Bill C-54 (Historical)

Not Criminally Responsible Reform Act

An Act to amend the Criminal Code and the National Defence Act (mental disorder)

This enactment amends the mental disorder regime in the Criminal Code and the National Defence Act to specify that the paramount consideration in the decision-making process is the safety of the public and to create a scheme for finding that certain persons who have been found not criminally responsible on account of mental disorder are high-risk accused. It also enhances the involvement of victims in the regime and makes procedural and technical amendments.

[The Chair, Conservative, Mike Wallace]

Absolutely.

It has been asked for the vote to be recorded. My trusty clerk will call the roll.

(Bill C-54 agreed to: yeas 10; nays 1)

Shall I report the bill as amended to the House?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I move that Bill C-54 in clause 32, be amended by replacing line 11 on page 22 with the following, “and the accused person's intended place of residence shall, at the victim's request, be given to the”.

Do you want me to read it in French? No? Okay.

That's it.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

This amendment mandates a comprehensive review of the NCR regime by a parliamentary committee within five years of Bill C-54 coming into force, and the committee would submit a report to Parliament within a year of the review. In other words, Mr. Chairman, Bill C-54 makes significant changes to the NCR regime and concerns have been raised by experts about the possibility that these changes may have unintended consequences—even some of those in favour of the legislation made reference to this. As such, it would be incumbent upon Parliament to consider the impact of this legislation in the medium and the long term so as to understand whether it had the desired result, or whether refinements are necessary.

I hope we can have a consensus around this table to have a review conducted and the reports prepared on this point to ensure that the legislation is operating as envisaged by the government and the proponents of this legislation.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

This amendment would require the Attorney General to consult annually with the relevant federal and provincial ministers and agencies about the implementation of the NCR regime. The Attorney General would also be required to table an annual report on these consultations.

Mr. Chairman, one of my biggest concerns with Bill C-54 is that we might well run out of space in provincial treatment facilities. As witnesses testified, overcrowding not only impacts on treatment, but it also reduces public safety which, after all, is a paramount consideration underpinning this legislation. Moreover, overcrowding also raises serious charter concerns. Particularly also, as I've noted, NCR-accused have not been found guilty of any offence.

As such, to ensure that the NCR regime is being implemented effectively, consultation with the provinces are necessary and ought to be mandated in statute. We ought not to create burdens on the provinces without assistance, and thus this mechanism helps to ensure that capacity and resources to implement the system are in place and working.

I might add, Mr. Chair, and I close with this, that effectively, this amendment seeks to secure the very objective that the legislation itself seeks.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

Assuming you all have a very good memory, I won't repeat what I said earlier about amendment PV-9, except to add these other points.

At the point at which a determination has been made by the review board that, based on all the available evidence, the high-risk accused no longer meets that definition and that the person is in fact no longer considered high-risk accused, the current Bill C-54 drafting would refer the formerly high-risk accused person back to a superior court of criminal jurisdiction.

There is an interesting legal point here, because there will be no criminal charges active at that point. There will not be any criminal court seized of the matter, whereas the review board has the expertise, has just reviewed the complex information, and has made a determination, as the act requires, based on all the available information involving expert assessments, that it is satisfied that there is not a substantial likelihood that the accused, whether the high-risk accused “will use violence that could endanger the life or safety of another person”.

At that point, it is both, as I mentioned earlier, an unnecessary expense and unnecessary cost of the court's time, unnecessarily repetitious. In fact it asks the court to be seized of something for which there are no current criminal charges. I therefore strongly recommend that we revert, as I propose in amendment PV-9, to the review board itself making the determination and not referring it further to a superior court of criminal jurisdiction.

[The Chair, Conservative, Mike Wallace]

Thank you for that.

I'm going to rule on that amendment regarding its admissibility. Clause 12 of Bill C-54 provides for the possibility of an unlimited number of hearings for the determination of high-risk accused.

