Bill C-8 (Historical)

Combating Counterfeit Products Act

An Act to amend the Copyright Act and the Trade-marks Act and to make consequential amendments to other Acts

This enactment amends the Copyright Act and the Trade-marks Act to add new civil and criminal remedies and new border measures in both Acts, in order to strengthen the enforcement of copyright and trade-mark rights and to curtail commercial activity involving infringing copies and counterfeit trade-marked goods. More specifically, the enactment
(a) creates new civil causes of action with respect to activities that sustain commercial activity in infringing copies and counterfeit trade-marked goods;
(b) creates new criminal offences for trade-mark counterfeiting that are analogous to existing offences in the Copyright Act;
(c) creates new criminal offences prohibiting the possession or export of infringing copies or counterfeit trade-marked goods, packaging or labels;
(d) enacts new border enforcement measures enabling customs officers to detain goods that they suspect infringe copyright or trade-mark rights and allowing them to share information relating to the detained goods with rights owners who have filed a request for assistance, in order to give the rights owners a reasonable opportunity to pursue a remedy in court;
(e) exempts the importation and exportation of copies and goods by an individual for their personal use from the application of the border measures; and
(f) adds the offences set out in the Copyright Act and the Trade-marks Act to the list of offences set out in the Criminal Code for the investigation of which police may seek judicial authorization to use a wiretap.
The enactment also amends the Trade-marks Act to, among other things, expand the scope of what can be registered as a trade-mark, allow the Registrar of Trade-marks to correct errors that appear in the trade-mark register, and streamline and modernize the trade-mark application and opposition process.

Combating Counterfeit Products Act

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Mr. Speaker, I would like to specify that I will be sharing my time with the hon. member for Terrebonne—Blainville.

Before I begin my speech, I would like to wish everyone a Happy Vietnamese New Year. Tet is the start of a new year and, according to the lunar calendar, this is the year of the horse. In Vietnamese, we say, “chúc mung nam moi”.

Now back to Bill C-8. Counterfeiting is a crime that harms legitimate trade. It puts the health and safety of Canadians at risk, as we have just heard. Counterfeiting is when a recognized trademark is put on a fake product in the hopes of fooling clients and businesses.

In recent years, counterfeit products have caused serious injuries. There were batteries that exploded and caused burns, drugs that had very dangerous side effects, and toys that injured children. In addition, there are clothes that are made with materials that are dangerous to our health and substandard coat linings that cause skin disease, for example.

The proportion of counterfeit products that are dangerous to our health is on the rise. In 2005, the proportion was 11%; however, it is now 26%. Canadians should not have to take risks when buying imported products.

Counterfeiting also has a devastating effect on businesses, especially small and medium-sized businesses. Our small and medium-sized businesses invest their creativity and their resources in the development of unique, reliable and competitive products. When counterfeit goods enter the Canadian market, they cause serious damage to businesses, and small and medium-sized businesses do not always have the means to take the counterfeiters to court.

The value of counterfeit goods seized by the RCMP has risen from $7 million to $38 million over the past seven years. The OECD estimates that the value of counterfeiting worldwide is approximately $250 billion a year. China is the main source of counterfeit goods. In 2011, 80% of counterfeit goods came from China, and that trend is on the rise. The United States is the second-largest source.

We hope that Bill C-8 will help reduce the amount of counterfeit goods in Canada. The bill basically aims to strengthen the fight against counterfeiting by amending the Copyright Act and the Trade-marks Act. In fact, the bill will add two new criminal offences under the Copyright Act for possession and exportation of counterfeit goods. Furthermore, it also creates offences for selling or offering counterfeit goods on a commercial scale. It also prohibits the importing of counterfeit goods, while creating two exceptions: the first exception is products imported for personal use, given that people do not always know when something they buy outside Canada is counterfeit, and the second has to do with items in transit control, that is, goods that are passing through Canada on their way to their final destination.

