Justice Committee on Oct. 19th, 2010

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is meeting number 29 of the Standing Committee on Justice and Human Rights. For the record, today is Tuesday, October 19, 2010.

You have before you the agenda for today. Before we go to the main part of the agenda I just want to mention that at the end of today's meeting I'm hoping to leave 15 minutes for some in camera committee business to discuss Mr. Dechert's motion that was left on the table after our last meeting. That's the motion on organized crime.

We're beginning our review today of Bill C-22, an act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service. To assist us with our review, we have with us Minister of Justice and Attorney General for Canada Rob Nicholson. Accompanying him are senior officials from the Department of Justice. We welcome back Catherine Kane, who's the director general and senior general counsel, and Normand Wong, counsel, both from the criminal policy section. We'll also have Jean-François Noël, who's a counsel from the criminal policy section, joining our committee meeting after the minister leaves.

Please turn off your cellphones or put them on vibrate. Those of you here at the table, make sure you have your BlackBerrys removed from proximity to the microphone so they don't interfere with reception.

Monsieur Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Chair, a motion was mentioned. The problem is that we did not receive it with the meeting agenda. Could Mr. Dechert's motion be distributed to the committee members as soon as possible, during the minister's appearance? That way, we could have a better look at it.

[The Chair, Conservative, Ed Fast]

I'm advised that we don't have a written copy of it. Mr. Dechert actually did it orally at the last meeting, so it's on the record and it's open for debate at any time. Again, it's within the committee's power to deal with it at any time. I was proposing to leave 15 minutes at the end of the meeting to discuss that and we'll deal with it at that time.

Minister, it's good to have you back. As you know, you've got ten minutes and we'll open the floor to you.

[Rob Nicholson, Conservative, Minister of Justice]

Thank you very much, Mr. Chairman. It's good to be back.

Before I begin my formal remarks I would like to address the committee's request to receive a copy of a report on the consultative round-table discussions I had across the country on the youth criminal justice system. I want to thank the committee for the work they've done on this bill and indeed all our justice legislation. I assure you that I will be tabling the report with this committee before the end of next week.

Mr. Chairman, I'm pleased to speak to the committee about Bill C-22, the Protecting Children From Online Sexual Exploitation Act. It proposes to require those providing Internet services to the public to report online child pornography.

Bill C-22 will help Canada increase its ability to protect children from sexual exploitation in a number of ways.

First, it will strengthen our ability to detect potential child pornography offences. Second, reports generated by this bill will help block child pornography sites through the existing Project Cleanfeed Canada initiative. Third, this act will facilitate the identification, apprehension, and prosecution of child pornography offenders. And most importantly, this act will help identify the victims so that they may be rescued from sexual predators.

While this bill builds upon and complements our existing comprehensive Criminal Code prohibitions against child pornography, the focus of this bill is on child pornography on the Internet and those who provide Internet services to the public, for two reasons. First, the growth in child pornography sites in recent years is largely due to the proliferation of the Internet. Second, those persons or entities that provide Internet services to the public are uniquely placed to discover incidents occurring on their networks or to have such incidents brought to their attention by users.

With respect to the scope of this bill, I would like to use this opportunity to clarify a few areas. First, I would like to stress that this legislation would cover more than just ISPs. The term ISP, or Internet service provider, usually refers to those who provide access to the Internet--in other words, the wires and signals that go into our homes. This bill would apply to everyone who provides an Internet service to the public. As defined in this bill, this would include ISPs and other access providers as well as those who provide electronic mail services such as web-based mail and those who host Internet content such as social networking sites.

Furthermore, this bill would apply not only to persons who provide Internet services as their main business activity, but also to those who provide complementary Internet services to the public, such as cyber cafés, hotels, restaurants, and public libraries. I should also point out, of course, that individuals who commit child pornography offences are already liable to prosecution under the Criminal Code, and they have been in that position since 1993.

