Evidence of meeting #37 for Justice and Human Rights in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
4:45 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
I'm actually fine with the section in the draft bill on the French side. If Mr. Comartin has concerns about the English version of this section, I'm not sure the amendment he is proposing captures that. Unless he is actually in a position to provide this committee with the jurisprudence, and I'm not doubting that it does in fact create--
4:45 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
If you take a look at the bar association's brief, it's there, and it's a Supreme Court of Canada decision in Regina v. Hamilton.
4:45 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you. I will do that. It will be too late for this committee, because the bill is already in clause-by-clause.
I was just added to this committee today. You know me very well, and you know that I'm normally very well prepared. I appreciate your underscoring that it was brought to the attention of the committee.
4:45 p.m.
Conservative
The Chair Conservative Ed Fast
Thank you very much.
Let's close with Mr. Comartin, unless there's something urgent to add.
Mr. Comartin.
4:45 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I hadn't finished; you cut me off. I'd asked the question of the officials and I wanted a further response.
4:45 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
With respect to the use of “ne se souciant pas”, when the Supreme Court got on to the “reckless” definition in the Hamilton decision, did they make any comments about the French? I haven't read the whole decision.
4:45 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
If I could make just one slight clarification about the Hamilton case, there isn't really a criticism of the definition of “reckless” in the Hamilton case. In fact, the Hamilton case was interpreting the offence under section 464 of the Criminal Code. The offence under that section is counselling an offence that is not committed, and the word “reckless” does not even appear in section 464 of the Criminal Code.
In fact, in the Hamilton case, what the court was required to do was to develop some common law surrounding what the necessary mental state was for that offence in the absence of there being an explicit mental state in that offence, so they determined that the mental state for counselling an offence that another person doesn't actually commit.... In this particular case, the factual scenario may help elucidate the discussion.
It was a case where someone had sent out hundreds of spam e-mails to all kinds of people who this person didn't even know. They were advertising a variety of things. Sandwiched in the hundreds and hundreds of documents included in the spam were documents on how to make a bomb and how to commit credit card fraud. That person was tracked down. There was no evidence that any of the people who had received the spam had gone on to commit those offences. The question was whether that person who sent out those e-mails could be charged and convicted of the offence of counselling another person to commit an offence that was not actually committed.
As I mentioned, there is no explicit mental state in section 464, so the court had to essentially read in what the necessary mental state could be. They determined that in the Internet age, which is apropos of the discussion surrounding identity theft as well, it would be too high a threshold to say that a person would have to know that another person would commit an offence. They said that in the Internet age it should also be permissible to get a conviction if the person is reckless, and in this particular case they set the threshold for recklessness at a fairly high level, because no offence is actually committed and a person is really convicted simply for counselling another person, sending out an e-mail.
So in this offence they read in the mens rea of recklessness and set it at a fairly high threshold of a substantial and unjustified risk. But they didn't actually critique the definition of recklessness, although there may have been some commentary that the notion of recklessness has been in the criminal law for probably hundreds of years at this stage, going back to English common law, and there is no definition in the Criminal Code. So what we have are a few instances of “reckless”, including the fact that reckless is used in the murder provisions. It's an offence if you intentionally cause grievous bodily harm and you're “reckless whether death ensues”. Those are the words in the Criminal Code.
So the question really is this: is this threshold of recklessness satisfactory for this particular offence, and if you were to incorporate it into this bill, will you be setting a precedent for the interpretation of recklessness in other offences without having considered what those other thresholds should be?
That's slightly broader than what your particular question was directed at, Mr. Comartin, but I find the background on Hamilton helpful to understanding the situation.
4:50 p.m.
Conservative
The Chair Conservative Ed Fast
Does anybody else wish to comment? Seeing nobody, we'll then move to a vote on the amendment.
(Amendment negatived)
(Clause 10 agreed to on division)
(Clauses 11 to 13 inclusive agreed to)
4:50 p.m.
Some hon. members
Agreed.
4:50 p.m.
Some hon. members
Agreed.
4:50 p.m.
An hon. member
On division.
4:50 p.m.
Some hon. members
Agreed.
4:50 p.m.
Conservative
The Chair Conservative Ed Fast
Thank you very much.
The next item on our agenda is consideration of Monsieur Ménard's motion in the Cinar case.
Monsieur Ménard, did you wish to move the motion at this time?
4:50 p.m.
Conservative
The Chair Conservative Ed Fast
All right, it's as submitted.
You have the motion before you.
Monsieur Ménard, do you want to open discussion on it?
4:50 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
I am not sure that this case was as widely reported in English Canada as it was in French Canada, but it certainly raises a great many troubling questions. First of all, it took one individual, with the occasional assistance of a few lawyers, 14 years to prove the validity of a complaint lodged with the RCMP in 1995, to the effect that a piece of work he had submitted to Cinar several years prior to that had clearly been plagiarized. In addition to that, it was plagiarized by a company that had committed other irregularities, to put it mildly, in the process of obtaining funding from Telefilm Canada—in other words, public funds—to produce a program that had been plagiarized. We are talking about considerable amounts of money here.