Bill C-8 also gives border officials new powers to intercept infringing copies. Thus, they will no longer have to wait for a court order, which makes a lot more sense. The Canada Border Services Agency and the Minister of Public Safety will also be able to share information on detained goods with copyright holders. These tools will help fight counterfeiting.

However, it is of the utmost importance that we have the resources to enforce the law. The Conservative government has made major cuts to border services. Contrary to what the parliamentary secretary said earlier, approximately $143 million in cuts will be made, resulting in the loss of 549 full-time jobs between now and 2015. That is quite significant given that the border between Canada and the United States is almost 9,000 km long.

The Franklin border crossing in my riding was closed in 2011. Border guards and RCMP officers came to see me immediately to tell me how concerned they were because the smuggling of tobacco, drugs and weapons across the border is a major problem. Now that the RCMP and border services have fewer resources, it is becoming increasingly difficult for them to keep Canadians safe. Border guards and RCMP officers are being given more responsibilities and fewer resources, making it even harder for them to protect Canadians from counterfeiting and maintain border security.

Let us not forget that Bill C-8 will require customs officers to analyze the products entering and leaving the country to determine whether they are counterfeit copies and whether they fall under one of the exemptions. In the case of counterfeit goods, customs officers will have to detain the goods, store them and contact the rights owners. They will have to take care of all that in addition to doing their regular duties.

One has to wonder whether the Canada Border Services Agency will have the means to implement the law without compromising its other responsibilities, which are to protect Canada's borders and keep our country safe.

The president of the Customs and Immigration Union, Jean-Pierre Fortin, had this to say about the cuts to the Canada Border Services Agency:

These proposed budget cuts would have a direct and real impact on Canadians and our communities across the country: more child pornography entering the country, more weapons and illegal drugs will pass through our borders, not to mention terrorists, sexual predators and hardened criminals.

Experienced people are concerned. How can the government ensure that all of the measures proposed in Bill C-8 are funded without affecting other surveillance services? The government refuses to comment on this, despite all of the questions we asked about it in committee.

The other major issue is the lack of data on counterfeiting in Canada. We do not know the magnitude of the problem. All we have are statistics on actual seizures. We do not have any information about what type of goods are being counterfeited and where they come from. We do not have any information on all of the counterfeit goods that are on the market.

The Canadian Intellectual Property Council believes that the Canadian system does not have the tools to track cases detected and report them to the authorities. European border authorities must publish statistics but, in Canada, the Border Services Agency is not mandated to report infringements of intellectual property rights.

In committee, when we asked the RCMP whether they had an idea of the number of Canadian manufacturers charged with importing or exporting counterfeit goods, the federal policing superintendent replied that he did not have any statistics in that regard.

In fact, the RCMP's police information retrieval system does not track enough information to provide a clear picture of the number of counterfeit goods imported or exported.

In 2007, a report by the Standing Committee on Industry, Science and Technology recommended that the government establish a reporting system that would track investigations. It is difficult to tackle this problem without the facts and the exact figures.

How can we measure progress after we implement this law without a baseline? Let us be realistic. Without funding for tracking counterfeiting and without a team of experts to manage border measures, the legislation will have very mixed results.

The NDP attached a dissenting opinion to the committee's report on its study of the bill. We are calling on the government to consult with consumer associations and industry. We would also like customs officers to have the powers they need to do their jobs while ensuring compliance with civil liberties and usual procedures. We are also asking that the agency be provided with sufficient funding, it goes without saying, to fight counterfeiting and continue doing the work it does every day.

In conclusion, the NDP supports the fight against counterfeiting. Our approach respects both copyright holders and citizens. We are also pragmatic. We know that if we pass a law but do not allocate the necessary resources to enforce it, the outcome will be poor. Fighting counterfeiting effectively without taking away from other border control activities means providing the appropriate resources to the relevant authorities.

The government must also stop cutting front-line officer positions. The number of full-time jobs has been reduced by 549.

