Justice Committee on Feb. 28th, 2011

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

Thank you.

[Carole Morency]

--and to the extent that a court wanted to specify, they would not be precluded from specifying with this language.

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

Thank you.

[The Chair, Conservative, Ed Fast]

Mr. Lee.

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

I just wanted to ask a question of Ms. Morency about the content of a judicial order prohibiting the use of a digital network. Right now in section 161, for example, the code refers to prohibiting an offender from “using a computer system within the meaning of...for the purpose of communicating with a person under the age of 16 years.” So you have a specific reference to a computer system and to communicating with a person under 16 years.

When we add the new paragraph (d), which I'd like to amend, there's no reference to communicating with a person, any person, and there's no reference to anything, even to communicating. It is simply prohibiting the person from “using the Internet or other digital network”. That's the same thing as saying “any digital network”. My question to you is that if a judge is asked to do this, is there a risk here that a judge may simply issue a prohibition order using the words of the section, so that the judge's order, the court's order, will read, “You're prohibited from using the Internet or any other digital network”?

If your answer is yes, a judge may do that, my reaction is no, I don't want judges to do that, because we won't be able to enforce that. It doesn't stand a snowball's chance in hell of being enforceable. There's not enough clarity. If we're to prohibit a citizen, albeit a convicted citizen, from using a digital network, I think we ought to know which digital networks he or she is prohibited from using. My question is. will a judge simply adopt the words of the section? Could a judge simply adopt the words of this section in making a prohibition order?

[Carole Morency]

Is it possible for a judge to simply adopt the wording of the condition? It is possible, but the condition as proposed by Bill C-54 also says “in accordance with conditions set by the court”. So number one, it's built into the condition.

Number two, you're quite right in terms of looking to what's in section 161 right now, which is only a condition against using a computer system for the purpose of communicating with a young person. That condition was added in 2002 when the Internet luring offence was created, because that offence was addressing the use of the means, the computer system, to communicate with a young person.

But what Bill C-54 recognizes is that offenders use the Internet computer systems for all sorts of reasons. Yes, they use it to communicate directly with a young person, and we catch that already, but they use it also to offend, in their offending pattern, whether it's to access child pornography, for example....

So the idea with Bill C-54 is to require a court to turn its mind to this each time it is sentencing a person who is convicted of one of these child sex offences and to consider whether in that instance, with the offender before them, given the nature of the offending pattern and the conduct before the court, there should be a restriction on that individual's access to the Internet or other technology that would otherwise facilitate his or her reoffending.

Courts right now do this as a matter of practice with, for example, probation orders. What the offender may do in that situation, for example, is to say, “I need to have access to the Internet for my job because my job is this...”. So the court routinely will build into that. Again, often it's under supervision determined by the probation officer--or they can designate another adult who is aware of the individual's offending history--to ensure there's adequate supervision.

Could more be provided to give greater direction to the court? I guess the concern is that the more specific you are, the greater the risk you might leave something out. The intention was to leave this in the hands of a sentencing court to determine what's appropriate in the circumstances, with submissions by the crown in terms of how you better protect the community from this offender and also by the defence counsel in terms of what's needed in that specific instance.

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

Mr. Chair, thank you very much.

We've had enough discussion on this. I'm only asking for the court to specify which digital networks the person is prohibited from using so he or she will know. If members think that's a bit too specific, fine, but I'll move the motion and members can--

[The Chair, Conservative, Ed Fast]

I believe Monsieur Ménard wanted to get a comment in.

Monsieur Ménard.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I have practised law long enough to know that some judges often make a number of decisions on some kinds of crimes on the same morning. I have to tell you that formulae can be extremely vague. I can easily see situations where a judge would…

[The Chair, Conservative, Ed Fast]

We're not getting anything through on the English translation. We're not hearing anything. Could you say something...?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Usually, I talk too much, but this time it's good, I am talking just enough.

