Justice Committee on Oct. 21st, 2010

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

Thank you, Mr. Chair.

The 21-day period was identified by Ms. Kane as being consistent with former Bill C-46. In Bill C-46 it related to a preservation demand by a peace officer. Through the machinations of our policy development and legislative development, we've had discussion about the appropriateness of the time. That period of preservation would allow police, under former Bill C-46--and of course that's not law right now--either to obtain a preservation order under that bill to extend the preservation period or to obtain a production order or a search warrant to obtain those materials as evidence.

For us 21 days is, I think, still consistent. We've consulted with police forces across Canada in terms of the appropriateness of the time. In order to obtain a production order or a search warrant, they can go before a justice of the peace, and it's quite a rapid process. It doesn't have to be a lengthy process. They can normally get that 24 to 48 hours later. If they can get it in 24 to 48 hours, 21 days seems to be more than ample for them to be able to secure that information.

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

I'm not making a big deal of it. I think I'll withdraw my amendment. It's not an unreasonable time, it seems. I withdraw my amendment.

[The Chair, Conservative, Ed Fast]

Okay. The amendment is withdrawn, presumably with the consent of the committee.

[Some hon. members]

Agreed.

[The Chair, Conservative, Ed Fast]

All right. We'll go to Mr. Lemay--actually, Mr. Dechert, did you have any further comments?

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

No.

[The Chair, Conservative, Ed Fast]

Go ahead, Mr. Lemay.

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

In fact, I support removing it, but I would like to ask Mr. Wong a question.

Do you think 21 days is sufficient for police forces to do what they have to do, to get a search warrant or whatever else?

[Normand Wong]

That is what they have indicated to us, and we've consulted with police forces across the country.

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

Thank you.

[The Chair, Conservative, Ed Fast]

All right. We'll go to Ms. Jennings.

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

Pertinent to this point and to this particular clause, I have a suggestion.

Given that the 21 days is based on previous government draft legislation that was before the House, that is no longer before the House, and that the government has yet to reintroduce before the House, I think there's a good chance that this piece of legislation may in fact be enacted before we see the light of day with regard to that previous legislation. It would give time to see whether or not that 21-day period turns out to be sufficient. It might be--

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

Mr. Chair, a point of order. There seems to be a problem with the interpretation service.

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

I will repeat it in French.

[The Chair, Conservative, Ed Fast]

Before you proceed, I'm going to ask if the technical problem in the booth has been resolved. Are members hearing the French channel? Yes? All right; we'll proceed.

Please continue, Ms. Jennings.

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

And now I feel like speaking French.

My suggestion is this. If this bill were in force for a period of time before the government moves on its former Bill C-46, we might have enough experience to know whether the 21 days is enough. If experience shows that it isn't enough, you can suggest that the government, whichever one it may be, extend the time and amend the legislation.

[The Chair, Conservative, Ed Fast]

Thank you.

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

I will support it when it's time to vote.

[The Chair, Conservative, Ed Fast]

The amendment having been withdrawn, I will call the question.

(Clauses 5 to 9 inclusive agreed to)

(On clause 10—Provincial or foreign jurisdiction)

Now we move to clause 10. There is an amendment from the government side.

Mr. Woodworth, I believe you're introducing it.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you, Mr. Chair.

Bill C-22 imposes two duties on those who provide an Internet service to the public. First, under clause 3 providers are required to report, in effect, Internet address tips that they might receive regarding websites where child pornography may be available. In addition to that, under clause 4 providers are required to notify police if they have reason to believe that a child pornography offence has been committed using their Internet service. Of course, as we were discussing a moment ago, in that case they are also required by clause 5 to preserve the evidence for 21 days.

The clear intent of clause 10 is to avoid any duplicate reporting under clause 3 when a service provider has already reported the same incident under the laws of a province or of a foreign jurisdiction. However, under the current wording of clause 10, which deems that reporting to be compliance with the act, one could well be saying that this would relieve the provider of its obligation of notifying and of preserving evidence under clauses 4 and 5. That is not the government's intention.

The amendment is intended to replace the reference to the act with reference to section 3 of the act, and only deem that requirement to be satisfied in cases when reporting to a province or a foreign jurisdiction has occurred. That will make clear that it does not relieve the provider of compliance with clauses 4 and 5.

[The Chair, Conservative, Ed Fast]

Thank you.

You've heard the amendment. Did you want to hear from the officials?

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I have a question to put to the officials.

The effect of this, which obviously I support.... If you are mandated by law in another jurisdiction to report, in effect, the content as described in clause 4, there will be a duplication. You would report to that jurisdiction and you would report to Canadian authorities.

[Normand Wong]

There would be a duplication in that case, only when the....

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Wong, let me put it to you this way. We just heard from Ms. McDonald that the vast majority of this material is being produced offshore. A number of those jurisdictions have requirements for reporting. So a Canadian service provider here, knowing that the material has been on a site in, let me say, eastern Europe—because we know that's one of the major sources of this.... They have law there that requires them to report. Would they be required to report to them and to our police authorities?

[Normand Wong]

The extraterritorial applicability of this section would apply to them, but only to the extent of the information that they have. The duty under clause 4 to notify police arises when you have reasonable grounds to believe that a child pornography offence has been committed.

The way the couple of Internet service providers that are U.S.-based whom we've talked to are structured is that their servers are in the United States. Their corporate entity in Canada would probably never form the reasonable grounds to believe that a child pornography offence has been committed over their system until their parent company informed them. At that time, they'd be required to notify police. But really, the only information they would have is the e-mail notification that their parent company has it.

In the United States it works out well, because in the United States there is a mandatory reporting regime. The NCMEC, the National Center for Missing and Exploited Children, works hand in hand with the RCMP in Canada. It forwards any tips or any information it has to the RCMP in Canada.