We have also taken a very close look at Bill C-8 in committee, and we believe that it does not compromise Canadians' basic rights. The bill does not include censorship, does not criminalize travellers, and does not cover goods in transit.

However, there must be conclusive evidence and follow-up on analyses. Most importantly, the government must provide adequate human and financial resources to our border services and RCMP officers.

[Mike Lake, Conservative, Parliamentary Secretary to the Minister of Industry]

Mr. Speaker, it is a privilege to rise today to speak to Bill C-8, the combating counterfeit products act. I am happy to say that the bill passed through the Standing Committee on Industry, Science and Technology with all-party support. The committee heard many witnesses and introduced a number of amendments that improve this important piece of legislation.

However, before I speak to the particulars of Bill C-8, allow me to remind the House of the important measures that our government has already taken and will continue to take to support Canadian consumers. In the recent Speech from the Throne, the government committed to taking strong action to protect consumers and families that is aimed at lowering prices, enhancing access and choice, and ensuring fair treatment.

The modernization of our intellectual property laws has also brought real benefits to consumers. Last year, Canada's long-standing copyright laws were updated and brought into the 21st century through the Copyright Modernization Act. The amended copyright act allows for legitimate and commonplace actions by Canadian consumers to be protected under copyright law. Canadians no longer have to be concerned about the legalities of time shifting television programs on their personal video recorders, transferring music from their CD collection to their MP3 player, or remixing music or videos for non-commercial purposes and sharing it on social media. By enacting the Copyright Modernization Act, the government listened to the concerns of Canadian consumers and provided them with legitimate protection for their actions. Canada now has a modern copyright regime that will play a critical role in protecting and creating jobs in Canada's digital economy.

It is the resolve of our government to continue to bring forward legislation that empowers Canadian consumers and instills confidence in the marketplace.

It is in this spirit that I will speak to Bill C-8, which addresses the real need for protection against allowing counterfeit goods to enter Canada. By reducing the trade in counterfeit goods, the bill would help protect our economy, support innovation, and benefit both businesses and consumers. For years, Canadian stakeholders in the business community have been seeking improvements to our intellectual property laws in order to better tackle the problem of counterfeiting and piracy. They have told us repeatedly that Canadian brands and works are being copied and taken advantage of, causing hardship not only to legitimate businesses but also to Canadian consumers.

Let me reiterate: counterfeit trademark goods are not only harmful to the economy, but they are often made without regard to Canadian health and safety standards which could harm consumers and their families. How so? Consumers could inadvertently buy counterfeit products that look like the real thing but could cause significant harm. For example, witness testimony at the industry committee mentioned several dangerous products. The CSA group talked about counterfeit circuit breakers found in a hospital in Quebec that were supplying power to life support equipment. Committee members were shown a video of a counterfeit circuit actually exploding under conditions that simulated normal electrical use. The International Trademark Association mentioned counterfeit food, medicines, and automotive parts. Canada Goose explained that the stuffing in counterfeit versions of their jackets are, at best, of very low quality, and at worst, not sanitary.

It is easy to see how these types of goods could present serious health and safety issues for anyone who would encounter them. Canadians who spend their hard-earned dollars to buy what they believe are high-quality products backed by a brand name are furious when they learn that they have been deceived.

Bill C-8 is our government's response to this problem. It amends the Trade-marks Act and the Copyright Act to provide new tools for rights holders, border officers, and law enforcement to better fight this issue. Most importantly, it puts in place strong measures to protect Canadian consumers and their families from the threat of counterfeiting.

Allow me to explain how the bill would provide for a stronger border regime, new civil causes of action, and new criminal offences. First, the bill gives copyright and trademark owners additional tools to protect their intellectual property rights at the border. Importantly, Bill C-8 provides border agents with the authority to temporarily detain suspected shipments and the ability to verify their suspicion with rights holders. Under the new system, rights holders would be able to file a request for assistance with the Canada Border Services Agency, asking for border officers' help in detaining suspected counterfeit or pirated goods. Allowing trademark and copyright owners to exercise their rights at the border means fewer shipments of counterfeit and pirated goods into the Canadian market, to the benefit of businesses, consumers, and their families.