The goal of the proposed amendment, Liberal-11, is to limit the number of hearings to one, which is against the principle of the bill. Again, according to page 766, in the opinion of the chair, the amendment attempts to limit the number of hearings, and therefore is inadmissible. This ruling also applies to Liberal-23.

No one is challenging the chair on that. Let's move on.

We're done with clause 12 amendments.

Shall clause 12 carry?

(Clause 12 agreed to)

(Clause 13 agreed to)

(On clause 14)

On clause 14, we have a government amendment.

Mr. Goguen.

[The Chair, Conservative, Mike Wallace]

Okay. Thank you.

I'm going to make a ruling on this PV amendment. Clause 12 of Bill C-54 does not provide any powers to a review board. The proposed amendment aims to provide specific powers to the review board that are not envisioned in the bill. We refer to page 766 of the House of Commons Procedure and Practice, edition two.

In the opinion of the chair, the amendment attempts to introduce a new concept that is beyond the scope of Bill C-54 and is therefore inadmissible. This ruling applies to amendments PV-6 and NDP-14. So that amendment is inadmissible. It's out of order.

There's nobody challenging the chair, so we're moving on.

Amendment PV-6, as just read, is therefore inadmissible as well. NDP-6 is also inadmissible due to PV-5 being inadmissible.

We're now on amendment Liberal-10. Liberal-10 also applies to Liberal-21.

Mr. Cotler, you have the floor.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

This is also, of course, within clause 12. We're now looking at proposed paragraph 672.64(3)(a).

As Bill C-54 is now written, the person who has been designated as a high-risk accused under this provision would be allowed to be discharged from the hospital and absent from the hospital for any purpose relating to treatment or for other medical reasons at the discretion of the person who is in charge of the hospital.

My amendment inserts “the Review Board”, which is in the position to know all of the relevant evidence about the high-risk accused, including conditions around the original determination of high risk, as well as whether this would be appropriate. I've also inserted the concept of that being “based on all available evidence”. Given the concerns about high-risk accused and their movements, which the Conservative government has expressed in putting this bill forward, it seems to me this is much too important a decision for it to be delegated to the person in charge of the hospital as opposed to being delegated to the most qualified agency, which is the review board.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

We don't support the amendment. The availability of resources and support to mitigate the risk can be considered by the court without explicitly setting it out. The provision is currently open-ended. The evidentiary burden in the high-risk accused application process falls to the crown. The nature of the evidence suggests it would likely only be available to the defence; otherwise, the crown would have to prove a negative, for example, no resources.

As introduced, there is nothing in BillC-54 that would prevent the court from receiving evidence on the availability of resources and support to mitigate the risk of public safety. An amendment to that effect is not necessary.

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes, Mr. Chairman.

This amendment is fairly straightforward. Many witnesses have testified that "brutal nature" is a problematic concept that does not necessarily clarify the matter. We heard this again and again from expert witness testimony. This amendment leaves intact the consideration regarding cases where there is a substantial likelihood of violence endangering the life or safety of another person, which appear in paragraph (a).

My changes to paragraph (b) say that we also take into account cases where there is a serious risk of psychological, as opposed to physical, harm. By leaving in the reference to psychological harm, I believe this amendment captures the essential element of what was proposed in C-54, without the addition of the "brutal nature" factor, which many witnesses, particularly the experts, found to be highly problematic.

[The Chair, Conservative, Mike Wallace]

—to this bill.

To your point, the motion that we had states:

the Chair may call upon the member

—not the party, but the member—

who filed the proposed amendment to offer brief remarks in support of it.

That's why I called on the member, on Madam May, to make brief remarks to her piece.

Now, to your second point, I am making a ruling on PV-1. I'm going to call them “PV” because that's the way they are now, and that's the way they will be for the rest of the evening. In future, they may change them to independents, I don't know; that's not my doing.

The goal of Bill C-54 in clause 9 aims to remove from the Criminal Code the concept of a disposition that is “the least onerous and least restrictive to the accused” person.

