Evidence of meeting #37 for Procedure and House Affairs in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site.) The winning word was move.
A video is available from Parliament.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
I recall that, now that you've brought it up.
The reason I asked that.... It's one thing for the CRTC to retain records in their own shop, but then if they're destroyed, they're destroyed. If, however, they're archived and can be accessed in case there were some need to go back.... It's kind of an important consideration.
Does anyone know?
NDP
Craig Scott NDP Toronto—Danforth, ON
No. Beyond the fact that I'm worried that whatever the archiving policies are, at least as long as we know that their own voter contact registry, which is called a live archive, has the documents for at least seven years....
The reason I'm insisting on it is that indeed you're correct. I think I mentioned that the CRTC representative said seven years, but don't quote me on that kind of thing. Then when we received the written reply there was no specification, it just said, “See this link for government policy on retention”.
To me that was enough. If seven years was the sense, seven years makes sense anyway, but also I have to say policies can change. So by having it in the act...and it doesn't preclude keeping things longer, if the government policy is that you have to keep it for 10 years and then you archive forever. This just says at least seven years.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Before you call a question I'll see if I can get the attention of my colleague Mr. Reid so he can participate with us.
Conservative
The Chair Conservative Joe Preston
I would have spoken slowly at that point.
We will have a recorded vote on NDP-41.
(Amendment negatived: nays 5; yeas 4)
We are on NDP-41.1.
NDP
Craig Scott NDP Toronto—Danforth, ON
I'm going to have to say that was my best shot for one that I thought the government would be going with us on.
Maybe this one....
At the top of page 44—I will be moving this obviously, 41.1, to amend 348.15, which reads in part:
disclose to the Commissioner any document or information that it received under this Division that the Commissioner considers necessary for the purpose of ensuring compliance with and enforcement of this Act, other than this Division.
This amendment is simply a way of replacing the word “necessary” with “relevant”, “that the Commissioner considers relevant for the purpose of ensuring compliance”.
I'm worried that the standard of necessity is unnecessarily high. I'm reminded that the word preceding it is “considers” so it really should not be something second-guessed by the CRTC. If the commissioner says to them, “I consider this necessary” that really should be the end of it. Nonetheless, the commissioner will internalize this standard and “considers necessary” is higher than “considers relevant”.
To be enforceable this system depends completely on the link-up between the CRTC and the commissioner, because the CRTC's role, apart from being a recipient, is actually very limited and our colleague from Privy Council mentioned this earlier about how very little the CRTC does on some aspects of this.
I think giving the easiest possible access to these documents and information should be a priority. Where it says, “the Commissioner considers necessary”, it should be “the Commissioner considers relevant”.
Conservative
The Chair Conservative Joe Preston
So we're changing the word from “necessary” to “relevant” in NDP-41.1
I'm calling the vote.
NDP
NDP
Craig Scott NDP Toronto—Danforth, ON
Okay, so I will move NDP-41.2. It's an insertion at the top of the page, adding some provisions to the.... The section that I just spoke about was the duty of the CRTC to disclose when the commissioner asks for information on this necessity standard.
There is nothing in the amendments on creating this automated call and live-voice call system with the CRTC. There's nothing that states any affirmative duty on the part of the CRTC to alert the commissioner, if, for some reason, a suspicion or a pattern of some sort seems to be revealed that some employee who's involved in or charged with this division notices.
One reason this is important, to go back to an analogy between the relationship between the Chief Electoral Officer and what will be the now moved commissioner in the DPP.... Sheila Fraser appeared and said that unless you specifically provide the mechanisms for sharing, then you have to make sure that somewhere else in the law there are provisions for proactive sharing by the agency. If not, there could be this weird gap.
Now, if it turns out that there are existing rules under the CRTC where they do have some kind of duty to alert the commissioner, then I wouldn't have any problem, but I've not been able to find any such rules, and I'd much prefer, again, that it's all cleanly part of the same regime in the act.