[The Chair, Conservative, Ed Fast]

We can hear now.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

So as I was saying, I have practised law for a long time and I have certainly heard lawyers argue enough cases to know that there are times when judges render a huge number of decisions. It can go up to 50 decisions on the same morning. It happens with the chief judge, or the one sitting in his place, the one who gets all the guilty pleas. Sometimes, sadly, the tendency is to use tried and true formulae.

I can see perfectly how the danger that Mr. Lee describes can be real. Judges can issue an order prohibiting the use of the Internet or any other digital network, with nothing further added. That seems to me to be quite a significant danger. In normal life, professional life, we have access to various networks, and if we are afraid that a convicted person will be using some digital networks for pornographic purposes, we should tell the judge that. Then the judge can add to his ruling a prohibition from using the Internet, or such and such other digital network, for certain purposes.

My fear is also that a judge will stop there, meaning that he will go no further than “or other digital network”. That forces crown prosecutors—and I see nothing wrong with this—to express their concerns and to specify to the judge the digital networks that the convicted person should not use.

So Ms. Morency's explanations convince me that the expression is too general and, in practical terms, people who want to prohibit things must be obliged to specify what it is they want to prohibit, rather than just allowing prohibitions of an extremely general nature.

So the addition to the bill proposed by the member for Scarborough—Rouge River is a good one, and I plan to vote in favour of it.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to Mr. Comartin.

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

I must admit I'm not clear, Ms. Morency, from the comments you made on the amendment, whether this is somehow limiting the discretion of the court in the range of penalties they can impose. Mr. Dechert suggested that, but I actually didn't hear you say that.

Can you comment on that? Are we limiting the judicial discretion here on the sentence that could be imposed around the access to this type of communication by the convicted individual?

[Carole Morency]

I think my previous answer was that there is a risk that it would be limiting. If the wording was as proposed, “using the Internet or other digital network specified by the court”, then the expectation would be that the court would specify what other networks are not included in the Internet.

The information I've provided to the committee.... I'm not a technical person, but my understanding of the Internet is that it includes, for example, the land area networks, the LANs. It includes the example I gave before, the one about the bulletin boards and all of that. But the technical people say that technically that is not included in the Internet per se, so that's why the other language....

The question really is, what is the intention? What do we catch here? One is that you want to make sure that the court turns its mind to considering the need for such a condition. Two, the court should turn its mind to what conditions, what parameters, should be imposed along with that condition. The way it's worded now, I would suggest that the court would have ample opportunity to make it as specific, as broad, or as narrow as is appropriate in the circumstances.

Would the proposal to add “specified by the court” limit that? As I said, the only risk that occurs to me is that if an individual judge did not turn his or her mind to it and perhaps didn't realize that those other technical networks that don't run on a TCP, on that protocol, may not be considered to be part of the Internet that we talk about commonly. I think that at the end of the day, either way, a sentence in court is going to be very much informed by the submissions made to the court by the crown and the defence: what's appropriate in this circumstance and what's the intention?

We see this right now. Courts do this right now as part of sentencing on probation orders, without any of these directions, because they tailor it. If it goes too broadly, there would be a concern about charter risk. If they make the condition overly broad, going beyond what is needed to safeguard the community against sexual reoffending by this offender, there could be a risk. Courts are very mindful of that.

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

Again, after representation from the crown, wouldn't you expect the judge to talk in terms of “using the Internet or other digital network”, and then, with this wording, specify perhaps an additional forum? Wouldn't that be the normal way a judge would respond to this part of the sentencing?

[Carole Morency]

I think that's a possible interpretation. I'm just trying to assist the committee in the sense of explaining what the intention is, how the wording works or could be interpreted.... Obviously, I'm not in a position to say it will necessarily...that the risk will materialize or that a court wouldn't be so inclined to interpret it, because as I say, if you read it all together, the provision already says unless the offender does so in accordance with the conditions set by the court, so the direction is there to the courts.

Does this help the court more? It certainly could, but as you say, I still think there is more risk. The question is, is that a big risk?

