Evidence of meeting #8 for Industry, Science and Technology in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site.) The winning word was million.
A recording is available from Parliament.
Assistant Deputy Minister, Science and Innovation Sector, Department of Industry
We can certainly provide the number. I don't want to guess.
Conservative
The Chair Conservative David Sweet
Thank you very much, Mr. Stewart.
Thank you very much, colleagues.
I apologize in advance for my long statement, but it's required.
INDUSTRY
Department
Vote 1b—Operating expenditures..........$36,742,410
Vote 5b—Capital expenditures..........$1
Vote 10b—The grants listed in the Estimates and contributions..........$55,051,488
Federal Economic Development Agency for Southern Ontario
Vote 55b—The grants listed in the Estimates and contributions..........$19,830,000
National Research Council of Canada
Vote 60b—Operating expenditures..........$53,939,454
Vote 65b—Capital expenditures..........$1
Vote 70b—The grants listed in the Estimates and contributions..........$6,872,943
Natural Sciences and Engineering Research Council
Vote 75b—Operating expenditures..........$728,509
Vote 80b—The grants listed in the Estimates..........$14,159,739
Social Sciences and Humanities Research Council
Vote 90b—Operating expenditures..........$461,803
Vote 95b—The grants listed in these Estimates..........$6,498,108
Statistics Canada
Vote 105b—Program expenditures..........$36,574,832
(Votes 1b, 5b, 10b, 55b, 60b, 65b, 70b, 75b, 80b, 90b, 95b, and 105b agreed to)
ATLANTIC CANADA OPPORTUNITIES AGENCY
Department
Vote 5b—The grants listed in the Estimates and contributions..........$4,273,621
Enterprise Cape Breton Corporation
Vote 10b—Payments to the Enterprise Cape Breton Corporation pursuant to the Enterprise Cape Breton Corporation Act..........$1,085,000
(Votes 5b and 10b agreed to)
ECONOMIC DEVELOPMENT AGENCY OF CANADA FOR THE REGIONS OF QUEBEC
Vote 1b—Operating expenditures..........$1,184,988
Vote 5b—The grants listed in the Estimates and contributions..........$49,288,977
(Votes 1b and 5b agreed to)
WESTERN ECONOMIC DIVERSIFICATION
Vote 5b—The grants listed in the Estimates and contributions..........$13,673,333
(Vote 5b agreed to)
Shall I report the votes and supplementary estimates to the House?
Conservative
The Chair Conservative David Sweet
Thank you very much. We're going to suspend for a moment and then we'll have a new tranche of officials. I believe that will be at the end and we'll continue on with clause-by-clause study. We'll suspend for five minutes.
Conservative
The Chair Conservative David Sweet
We're back, ladies and gentlemen.
Our great officials who we had yesterday are back. I believe that at the last meeting I was just trying to sneak in LIB-6 when somebody said, “aren't we supposed to adjourn at 5:30”. With that in mind, and making sure we're all on the same page here, we'll go to LIB-6.
Ms. Sgro, did you want to say something to that?
(On clause 45)
Liberal
Judy Sgro Liberal York West, ON
Mr. Chair, the amendment deals with the statutory damages idea. Witnesses stated that Bill C-8 may result in increased litigation and enforcement actions. Well, if this proves correct, some of Canada's smallest companies or retailers may find themselves in a position where corporate finances dictate the vigour with which they are able to pursue damages. Consequently, inclusion of statutory damages in clause 45 of Bill C-8 may be worthy of consideration. Amendment LIB-6 would accomplish that.
Again, I'm just going back to the issue. We don't have a simplified procedure. We've opted to go a different way. I can understand all of that, but the issue of statutory damages seems to be a logical one, because there's an awful lot of small companies out there that are going to have real difficulty with the lawsuits and the costs, and so on. This is an idea that we've heard from our witnesses and that would help accomplish exactly what it is you're trying to accomplish with Bill C-8, I think, in a more affordable way.
Would the officials like to comment?
NDP
Anne Minh-Thu Quach NDP Beauharnois—Salaberry, QC
Yes.