This bill would impose new duties on those who provide Internet services to the public. Their first duty will be to report to a designated agency any Internet address that is brought to their attention that points to a website where child pornography may be found. By reporting the Internet addresses, the designated agency will have sufficient information to fulfill its duties under this bill. Upon receipt of a report, the designated agency would first determine if the Internet address information actually leads to child pornography as defined by the Criminal Code, and second, determine the actual geographic location of the web servers hosting the material. Once it has confirmed its assessment of the illegal nature of the material and its location, the designated agency would refer the report to the appropriate law enforcement agency for action.

The second duty imposed on those who provide Internet services to the public would be to notify police when they have reason to believe that a child pornography offence has been committed using their Internet service. For example, if an e-mail provider, while conducting routine maintenance of its mail servers, discovers that the mailbox of one of its users contains child pornography, the e-mail provider would then be required to notify the police that they have reason to believe that a child pornography offence has been committed using its system and provide police with the supporting facts. In addition to notifying police, the service provider would be obligated to preserve the evidence for 21 days following the notification. This would provide police with a reasonable period of time to obtain a judicial order for further preservation or production of the evidence without fear that the evidence might be deleted in the interim.

The service provider who notified the police would be required to destroy any information that would not be retained in the ordinary course of business after the expiry of 21 days, unless otherwise ordered by the court.

Any person making a report or a notification under this bill would also be required not to disclose the report or give notification so as to avoid disclosure that could undermine the criminal investigation.

Another feature of Bill C-22 is that it has been designed to work in concert with those provincial and foreign jurisdictions that have already introduced legislation for the mandatory reporting of child pornography. The bill has been tailored to limit the possibility of duplicate reporting for those who may already be required to report child pornography in accordance with the laws of the province or a foreign jurisdiction.

It's important to note that Bill C-22 was crafted in accordance with the principle that the legislation should not create new consumers of child pornography or otherwise contribute to the further dissemination of the material. That is why the bill explicitly states that it does not authorize or require any person to seek out the child pornography.

This also means that providers of Internet services will not be required to monitor their networks in order to find child pornography or to otherwise investigate the activities of their users. Nor will they be required to verify an Internet address in order to confirm its content. It's important to understand that while mandatory reporting of child pornography by those who provide Internet services is addressed in this bill, the substantial or actual pornography offences are already addressed in the Criminal Code.

Bill C-22 is about sending a message to those who provide Internet services to the public that they have a social, moral, and now a legal duty to report this heinous material when they encounter it. We believe that the penalties contained in this act strike the balance between this aim and the real focus of the bill, which is compliance.

In order to achieve the bill's objective of improving the protection of children, the government wants to ensure that all those who provide Internet services in Canada comply with the law, and not only the main Internet service providers who already voluntarily report such cases and cooperate with the police.

Those are the major elements of the bill, Mr. Chairman.

I hope I can count on your support for these very important measures.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you, Minister.

We'll go to a round of seven minutes apiece, beginning with Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

Thank you, Minister.

I was relieved that your comments on Bill C-4 were forthcoming, and that there will be a report tabled. We're very happy in that regard, because all of this committee moved in June 2010 to have a report of the round-table discussions that you undertook in 2008. So that's two years, but it's better late than never. So I thank you somewhat for that, Mr. Minister.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I am happy to oblige, Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

In the same vein, Minister, when we talk about the predecessor to this bill--I think it was Bill C-58--it seems that the provinces have leap-frogged us, and leap-frogged you in fact, Minister, and the government.

It's a good bill. There is nothing very outrageous in it that we would object to, I don't think. It should be passed, there is no question. We could hear some witnesses, and so on.

But in the time it took to get back here in the fall of 2010--through prorogation and other political agendas that your government was on--the Province of Nova Scotia brought forward its Child Pornography Reporting Act, which came into force in April of 2010. Then the Province of Alberta brought forward its Mandatory Reporting of Child Pornography Act. They even have stronger language than your act, Mr. Minister. It came into force July 1, 2010.

