Bill C-28 (Historical)

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

This enactment establishes a regulatory framework 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.
It enacts 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, which prohibits the sending of commercial electronic messages without the prior consent of the recipient and provides rules governing the sending of those types of messages, including a mechanism for the withdrawal of consent. It also prohibits other practices that discourage reliance on electronic means of carrying out commercial activities, such as those relating to the alteration of data transmissions and the unauthorized installation of computer programs. In addition, that Act provides for the imposition of administrative monetary penalties by the Canadian Radio-television and Telecommunications Commission, after taking into account specified factors. It also provides for a private right of action that enables a person affected by an act or omission that constitutes a contravention under that Act to obtain an amount equal to the actual amount of the loss or damage suffered, or expenses incurred, and statutory damages for the contravention.
This enactment amends the Competition Act to prohibit false or misleading commercial representations made electronically.
It also amends the Personal Information Protection and Electronic Documents Act to prohibit the collection of personal information by means of unauthorized access to computer systems, and the unauthorized compiling of lists of electronic addresses.
Finally, it makes related amendments to the Competition Act, the Personal Information Protection and Electronic Documents Act, the Canadian Radio-television and Telecommunications Commission Act and the Telecommunications Act.

Fighting Internet and Wireless Spam Act

[Serge Cardin, Bloc, Sherbrooke, QC]

Madam Speaker, I rise here today to speak to Bill C-28, once known as the Fighting Wireless and Internet Spam Act.

I would like to begin by saying that the Bloc Québécois is in favour of the principle of Bill C-28, which was previously known as Bill C-27, but which died on the order paper at prorogation. A number of minor changes have been made, but the overall text, its objectives and key elements remain the same.

New legislation that specifically targets unsolicited commercial electronic messages has been needed and requested by society as a whole for some time now. Governments, Internet service providers, network operators and consumers are all affected by the problem of spam. Preserving the efficiency of legitimate electronic commerce is a vital and pressing issue. Not only are commercial emails sent with the prior and ongoing consent of the recipient important to electronic commerce, but they are also essential to the development of the online economy.

The Bloc Québécois is pleased to see that Bill C-28 takes into account most of the recommendations in the final report of the task force on spam. On the other hand, we are upset that the legislative process has taken four long years. Computer technology is evolving at astonishing speeds, and spammers keep finding new ways to achieve their goals. Accordingly, consideration of the bill in committee should give many industry stakeholders and consumer protection groups an opportunity to express their views on the proposed Electronic Commerce Protection Act. A number of other points also need to be examined in committee and I will come back to those points later on in my speech.

The task force on spam was struck in 2004 to look into this problem, which is constantly evolving, and to find ways of dealing with it. The task force heard from Internet service providers, electronic marketing experts and government and consumer representatives.

In all, more than 60 stakeholders took part in the discussions, providing input on issues such as legislation and law enforcement, international co-operation, and public education and awareness. In addition to launching an Internet-based consumer awareness campaign entitled “Stop Spam Here” to inform users of steps they can take to limit and control the volume of spam they receive, the task force on spam presented its final report to the Minister of Industry on May 17, 2005.

Entitled “Stopping Spam: Creating a Stronger, Safer Internet”, this report calls for new, targeted legislation and more rigorous enforcement to strengthen the legal and regulatory weapons that Canada could use in the global battle against spam.

The report also supports the creation of a focal point within government for coordinating the actions taken to address the spam issue and other related problems like spyware.

Among the report's key recommendations are more vigorous legislation and enforcement and legislation to prohibit spam and protect personal information and privacy, as well as computers, emails and networks.

The proposed legislation is designed to allow individuals and companies to sue spammers and hold any businesses whose products and services are promoted using these means partially responsible for spamming activity.

In addition, new and existing resources of the organizations responsible for the administration and enforcement of anti-spam laws should be strengthened.

The task force recommended creating a centre to coordinate the government's anti-spam initiatives. This focal point would coordinate policy and education campaigns and support law enforcement efforts. It would also receive complaints and compile statistics on spam.

To curb the volume of spam reaching users, the task force developed a series of industry best practices for Internet service providers, network operators and email marketers. Examples include allowing ISPs and other network operators to block email file attachments known to carry viruses and to stop emails with deceptive subject lines.

As well, email marketers would be required to obtain informed consent from recipients to receive emails, provide an opting-out mechanism for further emails and create a complaints system. The report recommends that these groups voluntarily adopt, regularly review and enhance the best practices.

To help change people's online behaviour, the task force created an online public education campaign called “Stop Spam Here”. Launched in 2004, the website offers consumers, volunteer organizations and businesses practical tips for protecting their personal information, computers and email addresses. The task force recommended that all partners continue to enhance the site's content.

Since most of the spam reaching Canadians comes from outside the country, international measures to stem spam are vital. Therefore, the task force proposed that the government continue its efforts to harmonize anti-spam policies and to improve cooperation among all countries to enforce anti-spam laws.

