House of Commons Hansard #120 of the 40th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was drugs.


Museum StrikeRequest for Emergency DebateRoutine Proceedings

3:20 p.m.


The Speaker Liberal Peter Milliken

I thank the hon. member for her submissions on this point. Certainly, the strike has been ongoing for some time, but in the circumstances I am not sure that the request meets the demands of the Standing Order at this time. Accordingly, I am going to deny the request at this moment.

The Chair also has notice of a question of privilege from the hon. member for Ottawa Centre. I am prepared to hear him on that question of privilege now.

Committee Witness Testimony and Supporting DocumentsPrivilegeRoutine Proceedings

3:20 p.m.


Paul Dewar NDP Ottawa Centre, ON

Mr. Speaker, a question of privilege arises when a member, a committee, or the House of Commons as an institution has been prevented from carrying out its duties. These privileges include freedom of speech; freedom from obstruction, interference and intimidation; and the right to institute inquiries, call witnesses and demand papers. So important are these privileges of the House that they are rooted in the Constitution.

The special committee on Afghanistan has for some weeks been attempting to exercise its parliamentary functions in relation to hearings on the allegations of detainee abuse in Afghanistan. Evidence was submitted to the Military Police Complaints Commission on the same issue and was suppressed by the government under the guide of sections 37 and 38 of the Canada Evidence Act. The special committee wanted to obtain this evidence using its power to call persons and papers, and so it called forward Mr. Richard Colvin, a senior diplomat, to testify.

The committee also passed a motion on Wednesday, November 25 requesting a number of documents relevant to its inquiries and necessary for the committee's work.

In order to assist its work, the committee first called Rob Walsh, law clerk of the House of Commons, to testify. Mr. Walsh confirmed the privileges of Parliament in relation to hearing evidence, requesting testimony and receiving documents. He confirmed that the Canada Evidence Act did not prevent Mr. Colvin or any other witness from testifying and providing documents to support that testimony. Parliamentary privilege overrules sections 37 and 38 of the Canada Evidence Act.

On the morning of Mr. Colvin's testimony to the special Afghanistan committee, Mr. Colvin received an email from a senior official of the Department of Foreign Affairs and International Trade. In this email DFAIT advised Mr. Colvin in writing that the Government of Canada did not accept the law clerk's legal opinion on parliamentary privilege. I quote from that email:

GoC does not share the Clerk's view of the effect of the laws adopted by Parliament on Parliamentary proceedings and as a Public Servant we trust that you will conduct yourself according to the interpretation of the GoC. Should there be any concerns expressed by members of the Committee, those concerns should be referred to government counsel.

This email makes it clear that the Government of Canada does not accept Parliament's privileges and will not abide by the law clerk's confirmation of these privileges. The Government of Canada in this email essentially attempted to intimidate a witness prior to his testimony in front of the committee. The government also instructed the witness on how he was to answer questions from members of Parliament. As his employer, the Government of Canada is in a position of power over Mr. Colvin, and this is a clear attempt to intimidate.

I should add to this that two days before his appearance at committee, officials from the embassy in Washington, D.C. approached Mr. Colvin on behalf of the Department of Justice to ask for the documents Mr. Colvin was prepared to give to the Afghanistan committee in support of his testimony.

While the Government of Canada has a right to documents that are a product of Mr. Colvin's work, it has been happy for him to keep these documents for a number of years. It was only two days before the committee hearings where Mr. Colvin would, of course, want to produce these documents in support of his testimony, that the government decided to take those documents away from him. This is a clear attempt to frustrate and obstruct the committee's work.

In 2005 the Federal Court of Appeal ruled that parliamentary privileges such as freedom of speech and freedom from intimidation and obstruction extend to witnesses testifying at committees. On page 114 of O'Brien and Bosc's House of Commons Procedure and Practice, second edition, 2009, it says:

In a ruling given on February 20, 1984, the Speaker stated:

A threat emanating from any government department or public corporation to withhold information or cooperation from a Member of Parliament would undoubtedly hinder that Member in the fulfilment of his or her parliamentary duties and therefore constitute a breach of privilege.