To begin with, complaints were lodged by the person who had been robbed, not only of his idea but also his work. The RCMP undertook an investigation and, just when the investigation was almost completed, instructions were received from the Department of Justice to close the file.
Here we have the example of a citizen who was the victim of a huge fraud. However, the judge did award him an amount of $5 million in damages for infringement of his copyright. So, this is not a minor affair.
In addition to that, the amounts obtained from Telefilm Canada, based on two kinds of misrepresentations, amount to millions of dollars. That money had been earmarked by Telefilm Canada to encourage Canadian television production, by Canadians. So, there was a first misrepresentation by individuals who copied the original version prepared by Mr. Robinson. At the same time, these individuals were foreign nationals—of either American or French nationality—and thus, the company would not have been in a position to receive the large grants of money that were paid. Furthermore, because this was public money intended to help Canadian business or a specific type of Canadian business, one of the conditions was that there be a minimal investment by a Canadian company with support in the form of U.S. or foreign capital. In fact, the Canadian company was required to invest 25% of its own capital in the business in order to receive federal funding.
It turns out—and that is now being alleged in the appeal—that even though they had submitted a letter to the government stating that they were in fact putting up 25% of the capital, in the case on appeal, they are now claiming that they were only providing 10% of the capital and that, consequently, they should only be ordered to pay 10% of the total amount of $5 million to the author—not 25%—even though they said at the outset that they were investing 25% of the capital. They were therefore responsible for 25%.
So, there are three substantial issues involved here.
What is worse, and why I believe there is a need for action on the part of the lawmakers, is that, at the present time, despite everything that has been done, people still do not understand why, when the RCMP had gathered considerable evidence—enough to convince a superior court judge—the RCMP was then instructed to set aside this file and not lay charges.
If Mr. Robinson wins on appeal, he will be compensated, although no one knows how long that will take. However, if the judgment is upheld, he will receive $5 million, plus interest. The fact remains, however, that throughout this period, the government—the public—was subsidizing a company which was supposedly 25% Canadian, when in actual fact, it is now very clear in these proceedings that the company in question was only putting up 10% of the capital. And, I might just mention in passing that 90% of the profits made by stealing Mr. Robinson's copyrighted material were paid offshore, when in fact the purpose of the funding program was to encourage Canadian craftspeople.
This case began in November of 1995; that's why we are still talking about 14 years. An initial complaint was lodged by Mr. Robinson with the RCMP for infringement of copyright. I would just like to remind you that copyright is something we have talked about a great deal in this committee, I believe, as well as in others. Essentially, we provide poor protection for copyright here in Canada, even though, as lawmakers, we all realize, when dealing with copyright legislation, the incredible asset that proper protection of copyright really is, since it is a tool for protecting innovation, and so on.
I don't really need to say much more about this. I only mention it to bring home to you that this is a matter of the utmost importance. It is possible that it did not receive the same media attention in English Canada as it did in French Canada, but in my opinion, it is similar in importance to the sponsorship scandal, even though it involves a different area; basically we are talking about public money obtained fraudulently.
As I say, the whole affair began in 1995. In March of 1997, after searches were conducted at the offices of Telefilm Canada and Cinar—the company in question—the RCMP completed its investigation and a request to institute proceedings against Cinar was filed with the Crown. The Crown sought the advice of a copyright expert and decided not to lay charges.
In June of 2000, Radio-Canada revealed that the expert in question was the sister-in-law of the president of the company. As a result, a second request to resume the investigation was brought forward in October of 1999. At that time, the front men scandal was exposed—in other words, the fact that American or French authors were copying or adapting Mr. Robinson's original work and that copies were being signed by Canadians who had had no involvement whatsoever in that work. Once again, funding intended for Canadian craftspeople had been directed to American or French nationals. So, the whole front men scandal was exposed in October of 1999.
Following fresh allegations of tax irregularities, and at the request of the Minister of Canadian Heritage—Sheila Copps, at the time—the RCMP reactivated its investigation of Cinar, in two parts: the tax irregularities and the copyright infringement.
In May of 2000, the RCMP made it known that the investigation had hit a brick wall because of a lack of cooperation from the federal Department of Revenue.
In February of 2001, the RCMP's investigation into tax irregularities was completed and it recommended that criminal charges of tax fraud be laid against four executives and former ex-executives of the company Cinar.
On January 22, 2002, after consulting an expert with Justice Canada, the Crown announced its intention not to lay criminal charges against Cinar for tax fraud, but the criminal investigation into the copyright complaint continued.
In December of 2003, the Crown decided, for a second time, not to lay charges of copyright infringement against Cinar. It claimed there was insufficient evidence, even though important witnesses had not yet been heard. That marked the end of all RCMP investigations.
For its part, the Ontario Securities Commission decided to open an investigation into Cinar's activities, but thus far, no information has been made available as to the results of that investigation. The Quebec Securities Commission also has an investigation underway.
