Evidence of meeting #29 for Procedure and House Affairs in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was threats.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Ned Franks  Professor, Queen's University, As an Individual

12:35 p.m.

Conservative

The Chair Conservative Joe Preston

We'll end that one there, because we're more than a minute over.

Mr. Toone, you have four minutes, but I was pretty good with the other side, so I'll be flexible with you too.

12:35 p.m.

NDP

Philip Toone NDP Gaspésie—Îles-de-la-Madeleine, QC

Thank you so much. Thank you, Mr. Franks, for your interventions. I appreciate the fact that you came here today and I think that it's very useful information.

I don't expect you're going to be able to answer all the questions that are put to you. I don't think that's the role of any witness; if we did find that kind of a witness, our job would be much simpler. If we could find that super-witness who could answer all our questions, we might be able to appoint that person Governor General or something. Until we find that special person, thank you for the interventions you brought us today.

I want to go back to one of the points. You're saying that Parliament is sovereign and can go as far as it likes. In many ways, that's probably true. I am a little concerned, though; this committee is still trying to find its bearing. It's still trying to find out where it should be going next on this. There seems to be a discussion that we could go into a criminal investigative mode at this point, and I'm a little concerned by that. We already have a parallel structure that offers that as an option.

I don't know if this committee should be going forward with that kind of investigation. If it does, and if it came down with a decision or an opinion—and we heard from the minister that there are ongoing investigations—that would mean we would perhaps have a jurisdictional conflict. We would have two separate institutions coming up with two separate conclusions or possible remedies for the same facts. I wonder where that would put us.

Are we sovereign over all other remedies that are possible in this country? Is Parliament above the courts, for instance?

12:35 p.m.

Professor, Queen's University, As an Individual

Dr. Ned Franks

Parliament is a court. We are now in the “High Court of Parliament”. I tried to give an answer there.

On sanctions, if you find that there is a serious breach of privilege of the member and that something needs to be done about it, the sole remedy available to Parliament, as I understand it—and I could be corrected, but I think I'm correct on this—is to find the person, if you can identify him or her, or persons unknown, if you can't, guilty of a breach of the privileges of Parliament.

The sole remedy that the House can do, apart from finding that guilt, is to bring the offending person in front of the bar of the House and condemn that person to arrest. That incarceration can last until the end of the session. Those are the sanctions, but that has not happened in Canada for over 100 years, I believe.

So the remedy is your report, and the House can certainly admonish the person.

12:40 p.m.

NDP

Philip Toone NDP Gaspésie—Îles-de-la-Madeleine, QC

When there are constitutional conventions that haven't been used in a very long time, we tend to believe they've been extinguished. I'm not sure if we would want to go back to a convention that hasn't been used in over 100 years, especially since we have a process that's already available to us. I don't know why we wouldn't avail ourselves of it, so I'm still a little confused.

If we were to hold somebody until the end of the parliamentary session while he was being investigated by the criminal division or the police, who has jurisdiction? I would tend to think we would normally be leaving this to professionals with day-to-day experience, but I think this committee is still trying to find its bearings.

12:40 p.m.

Professor, Queen's University, As an Individual

Dr. Ned Franks

You don't want to get into the double jeopardy issue. If you want to avoid that, then you as a committee can determine that a possible criminal or civil offence has occurred and you can recommend that the House refer the matter to the appropriate authorities, which would be the police forces. You have that power, and I think that's the way it would go. I would rather not see the committee act as a court of law in this, going apart from the conclusions on the issue in hand.

12:40 p.m.

Conservative

The Chair Conservative Joe Preston

I have Mr. Albrecht and Mr. Lukiwski.

12:40 p.m.

Conservative

Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK

Since I think we both have the same question, I'll cede my time to Mr. Albrecht.

12:40 p.m.

Conservative

Harold Albrecht Conservative Kitchener—Conestoga, ON

I don't know if it's the same question or not, but I wanted to follow up on this issue of an offence versus a threat. I want to consider a few excerpts that were posted on the Internet to try to give you a handle on this.

Anonymous tells Minister Toews they're not bluffing, and that they'll give him seven days to reflect upon his personal and political crimes. Anonymous then demands Minister Toews' immediate resignation, as well as the scrapping of Bills C-30 and C-11 in their entirety. They say they “know all about” Minister Toews and threaten to release more information during Operation White North unless he accedes to their demands.

I recognize those are not physical threats, but it appears to me that they are clear threats against our democracy. If a person or a group can threaten to subvert the legislative agenda of any government, is that not a threat?