Both the emails received prior to Mr. Colvin's testimony and the seizure of documents do not only obstruct the committee's work and deny its privileges but they are attempts to intimidate the witness. In addition, DFAIT instructs members of Parliament to address their concerns about the issue of privilege to the Department of Justice rather than to their own counsel.

I am extremely perturbed that the Department of Foreign Affairs believes that all concerns by members of Parliament on the admissibility of documents to Parliament should be referred to the Department of Justice lawyers. These are lawyers who have already stated that they do not believe parliamentarians have the rights and privileges the Constitution accords them, as I mentioned earlier.

Members cannot receive unbiased advice from the Department of Justice, nor are they obliged to report to the Department of Justice. This is a violation of members' privileges, as it attempts to restrict their right to free speech and counsel. In silencing witnesses, interfering and obstructing a person who is carrying out the lawful order of the committee and denying parliamentarians their rights, the Department of Foreign Affairs and the Government of Canada are in contempt of Parliament.

In addition, the government's attempt to wilfully ignore a constitutionally enshrined right of Parliament to oversee it and hold accountable is deeply worrying. In turning a blind eye to this contempt of Parliament, a precedent is set that allows the government to withhold any evidence from Parliament that it sees as embarrassing under the guise of national security. It also sets a precedent of ignoring rights of parliamentarians and their constituents. This goes right to the heart of the government's accountability to Parliament and, through that, to Canadians.

My colleague, the member for St. John's East, raised this point in the House last week. Quite rightly, Mr. Speaker, you ruled that the matter must first be raised in committee. The special committee on Afghanistan tabled in the House on Friday, November 27, a report which sets out our belief that a breach of our privilege has occurred. I use this report in my argument that this is a prima facie breach of privilege.

Mr. Speaker, I therefore ask you to find a prima facie breach of privilege in this case. If you are prepared to rule that this is a prima facie breach, I am prepared to move the relevant motion to refer the case to the Standing Committee on Procedure and House Affairs.

Committee Witness Testimony and Supporting DocumentsPrivilegeRoutine Proceedings

3:30 p.m.

Edmonton Centre Alberta


Laurie Hawn ConservativeParliamentary Secretary to the Minister of National Defence

Mr. Speaker, I rise today on this important issue. As has often been stated, real matters of privilege and contempt are rarities and ought not to be treated lightly. The complaint raised by the hon. member for Ottawa Centre and the content of the third report of the Special Committee on the Canadian Mission in Afghanistan are matters the government treats with profound gravity.

The committee report makes a serious allegation. Let me quote in brief the full report:

On Thursday, November 26, 2009, the Special Committee agreed to report the following motion:

That the Committee believes a serious breach of privilege has occurred and members' rights have been violated, that the Government of Canada, particularly the Department of Justice and the Department of Foreign Affairs and International Trade, have intimidated a witness of this Committee, and obstructed and interfered with the Committee's work and with the papers requested by this Committee.

Therefore this Committee reports the breach to the House so that it can consider the matter.

A copy of the relevant Minutes of Proceedings Meeting No. 17 is tabled.

Respectfully submitted,

There follows the name of the chair, the hon. member for Lethbridge.

Mr. Speaker, the question before you is whether or not this is a prima facie case that would merit giving precedence over all other business. That decision must be based on evidence before the House. My respectful submission is that the committee has not sent sufficient evidence to the House. All we have is the one sentence accusation that:

--the Department of Justice and the Department of Foreign Affairs and International Trade, have intimidated a witness--

There are no specifics set out, no names of persons, no record of events, and no details that could be tested. How on earth can an inanimate agency, a department, intimidate any person? People can; a department cannot.

The committee did append to the report the minutes of meeting 17. I searched diligently and I expected to find in meeting 17 a record of attempts to secure specific documents or exchanges with named officials of the Government of Canada, or written requests from committee officials for specific records that would spell out a chronology of invitations and responses or requests to named individuals for specific records. Let me quote the entirety of the committee record on this matter.

