Mr. Speaker, I am pleased to rise today to introduce the debate on the Senate amendments to Bill C-15A, an act to amend the criminal code and to amend other acts, in short, the criminal law amendment act, 2001.
Hon. members will be aware that Bill C-15A received third reading and was passed by the Senate on March 19. After careful study and reflection, the Senate adopted three amendments to Bill C-15A. The House now has an opportunity to consider and vote on these amendments. I will briefly summarize the amendments in the order that they appear in the bill. They are as follows.
First is an amendment to clause 5 of the bill to add new subsections 163.1(3.1) and subsection 163.1(3.2) to the criminal code, the effect of which would be to exempt Internet service providers, ISPs, from criminal liability for the new offences of “transmitting”, “making available” and “exporting” child pornography, where the ISP “merely provides the means or facilities of telecommunication”. This is referred to as amendment 1(a) in the message from the Senate.
Second is an addition to clause 5 of Bill C-15A to amend subsection 163.1(6) and subsection 163.1(7) of the criminal code in order to ensure that the defences that are currently available in relation to child pornography offences apply equally to the new offence of accessing child pornography. That is referred to as amendment 1(b) in the message from the Senate.
Third is an amendment to clause 71 of the bill, that is, proposed subsection 696.2(3) of the criminal code, dealing with the process for review of allegations of wrongful conviction which would limit the minister's power to delegate the exercise of the new investigative powers to members of the bar of a province, retired judges or any other individual who, in the opinion of the minister, has similar background or experience. This is referred to as amendment 2 in the message from the Senate.
The government recognizes the important role played by the Senate in its consideration of this legislation. The government accepts the second and third amendments and acknowledges that these changes are improvements to the bill. I urge hon. members to vote in favour of these two amendments. However, the first amendment dealing with the Internet service providers is a different matter. I urge hon. members to reject this change to the bill. Let us look more closely at these amendments.
The second amendment to clause 5 of the bill is a consequential amendment that adds a cross-reference to the new offence of accessing child pornography into subsections 163.1(6) and 163.1(7) of the criminal code. As already noted, the sole effect of this amendment would be to ensure that defences that are currently available in relation to all other child pornography offences apply equally to the offence of “accessing” child pornography under subsection (4.1).
This amendment is necessary to avoid creating an unfair situation where a defence that is available to other and possibly more serious child pornography offences would not be available to a charge of “accessing child pornography”. This amendment corrects an oversight and the government supports it.
Turning to the third amendment, hon. members will be aware that the federal Minister of Justice exercises special post-appellate powers in review of criminal convictions. Proposed subsection 696.2(2) provides the minister with the investigative powers of commissioner under part I of the Inquiries Act. This will provide the minister with the power to compel the production of documents and the attendance of witnesses to provide information.
These additional powers of investigation are needed to improve the range and extent of the reviews of alleged wrongful conviction. Proposed subsection 696.2(3) as passed by the House would have allowed the minister to delegate the exercise of those investigative powers to “any individual”.
An amendment was made to subsection 696.2(3) in the Senate to specifically state that the minister may only delegate the exercise of those investigative powers to “any member in good standing of the bar of a province, retired judge or any other individual who in the opinion of the minister has similar background or experience”.
The government supports this amendment for the following reasons. It is important that those persons investigating cases on behalf of the minister have the ability to obtain the necessary information in order to thoroughly review and investigate a case so that a full report may be made to the minister as to whether or not a remedy is appropriate in a particular case.
Section 690 currently does not provide any powers to compel witnesses to give information or documents. Therefore there is no way that the information sought can be obtained if it cannot be obtained voluntarily.
For these special post-appellate powers to be exercised in a well balanced and reasonable fashion, the Minister of Justice needs to rely on sound legal advice based on good and reliable information.
The highly complex legal nature of these post-appellate conviction reviews requires that the people investigating these matters and eventually providing advice to the Minister of Justice possess a considerable knowledge of criminal law, the law of evidence, police practices and the workings of the judicial process. Therefore a legal background or substantial experience in law should be a requirement for a person to be designated as an investigator with the power to compel the production of evidence and the attendance of witnesses.
The Senate amendment allows the minister to appoint people the minister will trust and directs the minister's choice to persons having specialized legal experience. Again, the government accepts and supports this amendment.
Returning now to the first amendment to clause 5 of the bill, I ask hon. members to give careful consideration to this amendment as it is very problematic. It was made in an attempt to respond to concerns expressed by the Internet service providers to the effect that they could be convicted of “transmitting” or “making available” child pornography without any knowledge or intention to do so simply by virtue of the fact that they provide the “means” by which child pornography is disseminated.
These concerns are not well founded. New child pornography offences in Bill C-15A as well as the existing offences require both a guilty mind and a guilty act, a fact acknowledged by the Internet service providers. As with other criminal code offences, an offence of transmitting child pornography requires two critical components, the first component being an intention to transmit child pornography and the second component being the physical act of transmitting child pornography. Even without the Senate amendment, ISPs would not commit a child pornography offence when they do not have the knowledge of the content of the material stored on or going through their system.
Apart from being unnecessary, there is a more serious problem with the Senate amendment. The amendment exempts the ISPs from criminal liability in all cases where they merely provide the means or facilities of telecommunication. This exemption would apply even in cases where an ISP is aware that it is being used for the dissemination of child pornography because the ISP would still “merely provide the means or facilities of telecommunication”. As I mentioned earlier, ISPs who are unaware that their facilities are being used for such purpose would be insulated from criminal liability without the need for the amendment because they would not have the mental element, or the guilty mind if you will, that is necessary for committing a child pornography offence.
There is another problem with this amendment. The offences proposed by subclause 5(2) are not limited to the commission by means of the Internet. By exempting only the ISPs, the amendment ignores those who are responsible for other means or facilities that may be used for disseminating child pornography. Whether they be a courier, a taxi driver or even a trucker, they could unknowingly be used as a “conduit” or means of transmitting child pornography. Accepting an amendment to protect only one of the actors involved would cast a doubt on the legal fate of the other actors.
For all of these reasons, this amendment should be rejected by the House.
In conclusion, I strongly urge all hon. members to vote in favour of the second and third Senate amendments, amendments 1(b) and 2 in the message from the Senate, and to vote against the first amendment relating to the Internet service providers. That would be amendment 1(a) in the message from the Senate.