Four years later, on April 24, 2009, the Government of Canada finally introduced new legislation to protect electronic commerce, namely, Bill C-27. Inspired primarily by the final report of the task force on spam, Bill C-27 established a framework to protect electronic commerce. To achieve that, the bill would enact the new Electronic Commerce Protection Act, or ECPA. Basically, this act would set limits on the sending of spam.

Spam can be defined as any electronic commercial message sent without the express consent of the recipient. It can be any electronic commercial message, any text, audio, voice or visual message sent by any means of telecommunication, whether by email, cellular phone text messaging or instant messaging. Considering the content of the message, it would be reasonable to conclude its purpose is to encourage participation in a commercial activity, including an electronic message that offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land, or a business, investment or gaming opportunity.

Note that the following types of commercial messages, which appear in clause 7, are not considered to be spam: messages sent by an individual to another individual with whom they have a personal or family relationship; messages sent to a person who is engaged in a commercial activity and consists solely of an inquiry or application related to that activity; messages that are, in whole or in part, an interactive two-way voice communication between individuals; messages sent by means of a facsimile to a telephone account; messages that are a voice recording sent to a telephone account; a message that is of a class, or is sent in circumstances, specified in the regulations.

This means that, under this legislation, sending spam to an electronic address—email, instant messenger, telephone or any other similar account—would be prohibited. The only circumstances under which it would be allowed is when the person to whom the message is sent has consented to receiving it, whether the consent is express or implied

In addition to being in a form that conforms to the prescribed requirements, the message will have to make it possible to identify and contact the sender. Lastly, the message must include an unsubscribe mechanism, with an email address or hyperlink, so that the recipient can indicate that he or she does not want to receive any further commercial electronic messages from the sender.

The bill would also prohibit altering the transmission data in an electronic message so that it is delivered to destinations other than that specified by the initial sender. In addition, the bill would prohibit installing a computer program on another person's computer and sending an electronic message from that computer without the owner's consent.

There are provisions for administrative recourse. Anyone who contravenes, even indirectly, any of these provisions would be liable to an administrative monetary penalty, or AMP, if the computer used is located in Canada. The maximum AMP is up to $1 million for individuals and up to $10 million in all other cases. The Canadian Radio-television and Telecommunications Commission, the CRTC, will be responsible for investigating complaints and, when necessary, imposing the penalties. Furthermore, the CRTC will have the authority to apply for an injunction if it finds that a person is about to or is likely to carry out a violation.

In order to carry out these inquiries, the CRTC would have interesting powers. It could require a person to preserve transmission data, produce a copy of a document that is in their possession or prepare a document based on data, information or documents that are in their possession. It could even conduct a site visit in order to gather such information or, if necessary, to establish whether there was a violation under clauses 6 to 9. Note that it will have to get a warrant from a justice of the peace prior to entering premises.

An individual who refuses or fails to comply with a demand under clauses 15, 17 or 19 will be guilty of an offence and subject to a fine of up to $10,000 for a first offence and up to $25,000 for repeat offences. Businesses will be subject to a fine of up to $100,000 for a first offence and $250,000 for repeat offences.

There are also private remedies. Bill C-28 provides for the creation of a private right of action, modelled on U.S. legislation, that would enable businesses and individuals to initiate civil proceedings against any person who contravenes clauses 6 to 9 of the new act.

If the court believes that a person has contravened any of these provisions, it may order that person to pay an amount corresponding to either the loss or damage suffered or the expenses incurred. If the applicant is unable to establish these amounts, the court may order the applicant to be paid a maximum amount of $200 for each contravention, up to a maximum of $1 million.

Bill C-28 also proposes an extension of the co-operation and information exchange powers for anything that has to do with the Competition Act, the Telecommunications Act or the Personal Information Protection and Electronic Documents Act.

For example, any organization to which part 1 of that act applies may on its own initiative disclose to the CRTC, the Commissioner of Competition or the Privacy Commissioner any information in its possession that it believes relates to a violation of the act. The CRTC, the Commissioner of Competition or the Privacy Commissioner must also consult with each other and may share any information necessary to carry out their activities and responsibilities in accordance with the act.

Over the years, unsolicited commercial electronic messages have turned into a major social and economic problem that undermines the business and personal productivity of Quebeckers. Not only does spam impede the use of email for personal communication, but it also threatens the growth of legitimate e-commerce.

The Internet has become an essential tool for commerce and communication in general. According to the government, the online marketplace represents an important segment of the Canadian and Quebec economies. In fact, there was $62.7 billion in sales in 2007. In 2009, e-commerce reportedly surpassed $8.75 trillion. But the Internet and e-commerce are also becoming increasingly vulnerable and threatened.

Spam accounts for more than 80% of global electronic traffic, which results in considerable expenses for businesses and consumers. Spam is a real nuisance. It damages computers and networks, contributes to deceptive and fraudulent marketing scams, and invades people's privacy. On a larger scale, spam directly threatens the viability of the Internet as an efficient means of communication, undermines consumer confidence in legitimate e-businesses and hinders electronic transactions. And in the end, everyone loses.

