Justice Committee on Oct. 21st, 2010

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

[Catherine Kane]

You are right. I do not have those examples with me, because it was not something that we had expected we would be required to prepare. Most of our legislation deals with the Criminal Code. This is a stand-alone statute, so I don't have personal familiarity with the range of other federal statutes that have had regulations promulgated that have been considered by the committee.

We can undertake to inquire of colleagues whether that information is available. I don't know how long it would take to provide that information.

[The Chair, Conservative, Ed Fast]

Thank you.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

That's fine. Thank you very much. I appreciate your apology.

[The Chair, Conservative, Ed Fast]

Thank you.

Go ahead, Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

First, Mr. Lemay, if you read the preamble, you will see the words “par règlement”. Those words qualify the other words in this section. So the last section

only relates to regulation. I say this simply to reassure you on this point. I hope it does.

With respect to other issues, I would like to refer the committee to section 155 of the existing Youth Criminal Justice Act, which empowers the Governor in Council to make regulations. After two specific paragraphs--

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

What section is that again?

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

It's section 155.

After two specific sections it includes a clause that is exactly equivalent to the one before us today--that is, generally for carrying out the purposes and provisions of this act.

I was grateful to Mr. Lee for bringing this issue to our attention and specifically mentioning that this is criminal law legislation so we must be careful with regulations. I looked in other criminal law legislation, and I think we can agree that the Youth Criminal Justice Act is criminal law legislation.

I also want to commend Mr. Lee for having spent 22 years on the scrutiny of regulations committee and still having the brain cells to rub together to raise this issue. But I also want to point out that thanks to his efforts and the efforts of that committee, every regulation that does get promulgated under such authority as we are dealing with today is scrutinized to ensure that it is not ultra vires or unconstitutional in any fashion. That is the role of the scrutiny of regulations committee.

I am not asking that we search the whole history of regulations to see if one got through okay, but whether anyone knows of any regulation under section 155 of the Youth Criminal Justice Act that is unconstitutional and somehow escaped Mr. Lee's eagle eyes and those of his colleagues on the scrutiny of regulations committee. I have such confidence in Mr. Lee that I'm willing to stake money on the fact that there is no regulation under the Youth Criminal Justice Act that is unconstitutional and escaped the committee's justified scrutiny.

I also wish to refer to one other example in the way of criminal law jurisdiction, and that is the Controlled Drugs and Substances Act, which I hope we will all agree is a criminal law statute. Section 55 of that act says that the Governor in Council may make regulations for carrying out the purposes and provisions of this act; then it goes on to make 25 specific references, without limiting or restricting the generality of that.

Again it has substantially the same wording. It seems to me completely proper to include that, because we cannot predict every contingency. We try, but we cannot, in the end, being human, predict every contingency. Therefore these general clauses have been used for many years, to my knowledge. I would be willing to bet some of them were even in the legislation passed under the former Liberal government and accepted by them. We do rely on the scrutiny of regulations committee to ensure the constitutionality.

[The Chair, Conservative, Ed Fast]

Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

I have three points. I think Mr. Woodworth has done a very good job of pointing out that there are several criminal law statutes that use the exact or very similar phrasing. I have three more to suggest, which admittedly were not criminal law, and I'm happy to share the specific section references with Ms. Jennings and anyone else who is interested. I have the exact wording here on the BlackBerry.

There are two more important points, and one is simply that my recollection from 25 years of practice in law, which is slightly longer than Mr. Lee has been here in Parliament, is that there is a general rule of statutory interpretation that charging powers can only be in statutes and may not appear in a regulation where they are not specifically referenced in the charging powers in the legislation itself.

Secondly but more importantly, this whole bill is about Internet dissemination of child pornography that leads to sexual exploitation. We all know that Internet technology changes every single day. The people who put this heinous material out there on the Internet are constantly looking for another way to get around every law and every regulation so they can get it to the people who want to use it. We're here today to protect those children, to rescue them, and we don't want to hamstring the police authorities, the proper authorities, in their enforcement of this act because we have to come back to Parliament and pass another law to add something that could simply be added by regulation through this very general wording in the act.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Lee, you wanted to speak. Please go ahead.

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

Mr. Woodworth has done a good job of describing the background here. My purpose in raising it is that I think it should be raised where it comes up in any criminal or quasi-criminal statute--something we should advert to as legislators before we move it back to the House for passage.

This is a straight-line, straight-up criminal statute. That's how the government has described this. For example, in the regulations section, regulations can be made regarding the modalities of notification. It would be possible to make a regulation that restricted or enhanced the burden on the citizen--in fact, made it a trick notification on the citizen. All kinds of things can happen, even without the basket clause in paragraph 13(f). Mr. Woodworth points out that our law prevents using regulations to impose criminal burdens on citizens.