According to the experts we have heard from, I think that adding the damages would disrupt the balance achieved through Bill C-8. In fact, it would be especially harmful for parallel imports and consumer choice. I don't think the experts said to include the damages.
Could the officials tell us something about that?
Paul Halucha Director General, Marketplace Framework Policy Branch, Department of Industry
Sure.
The effect of the amendment would be to establish a new system of statutory damages, with a mandatory minimum of $1,000 and a maximum of up to $100,000. Statutory damages were not included in Bill C-8, and I would note the following consideration around statutory damages.
The amendment would have the effect of limiting the discretion of judges. Currently, judges have full discretion, based on the evidence provided to them in specific court hearings, to make a determination on what damages are appropriate. I would just quote the Trade-marks Act, which states:
Where a court is satisfied, on application of any interested person, that any act has been done contrary to this Act, the court may make any order that it considers appropriate in the circumstances, including an order providing for relief by way of injunction and the recovery of damages or profits....
Courts are using this discretion now, and we expect that they would continue to do so should Parliament approve Bill C-8.
Liberal
Judy Sgro Liberal York West, ON
I have one short question.
Judges have that ability, but small businesses don't know whether they're going to get reimbursed for their expenses. I've got several quotes of cases at the office where $32,000 or $35,000 was spent on litigation and all that was awarded was $3,200, as an example. If small businesses are going to be encouraged to do what's necessary to protect their goods, they have no guarantee that the judge is going to give them anything more than a couple of thousand dollars, and litigation is expensive.
Director General, Marketplace Framework Policy Branch, Department of Industry
I absolutely agree that litigation is expensive.
I'd note as well that statutory damages with a range of $1,000 to $100,000 still would provide judges with discretion, ultimately, to make a determination on the appropriate level of damages. To the extent that there's a cost incurred on a rights holder or small business seeking damages, it’s still at the discretion of the court. It would just be a question of having it limited.
On the other side of it, it could create circumstances where damages could be awarded beyond what is reasonable. This is a hypothetical situation, but you could have a circumstance where one ball cap was the extent of the counterfeit goods. If somebody was taken to court for that offence, then the minimum damages available to the court would be $1,000, which would be beyond what is reasonable.
As well, it's really important that judges would have the full evidence. They would have a much better sense of what the full evidence was in specific circumstances. It would be very difficult for the state to establish statutory damages taking into account all of the different variables that a judge would have in a specific circumstances on specific cases.
Michael Ryan Senior Analyst, Copyright and Trade-mark Policy Directorate, Department of Industry
I would add that, at this point, the courts do have the authority to award those litigation costs as part of the damages. The actual damages pursuant to their trademark has been some set value, but in addition, court costs can be awarded, including those attorney fee costs, as part of that. That also mitigates those costs with respect to pursuing the litigation itself.
Liberal
Judy Sgro Liberal York West, ON
I have one short question to that answer, Chair.
Have you tracked any of those to see how much is being awarded and how small they appear to be?
Senior Analyst, Copyright and Trade-mark Policy Directorate, Department of Industry
We have.
In recent years, within the last year or two years, we've seen a significant increase in the size of damages being awarded by the courts. This includes damages such as punitive damages, so, looking at the bad faith or bad behaviour of the proven-in-court counterfeiters or infringers. We're looking at those types of costs.
As well, courts have looked at the issue with respect to the lack of evidence. In the cases where you're dealing with somebody who doesn't provide records or doesn't maintain records, the courts themselves have instituted a type of damages to accommodate that situation, to address those. While they might demonstrate that they've made efforts with respect to showing their harm, but because of the activity of the infringer those activities or evidence aren't available, courts have been making judgments with respect to those cases as well.
Conservative
The Chair Conservative David Sweet
Thank you very much.
(Amendment negatived)
(Clauses 45 to 55 inclusive agreed to)
(On clause 56—Replacement of “utiliser”, etc.)
We have amendment G-12.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
This is a very technical grammatical change in the French, I believe, so maybe I could get the officials to explain it.