The need for new legislation dealing with unsolicited electronic messages has been urgent for far too long. The Bloc Québécois is pleased to see that Bill C-28 covers most of the recommendations made by the task force on spam. However, we deplore the fact that the legislative process has taken four long years. Computer technology is evolving at astonishing speeds, and spammers keep finding new ways to achieve their goal. In terms of information technology, four years is an eternity.

Consideration of the bill in committee should give many industry stakeholders and consumer protection groups an opportunity to express their views on the relevance of new electronic commerce protection legislation. The committee should also study the exchange of information between the CRTC, the Commissioner of Competition and the Privacy Commissioner. And while we want these exchanges to take place in order to maximize the efficiency of the ECPA, any personal information that is shared must always remain confidential. This is even more critical because this information could be shared with foreign states. The question of vigilance in relation to protecting commercial ties between businesses and consumers will also be studied in committee. And although the ECPA's provisions on this subject may seem to be sufficient, industry evidence must be considered because this legislation cannot slow down the use of the Internet as a catalyst for and facilitator of trade.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, each day when we start the business of the House, we say a prayer, and at the end it says that we make good laws and wise decisions. After listening to the assessment of hon. members so far in this debate, I can say that we have missed the boat probably on both counts.

We just dealt with a bill on tax treaties with Greece, Turkey and Colombia. Part of that whole arrangement was to have information-sharing agreements. We have information-sharing agreements with more than 90 countries already around the world. We have relationships, we have tax treaties and we have trade deals with them. I think it is absolutely unconscionable that the bill does not somehow link to these relationships, that we have information-sharing agreements with regard to matters related to the bill before us now on spam.

It is $130 billion a year in terms of costs around the world for spam and the damage that it does. That is just spam. We are ranked fifth. Yet somehow the government does not seem to get it.

It has been five years since the bill first came to us. It has already been disclosed that we have not gone as far as the other G8 countries. We are the only G8 country that does not even have legislation yet, and one of four OECD countries. One member of the committee said that we are going to be playing catch-up because we did not go as far.

I think the bill is going to be a failure unless the government steps up, considers criminal sanctions, enters into international agreements with our partners in other fora and takes this very seriously because it is costing Canadians as well as the Canadian economy. Therefore, Canada is the worse for it.

I wonder if the member would care to comment on whether or not the bill is doing justice and in fact represents a good law and a wise decision.

[Serge Cardin, Bloc, Sherbrooke, QC]

Madam Speaker, we support Bill C-28 in principle, even though it contains certain elements that we must come to terms with. As I said, it has taken too long to pass this kind of legislation to protect all of our networks and individuals, while the Internet and computer industry are evolving with lightning speed.

We must always remain ahead of the game, because those who use the Internet and spam to do business and hassle people know how to move quickly. As soon as we find solutions, they find new ways around them.

We need to work together. A great deal of spam is sent to Canada and Quebec. It is therefore important to raise people's awareness about this problem.

I have to wonder if users are perhaps too tolerant. They should act quickly as soon as they receive spam that invades their computers and their lives. It should be a spontaneous reaction.

Existing legislation and international agreements do not go as far as they should, but there is always room for improvement. That is precisely what the Bloc Québécois wants to do.

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

Madam Speaker, the member for Mississauga South just referenced the fact that there was no information sharing contemplated by the bill. I just want to remind him that in fact it is in the bill. There are provisions in the bill for sharing of information with foreign authorities on this particular issue.

The bill clearly has administrative penalties of $1 million for individuals and a maximum of $10 million for corporations and organizations, but it does not have any provisions for jail sentences. There are no criminal offences in the bill. I think that is a big oversight, because huge corporations normally follow the law and I do not think they are going to be violating the law and paying million-dollar fines. They are just going to stop doing whatever they are doing.

The exposure is for smaller operators such as the gentleman recently who had a $1 billion lawsuit against him by Facebook. He simply declared bankruptcy. He is not paying any fines. He does not have any money to pay any fines. Because there are no jail-time provisions in the bill at all, small operators are going to continue in the same way they have for many years, putting out spam knowing full well that they are not going to pay the fines anyway. Since there are no jail sentences, they do not have a lot of exposure.

They talk about directors' and officers' liability and piercing the corporate veil. All that is great if that is where the exposure is. If the big companies are doing this and they are worried about paying million-dollar fines, then piercing the corporate veil is an issue that has to be addressed, but I do not think that is the reality out there. The reality is going to be smaller operators who do not give a hoot about million-dollar fines and will only be deterred by jail sentences, which are not in the bill.

Would the member like to comment on that?