The goal of the proposed amendment PV-1 is to bring that concept back, which is against the principle of the bill.

House of Commons Procedure and Practice, second edition, states on page 766 that:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

In the opinion of the chair, the amendment attempts to revert to what was in the parent act, which is contrary to the principle of Bill C-54, and is therefore inadmissible. This ruling will apply to amendments NDP-2, Liberal-3, PV-12, NDP-11, PV-13, NDP-12, and Liberal-22.

Does anybody need that repeated?

Are you challenging the chair, Mr. Cotler?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

I think they've used the term “PV” here for Parti vert. So it's actually not in the name of a private member. It's actually here as Green Party amendment 1.

As you see, it is on clause 9, which is amending section 672.54. You can follow it on page 4, at lines 35 to 40.

I'm proposing this amendment based on testimony that was received by the committee from the Canadian Bar Association to reinstate the “least onerous and least restrictive” requirement that has been used in not criminally responsible cases in the past.

I just want to cite this from the Canadian Bar Association evidence, at page 5:

Currently, the Court or Review Board must discharge absolutely any accused found not criminally responsible, unless they pose a significant threat to the safety of the public.... In making this decision, the Court or Review Board must consider the need to protect the public from dangerous persons,

—we certainly want to do that—

the mental condition of the accused, the reintegration of the accused into society and other needs of the accused. Where an accused does pose a significant threat to the safety of the public, the Court or Review Board must select the “least onerous and least restrictive” form of disposition....

Now that Bill C-54 makes it very clear and codifies what's already the law under the Supreme Court of Canada—that the safety of the public is the paramount consideration—I'm putting forward this amendment to say that certainly the balancing is very strongly in favour of the paramount consideration being public safety. The least onerous and restrictive qualification is now balanced against that paramountcy of public safety and security.

That provision, as the Canadian Bar Association recommends, can be reintroduced into the legislation very simply—through the mechanism of my Green Party amendment 1.

Thank you.

Combating Counterfeit Products Act

[Dan Harris, NDP, Scarborough Southwest, ON]

Mr. Speaker, here we are again, debating another bill that was put under time allocation, which is 44 or 45 times now.

The irony in this instance is that the government could have had an agreement with the opposition to speed the debate of this bill so that we would be using less time in the House than it took to bring in the time allocation motion, vote on it and then provide a full day of debate, because we in the NDP do want to see this bill go back to committee, where it can be approved. Therefore, we will be supporting it at second reading.

Again, we had time allocation brought in before the Minister of Industry, the person presenting the bill, had even spoken to it. We did not have one full speech in this House. There was a speech by the member for Simcoe—Grey, who spent half of her speech laughing at jokes being told to her by other caucus members. We did not have one full speech before time allocation was brought in.

I would say humbly that this is not democracy. This is not how Parliament is supposed to work. We are supposed to have the opportunity to have full debates in the House on the various issues that are brought forward.

Bill C-56, an act to amend the Copyright Act and the Trade-marks Act and to make consequential amendments to other Acts, which is now otherwise titled the “combating counterfeit products act”, is an important issue. It is my honour to rise today to present the lead-off speech on Bill C-56 for the NDP and the official opposition.

Normally our industry critic, the member for LaSalle—Émard, would be leading off on second reading comments on this bill. Our critic had planned to give her remarks on Friday when this bill was supposed to come up for debate; however, because of time allocation and the government playing games, we are here Wednesday evening instead, again preventing certain members of Parliament from participating in this debate in the way that they would like to.

In their rush to introduce yet more record-breaking time allocation motions—as I said, we are at 46 now—the Conservatives rescheduled all the House business this week.

As the NDP's deputy industry critic, it is indeed my privilege to address this bill on behalf of the official opposition. This is a bill the NDP takes very seriously, as opposed to the Conservative government, it would appear, because this bill was presented originally in March. It did not come up for debate until the end of May. Recommendations for this bill were made in a committee report in 2007, again in 2009, and then there were more recommendations from the industry committee in an intellectual property study that was done earlier this year. It has taken the government a very long time to start bringing these forward for implementation.

