Evidence of meeting #35 for Public Safety and National Security in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was goods.
A recording is available from Parliament.
Deputy Director, Intellectual Property, Information and Technology Trade Policy Division, Department of Foreign Affairs and International Trade
In terms of our legal system, I will ask Cal Becker to respond. We can then move on to the RCMP.
Coordinator and Senior Counsel, Intellectual Property Secretariat, Department of Justice
With respect, I'm going to respond in English. I think it should be appreciated that there are already quite serious penalties in the Copyright Act, specifically a maximum on prosecution on indictment of up to five years in prison and a $1 million fine. As has been noted, there is no corresponding offence in the Trade-marks Act with respect to counterfeit goods.
To get to your main question about the kinds of punishments we are looking at, I think there's a general consensus that punishments in the order of five years in prison and/or a million-dollar fine are adequate to the purpose. What's missing, if I can identify that, is legislation that would empower the Canada Border Services Agency to participate in this exercise of enforcement. It's not so much that the penalties are inadequate--on paper, at least--but rather that authorities that would permit the Canada Border Services Agency to participate fully in anti-counterfeit, anti-piracy exercises are missing.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
I'm sorry to interrupt you, but we have so little time. The evidence and the way in which these laws are enforced is also of concern to me. Through my own experience, I know that in many cases, people appear before a judge who hears about 60 cases in the course of a single afternoon—mostly guilty pleas. Agreements are then negotiated based on some sort of average. Ultimately, for someone to be given a fine amounting to several thousand dollars, the offence has to be quite serious.
Having some awareness of this issue, if I were a judge and were hearing that kind of case, I would like to be given evidence of the profits the accused realized by committing the offence and of his lifestyle. We do that for organized crime. Of course, they are people we have under surveillance for long periods of times. I always ask the police officer responsible for these investigations to try and find out how much money they had in their bank account, what their lifestyle was and what kind of car they drove. Is that what you do?
When you investigate a counterfeiting case, do you delve even deeper, in order to be able to prove to the judge the profits realized by the suspect as a result of his offence and ensure that the punishment is in keeping with the profits, rather than being just the cost of doing business?
That question is addressed to the officer from the RCMP.
C/Supt Mike Cabana
Thank you for that excellent question.
It really depends on the type of investigation. Currently, the RCMP's priority is organized crime. If we are investigating a counterfeiting case that involves a criminal organization, the kind of process you have just referred to—where we look at the assets and lifestyle of the individuals involved—is part of the investigation, up to a certain point. Unfortunately, the laws currently in place have no mechanism which would allow us to seize or confiscate those assets. However, as I just said, as part of an investigation, we do look at that.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
How do the courts react when you bring forward this kind of evidence? Very often, these cases are given to young Crown attorneys who are just starting out. They aren't really criminal offences; they're less serious offences. They don't have either the experience or the background to argue these cases. Would you agree?
C/Supt Mike Cabana
I would not want to generalize, but that fact is that, in certain cases, these cases are entrusted to Crown attorneys who may be somewhat younger. In terms of awareness efforts, the RCMP has met with Crown attorneys. I believe the last time that happened was in British Columbia, several months ago, for the very purpose of raising awareness among Crowns of the reality of counterfeiting and explaining that things are not the way they used to be 10 or 15 years ago. These are large-scale operations. It will take us some time before we are able to effectively raise awareness across the entire judicial system, but the integrity of the system is such that judges impose the penalties they believe to be appropriate.
Conservative
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I just want to pursue the hypocrisy quickly, Ms. Segal.
My perception, and I think this is based on fairly decent material, is that if anybody was going to be on that watch list, the U.S. should put themselves on it, in the sense that they have more counterfeit material and goods going through their country, getting into their country, and manufactured in their country on a proportional basis than Canada does, by a long shot. Would you agree with that statement?
Deputy Director, Intellectual Property, Information and Technology Trade Policy Division, Department of Foreign Affairs and International Trade
Actually, I don't have the statistics on that at all. In fact, the OECD is looking at the economic analysis of counterfeiting and piracy worldwide. That's one of the big problems, that actually none of the countries have perhaps the statistics required. Also, it is an underground activity, so even gathering these statistics is fairly difficult.
Obviously, if you put more enforcement at the border and can track that, you might actually get more seizures. If you don't have the resources there, it's hard to see also what things are getting past. So the numbers are very difficult, actually, to make any conclusions.
