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.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Alternating means alternating. You just conspicuously did not alternate. You went to Mr. Petit after recognizing--
Liberal
Conservative
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
You just read the alternating rule. I'm sorry, if you don't wish to follow it, that's fine. Let's get on with the questioning. I know you'll get to me at some point here.
Thank you.
Conservative
The Chair Conservative Ed Fast
You are, actually. You're going to be next, after Monsieur Petit, all right?.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
Thank you very much.
I have only one question to ask Mr. Wong about the wording in clause 8:
A civil proceeding cannot be commenced against a person for making a report in good faith under section 3 or for making a notification in good faith under section 4.
Even if someone reported a URL address containing child pornography—and this is the type of address we're talking about—in bad faith, it would still be reported. So I'm wondering what good or bad faith have to do with this issue?
For instance, let's assume that a criminal wants to take down another criminal. That person would inform the RCMP of the address, under section 3 or section 4, which would result in the shutting down of the criminal's website and in the person's conviction, and so on. The person reporting the address would be acting in bad faith. So I'm wondering what good or bad faith have to do with clause 8? This is a civilian notion and I understand it, but we can assume good faith is involved at all times.
So, I would like to know why you use the expression “in good faith” in clause 8. Whether the person is acting in good or bad faith, as soon as section 3 or section 4 are involved, the case is closed. Whether we are talking about a criminal making a complaint to take down another criminal, or about an honest person reporting on an activity, under sections 3 and 4, once incriminating information is found, the conclusion is the same.
I'm just trying to understand why you use the expression “in good faith.”
Counsel, Criminal Law Policy Section, Department of Justice
Thank you, Mr. Petit.
You're right in the sense that it doesn't matter whether there's good faith or bad faith when you're dealing with clause 3 and clause 4. This immunity provision is almost like a “for greater certainty” provision, because, you're right, a civil proceeding could proceed against a person who acts in bad faith anytime.
One of the reasons we put it in there was just to give comfort to the ISP community that will be affected by this legislation, to say as long as they acted with due diligence, they are immune from civil liability. But if there's any proof that they didn't act in good faith, then of course you're right, there could be a civil action against the ISP or the service providers. It really is just a “for greater certainty” provision.
Conservative
The Chair Conservative Ed Fast
Thank you.
We're at the end of the first full round. We can go to another round and there should be enough time to do at least one full round.
I'd like to address Mr. Lee's point. As you know, Mr. Lee, everyone gets a chance to speak once before we go to another round. And of course if we want to discourage parties from splitting their time, we can discuss that, if you want to bring a motion forward.
I understand you took the position that perhaps because some on the government side had split their time, they had already spoken. We've worked as a very collaborative committee, and I think it's worked reasonably well. I try to treat everyone fairly and in an even-handed manner. I'd prefer to move forward on that basis, but it's always open to you to bring forward a motion that would change the order in which we call people to ask questions.
By the way, if we start another full round we'll go for seven minutes. We probably don't have enough time for that. Is everyone okay with us going five minutes apiece? So we'll do one Liberal, one Bloc, one NDP, and one government.
Is everyone okay with that?
Conservative
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Fine. I have two questions.
Clause 10 of the bill purports to deal with federal-provincial overlap. The minister has said very clearly that this is federal criminal law jurisdiction under section 91. If that's so, why do we have provinces with similar legislation out there? And if this federal bill passes, wouldn't the federal legislation pre-empt the provincial legislation? That's why we have criminal law jurisdiction here, so we don't have ten different little Criminal Code countries, as they have in the U.S.A.
Would you address that, please, in terms of jurisdiction? What happens to provincial laws that are apparently in the same criminal law field? If the minister was right, this is criminal law and the provinces don't have criminal law jurisdiction.
My second question relates to clause 3, in which there are the words “Uniform Resource Locator where child pornography may be available”. Since we are dealing with criminal law legislation here, that is a very low threshold for your average citizen, “where child pornography may be available”. You have not used words like “where child pornography appears to be available”, or “is believed to be available”. Rather, the simple words used are a person becomes aware of a URL where child pornography “may be available”.
Would you please address this? I find the threshold very low, given my earlier question and remarks about an individual who sends out e-mails and who becomes aware of this is implicated in the charging section. They don't even have to know that there is child pornography on that other site. In this case, the child pornography simply “may be” there. To my mind, if this is criminal legislation, if it's a real criminal law snitch law, we have a low threshold and I think the whole thing could be at risk if you were to end up with a weak case.
Those are my two questions: federal-provincial jurisdiction; and the use of the words “may be” instead of something firmer.
Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
On the issue of whether there is an overlap with the federal and provincial law, as indicated earlier the provinces are operating in their child protection power. We're operating under the criminal law power with this stand-alone statute.
There are many examples where provincial and federal law is complementary. I'm thinking of impaired driving, for example. We have provisions in the Criminal Code. The provinces also have a whole range of quasi-criminal offences under their highway traffic legislation. And in some cases a person can be liable to both sets of penalties, and in others, not. This is similar to that.
We also see that in terms of domestic violence. The provinces have domestic violence legislation that's complementary to the Criminal Code charges that may be at play with respect to assault, or whatever applies. It's the same here.