What this says is that the CRTC shall inform every employee whose work is related to this new voter contact registry system, that “if her or she suspects an offence under any provision of this Act has been committed, he or she has a duty to inform a designated Canadian Radio-television and Telecommunications Commission official.” Through that official, obviously, the CRTC shall then, upon receiving that information, “refer the matter to the Commissioner for investigation.”
It's just a neat mechanism. That's neat in the sense of clean, not neat in the sense of cool. It may be both—
NDP
Craig Scott NDP Toronto—Danforth, ON
It's to ensure that there is some kind of a proactive duty, and then a mechanism to link the commissioner up. Because otherwise all we're left with is the commissioner, through other information, knowing whether, and what, and when to ask for things. Then and only then is the duty triggered to give him anything.
So this again I have to say, folks, is one of the weaknesses, gaps, potentially only small, potentially very large loopholes in the way this regime has been drafted, from my perspective.
Conservative
NDP
NDP
Craig Scott NDP Toronto—Danforth, ON
Thank you, Mr. Chair. I will move this, NDP-42.
This one very simply states, as I read it:
This Part applies to any calling service provider, whether it is located inside or outside Canada.
This is, to use not too fancy a language, an extraterritorial application clause. I would say I could well have worded it as for greater certainty, because in certain aspects, the CRTC, like any agency, has developed ways in which its rules can apply to actors calling into Canada, etc. But the fact of having this specifically stated is important because the general rule of interpretation of Canadian legislation, in the criminal realm especially, is that our criminal laws and our offence laws apply territorially, unless it's clear that they are intended not to.
“Territorially” can be extended interpretively to include connections and links that start somewhere and end up in Canada, and obviously calling would be like that. But there are all kinds of ways one can imagine that offshore activity, where calling service providers, whether illicit or not—but those who are being hired, say, by a political party or a candidate—can be sitting outside Canada. My understanding from recent information is that more and more calling service providers in Canada now have branch plants, not to say that they've necessarily moved entirely from Canada.
One of the worst scenarios would be that somehow or other, we end up with confusion after this enters into place, into force, about whether or not the CRTC can just creatively interpret the whole thing to apply to external calling service providers. But there is absolutely no doubt by virtue of putting this in.
So every single obligation that any calling service provider has under here, specifically applies to calling service providers outside of Canada by virtue of this clause, and that's what I'm intending.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
I think I got what Craig was saying but I'll be quite honest, I'm not quite sure. I'd like to get the PCO people to give an opinion on this one.
Director, Democratic Reform, Privy Council Office
In general, there can still be territorial jurisdiction in Canada over an offence where part of that offence happens in Canada. So in the case of calls, for example, the person receiving the call would be in Canada, and that would form part of the offence, so the territorial principle would still apply. In the example that was given, for example if a party has entered into an agreement with a calling service provider outside of Canada, there would be jurisdiction over both if there was an issue there for enforcement, and obviously the party would be there, in Canada, to enforce against as well.
So, in our view, there's not a gap here, and for greater certainty it can create problems if it creates an inverse inference for other clauses, such as offences. So if we're being specific here, there could be issues for negative interpretations elsewhere.
Conservative
NDP
David Christopherson NDP Hamilton Centre, ON
Would the same provisions apply if there wasn't a Canadian-based headquarters at all, that is, they contracted with a non-Canadian entity so there's no Canadian presence? Would everything you said still apply?
Director, Democratic Reform, Privy Council Office
I believe it would. The CRTC gave examples where they had presented notices of offences against calling service providers outside of Canada. But in the case of the fair elections act, the political entities or the third parties would have to be Canadian, or connected to Canada somehow.
NDP
David Christopherson NDP Hamilton Centre, ON
Ah, so it wouldn't apply. They could only use one that has a Canadian base to start with.
Director, Democratic Reform, Privy Council Office
Well, the party that would be entering into an agreement with the calling service provider would be.