Evidence of meeting #45 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 offences.
A recording is available from Parliament.
Acting General Counsel, Criminal Law Policy Section, Department of Justice
It's “computer system” as defined by the Criminal Code, which is more than just a desktop.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Okay, but it was “computer system”. Now we've gone to “telecommunication”, which I'm assuming is everything—everything that communicates.
Acting General Counsel, Criminal Law Policy Section, Department of Justice
It is, broadly.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Even the old telegraph is probably telecommunications. One of the Morse code things is probably telecommunication.
So we brought in the technological base that we've imposed the criminal restriction on. That's okay. I will go and read that. I don't have any need at this point to propose an amendment.
Liberal
Conservative
The Chair Conservative Ed Fast
We're going to the government side now. Who's asking questions on the government side?
Mr. Norlock.
Conservative
Rick Norlock Conservative Northumberland—Quinte West, ON
At first I was going to be critical of my friend Mr. Lee, because I thought he had sat on the review of regulations committee for too many years, but he does raise a good point, because, having been a court officer.... One of the things that of course defence counsel always raises is the definition of words. I thank him for bringing this up. But I hope—and this question will be to the witnesses here—that it's not in a way to reduce or diminish the kind of the electronic apparatus.
The intent, I believe, and I'm hoping that our witnesses can verify this, is that as more and more information or communication devices such as telephones become mobile computers able to do many more things—not only transmit pictures, but sequences of minutes of actual things happening....
Would I, as the minister said, be correct, Madam Morency, to say that what you're attempting to do here by using that term is to capture not only present but possibly various future types of communication devices?
Acting General Counsel, Criminal Law Policy Section, Department of Justice
The intention is to catch, yes, exactly what's available now and what is possible in the future in terms of identifying the nature of the communications that will be at play rather than just what specifically presents today.
You're talking about the conceptual. I'm trying to find for you right now the reference in Bill C-51, the definition. But yes, it is to apply today and to what might come tomorrow.
Conservative
Rick Norlock Conservative Northumberland—Quinte West, ON
The bad people will find the flaws, because they tend not to be stupid. And if we don't try to at least keep up with it, as the minister has said.... But from my past experience, and going by the evidence Inspector Scott Naylor gave us yesterday, or the other day when he was a witness before us, related to those new devices....
In addition, I think the previous question regarding entrapment was answered by you adequately, because I know that recent jurisprudence has allowed some and has disallowed others. So our judiciary is very careful to make sure that it is within the bounds of what they interpret the act is intending to do.
My question to you is whether you thought of this when you were drafting this legislation. You were aware that policemen act as five- and six-year-olds in order to go out and mine the fields out there to find out who's trying to lure five- and six-year-olds into viewing explicit pornography or sexual assault and to lure them to actual meetings at malls and other places.
Would I be correct in saying that your intent, with regard to entrapment, was to cover that investigative technique?
Acting General Counsel, Criminal Law Policy Section, Department of Justice
Certainly, and it's as the minister said: the intention was to get at this predatory conduct before an actual contact sexual offence is committed. And yes, of course, there is an awareness of investigatory practices used by police currently under existing Criminal Code offences as well as those we would envision for this proposed new offence. So yes, this was contemplated.
As I mentioned earlier, I can leave the committee with a couple of cases that show exactly, in the context of luring a child over the Internet, where the defence was successful in one and unsuccessful in another. It was unsuccessful, I might add, with an accused who was a police officer, who obviously was not acting in the course of his duties.
I guess the point, as Inspector Naylor said, is that it is a common practice. We are aware of it.
Obviously police are trained in terms of what the lines are in terms of how far they go with the conduct. But typically they do go on. If you read any of the reported cases, the description will indicate, for example, that a police officer was undercover in a chat room known by the name of the chat room and frequented by like-minded child sex offenders and the like, and he or she engaged in that way.
Again, the common law is very clear on the difference between entrapment and a legitimate investigative practice.
February 2nd, 2011 / 4:45 p.m.
Conservative
Conservative
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Thank you very much.
This is another rather technical question. It relates to the sentencing provisions for someone convicted of the crimes here in this bill, or the revised description of the crimes.
It's in subclause 26(2) of the bill, and it relates to section 810 of the Criminal Code, which is the longest numerical description of a Criminal Code section I've ever seen—section 810.1(3.02)(a.1). This has to do with the ability of a judge to prohibit a defendant from using the Internet or other digital network. I understand the Internet part, but when the bill refers to “other digital network”, I want to offer a scenario that for me creates a lack of clarity and might be problematic.
Because we just refer to any other digital network.... We're all aware of how many digital networks there are out there. They're all over the place: they're in hearing aids; they're in elevators, subway systems, automobile sensors, heart monitors. Digital systems are everywhere. If in setting out the penalties or the sentencing restrictions we are not specific, what if a judge simply says they'll use the words of the Criminal Code and you're prohibited from using the Internet or any other digital system, that's in his or her order?
That, I suggest, is problematic, because it lacks specificity about any of these other digital systems. Therefore, our failure to itemize the digital systems may handicap our judges in itemizing the restrictions in the sentence. If the sentencing restriction isn't specific enough, it will fail at some point. I guarantee, judicially, on challenge, it will fail.
Have I missed something here, or have we just painted over, in our zeal to impose more sentencing flexibility, something here? Could you comment on that?
Acting General Counsel, Criminal Law Policy Section, Department of Justice
I'll do my best. I'm not the technical expert on the cyber aspects of criminal law. If the committee requests, if I may, I can obtain other assistance for you from one of my colleagues.
Let me tell you, in terms of the use of the word “Internet”, certainly in developing Bill C-54 we looked at what is the language being used now, whether in legislation or in practice by courts. If we look at reported court sentencing decisions, they frequently do use the language “the Internet”. Sometimes--mostly--you see it with a capital I, sometimes with a small i, and it's sometimes specified to include other specific modalities of telecommunications. The intention with the language used in Bill C-54.... And we mistakenly referred to Bill C-30 before, but it's Bill C-32, the Copyright Modernization Act, which also uses “the Internet or digital network”.
My understanding, from my cyber colleagues, the experts in this area, is that “internet”, small i, and “Internet”, capital I, actually have different meanings. It has a different meaning for those who are most expert in this area. My understanding, as I say, is that in the early days, when we started to talk about the Internet, capital I, it was intended to deal with not just what we consider to be the World Wide Web type of network, but broader digital networks, because there are others that could fall within that.
The intention with Bill C-54, for the purposes here, was to ensure that the courts are provided with direction to consider in all cases whether or not to make an order, and to make an order that is appropriate in the circumstances of that case. The language used in Bill C-54 refers to the Internet or other digital networks in the broad sense, so it would include, and is intended to include, e-mail, computer systems, other networks of communication, or an iPhone, for example, where telecommunication is being done through a computer system. The intention is to catch that, because those are the tools that offenders are using to either access children or facilitate their offending conduct.
The intention here was to use language that is consistent with other federal legislation. When we look at other federal legislation, “the Internet” is used in a few different ways. It's still relatively new compared to some of the other concepts that are reflected in law. Sometimes it's used to refer to a website. Sometimes it's used to refer to a modality for communication. The intention is to catch it all.
Conservative
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Could I just leave it with her? It's just my comment that without any redefinition this would appear to cover off somebody using a GPS device.
I'll just leave that there as a suggestion.