We have yet to have a whole speech by the Minister of Industry on this bill. Even then, if it was not going to be the minister, we would have thought that maybe it would be the parliamentary secretary, the member for Edmonton—Mill Woods—Beaumont, but that was not the case.

When the government presents a bill, it is supposed to justify why it is bringing that bill forward. It has yet to do that and has already implemented time allocation.

Instead of a full presentation by the government, what we had was the parliamentary secretary for human resources and skills development getting up and presenting a very short speech on this bill. In her speech she spent a lot of the time laughing and did not seem to be taking the bill seriously. It was so bad that the Speaker had to interrupt and ask if she was able to continue.

I mention all this because it seems to speak to the Conservative government's contempt for Parliament and to its continual practice of introducing legislation that can never be properly implemented because its budget cuts make it impossible.

There are many clichés we would use, but the Conservatives keep putting forth pieces of legislation that are either empty shells or just cherry-picked from among the many recommendations that we need to implement to have solid pieces of legislation. They put forth rules and regulations that perhaps cannot be enforced, because those budget cuts mean that no one will be there to enforce them.

Recent examples include Bill C-51, the safer witnesses act, which the Conservatives put forward without the funding in place to make many of its provisions actually meaningful. Another one, Bill C-54 would make changes to how we would deal with people deemed not criminally responsible, however, it would download the responsibility for mental health care onto the very provinces, which are having their health care budgets slashed again by the Conservative government.

Bill C-56 is another example of the Conservatives playing the shell game they so like to play. It is legislation that on one hand imposes some good rules and on the other hand, through the budget, cuts the jobs of those who are supposed to be enforcing these new rules. I will come back to that point later in my remarks.

Let me say upfront, again, that the NDP will support the bill at second reading so it can be sent back to committee and, we hope, fixed to maximum its impact. However, it would indeed be a first at our committee, if we actually saw recommendations and amendments that we brought forward voted on and passed by the Conservatives on the committee. That would be groundbreaking.

The bill dealing with counterfeiting and copyright infringement is important for both Canadian businesses and consumers, especially where counterfeit goods may put the health and safety of Canadians at risk. We will support the bill so it can go back to committee for further study and we want to ensure we maintain the necessary balance on copyright and trademarks.

For instance, the bill would give ex officio powers to our border officers, which the NDP has been calling for since 2007. However, it is very difficult to see how this will be implemented when, last year, the Conservatives slashed $143 million in funding to CBSA, which further reduced front-line officers and harmed our ability to monitor our borders.

CBSA expects to lose several hundred front-line officers by 2015. It is also important to note that in the past the government repeatedly has refused to take a balanced approach to copyright. The NDP believes that intellectual property requires an approach that strikes a balance between the interests of rights holders and the interest of users and consumers.

I will now take a few minutes to explain some of the details of the bill.

Bill C-56, the combating counterfeit products act, would amend both the Copyright Act and the Trademark Act. Its purpose is to strengthen enforcement of copyright and trademark rights and to curtail commercial activity involving infringing copies or counterfeit trademarks.

The proposed bill will add two new criminal offences under the Copyright Act for possession and exportation of infringing copies and creates offences for selling or offering counterfeit goods on a commercial scale. It creates a prohibition against importing or exporting infringing copies and counterfeit goods and introduces some balance to that prohibition by creating two exceptions: first, for personal use, items that are in one's possession or baggage; or second, items in transit. It also, as I said, grants new ex officio powers to border officials to detain infringing copies or counterfeit goods, a significant policy shift. Until now, border officials required a warrant before seizing infringing copies or goods at the border.

It also grants new ex officio powers to the Minister of Public Safety and border officials to share information on detained goods with the right holders so they can actually see what is being brought in and take measures themselves to combat that counterfeit and trademark infringement.

That is important, because the businesses do a great job of trying to protect their own products. Seeing what is coming into the country illegally and what products are counterfeited can give them ideas about how to combat that counterfeiting better for themselves.

