Procedure and House Affairs Committee on Oct. 16th, 2018

[The Chair, Liberal, Larry Bagnell]

Good morning, and welcome to the 124th meeting of the Standing Committee on Procedure and House Affairs.

I would like to welcome Peter Fragiskatos.

I would also like to thank Luc Thériault for being with us again.

Once again, we are pleased to be joined by Manon Paquet and Jean-François Morin from the Privy Council Office as we pick up where we left off with clause-by-clause consideration of Bill C-76, an act to amend the Canada Elections Act and other acts and to make certain consequential amendments. We will resume with consideration of clause 61 and CPC-22.

Stephanie did a good job of presenting the new amendments in order, and Philippe stayed up late last night to put them in order. When we get to a new amendment, I'll be referring to the number as the reference number, which is on the top left. If you keep them in the order you got them in, they'll come up in that order, and I'll tell you when we get to those particular amendments.

Mr. Nater, go ahead.

[John Nater, Conservative, Perth—Wellington, ON]

Thank you, Chair.

I want to inform the committee that, because CPC-2 was defeated yesterday, the Conservative Party will be withdrawing amendments CPC-93, CPC-116 and CPC-148. Without CPC-2, the other ones wouldn't logically flow, so we'll be withdrawing those three.

[The Chair, Liberal, Larry Bagnell]

What are they, again?

[John Nater, Conservative, Perth—Wellington, ON]

They are CPC-93, CPC-116 and CPC-148.

(On clause 61)

[The Chair, Liberal, Larry Bagnell]

Thank you very much. That's helpful.

We're going to start at CPC-22. This one just adds the word “knowingly”, so you can't publish results of an election that are inaccurate. This suggestion is to add the word “knowingly” to that.

Mr. Nater, do you want to say anything?

[John Nater, Conservative, Perth—Wellington, ON]

Thank you, Chair.

I think you explained it exactly. It's maintaining the “knowingly” element, that there has to be knowledge that what you're doing is not appropriate. We'd like to add the word. I think that would be appropriate.

[The Chair, Liberal, Larry Bagnell]

Is there any discussion?

Mr. Bittle, go ahead.

[Chris Bittle, Liberal, St. Catharines, ON]

Excuse me, I believe intent is already required in the offence, so I was wondering if I could ask the officials if this is a redundant section to include.

[Lieutenant-Commander Jean-François Morin, Senior Policy Advisor, Privy Council Office]

Thank you for your question, Mr. Bittle.

This motion would amend section 91 of the act. Section 91 is a prohibition. We're not yet at the offence stage. The offences are in part 19 of the act, so this is the prohibition associated with it.

Although you will see “knowingly” many times in prohibitions in the act, it's often considered bad practice in criminal law to include an intent provision such as “knowingly” in the prohibition itself, especially where there's already an element of intent that is expressed. In this case, we already have two: the intent to affect the election as well as the false nature of the statement.

[Chris Bittle, Liberal, St. Catharines, ON]

It's redundant.

[The Chair, Liberal, Larry Bagnell]

Mr. Nater, did you hear that? He suggested it may not be a good practice to....

Mr. Cullen, go ahead.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

For my own edification, can you clarify that a little bit, Jean-François? If we have other sections of the act that include “knowingly” in terms of a contravention, are you suggesting it's bad legal practice to include this?

[LCdr Jean-François Morin]

Yes, that's why I was saying.... Don't get me wrong. We know that there are other places, other prohibitions in the act where we say “knowingly”, but it's bad practice.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

What's the problem with the practice? A Canadian reading this would say that the infringement is included in that, and that the person knowingly sought to, in this case, mislead on the results of an election.

[LCdr Jean-François Morin]

The “knowingly” is a mens rea element that is associated with the offence. When we try to craft legislation, we want to make sure that every offence that Parliament wants a mental element associated with has at least one of those mental elements—so it's those dual procedure offences versus strict liability offences, which don't have a huge intent criterion.

What I am saying is that in many prohibitions we already have an intent criterion. For example, in section 91 we already have the intent to affect the results of the election, and of course the person making the publication would need to know that the information that is published is false.

We already have two intent requirements here.

[The Chair, Liberal, Larry Bagnell]

Mr. Nater, go ahead.

[John Nater, Conservative, Perth—Wellington, ON]

Thank you, Mr. Chair.

Thank you to our witnesses.

We live in a digital age where people share things on Facebook and retweet stuff. I think that's part of where adding “knowingly” came from. If someone retweets information that he or she sees, is that individual committing an offence simply by retweeting? The individual doesn't know that it's wrong, doesn't do it “knowingly”, so is this an element that we need to be looking at?

[LCdr Jean-François Morin]

Well, we'll get to that when we study part 19 of the act, which includes the offences. However, you will see at this point that all offences that relate to part 6 of the act are offences for which an intent is required, so there are no strict liability offences for part 6 of the act. Every time somebody republishes something on Facebook or on Twitter, if they do so without intent, if they mistakenly believe that the information is true, that would not usually be sufficient to lay a charge. These charges will really be laid when the person knows that the information is false—in the case of section 91, when the person intends to affect the results of the election by making that publication.

[The Chair, Liberal, Larry Bagnell]

Mr. Bittle, go ahead.

[Chris Bittle, Liberal, St. Catharines, ON]

Maybe to simplify it a little bit in terms of how it's structured within the law, if there is intent already in it, you don't want to put another word in there that would deal with it.

For example, with regard to murder, the Criminal Code wouldn't say that you “knowingly murder” someone. There is an expectation of intent already in there, and to add more words and phrases dealing with that may complicate the....

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

There is no presumption of intent if somebody repeats information that is false about an election result or a candidate. However, if somebody knowingly repeats and distributes information and tries to affect the election—that is the outcome of this—that seems to be the difference.

If somebody retweets something that in all good intention they think is accurate, or they're just retweeting for the sake of it, that's one case. However, if somebody is knowingly disseminating information that is wrong.... That's my understanding of this section. That's why I was generally appreciative of this, because it includes that.

I'm looking for the redundancy, and I haven't seen it yet. Repeating something that's wrong is not the problem if you have no intent to do it. If you've had intent to do it, then that's the problem.

[Chris Bittle, Liberal, St. Catharines, ON]

“Knowingly” speaks to the mens rea, the guilty mind element of it, so to put another phrase in when you already have that within the act makes the redundancy.

If you are accidentally doing it, you're not guilty of the offence.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I understand, but I guess I have to go back through that section of the act to find out where the explicit mention of intent is already laid out, and where this then becomes redundant, because I don't have that section in front of me. Is that what I'm missing?

[LCdr Jean-François Morin]

Just give me a second.

[Chris Bittle, Liberal, St. Catharines, ON]

It makes perfect sense to the lawyers; that's the problem.