Justice Committee on Oct. 19th, 2010

[Normand Wong]

On the issue of peace officer, it's an articulation that is becoming more common, and it will also be spelled out in the regulations as to who exactly a report goes to. We have also heard some other concerns about the articulation that is currently in this bill, so we can certainly take a look at that.

On the second question, in terms of reasonable grounds or reasonable or probable grounds, the reason why we used that standard is although it's a technical term of art in the field of law, it's also I think commonly understood in many ways among the general population. And in relation to that duty we want ISPs and other service providers to report when they have those reasonable grounds to believe that an offence has been committed on their system--that is, they'll know it when they know it. We're trying to avoid them looking into their system to actually find these things. If they stumble upon it doing routine maintenance or it's brought to their attention by a client, and they see it, then they're to notify police.

So it's a higher standard instead of anything that might be....

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

If I had my druthers, I'd rather it be something like “articulable cause”, which in fact casts a wider net, rather than “reasonable and probable grounds”, which might be narrower, but I'm just not sure from reading that. I think it might be the former rather than the latter, and I'm just not sure that you've told me what you think it is.

[Catherine Kane]

I'm not aware that we've used the term “articulable cause” in Canadian statutes. It's used in American statutes, and our understanding is that it may be a higher threshold to meet, but I think we have to bear in mind that we're talking about a duty on the ISPs and we're not talking about the grounds that the police would rely on to pursue charges. So as my colleague has indicated, we want those ISPs to have a more layman's term to understand. If they have reasonable grounds to believe it's there, we think they'll be erring on the side of a broad interpretation. If it's possible that it be there, they'll report it. The police will then look into it in terms of whether it is in fact child pornography on the site. It won't be up to the person who makes the tip to do that. Then the police will decide if there are grounds to lay specific charges and which child pornography offences are at play. We're not asking the non-peace-officer to do that exploration.

[The Chair, Conservative, Ed Fast]

Thank you.

We have room for two more on the government side. Who's next?

First Mr. Rathgeber, then Monsieur Petit.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

How much time, Mr. Chair?

[The Chair, Conservative, Ed Fast]

Five.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you very much.

Thanks to the witnesses for your expertise with respect to some of the technical elements of this bill.

Mr. Wong, I wanted to pursue a line of questioning that Mr. Murphy asked in the first round of questioning regarding provincial jurisdiction. I think I asked the minister this question, but perhaps you might be able to expand on how this bill will interact with certain provinces. I think Mr. Murphy mentioned my province of Alberta and, if my memory is correct, Nova Scotia, which has recently either implemented or is debating legislation in this area. I was wondering if you might be able to provide some clarification as to how these different jurisdictions' legislation will interact.

[Normand Wong]

Currently, in the four provinces that have enacted legislation--two are in force and two are not--that is all very similar. They're all based on the provincial jurisdiction on child welfare. So they're broad-based and require any person residing in the province to report to a designated agency or to police when they encounter child pornography.

They do not have an evidence-gathering or protection provision that the federal legislation has. On the flip side of that--and this is part of the point that I tried to address earlier--under the criminal law power, it's a broad power, but it's a narrow power at the same time. It has to serve a criminal law purpose, and one of the issues about approaching it as.... We looked at the possibility of applying this to society broadly, and there was no real nexus between the average citizen and child pornography. We could create that nexus between ISPs and child pornography, since the proliferation of child pornography has taken place over the Internet.

So it was easy to create a duty, and, after creating the duty, an offence for breaching that duty. So targeting ISPs under the criminal law power was appropriate, whereas targeting the public in general under the criminal law power was not.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I appreciate that these provincial pieces of legislation are not identical, but are one or more of the provincial legislatures creating a positive obligation for individuals to report known instances of child Internet pornography?

[Normand Wong]

Much in the same way we are in federal legislation, they are creating a positive duty to report. Under child and family services legislation in many provinces they have a positive duty to report child abuse, and it's in that same vein. Many provinces have a duty for all citizens; all provinces have the duty that's placed on professionals who work with children.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Under either jurisdictional issues--sections 91 and 92 of the former British North America Act--or with respect to the charter.... And I'm not asking about your legislation; I'm just asking your opinion on those provincial pieces of legislation. Do those raise any constitutional flags for any members of the panel--not this legislation, but the provincial legislation?

[Catherine Kane]

The provincial legislation is enacted under the provinces' power for child welfare, much like other provincial statutes are to assist people with civil protection orders and so on. So we don't see that there's any issue there, though our provincial colleagues have engaged in an analysis of the scope of their legislation and the powers in which it's enacted and are confident that they're within their provincial sphere of responsibility, as are we.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

But presumably there's some sort of sanction under these provincial pieces of legislation that provides some sort of penalty for non-compliance with a positive duty.

And again, this is not your legislation, so it's perhaps unfair of me to ask you to defend it or provide opinion on it, but I get to ask the question. Doesn't that raise some issues with respect to penalization of an individual for a positive duty under a provincial statute that's not criminal?

[Catherine Kane]

It's my understanding that many provincial statutes provide positive reporting duties now. For example, professionals are required to report child abuse that they see, and there are sanctions for non-compliance.

I guess it could also suggest that if you have witnesses here on Thursday who are familiar with the provincial legislation, they might be well placed to answer any issues about how that provincial legislation is being administered.

[The Chair, Conservative, Ed Fast]

Thank you.

We're going to move to Monsieur Petit for five minutes.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Chairman, a point of order.

I'm not too sure why you're continuing with government rounds at this point. I've read the rules governing the questioning at committee, and they say very clearly that the rounds alternate between government and opposition at this point. So can you please explain why?

[The Chair, Conservative, Ed Fast]

First of all, Mr. Lee, at the beginning of each Parliament when committees meet, they establish their own procedure. As you know, they're masters of their own procedure--

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

That's correct. I've read the rule.

[The Chair, Conservative, Ed Fast]

Yes, I'm sure you have. You've been here a lot longer than most of us.

At that time it was settled upon that we would have rounds as you've already seen on the list. We're coming to the end of the--

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

No, I've read the rule. If you read the rule, very clearly there's an alternating mechanism. Could you read it?

I'll read it if you don't. I'm going to make this a point of order and I'm prepared to read it if you don't want to read it.

[The Chair, Conservative, Ed Fast]

Mr. Lee, there's no point being combative. I'm being cooperative here.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Just read the rule.

[The Chair, Conservative, Ed Fast]

I will gladly read the rule.

It was agreed that at the discretion of the chair, during the questioning of witnesses, there be allocated seven minutes for the first questioner of each party; that thereafter five minutes be allocated to each subsequent questioner, alternating between govemment and opposition parties until all members have had a chance to participate, after which, if time permits, a new round will commence.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you.

Are you going to be alternating?

[The Chair, Conservative, Ed Fast]

We do alternate. Sometimes in groups, sometimes in....