12:40 p.m.

Professor, Queen's University, As an Individual

Dr. Ned Franks

Yes, it is. On the other hand, if you went back into the history of the Canadian Parliament and the relationships between members of Parliament and the greater public, I wonder if you wouldn't find that threats like this have been a constant at public meetings and in the newspapers and other things.

Now, these threats are exaggerated at the far end of the spectrum. As you quote them, they go beyond the merely offensive into the realm of the fairly serious, but they've always been there, and you can't look at them as unique. The unique thing, to my mind, is the anonymity.

In the past we've known who makes the threats. If somebody at a meeting throws a tomato at a member of Parliament, it's a pretty clear threat, and you know who did it, but the anonymity of the web has added a dimension that was much less important before, and this raises problems.

12:45 p.m.

Conservative

Harold Albrecht Conservative Kitchener—Conestoga, ON

In addition to the anonymity, there is the sheer magnitude of the dispersion of this kind of threatening communication to a large segment of our population. I think this is a crucial issue that we cannot forget.

12:45 p.m.

Professor, Queen's University, As an Individual

Dr. Ned Franks

In the past, police power was often used against the mob. There were many occasions when the state regarded the citizens as the enemy. This is more clear in continental jurisprudence than it is in our British tradition. The ultimate law is the safety of the state. That's an old legal principle—lex ultimus salus populi est.

The state has always had the power, whether it admits it or not, or whether political theory admits it or not, to ensure that the state itself survives. In that sense, an attack on a minister of Her Majesty's government is a threat that I think the state, in the form of Parliament, has to respond to. Surely a basic element of our democracy is the right of elected members to go about their business.

12:45 p.m.

Conservative

Harold Albrecht Conservative Kitchener—Conestoga, ON

Thank you.

12:45 p.m.

Conservative

The Chair Conservative Joe Preston

Mr. Lukiwski, do you want to finish that up?

12:45 p.m.

Conservative

Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK

The question I wanted to get to is quite fundamental. It appears to me quite clear that despite your observations about the minister's musing about you're either with us or with the child pornographers, Anonymous was not reacting to that; they were reacting to the bill. They don't want any bill that might be able to uncover the guise of their own anonymity. They were reacting to Bill C-30. They made no reference in any of their comments to Minister Toews about his musings on either being with us or with the child pornographers.

My question, then, is simply this: do you not believe that the threat was based on the legislation introduced rather than on anything he might have said in an offhanded comment?

12:45 p.m.

Professor, Queen's University, As an Individual

Dr. Ned Franks

I would be astonished if the members of Anonymous would have read that legislation without the attention paid to the original comment by the minister. I confess that I have not read the legislation and I have no opinion about it, but I do ultimately trust Parliament and the courts in this country to establish a boundary in this vexatious issue of what happens on the web, a boundary between what is acceptable under the law and what isn't. We're not there yet. This is a very new and very difficult area, because in some ways the web is private communication between people and in other ways the web is a statement of a public utterance. Sometimes the border is not clear between them.

12:45 p.m.

Conservative

Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK

My final comment would be this, and we won't get into a long conversation because you haven't read the legislation—

12:45 p.m.

Conservative

The Chair Conservative Joe Preston

Good, because we don't have time.

12:45 p.m.

Conservative

Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK

Anonymous not only called for the removal, in its entirety, of Bill C-30, but also Bill C-11, the Copyright Modernization Act. It is clear to me, at least, and I believe to those of us on this side of the table, that there was a threat against the legislation, not against anything else. I think that's the fundamental issue we have to deal with here. There is a group out there trying to prevent a government of the day from introducing and passing legislation.

12:45 p.m.

Conservative

The Chair Conservative Joe Preston

Thank you.

Do you have a quick comment, Professor?

12:45 p.m.

Professor, Queen's University, As an Individual

Dr. Ned Franks

I did look at the legislation. I must confess that I have not memorized it, but I took a great interest in it. I felt that it was a pretty decent piece of legislation, save for that question of when must the government go to the courts for a warrant to intrude into the privacy of communications on the web. That, it seems to me, was the basic issue that still lurks in this legislation and that Parliament is going to have to come back to.

12:45 p.m.

Conservative

The Chair Conservative Joe Preston

I'm going to let a different committee of Parliament deal with that one, Professor.

Thank you very much for your time today. Thank you for coming and sharing with us. It is great to have you here again.

We will suspend for one minute while we go in camera to talk about committee business.

[Proceedings continue in camera]