Senior Analyst, Copyright and Trade-mark Policy Directorate, Department of Industry
This is actually a consequence of a previous motion with respect to clause 22 relating to the civil provisions. In this case, we are updating the French language across the board in clause 56, replacing the French term “utiliser” with “employer”. However, because of the modification of the motion previously agreed to, this no longer needs to be applied to section 20 of the Trade-marks Act.
Conservative
The Chair Conservative David Sweet
Thank you very much, Mr. Ryan.
Are there any other comments?
(Amendment agreed to)
(Clause 56 as amended agreed to)
(Clauses 57 and 58 agreed to)
(On clause 59)
We have amendment PV-1. I have a suspicion that's why Ms. May is here.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Chair, I am here because you invited me. I'd like to say on the record that I've rarely sat at a committee table where I look around the room and see nothing but friends. I want to acknowledge that I'm grateful to see you all here and that I have nothing but goodwill towards all assembled; however, I need to put on the record that I object to the motion that was passed by this committee and that the so-called invitation to me and other members in my situation amounts to coercion and denial of our rights to put forward substantive amendments at report stage.
That said, I'd like to propose an amendment which I think would be very helpful to this bill. It would be to delete said subclause 59(1), particularly lines 8 through 12, to delete the incorporation of offences under the Copyright Act in section 42 into the Criminal Code, where they would be found in section 183.
To put it simply, Mr. Chair, what I'm objecting to, and what I hope my amendment could correct—and I have a couple of grounds of concern here—is the insertion of essentially a civil offence into a criminal section of the Criminal Code, essentially creating increased opportunities for wiretaps into an offence for which I don't believe wiretapping is appropriate.
Particularly, Mr. Chair, I refer to the Supreme Court decision in R. v. Tse, which identified that electronic surveillance is a last resort, and only in cases of investigative necessity. The way the Copyright Act has been...and these provisions and these amendments we have before us in Bill C-8 incorporate things that are in, I think, a fairly vague swath between private use and commercial scale. In previous conversations on other amendments, we've had discussions about how many Coach purses before you're caught under the act, how many items that you should have known were being passed off in violation of copyright, and so on.
Wiretapping is a particularly invasive mechanism of the state, and inappropriate, as you can see from the kinds of offences that we're now inserting, such as these offences relating to infringement. The act deals at section 183 of the Criminal Code with high treason, sabotage, hijacking, sedition, using explosives, threats, providing for terrorist purposes, hoax—terrorist activity, perjury, and luring a child.
In any case, we're not suggesting that offences under copyright are all right. We're just suggesting that the investigative rights of invasion of privacy of a wiretap offence don't belong there. We also suggest that we don't need to make it a further offence. I wonder if this committee had taken note of other sections of the Criminal Code that already deal with these areas.
I'm surprised that they're not incorporated into Bill C-8, but under section 406 of the Criminal Code, we have making it a criminal offence to engage in forgery of a trademark. We also have, under section 432—and I'm going quite fast because I know I only have a minute—an offence—
Conservative
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Thank you, Mr. Chair.
My thanks to all the interpreters.
There are other offences in the Criminal Code that are already on point to copyright, and I'm wondering why Bill C-8 isn't taking those on board rather than having them stuck under this act under which, I'm concerned, some of the offences are rather vague regarding permission to wiretap.
Section 408 of the Criminal Code makes it an offence to forge trademarks or trade descriptions, and section 432 of the Criminal Code speaks to the issue of videotaping in a movie theatre without permission what is on the screen, which is, in other words, pirating films.
Those are sections of the Criminal Code which I think could have been more appropriately used under Bill C-8. From our reading of Bill C-8 and the insertion into the Criminal Code of offences under Bill C-8, we have now an overly broad and ill-defined set of offences that are not inherently criminal, although there are criminal activities under trademark already covered in the Criminal Code, and they would insert lesser crimes into a series of wiretapping capabilities where they don't properly belong.
I think that covers my point, Mr. Chair. Thanks for the latitude so I could speak while breathing.