Second, with regard to civil infringements, Bill C-8 adds a series of activities to the existing civil causes of action in the Trade-marks Act. Currently, trademark owners can only pursue a civil action against a counterfeiter when a good is being sold.

Bill C-8 fills important gaps by making it a civil infringement to manufacture, possess, import, export, or attempt to export counterfeit goods for commercial purposes. By targeting activities that occur earlier in the supply chain, the bill helps rights holders keep counterfeit goods out of the Canadian market and out of the hands of unsuspecting Canadian consumers.

Not only does this bill add new civil causes for activities prior to sale, it also targets the practice of shipping labels separately from goods in order to avoid detection. Bill C-8 adds specific provisions against manufacturing, possessing, importing, exporting, and attempting to export labels or packaging that are destined to be associated with counterfeit goods. This measure protects consumers from counterfeiters who may apply counterfeit labels to goods here in Canada in an attempt to avoid getting caught.

To summarize the civil measures, Bill C-8 equips rights holders with improved tools to assert their trademark and copyright in a civil context.

In recognition of the fact that counterfeiting is an unlawful act, the bill adds new offences to the Trade-marks Act for selling, manufacturing, causing to be manufactured, possessing, importing, exporting, or attempting to export counterfeit goods on a commercial scale. The new criminal offences also cover services, labelling, and packaging. This is important because law enforcement knows that criminal groups are involved in the production and distribution of counterfeit goods. These groups forego safety regulations, certifications, and quality controls in order to maximize profits. They simply do not care about the health and safety of consumers. For these groups, counterfeiting is just another profitable line of business. The new criminal offences will give law enforcement agencies additional important tools to fight against serious and organized crime. They will help us keep those goods off the market and help protect Canadian families.

All of the measures I have just outlined pertain to sale for commercial purposes. That is the focus of Bill C-8 and of law enforcement authorities. In this way, Bill C-8 will protect consumers and their families from the threat of counterfeit goods by reducing the presence of these goods in the Canadian market.

In addition, Bill C-8 provides a specific exception at the border for individuals importing or exporting counterfeit or pirated goods intended for personal use when these goods are in their possession or personal luggage. Simply put, Canadians may cross the border with counterfeit goods or pirated copies for personal use. However, let me be clear. Every person who supports counterfeiting at any level hurts the Canadian economy and risks his or her health and safety.

As I mentioned earlier, there is also a possibility that counterfeit goods and pirated copies are connected with organized crime, which often profits from the sale of counterfeit goods.

The measures in this bill are designed to help federal agencies and rights holders target their efforts to confronting criminals who gain commercially from the sale of these goods. This is the balance that the government has achieved with this bill. If we want to target those who profit from counterfeiting and piracy, we have to put our efforts into stopping commercial activities relating to counterfeiting and piracy, not in stopping individual Canadians who may inadvertently carry a counterfeit good in their luggage.

Another area where this bill achieves the right balance is with regard to the respective roles of the state and rights holders in the fight against counterfeiting and piracy. Trademarks and copyrights are private rights. We believe that the trademark and copyright owners have an important role to play in defending these private rights. That said, the government also plays a key role in keeping unsafe products out of the Canadian market and in stopping serious and organized crime.

With Bill C-8, the government puts in place a framework that allows trademark and copyright owners to protect their rights more efficiently at the border and within the country. For example, rights holders will have the ability to file a request for assistance with the Canada Border Services Agency. This will allow rights holders to receive information from border officers about shipments suspected of containing counterfeit or pirated goods, allowing them to pursue remedies under the Trade-marks Act or the Copyright Act.

Rights holders who choose to file a request for assistance will be asked to assume the costs of storage and destruction of counterfeit and pirated goods. For its part, the government will continue to play a leading role in stopping goods that present health and safety issues or that are linked to criminal activities. Border officers will continue to refer these goods to the RCMP and Health Canada as appropriate.