Deputy Director, Intellectual Property, Information and Technology Trade Policy Division, Department of Foreign Affairs and International Trade
I'm actually just being truthful. We work with the U.S. on many things, including intellectual property rights enforcement, and with other countries, and statistics are a very serious problem.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Chief Superintendent, I'm a bit concerned about what I'm hearing.
Maybe I should say this to all of you. I was hoping that what we would get from you today was specific recommendations of amendments to various pieces of legislation. I don't know if we're going to get that from anybody else, but I had expected we were going to see some specific recommendations.
Chief Superintendent, with regard to the points you've raised, I don't know if this is just a lack of resources, but I'm not quite sure why we're not able to use or why we are not using the organized crime sections of the code to identify the groups as being organized crime syndicates, charge them accordingly, and then seize the goods pursuant to those sections, even the section that has the reverse onus in it. Is the structure not there? Are we missing something? If we are, we'd like to know that.
C/Supt Mike Cabana
To be very honest here, I think we're missing a strong legislative framework for these types of offences. And most of the investigations we're involved in are historical in nature, which almost requires working backwards to prove the existence of the criminal organization, the implication of a criminal organization, which is extremely difficult to do with the resources we have presently.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Does the RCMP have specific recommendations on how we improve the organized crime sections of the code?
C/Supt Mike Cabana
This is something I would have to look at to come up with specific recommendations. Before we look at....
Joe Comartin NDP Windsor—Tecumseh, ON
Let me interrupt you, since time is short.
Are there are models that we can be looking to elsewhere that have been effective? Whether it's in the EU, or—I know it's not in the United States, but maybe there are some states there that have done some work in it—elsewhere, are there other models in industrialized countries of a nature like Canada's that have been successful in pushing back effectively?
Deputy Director, Intellectual Property, Information and Technology Trade Policy Division, Department of Foreign Affairs and International Trade
I think that's part of the problem. Every country is dealing with a growing global problem of counterfeit and piracy. Countries are improving their regimes. All of the countries are, on an almost continuous basis, looking at what they are currently doing and what they could be doing, and at whether it's working or not.
It's very difficult to say that any one country is actually effective at this point. With new technologies and everything else, it's very difficult to counter. The countries are doing what they can do domestically, but also internationally. We need more integrated cooperation and information exchange to actually combat this.
One of the things we've encountered is that when we stop a shipment of fake batteries, we now have links with Mexico and the U.S. to tell them that we have stopped a fake shipment from X country, because the next step, if we stop it, is that the same shipment often goes either to Mexico or the U.S. and tries to get in. If they have warning in advance—we get them also from our colleagues in other countries—then we can adequately prepare and alert CBSA to look for these kinds of shipments.
A lot of this is going to be international cooperation, because one country's efforts aren't going to stop a problem.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Ms. Johnston, assuming you get the authority that was referred to earlier by Justice, is there any assessment by CBSA as to how much it's going to cost and how many additional staff we're going to need, and how much it is going to cost to properly deal with this problem at the border?
Director General, Policy and Program Development Directorate, Canada Border Services Agency
I can't give you figures with respect to actual cost for resources. What I could share with you is the current number of interdictions we're doing of counterfeit goods via the means I explained earlier, whereby we come by them in the enforcement of the Customs Act or in association with our joint forces operations with the RCMP.
We have about 1,000 interdictions of counterfeit goods annually under the current regime, and we can only speculate that these would increase multifold if we were to get the authority to do the actual targeting and the examination specifically for counterfeit goods. I can tell you that we would anticipate that if we were to be given the legislative authority, the volume of counterfeit goods we would be dealing with would be significant. Of course, we would have to assess the resourcing consequential upon that, but we haven't actually done a costing at this stage.
Director General, Policy and Program Development Directorate, Canada Border Services Agency
It is part of the various analyses we're going through with our interdepartmental partners as to the various options we might pursue. Of course, ancillary to that would be that if we chose that option, we would look at this type of cost implication, but because we haven't come to any conclusions on it, we haven't drawn any conclusions with respect to definitive costing.
Conservative
The Chair Conservative Garry Breitkreuz
Thank you very much.
Just as a clarification, Ms. Segal, is there no documentation from any other countries as to how they deal with this? Some of them have been critical of us. We would presuppose that they would be doing a good job of countering this in their own country. I find it hard to believe there are no policies out there that are somehow working.
The second part of my question would be, are we getting good cooperation from the other countries in the world, or are there certain ones that are a problem?
First of all, are there no good exemplary policies out there?