I'll start off and provide an overview of what the amendment does. Effectively, the amendment removes the requirement for the crown to prove that the accused knew that the trademark was registered and his or her actions were contrary to sections 19 and 20 of the Trade-marks Act.
This issue was raised before the committee by IPIC on November 6 and by INTA on November 18.
Obviously, in order to be found guilty of having committed a counterfeit offence, you've got to show that there's a mens rea, that it was done knowingly. The two components that are retained are the knowledge that the goods were infringing—it was a counterfeit good—and second, that there was no consent of the rights holders. The third component the amendment proposes to remove is knowledge that the trademark is registered and that it was contrary to sections 19 and 20 of the Trade-marks Act.
INTA and IPIC noted that this puts quite a high burden on the rights holders for them to be able to use the act effectively. We are essentially in agreement with them and are removing what we view as probably the most onerous part of the mens rea, a section that, in reflection, probably put a burden that was not necessary in terms of what the objective of this provision is.