[Serge Cardin, Bloc, Sherbrooke, QC]

Madam Speaker, clearly, there are provisions for fines and, the member is right, there is no indication that any jail sentences will be handed down. Clearly, we need to create legislation that includes deterrents to prevent people from committing such crimes. How can we do so at this stage, and more importantly, how do we determine the sentences that should apply? Unfortunately, I did not consider that aspect. I am open to suggestions, however, and perhaps even amendments from the member. We will be able to have a closer look at this, analyze it and perhaps even make some recommendations regarding sentences that could go along with the fines imposed.

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, the bill contains many new prohibitions, enforcement measures and changes to the existing law. There are three primary prohibitions: it requires all senders to obtain express consent before sending commercial electronic messages, and to include the contact and unsubscribe information, and it includes provisions designed to counter phishing, spyware and botnets used to send spam.

What is important about the bill is that it also establishes form requirements for those who send commercial electronic messages, including identification of the person sending the message, the person on whose behalf it may be sent, contact information on the sender and an unsubscribe mechanism.

I want to focus my question on that, because an unsubscribe mechanism that allows for an easy opt-out via email or hyperlink, that remains valid for at least 60 days after the message is sent, and that requires the sender to comply very quickly is an important part of the bill.

I wonder if my friend could comment on how important it is that the bill requires spam senders to obtain consent and makes it very easy for the recipient to unsubscribe in dealing with this important problem of spam.

[Serge Cardin, Bloc, Sherbrooke, QC]

Madam Speaker, as I mentioned in my speech, spam is a major problem. What makes it worse is the anonymity behind which people can hide. The system must make it possible to easily identify the source of these emails and the people who are contravening the act and regulations, in order to intervene as quickly as possible. We must raise awareness in the general public, which is inundated by spam, of the importance of acting quickly in order to eliminate as much as possible of this cancer that is invading the lives of businesses and people who use the Internet and the systems themselves. We must eliminate this scourge with the assistance and the co-operation of Canadians, once they have been informed and educated about this problem.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Madam Speaker, this is an important piece of legislation we are debating here today, if for no other reason than it having been long delayed in finally being dealt with by the House.

I am advised by credible sources that Canada is the only G8 country that does not have legislation governing spam. This legislation deals with more than spam, but the bill's moniker out there on the street is that it is an “anti-spam” bill. So this is what Parliament is attempting to legislate on, and in my view, the bill could have a massive potential impact in the world of electronic commerce.

I am also advised that for a period of time some of the business organizations in our country were uncomfortable with provisions in the initial bill. Some amendments have been made to the initial bill, and I believe those organizations support it now.

It is incredibly important for us to ensure that if this bill is passed at second reading, which I believe it will be, the committee that studies it has the fullest consultation possible with professionals and businesses in this field to ensure that we deliver the best bill we can without impairing our electronic commerce, while protecting the privacy and other amenities that almost all Canadians would agree with.

The bill itself begins by attempting to prohibit. I say “attempting” because it is all very well for us to pass a law that prohibits or criminalizes or somehow regulates something, but the proof is in the pudding. The bill has to have an impact on the street, and in order to prohibit, there must be reasonable enforcement; and in order for there to be enforcement, there has to be a resourcing of those officials who would police or regulate.

This particular bill embarks on a course that has been followed in other legislation. It would allow the private sector to do some forms of enforcement or to participate in the organization of the regulation or enforcement. That is a positive step, but my point is that we just cannot pass a bill that prohibits and purports to regulate; we must also look to the issue of the means and modalities of enforcement. I note that while there is not a Criminal Code type of prohibition, the bill does have some significant potential financial penalties that could be applied.

But just because I stand here and say the bill has financial penalties, and just because we enact it, does not mean that those financial penalties will be brought to bear. The mechanisms of enforcement that involve quasi judicial and judicial enforcement have to be properly resourced.

I will deal with each of the prohibitions in the bill later in a little more depth, but at this point I just want to list them for the benefit of my own remarks.

The first thing that the bill would prohibit is spam itself. In other words, it would prohibit the sending, without the consent of the recipient, of what I call “junk”, what the bill calls something else, and what some people on the street call “spam”. Most of us who work on computers and receive emails are familiar with that type of communication.

The bill would prohibit false statements that disguise the origins of the email or the intent of the email. That involves a communication where the sender disguises what the message is about or inserts some piece of information that would entice the receiver to open it up.

Third, the bill would prohibit the installation of unauthorized programs. While I personally have not known myself to be victimized by this, I know it is a huge problem when emails bearing these bad news programs are opened up and somehow they worm their way into a computer's operating system. In some cases it can have dire effects on the computer system.

Fourth, it would prohibit the unauthorized collection of personal information and email addresses. The real core of that particular prohibition is the personal information piece. I will speak more about that later. That is a huge component of this and one which will have to be managed carefully under this legislation when it is finally put in force.

This series of prohibitions and the other statutory pieces that are proposed arose out of the report of a task force that completed its work about five years ago. I mention that only to indicate that the bill has good grounding in the private sector. The task force brought together industry and government in a way that produced a listing of these problematic issues with the Internet.

