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.