Now that the ribbing is over, I want to get into something substantive; that is, why then do some provinces in Canada have stricter laws? And specifically I'll pick Nova Scotia. Section 3 notes, “ Every person who reasonably believes that a representation or material is child pornography shall promptly report...”. Whereas your bill--or we'll say our bill, because we're in it together here--is strictly for the service providers. It's much more narrow.

I think your statement was that you want to coordinate it with provinces that have already brought in this legislation. But I'm thinking of the federal obligation to have laws across this country that provide the same sort of protection and weed out the child pornography that exists in all provinces. Why wouldn't you consider beefing up your federal law to be more in tune, for instance, with that section I read from the Nova Scotia act? The Alberta act is similar.

I'm not sure that there would be a lot of opposition because there is a mandatory duty. Was there some reason we picked sort of a weaker version?

[Rob Nicholson, Conservative, Niagara Falls, ON]

You've covered a number of different areas, Mr. Murphy. You talked about the Alberta bill. It's actually not in effect yet. Nor is the one in Ontario. That being said, there are laws in effect in Manitoba and Nova Scotia, and we of course welcome and encourage any cooperation we get in the regulation of this area at the provincial level.

That being said, I'm not quite sure what you meant by your comment that there's “nothing outrageous” in this bill. This is a good bill. This is a good idea to require Internet service providers to report incidents of child pornography they discover, or to pass on information about child pornography that is given to them or brought to their attention.

Again, this complements what is being done. It complements, quite frankly, what is being done in foreign jurisdictions as well. I had long conversations with my counterparts at the attorneys general level from the United States, Britain, Australia, and New Zealand earlier this year. They pointed out to me that the sophistication of child pornography has been growing rapidly or proliferating around the world. It's becoming more sophisticated, and I indicated to them, as you might guess, that we will be cooperative, as we have been, and that there will be sharing of information and that we will work together.

So my suggestion to you is that, no, the provinces haven't taken over the field, but we certainly welcome their initiatives on this. Not only is this not “outrageous” legislation, to use your term, but it's legislation that is very much needed and very much welcomed by the people of this country. So I'm urging you to set aside whatever reservations you may have about this or indeed any other criminal legislation we have or will be bringing in. Let's get this thing passed. This is the next step in the fight against child pornography in this country. It will be welcomed at home; it will be welcomed by all our provincial counterparts, whether or not they have passed regulations or legislation in this area; and it will certainly be welcomed by our international partners, who have the same goal that we have, which is the protection of children.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Just to follow up, I have only have opposition resources, which are meagre compared with your mighty resources at the Department of Justice, but my records say that the Alberta law has been in effect since July 1, 2010. But let's get on common ground.

Mr. Minister, we agree with this bill. We'd like to pass it. What I'm suggesting, if I can make it any clearer, and I don't know how I can, is that the Nova Scotia law, for instance, that you and I referred to and that has been in force since April 13, 2010, has a wider reporting duty. It states that “Every person who reasonably believes” they've seen child pornography “shall report to a reporting entity”. I think that's reasonable. The fines for not doing so when you should have are just fines, not jail terms. This is the kind of positive obligation that we need our citizens to engage in, because this is so widespread.

To be clearer, Mr. Minister, why didn't we go that far and suggest something like section 3 in the Nova Scotia act?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'll ask Mr. Wong to address that.

[Normand Wong, Counsel, Criminal Law Policy Section, Department of Justice]

Thank you for the question.

One of the reasons the federal legislation focuses on Internet service providers, aside from the reasons the minister just articulated, is that under the criminal law power, we have to be restrictive about who we target.

There are three things in making a criminal law, one being that there be a criminal act. To do that you have to create a duty, and then a breach of that duty would constitute the offence. Then you have an offence and you have a penalty for that offence. So that's what's true throughout criminal law in Canada.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

But are you saying that provinces have less of a criminal responsibility than the federal government? The Criminal Code is federal, isn't it?

