mr. Barbeau. Policing principles are what produced the most results in the fight against organized crime. I do not want to be seen as someone who lobbies for criminals. However, I am a lawyer and I think it is important that laws be fair and that we avoid the dangers that our neighbours to the south have fallen into.

If the fear of punishment were a deterrent, the United States would have the lowest crime rate in the world, because it has the highest incarceration rate. In the United States, officials were applying minimum sentences to everything, convinced that that would reduce crime, but it did not work. There are so many reasons to explain this, and it is understandable. First of all, regarding minimum sentences, I would be curious to conduct a little test and ask all hon. members how many minimum sentences there are in Canadian laws. There are 27. What is the minimum sentence, for instance, for committing a crime with a firearm? People probably do not know. They are not familiar with our laws.

If most of us do not know what they are, then what about the public? Moreover, the public does not know much about the people who commit crimes, especially the most serious crimes. It is not the most educated people who commit crimes. People who commit crimes do not do the math and tell themselves that if they commit a certain crime, they could go to prison because there is a minimum sentence and that they should commit another crime because it carries a shorter minimum sentence. Come on. Crime is opportunistic, and criminals' main concern is not getting caught.

As I said, it is important to look at how countries use incarceration. The United States is the grand champion, with an incarceration rate of 760 per 100,000. Russia is in second place, with 626 per 100,000. I have some other figures from a list of about 185 countries compiled by Kings College Oxford in England. In Australia, the rate is 129 per 100,000; in China, 119. I do not know whether these data are reliable. Canada has a rate of 116 per 100,000, which puts us ahead of Holland, with 100; France, with 96; Belgium, with 93; Switzerland, with 76; Sweden, with 74; and Japan, with 63.

We can see that there is no connection with the severity of sentences. Here in Canada, people are three times less likely to be the victim of a homicide than in the United States, and in Quebec, they are five times less likely.

We are against minimum sentences, because they do not work and they force judges to hand down sentences they consider unfair.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, the member made one statement which I think is quite true, that we tend to write sloppy legislation federally. It is not very readable. It is not understandable. We have a small bill and I think we understand the intent of it, but it has several places where regulations are required. We have not even designated what an organization would be. It has not been created yet. We do not know what its functions or duties are.

In my case, I am not sure why we have provisions in clauses 3 and 4, one of which is that a person who is aware of an Internet protocol address or URL must report to this undesignated agency, but then if a person who provides Internet service becomes aware that there may be pornography passed through a site, he has to report it to a police officer.

I have never drafted legislation but one-stop shopping where there is a funnel and a place where all Canadians can participate would make us all part of the solution. This is a punitive bill in some strained type of language which would not stand the test of scrutiny in court challenges.

I wonder if the member, from his experience, would advise the House whether or not the bill really is going to be a good starting point in terms of dealing with the serious issue of protecting children from pornographic use. Perhaps we should reconsider an instrument in which we can have some sort of an agency set up so that all Internet providers and all Canadians can access to report any information to do with such nefarious activities.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, with all due respect to the member who just spoke, I think that this is a good start, but it is just a start. There will have to be some follow-up. This is a good start because it does let people know that if they see child pornography on the Internet, they can do something, but the bill does not say that they must. That is not a bad thing to say. People who do not know who to tell, perhaps because they cannot find the information, will naturally tell the police.

There have been good results in a number of provinces with the co-operation of people who have come across sites belonging to kids who are obsessed with weapons or who are talking about murdering people or things like that. The person who was involved in the incident at Loyola College had a site like that. After that happened, of course a lot of people noticed certain sites and reported them to the Sûreté du Québec, which then went to those places and seized people's weapons.

At least this lets people collaborate, and that is a good start that we should not hold up.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I want to ask the member about the offences in Bill C-22. It seems to me that as an individual the offences are $1,000 for a first offence, $5,000 for a second offence, and evidently $10,000 for a third offence or possibly six months in jail. On the corporate side for companies it is $10,000 for the first offence, $50,000 for a second offence, and $100,000 for three or more offences.

It seems to me that most of the child porn sites would be run by corporations and probably underworld figures. That would be my guess. It seems to me that these amounts of money are not going to deter organized crime. The $10,000 for an offence is just nothing more than the cost of doing business.

I would ask the member whether he has the same sort of concerns about the offences in the bill and whether or not, at committee, we might look at perhaps increasing those penalties?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, this bill does not cover offences related to manufacturing pornographic material or making this material available to the public. Clauses 3, 4, 5 and 6 address the possibility of reporting such material, and also the Internet service provider's obligation to preserve this material and destroy it at a later date. Child pornography should be prohibited via other provisions in the Criminal Code, and those are the provisions that would apply if the source of the Internet child pornography were discovered.

I think that the sentences provided for in clauses 3, 4, 5 and 6 are sufficient for the crime in question. Nowhere do we see the crime of putting child pornography on the Internet. We are simply forcing people to alert the organization in question when they notice that child pornography is available. The organization will probably ensure that the child pornography is removed from its site.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Mr. Speaker, I thank my colleague from the riding that is named after a painter—

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Marc-Aurèle Fortin.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Marc-Aurèle Fortin, thank you.

The Bloc would rather prevent crime and find remedies for it instead of arresting people after the fact.

Statistics in Canada show that most Canadian parents use outdated or ineffective methods to teach their children about personal safety. Does the member for Marc-Aurèle Fortin think that we could include some preventive measures in this bill to help parents teach children about personal safety and about behaviours that could cause them problems?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, that would probably be a good idea, but I honestly will not suggest it. I do not want to slow down the adoption of this legislation by suggesting another amendment. This is only the beginning, but it is a good start. It is giving the public access to an organization that will deal with online child pornography. I hope that it will make this material disappear.

It would be a lot of work to add obligatory child education. If we think about how long it took to craft this little egg, an amendment like that would be like crafting a bull. However, it would be a good idea to do it.

I have a beautiful bookmark with a painting by Marc-Aurèle Fortin that I would like to give to my colleague so that he can remember the name of my riding.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, part of the bill requires that an ISP or other person providing Internet services, when the police is notified, must keep the computer data related to the child pornography offence for 21 days and after that the computer data must be destroyed unless the police have obtained a court order to keep the data.

Other members have drawn attention to this provision and asked the question about whether the 21 days are long enough? I would like to ask the member, as a long standing lawyer and a member of the House, whether he thinks the 21 days would be adequate or is that another provision that we are going to have to change at committee?