Public Safety Committee on March 18th, 2024

[Doug Shipley, Conservative, Barrie—Springwater—Oro-Medonte, ON]

Yes.

[The Chair, Liberal, Heath MacDonald]

Can we suspend for two minutes and get it in writing from you, Mr. Shipley?

[Doug Shipley, Conservative, Barrie—Springwater—Oro-Medonte, ON]

All right.

[The Chair, Liberal, Heath MacDonald]

Thank you.

[The Chair, Liberal, Heath MacDonald]

We'll reconvene.

Mr. Shipley, please, could you read the subamendment?

[Doug Shipley, Conservative, Barrie—Springwater—Oro-Medonte, ON]

The subamendment would just add, after how many orders were issued, “and the number of times an order prevailed over a decision the CRTC made under this act”.

[The Chair, Liberal, Heath MacDonald]

Is there any further discussion on the subamendment?

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Can you say it one more time?

[Doug Shipley, Conservative, Barrie—Springwater—Oro-Medonte, ON]

It would be adding, at the end of G-6.2 on how many orders were issued, “and the number of times an order prevailed over a decision the CRTC made under this act.” That's the only part we're adding—that one sentence—into the current report.

(Subamendment agreed to)

(Amendment as amended agreed to [See Minutes of Proceedings])

[The Chair, Liberal, Heath MacDonald]

We're on NDP-9.

If NDP-9 is moved, CPC-16 cannot be moved, as they are identical.

Mr. Julian.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you, Mr. Chair.

This is another key decision point, and it's what we've repeatedly heard is the best route forward to improve Bill C-26. We heard from members of the coalition, and I'll remind you that the organizations involved include the Privacy and Access Council of Canada, OpenMedia, the National Council of Canadian Muslims, the Ligue des droits et libertés, the International Civil Liberties Monitoring Group and the Canadian Civil Liberties Association. All of them have said that an important component for ensuring that the public interest is protected is a provision for special advocates.

What this would do is add, after line 13 on page 8, the following:

(a.1) the judge must appoint a person from a list established by the Minister to act as a special advocate in the proceeding after hearing representations from the applicant and the Minister and after giving particular consideration and weight to the preferences of the applicant;

It would also add, after line 28 on page 8, the following:

(c.1) on the request of the Minister, the judge may exempt the Minister from the obligation to provide the special advocate with a copy of information if the judge is satisfied that the information does not enable the applicant to be reasonably informed of the case made by the Minister;

I won't read all of the amendment. I know that my colleagues around the table have had a chance to thoroughly review NDP-9, but the reality is that special advocates are top secret, security-cleared private practice lawyers, independent of government. We've already seen special advocates protecting the interests, for example, of permanent residents or foreign nationals subject to a security clearance certificate or other proceedings under the Immigration and Refugee Protection Act.

Currently, there is a list of special advocates who are cleared to defend individuals in matters like this, with the Immigration and Refugee Protection Act. There are apparently 10 special advocates available.

This is clear testimony we heard from numerous witnesses among the coalition members I mentioned. They are some of Canada's most reputable groups, and there is no doubt that having in place a special advocate would improve the legislation, so I want to move NDP-9.

[The Chair, Liberal, Heath MacDonald]

Thank you, Mr. Julian.

We have a ruling, and I'm going to read it out, as the chair.

The amendment seeks to authorize a judge to appoint a person from a list established by the minister to act as a special advocate in the proceeding, creating a new and distinct spending to be drawn from the treasury.

As House of Commons Procedure and Practice, third edition, states on page 772:

Since an amendment may not infringe upon the financial initiative of the Crown, it is inadmissible if it imposes a charge on the public treasury, or if it extends the objects or purposes or relaxes the conditions and qualifications specified in the royal recommendation.

In the opinion of the chair, and for the above-mentioned reason, the appointment of a special advocate imposes a charge on the public treasury. Therefore, I rule the amendment inadmissible.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Mr. Chair, I have a lot of respect for you, but I am going to present a couple of pieces of information that I believe are relevant, and then I will be asking the committee whether or not they agree with your ruling.

First off, in the past, Speakers—and I am thinking of 2003 and Speaker Milliken—have found that a royal recommendation was not required because a bill did not immediately require the expenditure of public funds. In 2010, Speaker Milliken also found that Bill C-300 did not require a royal recommendation, as the bill provided only a requirement to undertake such a program but did not stipulate how the government should execute the program.

I think it's fair to say that special advocates exist already, and we're not talking about an additional charge to the public treasury. The reality is that the government could choose to make a recommendation, but it's fair to say that the jurisprudence on this in Speaker Milliken's repeated rulings, in both 2003 and 2010, indicate to this committee that, given the special advocate program is already in place, there isn't an additional charge to the public treasury.

On that basis, I would challenge your ruling, with deep respect for the work you do and the slow cadence that you've brought to our clause-by-clause deliberations.

[The Chair, Liberal, Heath MacDonald]

I'll call for a vote.