In my introduction I mentioned the work of the Standing Committee on Industry, Science and Technology, as we reviewed Bill C-8 for several weeks. In particular, I would like to highlight a number of substantive amendments that were adopted by the committee that will clarify and improve the application of Bill C-8, while keeping with the balance I alluded to earlier to help better achieve outcomes for Canadians.

First, the bill was amended to clarify that rights holders can use information obtained from border officers about suspected shipments to seek out-of-court settlements. Such settlements are part of the process of pursuing remedies under the act. They would enable rights holders to assert their rights in a cost-effective manner.

Second, the knowledge requirements of the new criminal offences introduced in the Trade-marks Act were found to be unnecessarily high, which in turn meant a low probability of successful prosecution.

If we want the bill to provide an effective deterrent for counterfeiters, we have to make sure that criminal offences can be prosecuted. The amendments introduced at the committee achieve this goal by requiring the crown to prove that the accused knew that he was copying a trademark and that he did not have the consent of the trademark owner to do so. The criminal offences will continue to apply only to activities on a commercial scale and only to registered trademarks.

The third amendment introduced at the committee stage concerns the definition of “distinctive” in the Trade-marks Act. Some witnesses expressed concerns about changes in the wording of the definition. These changes were meant only to modernize the language, and there was no intention of changing the meaning of “distinctive”.

The committee moved to replace the expression “inherently capable of distinguishing” with the expression “adapted so to distinguish”, which is currently found in the Trade-marks Act. This amendment alleviates the concerns of stakeholders and removes any risk of costly and unnecessary litigation associated with the reinterpretation of the new definition.

The final amendment I would like to mention concerns the new civil causes of action in the Trade-marks Act. Originally, the bill's new civil causes of action for manufacturing, possessing, importing, exporting, and attempting to export only applied to the goods and services for which the trademark was registered. In contrast, the existing causes of action for selling or distributing apply to all goods and services that could be confused with a registered trademark, whether or not the goods and services are on the trademark register. The committee's amendment ensures that both the existing and the new civil causes of action have the same scope of application.

Bill C-8, as amended by the industry committee, is further proof that our government is focused on protecting consumers and their families. By keeping unsafe products out of the hands of unsuspecting consumers, it would enhance consumer confidence in the marketplace and would help legitimate businesses in the fight against counterfeiting and piracy.

I would urge all members of the House to support the bill and refer it to the Senate as soon as possible to ensure that Canadian rights holders, customs officers, and law enforcement have the tools they need to fight counterfeiting and piracy domestically and at our borders.

The House proceeded to the consideration of Bill C-8, An Act to amend the Copyright Act and the Trade-marks Act and to make consequential amendments to other Acts, as reported (with amendments) from the committee.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, first let me wish you and everybody else a happy new year.

This afternoon, we will continue the NDP's opposition day. Tomorrow, we will consider Bill C-8, the Combating Contraband Products Act, at report stage and third reading. Should we need to call a second bill, we will resume debate on Bill C-2, the Respect for Communities Act, which went through its seventh day of debate on Monday.

Monday and Tuesday shall be the third and fourth allotted days. Wednesday and Thursday, we plan to continue the second reading debate on Bill C-20, the Canada-Honduras Economic Growth and Prosperity Act.

As for the invitation from my friend, I certain would not want to tread upon the very important responsibilities of the whips, and I am sure they will carry out those discussions among themselves.

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I want to first start by thanking the House staff, you, and all members of the House for indulging Tuesday night in going through 284 virtually identical amendments from the opposition with regard to that budget implementation bill, all of which simply required deletion. Fortunately, those were reduced by the Speaker to some 16 to make the process more manageable. That did help us to advance the process, notwithstanding the clear efforts by the opposition to obstruct at every stage our very important economic action measures for the benefit of Canada's economy, for job creation, and economic growth for Canadians.

