Evidence of meeting #29 for Justice and Human Rights in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was pornography.
A recording is available from Parliament.
Counsel, Criminal Law Policy Section, Department of Justice
In clause 3, which you're referring to, that duty?
Liberal
Counsel, Criminal Law Policy Section, Department of Justice
If a person is advised in the course of providing an Internet service to the public—
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Yes, that's correct, but Internet service includes specifically the simple terms “electronic mail”—
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
—so if a person, in the course of providing e-mail to the public, is advised of this IP address.
It's not just service providers, it's a person who sends electronic mail to the public. That could include me or my colleagues around the table as we send out e-mail to the public. I'm just asking you to confirm that the definition, as I just read it, does include us and everybody else in society who sends e-mail. If I'm wrong, you can disabuse me of that by reading the appropriate words from the bill.
Counsel, Criminal Law Policy Section, Department of Justice
I can see your interpretation from what you're saying, but the bill is not targeting individuals of the public, it is targeting people who provide an Internet service to the public, so including—
Counsel, Criminal Law Policy Section, Department of Justice
Well, in terms of clause 3, the policy intent is clearly to cover people who provide this service to the public.
Liberal
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
The words, as I read them, implicate an individual who sends an e-mail.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Point of order, Mr. Chair.
It's my belief that questions do need to be fairly put and then correct information ought not to be suggested to witnesses. I'm sure that I just heard the witness say that this law is intended to deal with persons providing an Internet service to the public, and I'm sure I heard Mr. Lee say “no, that's not the case”. But in fact that's exactly what the statute said. It's not a matter of policy, it's what the statute says.
Conservative
The Chair Conservative Ed Fast
Mr. Woodworth, it isn't a point of order, it's a matter of debate, so I'll let Mr. Lee continue.
October 19th, 2010 / 4:30 p.m.
Conservative
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
I'd like the witness to simply constrain, if he can, using the words of this statute, the application of the statute to just so-called Internet service providers and not to the class of people I have described.
Catherine Kane Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
Could I suggest some information for your consideration? As you know, it's a principle of statutory interpretation that you have to give meaning based on the intention of the statute, and if you were to look at clause 3 and you inserted the word “e-mail”, there would be, in my view, no way that you would be, as somebody who sends an e-mail, subject to that provision. Because if a person is advised in the course of providing e-mail to the public—in your example, something that you would send out to some members of the public by e-mail—of an Internet protocol address or a URL where child pornography may be available to the public, could that happen in that ordinary e-mail that you're sending out? I would suggest that it couldn't.
You're sending an e-mail from your e-mail address with some information. You're not providing an e-mail service. If you were providing an e-mail service, it would be possible that as part of that e-mail service, there would be URLs or IP addresses that included child pornography.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
And the course of sending an e-mail these days seems to involve pop-ups and all kinds of things going back and forth on the Internet that show up on one screen.
I think I've made my point. I'm concerned that the wording here is not precise enough to exclude persons who would be innocently exchanging e-mails, because just on the simple words of the statute, it just refers to electronic mail--a person who in the course of providing e-mail....
So I will leave that there. It is a concern to me. You may have some feedback on that.
I have another question.
Liberal
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you.
I'm going to try to restrain myself in response to Mr. Lee, but in fact it doesn't talk about e-mail. It does talk about “in the course of providing an Internet service to the public”. So I would hope that if Mr. Lee is sending out mass e-mails and discovers that his e-mails include an Internet protocol address or uniform resource locator where child pornography may be available, he wouldn't mind reporting that.
However, I have other fish to fry here, and I'd like to direct the witnesses' attention to clause 10, which simply states that a person who has reported information in compliance with the “laws of a province or foreign jurisdiction is deemed to have complied with this Act”. And I have a concern that simply reporting information pursuant to the laws of a province or another jurisdiction may not be adequate if those laws do not contain a preservation section such as this act does, which requires the person who reports to preserve computer data.
I'm wondering if perhaps you might go back and give some thought to whether or not clause 10 is overbroad in that it may remove our ability to preserve the evidence simply because it is law of another jurisdiction that has been complied with. Could I ask you to just take that back to the shop and think about it for me, please?
Counsel, Criminal Law Policy Section, Department of Justice
I'd also like to thank you for your interjection here, because this is something that our provincial–territorial colleagues have pointed out to us as well. The intention of clause 10 was to relate only to the reporting requirements under clause 3, but they feared that it might also apply to the notification requirements under clause 4 and also the requirements to preserve evidence under clause 5, which they saw as the real benefit from this bill.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Exactly. So if one were going to consider amending it, one might replace the phrase “this act” with the phrase “section 3 of this act”, but I will leave that to wiser minds than mine.
I also have one or two technical questions regarding clause 4. The Criminal Code, the last I checked, and I regret I didn't bring it with me, frequently refers simply to peace officers, and I notice that you're using an entirely different phrase in clause 4 to talk about “officer, constable or other person employed for the preservation and maintenance of the public peace”. I wondered if there was some reason why you were adopting that particular phraseology rather than what I think is still the simpler practice, which is found in the Criminal Code.
I also have a second question about that, and it is whether the phrase “reasonable grounds” in clause 4 in your view is equivalent to reasonable and probable grounds or just articulable cause.
So there are two questions, if I may. I don't care who answers them.