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

I'm certainly not a technical person either, but some of the reading I have done suggests to me that at some point we'll be moving beyond the definition of either the Internet or a digitally based one into a whole different technology, but still one that could be used in this fashion, and by using this amendment, we would be giving the court authority to specify that.

So in that light, Mr. Chair, I'm going to be voting in favour of the amendment.

[The Chair, Conservative, Ed Fast]

All right.

We have two more speakers: Mr. Petit and Mr. Lemay.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Chair.

My question is for Ms. Morency.

In your explanations earlier, you said that it would perhaps amount to the same thing. This is the wording of the proposed addition: “using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.” The phrase “conditions set by the court” sounds awfully like the phrase “specified by the court”. The words “specified by the court” are the same as “conditions set by the court”.

I come back to the fact that, for a given offender, a judge will impose or repeat those conditions. If we take the amendment as it is worded, the judge would use the words “or other digital network specified by the court”. But consider a case where the court forgot to specify those conditions. If ever a person is caught again—there is a risk of reoffending—defence counsel could tell the judge that, because the networks that his client could not use were not specified, he cannot be convicted or charged again, nor be accused of having failed to meet the conditions imposed.

So the fact of requiring the court to specify the conditions would allow the defence to appeal at any time if the judge has not specified the networks that cannot be used. We know very well that the Internet has all kinds of networks, like Wi-Fi, and electronic and telephone systems, not to mention any other networks that could be invented between now and the time the bill gets through the Senate.

If the wording actually says “specified by the court”, the danger is that we will be dealing with offenders who have started to make contact with children under 16 years old again but who will tell the judge that they cannot be convicted again because no one told them specifically about the networks that they were prohibited from accessing. So that is going to limit the judge's power of decision.

With our current wording, “using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court”, aren't we giving greater latitude to the judge to tell the offender what is prohibited, simply by repeating the exact wording? In that way, when the person is convicted—we are still talking about children under 16—all networks will be prohibited because the offence was committed through one of those networks. If a network is forgotten, he could use it to reoffend and say that he had not been prohibited from using it. Could that happen, with Mr. Lee's amendment?

[Carole Morency]

Well, I think I've tried to answer that already, in the sense that the starting point is that the court looks at the condition before it. The condition says to either consider restricting the use of the Internet or other digital network, or, as has been proposed, specified by the court.... The court is going to interpret it. It could use exactly the same words. It could say, in this instance, that the appropriate condition would be against the Internet, period, or it could specify.

If you had, for example, the motion...if it was adopted and that language was in the condition and an offender reoffended and tried to argue, “Well, I wasn't specifically told not to use this”, I guess you would have an argument before the court: is there a common understanding that the Internet includes this or does not include that? Is it possible to have that...? Yes. It is possible to have that argument.

Again, I think the Internet has more of a common understanding; there is a dictionary understanding there, but as I say, the intention here was not to compound that, but to provide direction for a court to turn its mind to it.

[The Chair, Conservative, Ed Fast]

Thank you.

We have Monsieur Lemay now.

I just want to remind everybody to please keep your questions short if they are addressed to Ms. Morency or Mr. Villetorte, because we may run out of time again on this clause-by-clause. We do have two Bill C-4 witnesses that are going to be appearing somewhere around 4:30 p.m., so as brief as you can keep your comments.... I would very much appreciate it.

Monsieur Lemay.

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

Personally, I think we have to vote for the amendment. Sometimes, people who do not practice law a lot forget that 80% of people represent themselves in court and do not know what this means. If we pass this clause without the amendment Mr. Lee is proposing, a person representing himself will not be in a position to know precisely what is meant.

Perhaps some members of the committee are more familiar with the Criminal Code than I am after my 30 years of practising law. But I think that the amendment must be passed. Then the crown prosecutor will be able to clearly stipulate to a person, especially one representing himself, that such and such a behaviour is prohibited. At least the person representing himself, one of the 80% of those appearing in court, will have no excuse.

I think we have to pass Mr. Lee's amendment.

[The Chair, Conservative, Ed Fast]

All right.

Mr. Dechert.