First let me thank all parties in the House for their co-operation on that. This afternoon we will continue and finish the second reading debate on Bill C-15, Northwest Territories Devolution Act. If we wrap it up before 5:30 p.m., we will return to the second reading debate of Bill C-11, Priority Hiring for Injured Veterans Act.

Today, all parties in the House worked together to pass—at all stages—Bill C-16, the Sioux Valley Dakota Nation Governance Act. Perhaps this is a sign of the Christmas spirit spreading throughout the parliamentary precinct. I hope it will continue into tomorrow and next week.

Tomorrow, we will have the third reading debate on Bill C-4, the Economic Action Plan 2013 Act, No. 2.

As I told the House on Tuesday, the budget implementation bill has a number of very important measures that our government has advanced. Unfortunately, once again we find the NDP opposing it, despite such things as the extension and expansion of the hiring credit for small business, which has the potential to benefit an estimated 560,000 employers and many thousands of employees they might hire into the future. That is something the NDP is voting against. We think it is important that it be put in place right away.

Monday will be the final allotted day of the autumn, which will see us consider a proposal from the New Democratic Party, followed by the supplementary estimates and a supply bill.

During the remaining time available to us next week, I hope to see the House adopt second reading of Bill C-15, if that does not happen today; second reading of Bill C-3, the safeguarding Canada's seas and skies act; and report stage and hopefully third reading of Bill C-8, the combatting counterfeit products act, which was reported back from the hard-working industry committee this morning.

Consumer Protection

[Devinder Shory, Conservative, Calgary Northeast, AB]

Mr. Speaker, supporting and protecting Canadian families is a priority for our government, and that is why we have taken measures to protect Canadian consumers from harmful knock-off products by introducing the combating counterfeit products act.

Canadians should feel confident that the brands they buy are the real deal, not a wheel and deal. Can the Minister of Industry please tell this House what our government is doing to help protect Canadian families from counterfeit products that could be harmful to their health and safety?

Industry, Science and Technology

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Mr. Speaker, I have the honour to present, in both official languages, the first report of the Standing Committee on Industry, Science and Technology in relation to Bill C-8, an act to amend the Copyright Act and the Trade-marks Act and to make consequential amendments to other Acts. The committee has studied the bill and has decided to report the bill back the House, with amendments.

I also have the honour to present, in both official languages, the second report of the Standing Committee on Industry, Science and Technology in relation to the supplementary estimates (B) for the fiscal year ending March 31, 2014.

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

Thank you, Mr. Chair. I appreciate that.

I'm not suggesting that by inserting the new offences under Bill C-8 into the Criminal Code we've reduced the threshold for obtaining a wiretap, but what we've done is insert an offence that is at this point still vague. It could, on my reading, and also that of a number of lawyers who would like to have testified to the committee—taking Ms. Charlton's point—but weren't invited.

In particular I've been in touch with Howard Knopf of Perley-Robertson. He was involved as counsel in at least part of the Laurier Office Mart case, where a very minor offence, something like 332 dollars' worth of photocopying, ended in a costly court battle, particularly costly to the small family business that was involved.

Those kinds of offences could be caught under this provision to allow wiretapping.

I'd further submit that because government amendment G-7 has changed the threshold of mens rea to make it clearer that a person—and I think it was a good amendment. I thank the government members for bringing in G-7. But with the provision of G-7, to make it clear that a person actually has to have known that what they were doing was an offence, as opposed to knowing the particular sections of the act, and so on, we've reduced the threshold of mens rea. It even reduces further the need to treat this as a proper case for needing the investigative tool of wiretapping.

You would think English wasn't my first language, Mr. Chair.

I am a bit tired.

That said, I think this provision is one too many.

We don't need it. It inserts wiretapping opportunities where law enforcement won't need it, and the nature of offences could include very trivial offences, such as in the Laurier Office Mart case.