The proposed bill widens the scope of what can be trademarked to the features found in the broad definition of sign, including colour, shapes, scents and tastes. Measuring the problem in counterfeit goods and copies in Canada and its corresponding impact on the economy is difficult.

The New Democrats, nevertheless, support dealing with counterfeiting, especially where health and safety concerns are at stake. As I have mentioned, it remains unclear to me and many others how the CBSA could implement these enforcement measures in the face of the cuts from budget 2012.

The United States and many industry groups have long called for border measures on counterfeiting. It remains important to continue to be vigilant to ensure that intellectual property laws balance the rights and interests of rights holders with those of consumers and users.

The government has long been aware of the difficulties in measuring the scale of counterfeiting for copies and goods in Canada, a challenge that was identified in a 1998 OECD report on “The Economic Impact of Counterfeiting”. One of the difficulties results from the clandestine nature of counterfeiting. Much of the data is estimated and based on actual seizures, which is anecdotal or comes from industry itself, in which case the collection methods may vary or be unavailable to assess.

In 2007, the industry committee report on counterfeiting recommended that the government establish a reporting system that would track investigations, charges and seizures for infringing copies and counterfeit goods as a means of collecting data.

A recent Industry Canada report published this year notes that, “It is difficult to obtain a precise estimate of the market for counterfeit or pirated products in Canada”. Why? Because, again, the government has delayed bringing this legislation forward. Even now that it has, the Conservatives have not put provisions into the bill to implement those measures I just spoke of so we can start collecting more robust data to more accurately determine the economic impacts of counterfeit and trademark infringement in Canada.

As I said, much of the information in Canada comes from statistics about actual seizures. Industry Canada notes that the retail value of counterfeit goods seized by the RCMP increased from $7.6 million in 2005 to $38 million in 2012.

In 2009, the OECD estimated that the international trade in counterfeit goods and infringing copies could be valued at up to $250 billion U.S. It is a mind-boggling number that there would be that many counterfeit and trademark infringed goods travelling around the world. Law-abiding companies are losing out on much of that revenue.

The same study also reiterated previous calls for better information. We know anecdotally that counterfeit products can pose risks to the health and safety of consumers, whether we are talking about counterfeit electrical components or unsanitary stuffing in goose-down jackets.

I mention unsanitary stuffing in goose-down jackets because when we were at committee, many different Canadian businesses and organizations presented before the committee. One such company was Canada Goose, which is certainly a Canadian success story. However, representatives of Canada Goose brought with them some counterfeit Canada Goose jackets they had collected. The things contained within those counterfeit jackets would make one's toes curl. There were things like feces in the lining, feathers that were not properly treated and sanitized before being stuffed in the jackets. Certainly they were not goose down or coyote fur. Many different animals were being used.

Unfortunately, it was very difficult, on the surface, to detect these jackets as being counterfeit. When we put a real Canada Goose jacket next to a counterfeit jacket, they looked identical. It was not until we took a microscope to it or started to pull the jacket apart that we started to see that one of the jackets was indeed counterfeit.

Other representatives that came before the committee were from Hockey Canada. They talked about the last Olympics we had in Canada and about professional sports jerseys. They found, through studies they conducted and at the Olympics, that sometimes in professional sporting events, up to 70% to 75% of the jerseys being worn at the games were counterfeit. Consumers are unwittingly buying illegal and counterfeit products when they try to support their sports teams. At the Olympics in Vancouver, many stops and arrests were made of individuals selling counterfeit Olympic paraphernalia and products.

It is a growing problem because there is a financial incentive there. There is money to be made in counterfeit goods. We certainly have a responsibility to try to stop as much of it at the border as we can. As for the stuff that gets across the border, we have to deal with it here and hold the appropriate people responsible.