The provinces have called upon the federal government repeatedly for federal legislation in this area. They have also pursued their own approaches, but we believe they will act hand in glove and there won't be any sense of duplication. That's why our legislation also provides for the reporting requirements, that if you report under one statute you have discharged your obligations under the other. So if a person is in Manitoba and reports the tip under that legislation, they're also deemed to have reported under this legislation. But as Mr. Woodworth has noted, we want to make sure that they are also required to preserve the data, so there may be some need to refine clause 10 to make that clear. But to date none of our provincial colleagues have expressed concern that this legislation will impact theirs negatively.
Counsel, Criminal Law Policy Section, Department of Justice
On the second question, clause 3, we have to remember there are two different obligations under this act. Under clause 3, they're required to report to a designated agency, and under clause 4 it's a requirement to notify the proper police authorities. If they have reason to believe under clause 4, they must preserve the evidence under clause 5.
Under clause 3, you're worried about the standard of “may be available”. When developing the legislation, two principles that the minister articulated were kept in mind: that the legislation shouldn't contribute to the further dissemination of child pornography, nor should it contribute to the creation of further consumers of child pornography. So creating a lower threshold may be available.
This is a standard that the ISP will employ when receiving a tip. If they receive an e-mail from a subscriber that says he or she found child pornography at a website, that's the standard that meets “may be available”. We don't want them to require their personnel to go to the website and confirm there's child pornography; we simply want them to advance that tip to the designated agency to triage and send it on to police if it turns out to be child pornography.
The standard really is for their own recognition of the credibility of the tip and whether it constitutes something that fits under this legislation.
Conservative
The Chair Conservative Ed Fast
Thank you.
The Bloc is passing on its question, so we'll move on to Mr. Comartin for five minutes.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you.
I think that this point where Mr. Woodworth gets caught is a really important one. I'm concerned that clause 10 may also alleviate responsibility to report under clause 4. When you're doing the review of this, if you could look at it being clear that clause 10 does not exempt the responsibility under clauses 4 or 5....
I have a question. You've used a different test in the reporting requirements in clauses 3 and 4. In clause 3, “where child pornography may be available to the public” is the test requiring them to report to the agency, and then in clause 4 it's reporting to a police officer or other designated person. The test there is where they believe the Internet service “is being or has been used to commit a child pornography offence”.
Are you contemplating setting it out more specifically in the regulations? I would assume a lot of the people who will have to make this decision on whether an offence has been committed are not going to be people with legal backgrounds, so how are they going to determine this?
In particular, I'm thinking of the situations where we know it's a problem. You get pieces of art being sent over the Internet that may have the possibility of being defined as child pornography. You get personal pictures being sent--the baby-in-the-bathtub situation. How are you expecting people to comply, in particular with clause 4, where they don't have a legal background in criminal matters? Are they exposing themselves to potential charges, for instance, with the baby in the bathtub or the piece of art, where the police officer decides that they should have reported?
Counsel, Criminal Law Policy Section, Department of Justice
There are a number of parts to that question.
There are different standards between the two clauses. I addressed the reporting standard in the question from Mr. Lee, but the notification standard applies when a service provider discovers it on their own system or it's brought to their attention by one of their subscribers; when they investigate, it's apparent to them that whatever is there is child pornography. If it's not apparent to them, like the baby in the bathwater, or a piece of art, then they haven't met that standard of belief that there's child pornography.
In many ways, it works. If you're prosecuting this case, there are a number of different hoops the crown would have to jump through in terms of proving that someone had reasonable belief, but the defence is always subjective too.
The baby in the bathwater or the art piece are areas where someone would say they didn't have belief that it was child pornography. The way it was crafted is more along the line that you know it when you see it. So if there's--
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
It has not exactly been successful, Mr. Wong, as you know, in terms of a test for all sorts of pornography.
Counsel, Criminal Law Policy Section, Department of Justice
The test for child pornography, though, for the ISPs, under the provision in clause 4, is supposed to work in a way that would require ISPs to report only when they know. There's also a provision under clause 7 that explicitly states, “Nothing in this Act requires or authorizes a person to seek out child pornography”. We're not requiring ISPs and service providers to monitor their networks to find this stuff and to try to apply a standard. We don't want them to create child pornography units within their organizations.
One thing we will do, along with Cybertip and the Canadian Centre for Child Protection, because they are funded federally and have education programs, is spell out the obligations of the ISPs and service providers under this act. We will also perhaps put together an information package that targets the people who have duties under this act so that they better know how to fulfill their duties.
October 19th, 2010 / 5:05 p.m.
Conservative
Conservative
Earl Dreeshen Conservative Red Deer, AB
Thank you very much, Mr. Chair.
Thank you to the witnesses.
I'm happy to be here today to add to the commentary on Bill C-22. I think we're all in agreement that child pornography is a serious form of child sexual exploitation and that any type of activity that exploits and endangers children must be dealt with seriously. I'm pleased to see that in this committee today we're all in agreement that action is necessary. This legislation, to me, seems like it's going to be a valuable tool to help with the investigation of such exploitation.
Having read the bill, there's one question that has come to mind. How will social media sites that make possible the airing of disturbing images so that they are shown to the public, and specifically to children, be dealt with?