While we may have been showing some leadership five years ago, it is clear that we have been really slow to get this legislation enacted. Why it has not been a priority I can only guess, but if anyone wanted to look at the order paper, one would see a list of about 10 or 15 criminal law amendments jamming the legislative calendar when I and most people around the House know that most of those criminal law amendments could have been put into one bill and dealt with together.

However, our Conservative colleagues, and perhaps it was not even our Conservative colleagues, but under the leadership of the Prime Minister or whoever is driving the bus, a decision was made to clutter our parliamentary legislative agenda with all of these separate criminal law amendment bills. Forgive me for making this sidebar reference. I do not want to call all these criminal law amendments spam, but they could have been put into one, two or three bills. It would substantially reduce the number of bills the House and the other place have to deal with.

There are complaints about a log jam and that bills are piling up in the pipeline. I know the Minister of Justice will react to this and he will want to explain why the government chose to put 15 bills through the pipeline instead of two or three. Those bills have cluttered the legislative agenda much in the way that spam clutters our inboxes and our individual computers.

There is always a complaint that there is so much legislation that is not getting through the House. I know that complaint is coming. If it does not come today, it will come tomorrow, next week or at the end of the year. In my view, with respect to all of those bills, the government has to be the author of its own misfortune, if there is misfortune. However, I can report that there is some reasonably judicious, if I can use the term, management of all of those bills. We will certainly do our work.

In any event, regarding this anti-spam legislation, we have failed in an international sense, in my view, to provide appropriate leadership. We are a technologically advanced country. We have a parliamentary House that is sensitive to the issue. We had a task force in place five years ago. There was a report. A bill was created at some point and then it just seemed to languish.

In fairness to the government, we have had a sequence of minority governments and shorter Parliaments. I do accept the will of the Canadian electorate in creating these minority Parliaments, but the downside is that we do not get a good long run at the legislative calendar. It gets cut short by elections. I know my colleagues on the Liberal side will relate to this. It also gets cut short by prorogations, as has happened conspicuously a couple of times around here. In any event, we are muddling along and doing our best.

This particular bill is addressing a huge challenge, as has happened in the legislation of other countries. The Internet is new in human history. We do not really have all of the nouns and adjectives to describe exactly what it is. It is an entire universe of activity, communication, buying and selling, and conveying all manner of data. Without a lot of human experience in this field, the human race is grappling with whether, first of all, this particular field should be regulated.

The answer to that in the beginning was no. Many advocates behind the Internet, as it was originally born, took the view that it should be unrestricted and free, that it should be allowed to develop and flourish as another means of human communication and human endeavour.

It quickly became apparent that people with good motives and people with bad motives began using the Internet and its modalities for their own purposes. In some cases, those purposes were seen to be anti-social, and there is a general consensus on this. For example, there is the perpetuation of some form of criminality, to steal, to defraud, to abuse our children, or to steal from our privacy. Those are just some of the alleged anti-social forms of activity that appear on the Internet.

Ultimately we, as legislators, and the task force five years ago, reached the conclusion that there had to be some restraints. The restraints are described in this bill as prohibitions.

I do not underestimate the vastness of all we are trying to regulate as, just to look at it in this country, we are only a piece of the global Internet. This bill is trying to do that, but I suppose it could try to do it in a way that is sensitive to the capacity of the Internet to do good things. I will speak to that later if I have time.

It seems to me that anyone with the capacity to store electronic data could engage in the business of collecting data on persons and institutions. If one really put one's mind to it, one could come up with quite a good collection of financial and personal data. That by itself would not be good or bad necessarily. It could be used for bad things, or it could be used for good things.

It is not clear to me whether the bill really deals with this, but what if those who collect such data began to artificially assemble in the Internet false persons, non-existent identities of persons or institutions? One could, I am sure, create in the Internet world something that looked like a person, that seemed like a person, that had an identity of a person but that really was not a person, and that false identity, that non-existent but Internet-existent thing could do good things or bad things.

I realize my remarks are a bit on the philosophical side, but the capacity is out there to do this. It could be said that this bill comes close to regulating that, but I am not sure it does and I am not so sure that we have seen all of that develop in the Internet. We see little bits and pieces of it developing here and there, but I am thinking in terms of an Internet bad guy or an Internet good guy with all of this data and using it for good purposes or using it for bad purposes. Of course, beauty is in the eye of the beholder, but I do not think this bill really deals with that.

I want to deal with each of the categories of prohibition.

The first one is spam without consent. That is easy for most of us because most of us have experienced it. I know from remarks made today that in Canada there are nine billion pieces of spam a year. That is a lot of territory. The cost is $130 billion a year.

It is not because the spam shows up on one's computer that it is costly. The fact is that the communications infrastructure that carries all of this stuff costs money. Whoever is spending money for Internet services is actually bearing the cost of carrying the spam. Are the spammers paying their fair share? They might be. It is not clear. I have not seen that addressed with a great deal of precision. I suppose I could say if the spammers were paying a commercial rate for all of their unwanted spam it might lower the cost burden on those users who do not send out spam and it might lower the cost to everybody. However, I will leave that aside.