Finally, Mr. Robinson went before the Superior Court to defend his copyright. When proceedings were first initiated against Cinar with respect to infringement of copyright, Claude Robinson was at the very centre of the front men scandal, because he is the one who realized who had actually written the copy of what he had submitted. So, even though the defendants engaged in multiple delaying tactics—changes of lawyers, repeated requests for additional details regarding the application, and so on—$2.4 million in lawyer fees and 14 years later, Claude Robinson won his case before the Superior Court on August 26, 2009.
In a 240-page judgment, Justice Claude Auclair of the Quebec Superior Court awarded $5.2 million to Mr. Robinson, the author of Robinson Curiosité, which was the name he had given the work he had submitted to Cinar. The judge was highly critical of the defendants, saying that their behaviour was, and I quote “scandalous, despicable and immoral” and that the conduct of their business was “based on cheating, lies and dishonesty.” The judge went on to add this: “The conduct of the defendants is abusive, premeditated and deliberate. Even during the trial, they continued to hide their wrongdoing.”
I have skipped over many parts of the judgment, quoting only those passages that are the most salient, in order for you to understand just how important this whole affair was.
In 1997, to terminate the RCMP's investigation, the Department of Justice relied on the expertise of Danielle Aubry, sister-in-law of a Cinar vice-president. It took her only two days to review 26 episodes and hundreds of pages. The investigation was subsequently reopened, and two subsequent assessments concluded that Cinar had used most of Robinson's project.
Bertrand Gagnon, a former RCMP investigator on the file said: “Yes, if our bosses had not believed in this, I would not have worked on this investigation for three years. The evidence speaks for itself—what we had, what we were receiving; it was always positive, and yes, we kept on going. We had to discover the other side of the coin.” That was confirmed in 2001 in a passage from an interim report on the second RCMP investigation. It says, and I quote: “It seems increasingly clear that the work entitled Robinson Curiosité was plagiarized.”
Again, I remind you that the Department of Justice stepped in to prevent the RCMP from initiating proceedings on the basis of the complaints that had been lodged.
Bertrand Gagnon, the former RCMP investigator, went on to say: “Could someone please explain how an investigation ordered by a federal minister [Sheila Copps] could not be considered in the public interest… I just don't get it.”
It is also important to remember, in terms of the public interest, that foreigners claiming to be Canadians had acted as a front, in order to receive federal funding.
5:05 p.m.
Conservative
The Chair Conservative Ed Fast
Monsieur Ménard, our interpreters are having difficulty following you because you're reading from a prepared text. Perhaps you could slow down a little.
Thank you.
5:05 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
In December of 2003, the Department of Justice, claiming that there was a lack of evidence, terminated the investigation before the RCMP had questioned the BBC, France Animation or Ravensburger, the companies that broadcast the television series. Cheryl Blackeney, Weinberg's former secretary—Weinberg was one of the main shareholders in Cinar, with his wife, Micheline Charest—received a call from the RCMP telling him that the investigation had been terminated without charges being laid. When asked why, the RCMP replied:
“It's not our call.”
Bertrand Gagnon, a former RCMP investigator, said this: “How is it that someone in Ottawa got involved in this and had access to our inquiry… that is unclear.”
I have skipped over a lot of paragraphs, which now brings me to this one:
One can only conclude that the comments of Justice Claude Auclair are, at the very least, incisive, extremely critical and harsh. He writes in his judgment that the way of conducting business of the accused—Ronald A. Weinberg and the late Micheline Charest, Christophe Izard and Christian Davin—was “based on cheating, lies and dishonesty.” He goes on to say that the latter “did not hesitate to tamper with contracts in order to inflate production costs with a view to receiving federal funding and to alter their equity percentage in order to qualify under the bilateral France-Quebec agreement.”
He goes on to say: “[…] the conduct of the defendants was abusive, premeditated and deliberate. Even during the trial, they continued to hide their wrongdoing.” He points out that they had no compunction about “making false statements as to Canadian content and Canadian authors”, adding in the same breath that “a clear message has to be sent to copyright violators that their greed will be punished and that they can expect to receive more than just a simple order to pay damages with no penalty, if they are found out.”
No action was taken in the wake of the ruling handed down by the judge, who was of the view that the damages awarded were inadequate. So, this is truly a matter of public interest.
He points out, once again, that the judgment and the award of punitive damages are intended to “prevent similar cases from occurring and to punish these white-collar criminals, in order to discourage them from concocting such schemes in the future, and to sanction their scandalous, despicable and immoral behaviour”.
I am still quoting from the judge's ruling. Here is a final quote:
The defendants should have known that their game would be exposed, and yet, they persisted in their deceit and did all they could to break the plaintiff, both morally and financially. Only the plaintiff's perseverance and the support he received from his counsel allowed him to remain firm and to stay with this legal saga to the bitter end.
Those are the reasons why we have tabled this motion. We clearly do not have the same tools as the RCMP. In any case, the latter would only be too happy to present the results of its investigation. The charge-laying process was interrupted. Why? We know who made the decision, but we do not know why. You must admit that, given the context that I have just described to you, this is an absolutely awful case. Here in Canada, we are shooting ourselves in the foot by not providing better protection of copyright. We are talking about millions of dollars of federal money obtained on the basis of misrepresentations. I can only support the views of the judge in this case. The damages awarded to the individual--