Mr. Speaker, it is quite possible I may have spoken to this bill in a previous session of Parliament, because it did not move very fast, as we all know, after it was first introduced. I have synthesized my comments down to seven or eight points and I can go through them very quickly.
My party is supporting the bill for passage at second reading, but that should not prevent us from making constructive comments about the bill's form or content.
The first thing I want to mention has to do with the form of the bill, the title of the bill. Certainly the way it is described, an act respecting the mandatory reporting of Internet child pornography, is correct; I do not have a problem with that. However, the government has put forward a bill. It has tried to change the title of the bill a little, because clause 1 says that the short title shall be “Protecting Children from Online Sexual Exploitation Act“. When I first read that short title, I thought it must have something to do with people trying to get children to do something their parents would not otherwise want them to do, but really what the bill is dealing with is child pornography, and if that short title is relied on, there is no indication of that in the short title.
The government in its almost Goebbelsian messaging has tried to squeeze this newspeak title into the bill and it does not describe the bill very well. I hope the committee will take a look at that, because this bill will be a stand-alone bill, as I understand it. It is not an amendment to the Criminal Code. It will stand alone and it will forever be cited as that title, so I think at least we ought to get the title right.
The second thing is that the definition part of the bill refers to an Internet service as:
“Internet service” means Internet access, Internet content hosting or electronic mail.
Internet service therefore means electronic mail, and if one goes to the charging section of the bill, it says that “if a person is advised, in the course of providing an Internet service to the public, of an Internet protocol address”, et cetera, that simply means that if a person is advised in the course of an electronic mail. That seems to involve almost anyone who uses electronic mail, email. I am not so sure that it was the intention to charge every person who uses email with the burdens of reporting set out in the act.
This is either a criminal or quasi-criminal bill. It is not clear on the face of it whether this is intended to be criminal or quasi-criminal, and the penalties reflect that. That is an issue that will have to be discussed at committee. Who knows if this might render the bill weaker than the government intended.
The third thing is that the wording in the bill in the definition section in parentheses is not part of the bill. This is the first time I can recall, and I have been here 22 years, a bill saying that the wording contained in the bill is not part of the bill, that it is only descriptive. That is what the margin of the bill is for. The margin is for the purpose of providing descriptive or helpful comments on the bill. If the bill is adopted in its current form, we will have a bill on the books where some of the words in the bill are not part of the bill. I think that is bad form. I think it is rather dumb. I am not too sure why we have done it, but it seems to be a departure, and that can be explained at committee.
The next thing I want to say, with reference to my second comment about electronic mail, email, is that the bill purports to criminalize or quasi-criminalize Internet service providers or emailers, those who send or receive email.
Not only would it criminalize them for a specific act or omission, but it would criminalize them for an act or omission involving an email or website where child pornography may be available. It is not where it is available, but where it may be available. It criminalizes a class of people who send email. I am just using the words that are in the bill, but it potentially criminalizes a class of people who send or receive emails involving possible knowledge of child pornography where child pornography may be available. I do not for a moment second-guess the objective of the bill, but I do question that particular process.
One could take from my words perhaps a bit of an implicit understanding about why this is not in the Criminal Code. It is quite possible that wording such as this, a description of a criminal act such as this, would not survive in the Criminal Code where we have very strict tests on precision and such. I am flagging that it is in clause 3.
Clause 4 is essentially placing a burden on other people to snitch on other people. Anyone who has knowledge of somebody else who may have knowledge of such a website is obligated under this statute to snitch, to tell the police, and failure to do so would result in liability.
I do not think we have snitch laws in this country, but we are about to get one now if this bill passes in its current form, in my opinion. I know the committee will want to look at that, or maybe get some witnesses in from East Germany, because I know East Germany had a wonderful array of laws that required citizens to snitch on other citizens. We will take a look at that at committee. I know my colleagues will do a good job of that.
The next point is really a jurisdictional one. If this is not to be criminal law, then it has to be based on another federal jurisdiction as opposed to a provincial jurisdiction. That is not set out in the proposed statute. I would like to have that clarified for the record. If it has not been clarified here in debate, and I do not think it has, I would like to see that clarified by the government at committee. The committee should be scrutinizing the precise federal jurisdiction on which this statute is based.
The next thing I want to point out is there are two elements added into clause 11, which are good. I am pleased to see that the drafters of the bill are requiring that for anyone to be convicted of an offence, he or she must have knowingly contravened the act. That is a good thing. We would not want to have people convicted for things they did not know about, especially if one is just sending or receiving an email.
There should be some scrutiny given to the question of the term “knowingly”. Does one have to know about the law? Does one have to know about the alleged child pornography, or does one just have to know about the Internet site? What extent of knowing is required? What threshold of knowing is going to be needed before there is actually an act or omission that constitutes the alleged criminality in this case?
The last thing I want to point out is that the government has the ability to make regulations, and maybe that is the real answer here. Because the government is making regulations, it is obviously not criminal law. We would not allow the cabinet, by making a regulation, to make a criminal law. That would be very rare in our history if we ever did.
There is a regulation section that gives the government six separate regulation-making powers. The last one is a red flag for me. It says that the “Governor in Council may make regulations generally for carrying out the purposes and provisions of this act”.
I ask the question that must be answered before the House finally adopts the bill. Could the government, in making a regulation, create a new element of an offence and thereby make that new regulation an offence under this bill? I say no.
However, I have had some 20 years of experience here on the Standing Joint Committee on Scrutiny of Regulations. I have heard this argument in the House and at committee from the Department of Justice, which feels pressed to make an argument that if the government has the ability in the statute to make a regulation generally for the purpose of carrying out the purposes of the bill, then it has the right to make a regulation that would criminalize certain acts. That has happened before. There has been some push back by the House of Commons and it may be in relatively good balance now.
Categorically, I could never accept a bill that would allow the government to make a regulation which would criminalize or quasi-criminalize the conduct of any Canadian resident. We must keep our eye on the scope of this authorization to make more regulations under this statute to carry out the purposes and provisions of this act, which is a stand-alone act and not in the Criminal Code. It must be scrutinized.
We must get an answer to this. I do not want to be in a position to accept any answer except no, the government, the cabinet, would not, could not use this clause on its own, or make a law or regulation that would create a new criminal or quasi-criminal offence that would be imposed on our electors.