“[The member for Ottawa Centre]: Mr. Chair, just before we start, apologies to our guest, I just want to raise a point of order before we start. I actually want to go back to the motion that was passed yesterday with regards to documents and the requests that this committee put forward to the government and the requests for the documents. I want to, first of all, establish whether or not the documents arrived? If any documents arrived, did you put the request forward and did any documents arrive as to that request?”

“The Chair: Yes, that's correct, [the member for Ottawa Centre] that your motion indicated, the motion that passed, that the requests for these documents be put before Mr. Mulroney appear. That request went into the department last night at 8 o'clock as information provided to me by the clerk and I understand from officials today that the documents requested are at translation today”.

“[The member for Ottawa Centre]: Mr. Chair, in light of the fact that we haven't received documents and in light of the fact that this committee did request documents prior to Mr. Mulroney's attending committee, I just want to put forward this motion. It's a very quick one. It's regarding the documents and we can get on to the business of the day”.

“Mr. Chair, I think it's important to establish as I mentioned yesterday at committee the importance of committees of Parliament be able to do its work and to do that we need to have same documents that are available to witnesses. We saw this yesterday. We had two retired members of the forces accessing documents that we couldn't access. So the following motion I want to put forward, Chair, and will distribute 'that the committee report to the House that it believes a serious breach of privilege has occurred and members' rights have been violated. That the Government of Canada particularly the Department of Justice and the Department of Foreign Affairs and International Trade have intimidated a witness of this committee and obstructed and interfered with committee's work by withholding the papers requested by this committee. Therefore this committee reports the breach to the House so that it consider the matter'. Mr. Chair, we have important business ahead of us as I mentioned”.

“This isn't an attempt to filibuster. This is a straight forward motion. I would like to have this committee consider it, to vote on it and to move on. If I could just explain the words in the motion. We have asked for documents. We have asked that these... not just once. I asked when Mr. Colvin was here for his documents. He wasn't able to provide those documents. He was told that if he did provide those documents, there would be consequences for that. I think that this... to put it mildly, unfortunate, that a committee of Parliament isn't able to have information to conduct its business. I believe that's a breach of privilege and that's a straight forward motion and I'll stop at that”.

“[The member for Edmonton Centre]: Well, Mr. Chair, several points. First of all, beginning with the latter one, Mr. Colvin does not have authority to provide those documents to the committee even if he chose to. I believe, Mr. Chair, that the motion passed yesterday, that certain motion which was mine as it was the last motion passed takes precedence over other motions. If you want to split hairs, [the member for Ottawa Centre's] motion was that documents be requested... I know this is really going to split a hair, be requested before Mr. Mulroney appeared not that they be delivered. That may be splitting a pretty fine hair but it is literally true. The other point, Mr. Chair, is that motions without unanimous consent require 48 hours notice”.

“The Chair: That is the case if it's a motion to do with something that the committee is not engaged in. Just to clarify the 48 hour rule, I'll read it here:

The 48 hour notice to be required for any substantive motion to be considered by the committee unless the substantive motion relates directly to business then under consideration and that the notice of motion be filed with the clerks of the committee and distributed to members in both official languages.

This refers directly to the subject that we have under discussion. So I believe it's in order.

Any further discussion?”

“[The member for Edmonton Centre]: I would request a ruling, Mr. Speaker, on my other point that the third motion passed yesterday took precedence over ^member for Ottawa Centre's motion”.

“The Chair: I don't think this motion that [the member for Ottawa Centre] has presented circumvents Mr. Mulroney from presenting today at all. He will in my present today.

Any further discussion?

All those in favour of this motion?”

“(Motion agreed to)”

That is the entire case transmitted by the committee to the House of Commons.

There is an assertion that a witness has been intimidated. Who is the witness? What is the evidence? What are the specifics? It is not good enough to make an unsupported statement to pretend that this is a prima facie evidence. Nor is it sufficient for individual members of a committee to bring material to the House that does not stand in the name of the committee. Material not contained in the committee report cannot be given the authority of a report from the committee. This is the entire report.

What should the House expect in the instance of a genuine allegation of obstruction or denial of information?

First, we are entitled to know what has been requested, from whom and when it was requested, what response was made, by whom and when, and where is the written correspondence from the committee officials.