Electronic filters that software provides do make a difference. It is a big help to Internet users around the world to have filters to clear out most of the spam.

I do want to point out a problem which is particular to members of Parliament and the way they manage their immigration files.

Many of us in the House have large numbers of immigration files where constituents have brought matters to the MPs. I recently came across a situation of a potential immigrant who was in the queue waiting for his application to be processed. An email was sent to him advising him of the need for a further piece of documentation. He never got that email. As a result, 90 or 100 days later, his file was dropped, closed, terminated, by our immigration department because there was not a response. The thinking is, why did that happen? Clearly, the email was sent to the right address. There is some sense that a filter on the recipient's computer may have blocked it and, regrettably, we do not know how to fix that kind of problem. Filters are usually good, but sometimes they are not.

The enforcement under this bill would be with the CRTC, the Privacy Commissioner and the Competition Bureau. The fines would be between $1 million and $10 million. They are administrative monetary penalties and would not be delivered by a judge but by these organizations.

I hope we do find teeth and enforcement. Time will tell. I only raise one caution. We should make sure, in this bill, that we do not restrict political communications or communications from religious groups, and I hope our international treaties will begin to reflect these issues involving the Internet.

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

Mr. Speaker, as the member knows, the bill gives quite a wide variety of enforcement options to the authorities. For example, there is a provision to deal with issues by way of undertakings, and I suspect that is probably how a lot of the issues will be resolved. Fines will be sort of a secondary option, and if the violators undertake to stop doing what they are doing, that probably will end the issue there.

Nevertheless, we do have these fines, as the member pointed out, of $1 million for an individual and $10 million for organizations, but the bill stops short of dealing with criminal offences. I just wonder whether there is a role or if there should be provisions here for criminal offences.

As I mentioned before, we had that recent case, and there are probably going to be many more, of Facebook suing a spammer and getting a $1 billion settlement. At the end of the day, the fellow who was doing the spamming simply declared bankruptcy and basically laughed at the system and got a lot of publicity out of doing so. Clearly if this act were in place, it would have done nothing to stop him, because he has no intention of paying any fines whatsoever, and I am sure he would have no intention of following an undertaking that the CRTC would offer him or demand of him.

I know the member is a lawyer, and I would like to ask him whether he foresees a problem here with not at least having an extra option of jail time for cases where the other options do not seem to work.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, the hon. member has described a situation involving an impecunious loser. If he had no resources, then the fine was not going to be of much use.

In that situation, that is where criminal law could or should come into play, but the difficulty with criminal law, and even with some of the other enforcement of the fines, the administrative monetary penalties, is that it is quite possible that a lot of this spamming and messaging and a lot of the collection and storage of personal information is going to happen outside of Canada. It is going to be international.

That is why at the end of my remarks I made a fairly brief reference to treaties. We really are not going to be able to get a solid handle on this, in my view, unless we are able to reach outside the country, in conjunction and in collaboration with the other foreign jurisdictions, and that is only going to be done with treaties. With very few exceptions, we cannot impose our criminal law outside the country, so we still have a distance to go.

This is a very timid first step in trying to regulate this type of activity.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, the hon. member spoke eloquently about this bill and expressed a certain skepticism with respect to the effectiveness of the bill. In his last remarks, he described it as a timid bill, and previously he analogized to the multiplicity of justice bills that are on the floor of the House, clogging up the order paper, many of which are long on title and short on content and could be dealt with in a number of different ways, the most obvious of which is an omnibus bill.

I am noting that this is essentially a three-way debate among the Bloc, the NDP and the Liberals, and the government members are not participating in the debate. This appears to be one more bill by the government where it is, as they say in the west, all hat and no horse.

Would the hon. member comment on the limitations of this bill, but also on the several things that the government could have done had it actually responded effectively to this issue?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, it is appearing more and more that our Conservative colleagues opposite are really not debaters; they are voters. They come into the House and follow the lead of their House leader and whip.

There surely are in this bill some debatable concerns. One should not pretend that this bill would solve the problems outlined, even prohibiting these various anti-social activities. The bill would never succeed in eradicating those activities. The bill comes across more as a threat to those who might do it, certainly those in Canada, even if we got all of the institutions and players in Canada to be good boy scouts, which I expect will happen. We have a good reputation around the world for this kind of thing once we regulate or prohibit.

I suspect that our friends around the world, even in the United States of America, Europe and everywhere, will not pay any attention to this at all. They will take every opportunity to continue what they are doing for profit or whatever other motive.

At the end of the day, any tangible global initiative to eradicate, reduce and restrict is going to involve treaties. Whether it starts at the UN or some other mechanism, I would encourage it. However, before we even take that step, it is really important for us to get our legislation right in Canada and understand the difference between all the freedoms we have and the privacies that are protected.

