Mr. Speaker, I am pleased to speak on Bill C-234, an act to amend the Criminal Code, facsimile advertising. The purpose of the bill is to make it a Criminal Code offence to send unrequested advertisements by facsimile transmission.
The hon. member opposite clearly believes that unsolicited advertisements received by fax can be a nuisance for many people, organizations and businesses, particularly when the advertisements are long, numerous or repetitive. They use up expensive thermal paper and clog up the fax machine which is then not able to send the important messages that need to be sent and so on.
I am sure every member of the House can relate to this and would join in agreement with that problem. However, while unsolicited facsimile material can be a real nuisance, sending it is in my opinion not conduct that should be sanctioned by criminal law.
Bill C-234 proposes to make sending these faxes a criminal act. I cannot agree that making the abuse of a fax machine a criminal offence is an appropriate response. The purpose of criminal law is to contribute to the maintenance of a just, peaceful and safe society. It has long been recognized that criminal law plays an important role in protecting our social values, but there are other ways of protecting these values.
The abuse of a fax machine and a facsimile transmission is a problem that would be better dealt with using less intrusive, less coercive means and more positive approaches. Although I agree this kind of abuse is a nuisance I cannot get myself to agree this conduct is to be treated with the heavy hand of criminal law.
The past few years have seen a growing concern in the legal community and in society generally with the overcriminalization of our society and of our laws. It may be useful to go back to established principles that may prove to be relevant to the issue at hand. These principles could guide our nation in making a determination as to what ought to be made criminal and what ought to be regulated using less stringent means.
A 1982 report entitled "The Criminal Law in Canadian Society" outlined the policy of the Government of Canada with respect to the appropriate scope and basic principles of the criminal law. A clear statement is included in the report:
The criminal law ought to be reserved for reacting to conduct that is truly harmful-Criminal law should only be used when the harm caused or threatened is serious, and when the other, less coercive or intrusive means do not work or are inappropriate.
With that view, with those lenses and regarding those words of advice and direction, does the act of sending unrequested advertisements by facsimile transmission seriously harm people or organizations? We will all agree it is an annoyance, but is it harmful to the point of requiring this be made criminal with all the attendant consequences like criminal records, problems getting into education and problems obtaining employment? Certainly not in my view. It may be a nuisance or an inconvenience, but I doubt there is ever any serious harm done. Does the act of sending unrequested advertisements by fax so seriously contravene our fundamental values as to be harmful to society? Of course not.
Therefore it seems clear this conduct does not fall within the proper scope of criminal law. If the criminal justice system is to remain an effective mechanism for the protection of social values it is important that it not be overburdened. We all understand that our court system is overburdened today. Caution is therefore appropriate in creating new criminal offences. That caution makes me conclude that it would be inappropriate for the House to use such a blunt instrument as criminal law.
I raise another concern with the bill. It proposes to make the sending of unrequested advertisements by fax a punishable offence. Any person found guilty of committing this offence would be liable to a fine not exceeding $200. At first glance this small fine does not seem to constitute excessive interference with individual liberty and freedom.
However, we must remember, especially in the House and especially today with what we know to be true in the country, that subsection 787(2) of the Criminal Code provides that if one fails to pay a fine the court may order the defendant to be imprisoned for a period of up to six months. In effect, this offence is potentially punishable by up to six months imprisonment. This would be unjustifiable state interference with individual liberty. I seriously doubt that making it a criminal offence to send these faxes is truly necessary to achieve justice and to protect Canadian society.
I must also express my concern with respect to the current wording of the bill. It does not clearly define the limits of the offence. For example, the bill would prohibit the sending of unrequested facsimile communication advertising for sale any goods or service. Unrequested by whom? Do the words "advertising for sale" make it a crime to try to sell something? Is it all right to try to rent something or whatever else? These words remain entirely open to interpretation. It is also unclear who exactly is responsible, the employer, the employee or both.
I repeat my concern. The fundamental principles of individual rights and freedoms demand that criminal offences be very clearly defined. The bill is open to a range of interpretations and yet proposes to create a new criminal offence. Criminal law cannot operate in such an arbitrary manner. The bill as it stands is not
clearly drafted and would make punishable many actions and situations not criminal in nature.
I express my sympathy again with the sentiments of the bill. Most of us have experienced firsthand that receiving unsolicited commercial facsimile transmissions can be a nuisance. However, as I have explained today, the bill raises several fundamental concerns. I am convinced it is inappropriate to create a new Criminal Code offence prohibiting the sending of unrequested advertisements by facsimile transmission to individuals or companies.
Criminal law is not the appropriate instrument to deal with this nuisance. Criminal law must only be used when it is clearly necessary to achieve justice and to protect the full interests of society. It may be possible to identify more appropriate and less intrusive means of dealing with this problem, which I might be able to support, but I cannot support the creation of a Criminal Code offence for the purpose stated in this private member's bill.