Let me add my thanks to the honourable member for preserving me from the hot seat.
We did look at the question of investment when we were developing the legislation. There were a number of concerns, not so much with the mental element that has just been raised by the honourable member, but with the question of referring to the word “investment” in the statute because it's not a term of art in criminal law. We would then have had to define it, and it could have been quite difficult to define.
There are a number of other questions. If it's not that distinctive or it's not defined, potential charter issues could arise. There are also division of power issues that could potentially arise. Obviously under the Constitution, criminal law is a matter for the Parliament of Canada, property and civil rights is a matter for the provinces, and criminalizing investment is on the boundary, so there could be federal-provincial issues. We didn't look into that in a lot of detail but we would have to do that to advise on the constitutionality of the amendment.
Over and above that, on the question of the mens rea or mental element that was referred to by the honourable member, when we use the language that we use in clause 6 and again in clause 11 of the bill, clause 6 paragraph (f), I believe, in the case of aiding and abetting, we specifically incorporated the language from section 21 of the Criminal Code, which takes with it all the case law. There are a number of cases, in particular a Supreme Court decision in the case called Dunlop and Sylvester that says that the mental element for aiding and abetting is the intention to assist someone in committing a criminal offence and knowledge that the offence is being committed, which I think is more or less the language of the proposed amendment.
The risk of using different language to accomplish the same objective in this statute as in the Criminal Code is that the courts will assume that if you use different language that you intend a different meaning and they will probably go looking for a different meaning and we're not really able to predict exactly what that meaning would be.
Thank you, Mr. Chairman.