[Doug Shipley, Conservative, Barrie—Springwater—Oro-Medonte, ON]

We're a little confused. Can we confirm how this vote works?

[The Chair, Liberal, Heath MacDonald]

Shall the decision of the chair be sustained?

(Ruling of the chair sustained: yeas 7; nays 4)

[The Chair, Liberal, Heath MacDonald]

Shall clause 2 carry as amended?

(Clause 2 as amended agreed to)

(Clauses 3 to 6 inclusive agreed to on division)

(On clause 7)

We'll go to BQ-10 with Madame Michaud.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chair.

We have had a number of discussions on this issue with telecommunications companies, which expressed their concerns, and rightly so, about the provisions dealing with administrative monetary penalties and violations, including continuing violations. I will read section 72.131 on violations proposed in the bill:

72.131 Every contravention of a provision of an order made under section 15.1 or 15.2 or a regulation made under paragraph 15.8(1)(a) constitutes a violation and the person who commits the violation is liable to an administrative monetary penalty of an amount (a) in the case of an individual, not exceeding $25,000 and, for a subsequent contravention, not exceeding $50,000; or (b) in any other case, not exceeding $10,000,000 and, for a subsequent contravention, not exceeding $15,000,000.

The bill also proposes the creation of a section on continuing violations:

72.132 A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.

The purpose of our amendment is to delete those lines—lines 24 to 26—because such penalties of $10 million or $15 million, which is already enormous for large companies, are devastating for a small business. The Canadian Chamber of Commerce has also recommended that this section be removed because presumably, in the aftermath of the violation, businesses are trying to solve the problem. It is not in bad faith that someone would be in continuing violation of the act.

Our reasoning is as follows. The section states that a continuing or prolonged violation of the act can be punishable by additional daily fines. As non-compliance is often related to systemic issues that are not resolved quickly or in a day, a single continuing violation of the act could result in substantial and repeated administrative monetary penalties. Such severe penalties could lead to widespread outages of telephone, Internet and mobile phone services owing to a lack of time to properly develop and test fixes, which may introduce unintended technical vulnerabilities. Removing section 72.132 would allow for separate violations to be recognized without reducing the government's ability to impose fines for continuing violations.

I hope my colleagues will vote in favour of this amendment.

[The Chair, Liberal, Heath MacDonald]

Is there any discussion?

Go ahead, Ms. O'Connell.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Again, we understand that the intention is not to bring undue harm to, say, smaller companies or enterprises that may be subject to this. I think, though, we are concerned that for the big players in this space, if a fine, for example, were too small, it would not really be an incentive to comply. It would be the cost of doing business to move forward and pay the fine.

To the officials, do you see provisions in the bill to accomplish what Madame Michaud is concerned about—making sure that penalties are not overly harmful to smaller-sized businesses?

[Andre Arbour]

Indeed, proposed subsection 72.133(1) sets out the set of factors that must be taken into consideration when determining the amount of the penalty. It includes the nature and scope of the violation and any past history, but also, importantly, the person's ability to pay the penalty.

Furthermore, proposed subsection 72.133(2) states that the purpose of the penalty is to “promote compliance”, not to punish. This is parallel to existing administrative monetary penalties and sets out constraints such that any penalty must be reasonable when taking into consideration these factors. We'll also be taking up the issue of due diligence subsequently.

Just to build on that, in this circumstance, it is the larger carriers that have revenues north of $15 billion per year. The maximum size of the penalty is geared toward the largest players. Otherwise, if it costs $20 million to replace some equipment and the maximum penalty is $10 million, maybe they will just pay it. However, these protections have been geared such that, when taking into consideration the interests of small business, they are not unreasonable and not out of the scope of the person's ability to pay.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Thanks.

That being said, I think the concerns around protecting smaller businesses are built into the reasonableness and ability to pay. Although I agree with this, I think it's covered in other sections. I wouldn't want the unintended consequence of trying to protect the smaller players in this space to be that the bigger players, such as in the example just provided, are allowed to do nothing because a fine is cheaper.

I can't support it in that sense, but I feel confident that the protections are there in other sections.

[The Chair, Liberal, Heath MacDonald]

Thank you.

Go ahead, Madame Michaud.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you very much for that.

If we are taking the trouble to establish criteria to determine the amount of a penalty, why bother mentioning the maximum amounts? However, you said that the maximum amounts were related to larger companies' ability to pay.

Is it common to set a maximum amount in legislation to indicate what the penalty could be? Does that have to be done? I think it frightens smaller companies. Later on, we understand that it can be adjusted based on many criteria.

[Andre Arbour]

Mr. Chair, I thank the member for her question.

In a bill like this, it is perfectly normal to indicate a maximum amount. This is an important principle in order to avoid the risk of having a very large amount.

In a sector with a wide variety of service provider sizes, there are very large players, with revenues in the billions of dollars, and hundreds of very small service providers. It's perfectly normal to have a high maximum amount to be able to impose an appropriate penalty on large players, but there are criteria to protect small service providers' interests.