In many cases, as I have said, it is very difficult for consumers to detect whether they are buying legitimate products. However, vigilance is also important and people who have any concerns about products they are buying should go to the manufacturers' websites and contact people in law enforcement if they think they have bought something illegal. There are many things people can do to prevent these crimes and, indeed, to ensure the products they are buying are legitimate.

Dealing with counterfeiting is important to both Canadian businesses and consumers. It is especially important where counterfeit goods put the health and safety of Canadians at risk. Yet again it remains unclear how the enforcement regime being proposed by Bill C-56 will be resourced. This bill would add significant new responsibilities to the duties of border officials during a time of significant budget reductions.

In budget 2012, the Conservatives imposed $143 million in cuts to CBSA, reducing front-line officers and further reducing our ability to monitor the borders. This is interesting. This year's CBSA report on plans and priorities alone indicates a loss of 549 full-time employees between now and 2015. At a time when there is more trade, goods and people crossing the border, we will be cutting front-line officers? It makes absolutely no sense.

Under Bill C-56, customs officers would be asked to make highly complicated assessments on whether goods entering or exiting the country infringed on any copyright or trademark rights. Such an assessment for infringing copyright would include, for example, consideration of whether any of the exceptions under the Copyright Act would apply, something with which the courts often struggle. The New Democrats want the CBSA to be adequately funded to implement this bill without compromising the other responsibilities of protecting Canadians and our borders from things like drugs, guns and other threats.

The United States has lobbied for stronger enforcement measures in Canada for counterfeit and pirated goods for many years. In the 2012 special 301 watch report, the office of the U.S. trade representative stated that the U.S. “continues to urge Canada to strengthen its border enforcement efforts, including by providing customs officials with ex officio authority to take action against the importation, exportation, and transshipment of pirated or counterfeit goods”.

In its June 2012 report on counterfeiting in the Canadian market, the Canadian Intellectual Property Council, a sub-group of the Canadian Chamber of Commerce, identified counterfeiting as a barrier to competitiveness and specifically recommended that customs officials have ex officio powers, that Canadian law be amended to bring criminal and civil sanctions for counterfeiting and piracy and that enforcement officials be encouraged to seek strong remedies for infringements.

It bears saying that many of the requests the United States made are, indeed, in this bill. Providing ex officio powers to the CBSA in order to track, monitor and confiscate copyright and trademark infringed goods are terribly important to our long-term safety.

In its recently tabled report, “Intellectual Property Regime in Canada”, the committee recommended border measures that we supported, including providing appropriate ex officio powers to customs officials, civil and criminal remedies for trademark infringement and counterfeiting, allowing customs officials to share information with rights holders regarding suspected goods. All members of the committee agreed that consumers acting non-wilfully should not be subject to excessive fines.

The New Democrats on the committee, of which I am one, filed a dissenting opinion that called on the government to also consult with consumer groups, as well as industry groups, in an effort to combat counterfeiting and piracy, that border officials receive appropriate authority to do their work while respecting civil liberties and due process and that the CBSA be adequately funded to combat counterfeiting without compromising its other important responsibilities to protect Canadians and defend our borders.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Chairman, this specifies that in deciding what conditions, if any, to impose on an NCR-accused, the factors to be considered by the court or review board must be based on medical evidence and expert testimony.

Mr. Chairman, Bill C-54, as proposed, establishes that public safety is a paramount consideration for decisions of review boards and courts with respect to NCR-accused. I want to make it clear that my proposed amendment does not change that. Rather, it clarifies that the determination of such public safety considerations must be, “on the basis of medical evidence and expert testimony”. I believe that without this, we might allow the impression to be had—and I don't think we'd want that impression to be had—that such determinations can be based on subjectivities of fear, or perhaps even reliance on stigma. Certainly, this cannot be Parliament's intention.

In a word, we must have expert testimony and medical evidence before us when such determinations are made, and this amendment seeks to clarify that this is indeed Parliament's intention with this provision.

[Julie Besner]

The proposed subsection in Bill C-54 deals with providing notice to the victim regarding a discharge, so it is closely related to that specific amendment in that subsection.