Justice Committee on Feb. 27th, 2013

[Françoise Boivin, NDP, Gatineau, QC]

I get the impression you are not opposed to the idea of including harassment by means of a computer, for example, in a definition of harassment against adults or of creating an offence in the Criminal Code.

[Paul Taillefer]

I entirely agree. There are definitely some complex issues that should be addressed in a bill such as this one. It is all in the wording. We are making a major effort to inform and increase awareness among people in the schools and communities. However, we know that, despite that effort, some horrible things nevertheless occur. What we have heard this afternoon confirms that. I believe young people need to understand. That is also true of adults. Mr. Belsey used the expression "living in the moment". However, we cannot pardon young people because they are living in the moment. A crime of passion is still a crime.

[Françoise Boivin, NDP, Gatineau, QC]

It is a crime of the moment.

You raise a good point there.

[The Chair, Conservative, Mike Wallace]

Thanks very much.

Our final questioner today, for two minutes, is Mr. Seeback from the Conservative Party.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

I want to pick up on where both of my colleagues have just gone, which is with respect to the actual piece of legislation.

One thing I have concerns with, and Ms. Boivin and Mr. Albas raised it, is that there are inconsistencies in this legislation. I take it you'd agree with me that if we're going to make amendments to the Criminal Code to try to make it more effective to help stop cyberbullying, we should make sure that we're actually getting it correct and consistent throughout the Criminal Code.

Mr. Taillefer, I know you are a supporter of this legislation. Would you agree with that?

[Paul Taillefer]

I will not disagree with that, sir.

[Kyle Seeback, Conservative, Brampton West, ON]

Great. That's very helpful.

Very briefly, Mr. Belsey, you said a couple of things today. You asked how this bill would impact a young person. You talked about the teenaged brain living in the moment.

Ms. Craig testified at the committee earlier in the week, and said that this bill is not child and youth friendly, that it would in fact put blocks in their lives' development, which would actually negatively impact on their development.

Another witness, Ms. Shariff, said that we might be overreacting, that we might be putting the wrong kids in jail.

In the 15 seconds you might have left, what do you have to say about those comments?

[Bill Belsey]

I agree with them.

I would also add one final word, which is that we have left out of the conversation the corporate sector. Research is showing us that providers, content providers and Internet providers like Facebook, have a lot of power over those moments when kids are in this world. Data shows that when they tell kids they've posted something inappropriate and they ask them to take it down, those kids don't usually reoffend. So they need to be part of the conversation too.

I would certainly agree with Dr. Craig and Dr. Shariff, and in the case of Dr. Craig and Dr. Pepler, who created PREVNet, which Bullying.org is a proud member of, they have been mentors to me in my work, so I would agree wholeheartedly with their comments.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

I want to thank our guests for joining us today, in the snowstorm and on the phone. Thank you very much for your input on this important discussion we're having on Bill C-273.

I will suspend while we let our guests leave and our Department of Justice officials come to the table.

With that, I will suspend for two minutes.

[The Chair, Conservative, Mike Wallace]

I call the meeting back to order.

I want to thank Mr. Wong for joining us....

Yes, Monsieur Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Chair, I would like to move the following motion: That the Standing Committee on Justice and Human Rights, pursuant to Standing Order 97.1, recommends that the House of Commons do not proceed further with Bill C-273, An Act to amend the Criminal Code (cyberbullying), because: Bill C-273 raises criminal policy and drafting concerns; Parliamentary review of the bullying issue is still on-going and legislation to address this matter is pre-mature, and; The overwhelming majority of witnesses appearing before the Standing Committee on Justice and Human Rights have raised concerns with this legislation.

I believe we can all agree that cyberbullying is truly tragic and has very negative effects. There have been far too many suicides. In fact, just one is one too many. However, a multi-dimensional approach must definitely be adopted to address this social evil. We have heard about criminalization on many occasions.

We heard that criminalization of this sort of conduct is not what is necessary to curb the harm that it has created. None of us should tolerate cyberbullying; that's for sure. From this perspective, I guess we could say that Bill C-273 has helped us focus on this very important social issue, and certainly the member for Vancouver Centre should be congratulated for her efforts in focusing our attention on this very important problem. However, that said, Bill C-273 seeks to use criminal law to respond to conduct that is primarily not criminal. We've heard about being in the moment and not having criminal intent, and given the intent that Bill C-273 may be said to be targeting—bullying that constitutes criminal conduct—its proposed amendments are redundant and inconsistent and may even be said to be problematic when it comes to the Criminal Code.

The Criminal Code prohibits criminal bullying through existing provisions such as criminal harassment, uttering threats, and defamatory libel, to name a few. Bill C-273's proposed amendments to section 264, on criminal harassment, and section 298, on defamation, to clarify that they can be committed over the Internet or via computer, are not needed. This is because criminal law generally does not distinguish between means of mode used to commit crime, and certainly, as Mr. Wilks pointed out, the sections are wide enough to encompass this. So it's in essence not necessary, and for that reason, Mr. Chair, this is the motion that I'm proposing.