[Paul Halucha]

The amendment seeks to limit the tools available to the police who are investigating offences under the Copyright Act. As a result, the RCMP would be unable to seek judicial authority to conduct a wiretap as part of a criminal investigation involving the production of, for example, thousands of infringing DVDs, Blu-rays, or CDs for commercial distribution.

As indicated in earlier testimony before the committee by the RCMP, organized crime groups are diverse, and investigations normally involve many forms of contraband. The amendment would also create a differential treatment regarding the tools available for law enforcement investigations of copyright and trademark counterfeiting crimes.

Ms. May listed a number of the high crimes in the Criminal Code that are found in those provisions around wiretapping. I haven't done a formal count, but I think it's in the range of 150 to 200. Many of the provisions, which are quite close to the criminal provisions being created through Bill C-8 for copyright and trademarks, are already included in the Criminal Code, for example, forgery, theft, fraud, uttering or making counterfeit money, and smuggling. So there is an analogous set of offences that are in the act.

The proposal in Bill C-8 is effectively to add the two new criminal offences. I'll be clear that no civil offences are being added into the Criminal Code.

With regard to the issue of safeguards, which was raised, there are no new safeguards added in Bill C-8 regarding wiretapping. The safeguards are actually quite comprehensive and are already spelled out in the Criminal Code. There's no narrowing or expanding of wiretap provisions as a result of Bill C-8. In the act, we've established new criminal offences for trademark violation and, on the criminal side, for copyright, and in both cases, we're simply providing the RCMP with a warrant and sufficient evidence, with all of the safeguards in the Criminal Code in place, so that with a judge's concurrence they can seek a wiretap. This is undertaken in extraordinary circumstances. The RCMP reports publicly on the number of wiretaps it seeks. You can find that on Public Safety's web page. That's done in a very small percentage of overall investigations. I think the numbers range over the last five years from about just over 100 to the low 90s.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Thank you very much, Chair.

I kind of wish we had heard some testimony on this. We heard none, which isn't very helpful to me at this point. I know that some of the clauses in the bill would require that any wiretapping happened with the oversight of the courts. I expect that the court oversight would be balanced. By that, I mean that the courts would account for the exceptions under the Copyright Act in their deliberations. We also know that the Criminal Code already has safeguards in place to protect privacy, including reporting and notification requirements and a limit on the use of powers only as a last resort.

All of that being said, it's still not clear why this measure is required in the context of Bill C-8. No witnesses testified about this, either raising concerns or asking for those kinds of powers.

While those of us on this side of the table support Bill C-8, we do agree that this clause of the bill could have impacts beyond the scope of anything that was presented here at committee. For that reason, I'm going to be supporting amendment PV-1.

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

Thank you, Mr. Chair.

My thanks to all the interpreters.

There are other offences in the Criminal Code that are already on point to copyright, and I'm wondering why Bill C-8 isn't taking those on board rather than having them stuck under this act under which, I'm concerned, some of the offences are rather vague regarding permission to wiretap.

Section 408 of the Criminal Code makes it an offence to forge trademarks or trade descriptions, and section 432 of the Criminal Code speaks to the issue of videotaping in a movie theatre without permission what is on the screen, which is, in other words, pirating films.

Those are sections of the Criminal Code which I think could have been more appropriately used under Bill C-8. From our reading of Bill C-8 and the insertion into the Criminal Code of offences under Bill C-8, we have now an overly broad and ill-defined set of offences that are not inherently criminal, although there are criminal activities under trademark already covered in the Criminal Code, and they would insert lesser crimes into a series of wiretapping capabilities where they don't properly belong.

I think that covers my point, Mr. Chair. Thanks for the latitude so I could speak while breathing.

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

Chair, I am here because you invited me. I'd like to say on the record that I've rarely sat at a committee table where I look around the room and see nothing but friends. I want to acknowledge that I'm grateful to see you all here and that I have nothing but goodwill towards all assembled; however, I need to put on the record that I object to the motion that was passed by this committee and that the so-called invitation to me and other members in my situation amounts to coercion and denial of our rights to put forward substantive amendments at report stage.