[Normand Wong]

The provinces enacted their legislation under their jurisdiction for child and family services, which is much broader than the criminal law, and they were able to target every person who resides in the province. It was problematic for the federal government to expand it to that extent, because of the scope of the criminal law power and being able to create a legislative scheme that could actually hold together.

[The Chair, Conservative, Ed Fast]

Thank you.

Monsieur Ménard, for seven minutes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you, Mr. Chair.

Minister, I would like to thank you for your explanations. Like others, I believe that this is a good piece of legislation and that we should adopt it, perhaps with some modifications, but we'll see how it goes.

My understanding is that this legislation does not create an obligation to report child pornography cases. However, if someone discovers child pornography, they can contact an agency that will be designated pursuant to the regulations.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Do you intend to create an agency or will you rely on existing bodies?

[Rob Nicholson, Conservative, Niagara Falls, ON]

If the legislation is passed, and I certainly hope it is passed very quickly, we will designate an agency to which individuals or businesses could report incidents of child pornography. We will do that as provided for in the bill and will make that designation once the legislation is passed.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I sometime qualify the Internet in the same way Socrates qualified languages: it's the greatest thing out there because it enables us to say and communicate so many good things, but it's also the most dreadful thing out there because of its capacity to breed hate.

The Internet is extremely useful and beneficial for the modern society we live in, but it can magnify our afflictions. Child pornography is not the only reprehensible aspect of the Internet. There are also websites that hint at serial murders. Among others, I am referring to what happened in Quebec. It is almost certain that had the website of Montreal's Dawson College mass murderer been discovered, his weapons could have been confiscated.

Just recently, the police arrested someone in Montreal whose website clearly indicated a predisposition to commit murder. There are probably other problems as well. We are talking about child pornography, but pornography as a whole is generally degrading to women.

Do you think that this agency could possibly investigate the many dangerous attitudes being spread on the Internet?

[Rob Nicholson, Conservative, Niagara Falls, ON]

If there is any information that directly leads to a crime, there is an obligation on people, on everyone, to help make sure that the proper authorities get that information. This bill is very specific; it deals with child pornography. It is one more addition to the laws that have been enacted in this country for the last 17 years—it is the next step in this—so it doesn't purport to cover everything that all of us might find objectionable. It doesn't purport to cover every type of crime that may be committed; it is not the only answer to every type of investigation of a crime. It is very specific with respect to child pornography.

With respect to updating our Criminal Code on all types of investigation, specifically with respect to the Internet and other vehicles of communication, you will remember the other bills we have, Bill C-46 and Bill C-47, which will provide—Ms. Jennings will remember the term—“lawful access”. All these are part of those particular pieces of legislation, but this is very specific.

And so I'm encouraged that you say this is good legislation and I'm hoping we can all agree that good legislation should move forward. Thank you for those comments.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Once the act goes into force, how long will it be before the designated agency is ready to take action?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, it's our intention to move expeditiously on this, of course, to designate an agency. I guess many times when people come across this information or when it's brought to their attention time is of the essence because we don't want the evidence to be erased or otherwise disappear. So you'll notice there are provisions here that once this is brought to the attention of the Internet service providers, the evidence should be preserved for 21 days or longer if there's a court order.

But that being said, we will move expeditiously on designating that group that people will report to. We will get that done, but we have to get the bill passed first and then we will do this.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I would like to ask one last question, out of curiosity. Did you come up with the bill's title?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Every single word of this is mine, Mr. Ménard, from beginning to end. But do you know something? I have the wonderful assistance of the people of the Department of Justice, who help put these together, and I get input from my colleagues from the justice committee, my colleagues within the government, and I can tell you it has been a collaboration that I have found very rewarding and very satisfying. As I say, here are the results today. As you say in your own words, it's a good piece of legislation that's before this committee today.

Thank you for your comments.