[The Chair, Conservative, Mike Wallace]

Okay, before I go to questions or comments on this motion, I should let you know that there are four things that can happen with a private member's bill.

You as a committee can send it back unamended. You can send it back amended. You could amend it by removing all its clauses and send it back in title but empty, or, as per Standing Order 97.1, you can move a motion for the House of Commons to not proceed further with the private member's bill.

That's what this motion is. So it is actually in order. I just wanted to let everyone know that.

Madame Boivin is the next speaker to the motion.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Chair, I assume everyone is aware that Bill C-273 is a problem. I have discussed the matter to some degree with my colleague Mr. Cotler. I was going to say Winkler. I apologize.

[Irwin Cotler, Liberal, Mount Royal, QC]

He is a former chief justice.

[Françoise Boivin, NDP, Gatineau, QC]

Yes, he is.

I somewhat share your opinion that this may not be the right solution. And yet I believe it was well intended. However, I do not agree with you that this is not criminal behaviour. I think it is genuinely criminal behaviour in some cases. We must avoid saying that bullying or cyberbullying is never criminal. It is a form of harassment or, in some instances, assault or something else.

I will listen to what my colleagues around the table have to say. They may feel your suggestions are not necessarily wrong, Mr. Goguen. However, I believe there is a great deal of improvisation going on in this bill. What has convinced me on that point, apart from the excellent presentation by our colleague Dr. Fry, who did a very good job of defending her position on Monday, is that, immediately afterward, we wound up with a list of amendments that gave me the impression, upon analyzing them, that if we had—if you will pardon the expression—pitched out any section of the code, she would have added it to her bill.

That troubles me somewhat. We are talking about the Criminal Code. I want to say that we in the NDP have made an effort from the outset to identify the logic of the amendments presented. Do not worry or think that I am going to leave them off the hook simply because I lean a little to the same side as my colleague Mr. Goguen on this subject.

In the study of this bill, I was very pleased to hear some Conservative colleagues using expressions such as "restorative justice" and to see that they strongly agreed with certain witnesses. They told us that, in the case of those youths—and we often talk about young offenders—this could be a form of criminal behaviour and that a different approach had to be adopted considering the meaning of the word "crime". It seems to me the NDP has been saying this for a long time.

I am very pleased if this is a new direction that our Conservative colleagues are taking because it may mean that we will be able to do good things. If this is merely an ad hoc action because they do not want to support the bill and want to go back to a firmly punitive approach, I would have a problem with that. I remember the discussions we had on the bill of our Conservative colleague who advocated minimum sentences for other acts of that kind. However, as we know, it is often young people who engage in this kind of behaviour. It is an act of a moment, but we cannot make them think.

Before deciding which way to lean on this motion, I will wait and see whether our Liberal colleague has anything to add. Whatever the case may be, there is a lot of improvisation going on here. Mr. Cotler, I see the sections that are being added here. One concerns sexual assault. We will try to see how someone can commit a sexual offence using a computer. Another concerns assault. It seems to me that would be somewhat difficult using a computer.

I am not sure much thought has been given to this matter as a whole. Given the serious nature of this matter and of all the efforts currently being made, perhaps we would do well to think before amending such an important instrument as the Criminal Code of Canada. I believe all my colleagues around the table realize that.

[The Chair, Conservative, Mike Wallace]

Thank you, Madame Boivin.

Our next questioner is Mr. Morin.

[Dany Morin, NDP, Chicoutimi—Le Fjord, QC]

Thank you, Mr. Chair.

I really share my NDP colleague's concerns. I raised some points that we are addressing today when Dr. Fry introduced her bill in the House of Commons and we debated it. As you know, I support young people who are being bullied in Canada. I believe that, if a step is taken in the right direction, it must be supported.

However, not many of the experts who appeared during the two days devoted to studying the bill said that the emphasis should be placed on criminalization. Even around this table, we understand that funding must be allocated in order to make a real contribution to solving this problem. Organizations in the field and certain programs that help young people must be supported. Otherwise Canadian families must be assisted so that they can equip themselves more effectively. If parents do not know that their child is a bully—we talk a lot about those who are bullied, but let us not forget that bullies also have parents—how can they find a solution?

I myself am somewhat torn. When the NDP voted for the bill on second reading, it was not because we felt it was perfect, far from it. However, it was a good idea to conduct the discussion we are having today. I am pleased that the witnesses have helped fuel the discussion. That gives us some serious food for thought. Even though the Library of Parliament people told Dr. Fry that her bill was in order, several experts and some committee members thoroughly analyzed the initial bill and noted that it was problematic in several respects, particularly with regard to the redundant nature of the offence created.

If I voted in favour of this bill, I do not believe the problem of bullying or cyberbullying in Canada would be reduced by one iota. At best, we would be modernizing the language. As we saw, in London a few months ago, I believe, the police intervened in the case of some young girls who were bullying another girl over the Internet. We increasingly hear about police departments that have necessary tools and intervene in extreme bullying cases.