Ms. Kane referred to the Fisheries Act, and it is a fact that at the present time, in front of the Standing Joint Committee for Scrutiny of Regulations, there are provisions of the regulations that are being looked at for disallowance, precisely because the regulations have been used to create offences under the act.

I can't say that we should never enact this type of basket clause on a regulation-making power. At the time we pass the statute we should be getting the government to confirm that it won't be used to create a new criminal law or a new criminal burden. That's without prejudice to the use of the clause. I mean, the government has to do what the government has to do, but as legislators we have to deal with this.

If they pass the new regulation under this that says a breach of the regulations will constitute a breach of the act, how valid is that? Does a citizen always have to rely on Parliament to take care of this regulatory thing, because there are 1,200 regulatory instruments passed every year?

I'm not moving an amendment. I don't know how to restrict it, but I did want to hear from the government that the use of this clause is intended to be consistent with the way Ms. Kane described it and will not be used to create a new criminal burden on citizens.

[The Chair, Conservative, Ed Fast]

All right. Thank you.

Briefly, please.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

As Ms. Kane stated, you were here, Mr. Lee, on Tuesday when we last met. The Minister of Justice said exactly that to you when you asked him exactly that question. I'm here today to make it absolutely 100% clear to you in no uncertain terms that the minister has no intention of using this....

Mr. Lee, could I have your attention, since you want this clarification?

The minister has no intention of using this provision to create any new criminal offence.

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

It's an exercise. You may think it's futile, but I have seen court cases where, believe it or not, the raison d'être behind sections being passed has been used by lawyers, and this is a good discussion. I'm pretty assured that it won't go beyond the scope. It may in the future—I'm persuaded by Mr. Dechert or Mr. Norlock, I forget--hamstring this growing, emerging field.

So I will withdraw the amendment if there is consent for that.

(Amendment withdrawn)

(Clauses 13 and 14 agreed to)

[The Chair, Conservative, Ed Fast]

Now we will move to the short title. I understand that there is an amendment LIB-1 on the short title.

Mr. Murphy, would you like to introduce it?

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

The bill, properly described, although not very easily said in a soundbite, is “an act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service”. That's precisely what the bill does. It's very accurate. That's the formal title.

We've slipped away, it seems, from calling bills by their boring long titles like that, which are meant to be precise as to what they do, to these soundbite-driven phrases that perhaps mislead people and oversell what a bill's actually about.

This is a good bill. The minister himself said it's but a step in a process. The ladies here before from Cybertip.ca corroborated that. There's nothing wrong with this bill. To put it out there as a panacea, which I believe--this is a matter of subjective view--the short title does, Protecting Children from Online Sexual Exploitation Act, I think that's overreaching.

I guess I put it to my friends on the other side, why aren't we content with the actual title of the bill, or why don't we follow what other provinces have done? In two cases they have called it, so that people understand it better, the Child Pornography Reporting Act, because that's really what it is.

That's the nature of my amendment, short and sweet. I'll forewarn you that if this amendment doesn't pass, I for one shall be voting not to pass the short title part of this bill, because I'm content with the actual formal title.

That's my two bits. Thank you.

[The Chair, Conservative, Ed Fast]

All right. Thank you, Mr. Murphy.

I have a ruling to read. I've consulted with our staff and I rule as follows.

The amendment seeks to amend the short title of the bill. As House of Commons Procedure and Practice, second edition, states on pages 770-71:

The title may be amended only if the bill has been so altered as to necessitate such an amendment.

It's the opinion of the chair that there have been no amendments requiring a change to the bill's title. The amendment is therefore inadmissible.

Having heard my ruling, we'll move on to the question, if you don't mind.

(Clause 1 negatived)

We're left, then, with the--

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Mr. Chair, as a point of order, for future reference for me, I can certainly do without debating that motion, but would it be customary not to debate such a motion? I thought we would have had a debate on it.

[The Chair, Conservative, Ed Fast]

Well, sir, I didn't see anyone wanting to debate that.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

We finished with the amendment and then the question was called immediately. I'm not raising it to say that I need to debate it, but I just want to know, for future reference, if we're doing another clause-by-clause, that the short name is subject to debate as an....

[The Chair, Conservative, Ed Fast]

Actually, Mr. Woodworth, if an amendment is ruled inadmissible, the chair typically would rule. Once that ruling is made, there is no further debate on that.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

That would be on an amendment. Then when we move to the adoption of the short title, is there an opportunity for debate, ordinarily?

[The Chair, Conservative, Ed Fast]

Yes, normally there would be. You're absolutely correct. I didn't see anyone raise their hands to debate that.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

We weren't fully cognizant of the procedure there.