I did not get a chance to go into the definition of commercial activity, but it is important to get the definitions right so that individuals remain as free as they can be in this country and, at the same time, restrict the institutional, business and corporate activity that involves spam and unauthorized collections of personal data. It is treaties that will ultimately be the foundation and groundwork of future successful regulation, in my view.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, a lot of the justice bills, as I see them frankly, are responses to problems that do not exist or exist in a minimal sort of way, if they exist at all. However they have gained some notoriety for some reason or another, some fact situation, and as my friend and I well know, bad facts make bad law. This bill, however, is in response to a real problem. It is a response, but seems to be a timid response.

Were the hon. member to rewrite the bill in a way in which it should be written, what would be one or two specific suggestions he would make to the government, assuming it is participating in this debate, that would make this bill a useful response?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, the one thing I would seriously consider doing in the bill is finding a way to ratchet up the response into the Criminal Code. It is not that everything that happens in this bill has to be criminalized, all the bad stuff, but we need to find a way to take an accumulated happening or event, either by size or quality, and allow it to be moved into the Criminal Code. At least we would be able to hammer down pretty seriously on Canadian-based perpetrators of what I call these anti-social activities.

That is what I would have done. I would have provided a step up into the Criminal Code for some of the more egregious breaches of the prohibitions we have here.

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

Mr. Speaker, I am very pleased to speak to Bill C-28. I enjoyed the remarks by the member for Scarborough—Rouge River. He made some valid observations in the beginning about the fact that the delays of the government in bringing the bill to fruition were in some way unavoidable because of the election. However, sometimes delays can actually work out to one's benefit.

I note that because of this process involving a previous bill dying and then the government re-forming it as Bill C-28, the fact of the matter is some improvements were actually made along the way.

Coming out of the committee there were some improvements, even one that the government made itself as a result of representations made by presenters to the committee. They resulted in amendments to the bill.

I know governments oftentimes introduce legislation and they themselves bring in a number of amendments at the committee stage, so it is a process to get it right, a process that involves in many cases correcting oversights and making amendments as we progress.

At the end of the day, we may actually have a better bill than we would have, had we gone with the earlier versions.

We have not heard from the government very often during these debates. One of the questions I would ask is: How many actual cases have not been dealt with because of a lack of this type of legislation?

This type of legislation has been in the pipe since 2004. There were two senators involved with bills of their own. As has been pointed out, we are the only country in the G8 that does not have legislation of this type at this point.

Therefore I would be interested in knowing what the experience has been with the other countries in the G8, with their type of legislation, and how many consent orders have been dealt with in their jurisdictions and how many fines have been collected. If in fact they have jail provisions, how many people have actually gone to jail in any of those G8 countries?

However we have not had any representations from any government members about those particular issues. Surely we could learn from the other countries that have this legislation. If in fact there has been an increase in one type of activity over another in one of those G8 countries, I would assume that the government would have been quick enough to respond and would have been able to cover that off in our legislation.

Having looked at the legislation, I see it is quite comprehensive. The NDP members support the legislation over and above the questions that we have about it on the issue of the jail provisions. It is quite a substantial bill and deals with many areas that need to be dealt with.

Another point I would like to make is that this is a relatively new area. The technology has expanded so much. It has only been since 1995 that emails have become a regular occurrence and certainly e-commerce has been on the radar only since 1999.

At the provincial level, 10 years ago we were looking at bringing in e-commerce legislation, and in Manitoba around 10 years ago we brought in Bill 31, which I mentioned before in the House, which was the best e-commerce legislation in the country at the time. It was following the Uniform Law Conference. I believe that all of the provinces in Canada have since followed suit and brought in their own type of legislation to deal with those substantial issues.

However, that was a response to e-commerce in 1999 when it was very new and people were reluctant to purchase things online. We brought in some consumer friendly amendments to that bill. One of the provisions was that anyone in the province of Manitoba who purchased a product or service online and did not receive the product or service, the credit card company would have to back it up and compensate the customer.

The credit card companies had some concerns about that but it was something that we copied from at least four states in the United States that had that type of legislation in 1999. Those were the beginnings of e-commerce legislation. Today, e-commerce has burgeoned and exploded in spite of any type of legislation. I do not think I could point to many thousands of people in Manitoba who would even know we put in that protection for them in that bill.

That was only part of why we brought in the bill in the first place. We were dealing with the whole issue of databases, which is very controversial. It was shortly after the Jane Stewart experience in Ottawa with databases. However, what we were trying to do was come up with a common business identifier so that businesses in the country could deal with the federal tax department through a single business number. By doing that, we had to have a legislative framework in place to begin dealing with, not only within the government but within companies in Manitoba and the federal government, taxation issues, making corporate tax payments, the whole issue of T4 slips, records of employment and all those sorts of business type issues.

The governments of the day were looking at low-hanging fruit, things that they could control. They were looking at their own government to start with, but the view was to expand out to the private sector companies to try to make them more efficient and make the government more efficient. Before we went with the SAP computer system, we had no idea that the Department of Industry was giving a grant to a company that was in arrears with our taxation department and not paying its PST. In fact, that was happening. I am not sure what systems are now being used through federal government departments, whether it is SAP or a different ERP system, but we wanted to ensure we knew what we were doing in our own house.