That said, I'd like to propose an amendment which I think would be very helpful to this bill. It would be to delete said subclause 59(1), particularly lines 8 through 12, to delete the incorporation of offences under the Copyright Act in section 42 into the Criminal Code, where they would be found in section 183.

To put it simply, Mr. Chair, what I'm objecting to, and what I hope my amendment could correct—and I have a couple of grounds of concern here—is the insertion of essentially a civil offence into a criminal section of the Criminal Code, essentially creating increased opportunities for wiretaps into an offence for which I don't believe wiretapping is appropriate.

Particularly, Mr. Chair, I refer to the Supreme Court decision in R. v. Tse, which identified that electronic surveillance is a last resort, and only in cases of investigative necessity. The way the Copyright Act has been...and these provisions and these amendments we have before us in Bill C-8 incorporate things that are in, I think, a fairly vague swath between private use and commercial scale. In previous conversations on other amendments, we've had discussions about how many Coach purses before you're caught under the act, how many items that you should have known were being passed off in violation of copyright, and so on.

Wiretapping is a particularly invasive mechanism of the state, and inappropriate, as you can see from the kinds of offences that we're now inserting, such as these offences relating to infringement. The act deals at section 183 of the Criminal Code with high treason, sabotage, hijacking, sedition, using explosives, threats, providing for terrorist purposes, hoax—terrorist activity, perjury, and luring a child.

In any case, we're not suggesting that offences under copyright are all right. We're just suggesting that the investigative rights of invasion of privacy of a wiretap offence don't belong there. We also suggest that we don't need to make it a further offence. I wonder if this committee had taken note of other sections of the Criminal Code that already deal with these areas.

I'm surprised that they're not incorporated into Bill C-8, but under section 406 of the Criminal Code, we have making it a criminal offence to engage in forgery of a trademark. We also have, under section 432—and I'm going quite fast because I know I only have a minute—an offence—

[Paul Halucha, Director General, Marketplace Framework Policy Branch, Department of Industry]

Sure.

The effect of the amendment would be to establish a new system of statutory damages, with a mandatory minimum of $1,000 and a maximum of up to $100,000. Statutory damages were not included in Bill C-8, and I would note the following consideration around statutory damages.

The amendment would have the effect of limiting the discretion of judges. Currently, judges have full discretion, based on the evidence provided to them in specific court hearings, to make a determination on what damages are appropriate. I would just quote the Trade-marks Act, which states:

Where a court is satisfied, on application of any interested person, that any act has been done contrary to this Act, the court may make any order that it considers appropriate in the circumstances, including an order providing for relief by way of injunction and the recovery of damages or profits....

Courts are using this discretion now, and we expect that they would continue to do so should Parliament approve Bill C-8.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Yes.

According to the experts we have heard from, I think that adding the damages would disrupt the balance achieved through Bill C-8. In fact, it would be especially harmful for parallel imports and consumer choice. I don't think the experts said to include the damages.

Could the officials tell us something about that?

[Judy Sgro, Liberal, York West, ON]

Mr. Chair, the amendment deals with the statutory damages idea. Witnesses stated that Bill C-8 may result in increased litigation and enforcement actions. Well, if this proves correct, some of Canada's smallest companies or retailers may find themselves in a position where corporate finances dictate the vigour with which they are able to pursue damages. Consequently, inclusion of statutory damages in clause 45 of Bill C-8 may be worthy of consideration. Amendment LIB-6 would accomplish that.

Again, I'm just going back to the issue. We don't have a simplified procedure. We've opted to go a different way. I can understand all of that, but the issue of statutory damages seems to be a logical one, because there's an awful lot of small companies out there that are going to have real difficulty with the lawsuits and the costs, and so on. This is an idea that we've heard from our witnesses and that would help accomplish exactly what it is you're trying to accomplish with Bill C-8, I think, in a more affordable way.

Would the officials like to comment?