Let me quote from your ruling, Mr. Speaker, of last Thursday, November 26 when dealing with a complaint by the member for St. John's East. You stated:

If a report comes to the House, it is up to the Speaker to decide whether that report then allows a member to raise a question of privilege arising from the report, which will then get priority treatment in this House as befits a question of privilege.

I refer hon. members to pages 151-2 of O'Brien and Bosc, and this is in committee, where it states:

If, in the opinion of the Chair, the issue raised relates to privilege...the committee can proceed to the consideration of a report on the matter to the House. The Chair will entertain a motion which will form the text of the report. It should clearly describe the situation, summarize the events, name any individuals involved, indicate that privilege may be involved or that a contempt may have occurred, and request the House to take some action.

That did not happen in this report. The requirement that specific information must be included in the report itself is also reinforced at page 145 of the 22nd edition of Erskine May's Parliamentary Practice:

A matter alleged to have arisen in committee but not reported by it may not generally be brought to the attention of the House on a complaint of breach of privilege.

Why did the committee not come to the House to request an order of the House to produce specific papers? Options are available. The House may agree or not agree with the request of the committee. That option has not been pursued.

Instead the committee is asking the House of Commons to stop all other business to soothe the hurt feelings, condemn two departments of the Government of Canada, as well as all the persons who work in those departments, and the committee is asking the entire House of Commons to do the work that the committee has not done.

It is not enough to throw a one-sentence report together to hijack the work of the House of Commons. This is what O'Brien and Bosc state at page 979 under the discussion of committee powers to send for papers and records:

In practice, standing committees may encounter situations where the authors of or officials responsible for papers refuse to provide them or are willing to provide them only after certain parts have been removed. Public servants and Ministers may sometimes invoke their obligations under certain legislation to justify their position. Companies may be reluctant to release papers which could jeopardize their industrial security or infringe upon their legal obligations, particularly with regard to the protection of personal information. Others have cited solicitor-client privilege in refusing to allow access to legal papers or notices.

These types of situations have absolutely no bearing on the power of committees to order the production of papers and records. No statute or practice diminishes the fullness of that power rooted in House privileges unless there is an explicit legal provision to that effect or unless the House adopts a specific resolution limiting the power. The House has never set a limit on this power to order the production of papers and records. However, it may not be appropriate to insist on the production of papers and records in all cases.

In cases where the author of or the authority responsible for a record refuses to comply with an order issued by a committee to produce documents, the committee essentially has three options. The first is to accept the reasons and conditions put forward to justify the refusal; the committee members then concede that they will not have access to the record or accept the record with passages deleted. The second is to seek an acceptable compromise with the author or the authority responsible for access to the record. Normally this entails putting measures in place to ensure that the record is kept confidential while it is being consulted: in camera review, limited and numbered copies, arrangements for disposing of or destroying the copies after the committee meeting, et cetera. The third option is to reject the reasons given for denying access to the record and uphold the order to produce the entire record.

Since committees do not have the disciplinary power to sanction failure to comply with their order to produce records, they can choose to report the situation to the House and request that appropriate measures be taken. Among the options available to the House is to endorse, with or without amendment, the committee's order to produce records, thus, making it a House order. In the past, the House has sometimes found persons failing to comply with an order to produce records guilty of contempt of Parliament. On occasion, it has even exercised its disciplinary powers.

This latter observation is important. There is a strong emphasis on the committee coming to the House and requesting the House to assist its work by ordering the production of a specific documents order for the production of papers and letting the House pass judgment on each document. Instead, this committee fails to ask the House to enforce its request. It is only interested in labelling unknown conduct of unknown persons and government departments as obstructionist, intimidating and contemptuous.

The House expects a higher standard of proof at the prima facie stage. Is there sufficient information presented by the committee to demonstrate that there has been interference, intimidation or contempt? The committee report contains not a single specific allegation.

As to the specific issue now before you, Mr. Speaker, and as is stated at page 145 of the House of Commons Procedure and Practice:

the issue put before the Speaker is not a finding of fact, it is simply whether on first impression the issue that is before the House warrants priority consideration over all other matters, all other orders of the day that are before the House.