This was a very controversial type of legislation that we had to deal with. We had to deal with the sharing of databases. We had interjurisdictional issues. We also had to deal with the existing silos within the provincial government where each department was saying something different. For example, finance was saying that it could not do this because of certain reasons and justice was saying something else. In each department there were five or six involved in the legislation. Since each one had its own concerns, we needed to get them together and say that this was the way we were going and that we would need to accommodate to the changing environment.

That is a big problem and it is a big problem with the federal government as well.

We have had to do a lot in this whole area and the federal government was under a lot of pressure. Why did it wait so long when seven of the eight G8 countries have had legislation dealing with spam for a number of years?

At the end of the day, it is time to pass this legislation and get it through. Some debate will continue about whether we went far enough. There are some provisions that I will get to later but there are so many provisions to this legislation that it is impossible to deal adequately with them in a 20 minute time period. However, a lot of provisions in the legislation may provide some sort of upset or cost to our nation or to the businesses in the country. We will only know over time whether that will be the case.

I know that in dealing with legislation, governments try to the best job it can to have an open process by having witnesses come before committee to give expert testimony. Provincially, we have a system where we allow almost anybody to come and make a 10 minute presentation on a bill.

Having said that, we would have a similar bill to this where we would do a round of consultations over the course of a year and then we would have the hearings and the press coverage. Still, at the end of the day, a year down the road after we had passed the legislation and had the regulations in force, people in the affected business communities would come forward and say that they knew nothing about the legislation and that it was a total mystery to them. They would accuse the government of bringing in the legislation and causing them a lot of problems without having proper consultation, when in fact we could prove that we did a lot of consultation.

In the spite of the fact that we have done all this work and that it has taken so much time, I still anticipate that we will have some problems at the end of the day with people or companies saying that they did not know about it, even after all of the speeches and the consulting that has been done.

Some adjustments may be necessary. For example, small businesses are very concerned about the relationship they will have or will continue to have with their previous clients. The new laws put some restrictions on how they can deal with their clientele. Before the do not call list came into effect, it was routine for a business to contact its customers, in-house, over the phone or through the mail, regarding other products. However, they cannot do that anymore because it is not allowed.

The way the system works now is that customers need to give their agreement for the business to approach them. This will cause a lot of stress for businesses in the country. Every time the government comes out with a new set of regulations, businesses that are doing what businesses do best, which is conduct business, will need to retool their operations and re-educate their employees on what is involved. There is no end to the questions being asked about whether companies can contact previous clients and under what conditions they can be contacted.

We introduced the do not call registry but the government found that the system did not work so well. I think it is working a little better now. However, in the initial periods, some people who were put on the do not call list found that they were receiving more calls after they were on the list than they were before being put on the list. People were accessing the do not call list.

This bill would deal with the do not call list. As a result of the much improved wording in the bill, the government has the option to phase out the do not call list over a period of time. When that time comes, the government can simply invoke the provision of the act that allows it to eliminate the do not call list. The do not call provisions are covered under this bill.

The bill has a lot of good things with respect to the definitions and the wording. With the volume of clauses and changes in wording that we are dealing with, it is impossible to get into all of the minutia in a 20 minute presentation.

A lot of good improvements have been made to the bill. Three or four years ago, people were not aware of some of the technical terms and technology issues, so it is possible that this legislation will be outdated before it comes into effect.

I have mentioned the issue of fines a few times but I want to deal with it again. I want to look at the case involving Facebook. The fellow who had a $1 billion judgment against him by Facebook for spamming, basically turned it into a media extravaganza for himself. He was on all the national television networks as a result of it. He laughed at Facebook. Facebook spent a huge amount of money on lawyers and chasing him down to get this $1 billion settlement and he just declared bankruptcy. If we are dealing with the likes of that fellow and other people like him, how in the world will we be able to deal with them by passing this type of legislation? Let us take a look at what is being contemplated in this bill in terms of enforcement.

I do not have any complaints about it. It is a good idea to look at consent orders. However, we can always be suspicious of regulators who deal with consent orders because they may show favouritism to their friends or may not fine people who should be fined. People who co-operate and people the regulators like will get a consent order and a cease and desist order but no fine. People not in their favour may get fined.

Nevertheless, let us assume for a moment that consent orders are a good idea and will solve a lot of problems. If the consent order does not work, the backup is a $1 million maximum penalty for individuals and $10 million for corporations. That is not bad but I do not know of any corporation that can afford a $10 million fine that will be guilty of spamming in the first place. These big companies have lawyers. They know the law. They will not be spamming in the first place.

Who we will have spamming are offshore people, people who are hard to catch, people who do not have any assets or people who hide their assets. A consent order will not stop them. Fines will not stop them. It seems to me that only a jail sentence will put the skids on some of these people--