We are talking about assault and harassment here, but the vast majority of cyberbullying cases fall into a grey area, not a clearly criminal category. Otherwise, the police have the necessary resources to intervene to protect the victims.

I am anxious to hear my other colleagues' comments, but I want to say that I am very much torn. Even though I believe it is important to support efforts that are headed in the right direction, I do not believe this bill changes anything in any tangible way, apart from a few words in the Criminal Code.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Morin.

Our next commenter on the motion is Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

We've heard in the witness testimony before in regard to this bill about the seriousness of cyberbullying as a whole. Mr. Goguen effectively put before us today in his initial question the very serious, harmful consequences that can result from bullying, in the most extreme cases, a loss of life. We've heard as well the testimony regarding how it affects health and even academic development over time, etc.

We've also heard from the witnesses that what we need is a comprehensive strategy with regard to this. Mr. Goguen has mentioned some of the important initiatives that the government has taken with respect to that comprehensive strategy. I would acknowledge as well that the witness testimony would not have put the criminal law remedy as the best remedy, or even the preferred remedy, but they did not necessarily say that the criminal remedy should be excluded. In other words, the criminal law remedy would be part of a package of the comprehensive strategy, although not the most important or best part of the strategy, but a component of it.

I find the discussion somewhat ironic in that the Conservatives, who are normally the best proponents of the criminal law option, are the ones saying we don't need the criminal law option, and I, who have generally been reluctant to suggest a criminal law option, saying we should look to more comprehensive approaches, am today supportive of the criminal law remedy. But it's in the way that I've always supported it, as part of a larger strategy.

I would like to suggest that Mr. Goguen's motion be tabled to allow us to see if we can work together to improve this legislation so we can have an effective criminal law remedy as part of a larger strategy, rather than exclude the option of a criminal law remedy at all. I think we might be perhaps limiting ourselves unduly by excluding it at this stage before we see if we can amend it to make it part of an effective strategy.

[The Chair, Conservative, Mike Wallace]

Our next commenter on the motion is Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

Contrary to what Mr. Cotler is saying, we're not saying that we don't think there should be criminal sanction for this. We're saying it's already in the Criminal Code—

[Irwin Cotler, Liberal, Mount Royal, QC]

I know. I listened very carefully.

[Kyle Seeback, Conservative, Brampton West, ON]

—and I'm also saying that the amendments as proposed would not add clarity. In fact, I think they would add confusion down the road.

The bill, unfortunately, was not well drafted, and when I questioned Ms. Fry about particular circumstances on cases where police said they could not investigate, I found she did not have a particularly good answer with respect to the existing provisions in the Criminal Code.

When I look at, for example, section 264, it talks about criminal harassment, and it talks about things like “repeatedly communicating with, either directly or indirectly”. I find it very difficult to accept the rationale put forward that if a police officer goes with a search warrant before a judge to say they need information from an ISP, that this is the information that's been posted on the Internet or on a cellphone or somewhere else, and clearly this is a form of communication, the judge is going to say, “No, that's not a form of communication. I'm not going to grant you your search warrant.” I don't think that's going to happen. Judges read things into legislation and statutes all the time. I don't think they have to travel down the road very far with these particular sections to be able to get there. I also think that her definition of “computer” is inconsistent with other definitions in the Criminal Code, and we shouldn't be putting things in the Criminal Code just for the sake of putting them in the Criminal Code.

That's why I'd be supporting this motion as stated.

[The Chair, Conservative, Mike Wallace]

To not proceed, okay.

Mr. Mai is next.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Thank you very much, Mr. Chair.

I would like to respond to Mr. Cotler, who said a little earlier that criminalization was part of a whole. I am concerned by the fact that we heard witnesses say criminalization could have a negative effect,

putting the wrong kids at the wrong place. That's something which for me is of concern. I don't think in any of the amendments that were put forward we really addressed this issue.

I understand why one might think that is a step in the right direction. I know that my colleague, Mr. Morin, has worked very hard on this, particularly in the area of prevention. And, as my colleague Ms. Boivin said, I am very pleased that the Conservatives are talking about prevention. You would think we were in the twilight zone, where everything is reversed. As someone who is beginning to sit on the Standing Committee on Justice and Human Rights,

I find it really interesting.

Indeed,

I do have some concerns in terms of what we heard from the witnesses, experts saying that this does not really address the issue for youth, that it might have a negative impact on youth. That is of concern.

I also agree with Mr. Seeback. I also asked Dr. Fry about what this bill would have changed in the past. I did not get a clear answer. She went on to talk about one specific case, but it ended up that they did not pursue it or it never went further.

Also, if we look at it from a technical perspective, we have probably heard that it doesn't add much. One of the witnesses asked if mobile bullying would be covered in terms of cyberbullying. We do not think it would, but then it would already be covered by the Criminal Code.

I understand where the Conservatives are coming from. I just wanted to put in my two cents.