There is no information that would justify a finding by the Speaker that all other business should be set aside to consider an undefined and unknown issue. To find otherwise is to give an instruction to every committee that they can control the business of the House through whimsey and mischief. That is not what we are about. It is not what the special committee on Afghanistan should be about.

The basic point is that something happened in a committee that can only come before the House if the committee reports it and it is the content of the report that is flawed and lacking specific information. The member for Ottawa South speaks only for himself, not the committee. The committee report speaks for the committee.

Committee Witness Testimony and Supporting DocumentsPrivilegeRoutine Proceedings

3:40 p.m.


Claude Bachand Bloc Saint-Jean, QC

Mr. Speaker, I want to thank you for occupying the chair, because it is important to us to have a Speaker with a great deal of experience who follows the deliberations of the House and has a ready knowledge of procedure because he started quite young.

Today, you have a major issue before you that has to do not only with committees, but with parliamentary democracy in the House of Commons.

This is a serious issue. The Special Committee on the Canadian Mission in Afghanistan decided to conduct a study because it believed that there were serious allegations of torture and that the torture of detainees could quite definitely tarnish the image of everyone in Canada, including Quebec.

When we saw that the Military Police Complaints Commission kept quiet because the government put obstacles in its way, prevented people from testifying and refused access to documents, the committee felt that the situation was serious enough to warrant further discussion.

I intend to prove briefly that members' rights have been violated and that a serious breach of privilege and intimidation have occurred.

It all started when the judge advocate general from the Department of National Defence said during his testimony and in response to our questions that his relationship with his client prevented him from answering those questions. The judge advocate general's client is the government. Consequently, Canada's chief military judge was telling us that he would not go into detail in his responses because he could not.

Yet the motion I introduced in the Special Committee on the Canadian Mission in Afghanistan referred to a serious inquiry, but also to sections 37 and 38 of the Canada Evidence Act.The committee examined the study by the senior law clerk, Mr. Walsh, which gave us many opportunities to get to the bottom of this matter. He said that the government could not use national security to protect certain ministers from the repercussions of decisions that they perhaps should not have made.

We therefore decided to proceed. I even asked the chief military judge to give us his interpretation, to share my interpretation with his client, the Government of Canada, and to come back and see us again afterward. We are waiting for this interpretation, because we believe it is our duty to get to the bottom of this issue.

The committee was also muzzled when it was refused documents. This is a breach of our privilege. All the witnesses whom we have heard to date openly told us that they were given access to all these documents. They have not been made available to us. We are members of parliament. We are the representatives of Canadians, who have placed their trust in us. Elections were held in 308 ridings including 75 Quebec ridings and the Bloc Québécois today holds 48 seats in the House. These 48 members are accountable to those who voted for them. This responsibility is exercised in the House of Commons as well as in committee.

If I tell the constituents in my riding of Saint-Jean that we have been refused documents, they will wonder how we can carry out our investigation and get to the bottom of things. Refusing to provide these documents is a major obstacle and is tantamount to muzzling the committee.

The House has been told that the documents are being translated. The government mentioned legal documents. That means that the Department of Justice is reviewing these documents and that we will probably once again—I do not want to get too far ahead of myself—be provided with edited documents where even the dates have been blacked out and where only minor words such as ”thanks” at the end of a letter remain. I have already seen this.

We await these documents with much apprehension. The Parliamentary Secretary to the Minister of National Defence says that the House of Commons and its precious time will be hijacked. I think we are entitled to do that. This is not some trivial issue. The probable torture of detainees is a very serious issue. As elected members we have the right to get to the bottom of this matter.

It is obvious that witnesses have been muzzled. Documents have been withdrawn from Mr. Colvin. He arrived without any documents.

The ones who came after in defence of the government all told us that there had been no problems and that there had been no torture. Getting information in committee is like pulling teeth; it is an ongoing battle. That is not how it should work. If this were an American parliamentary committee in the Senate or Congress, the members would have all the documents and would get to the bottom of the issue. That is what democracy is all about. It is not just about parliamentary democracy in this House, but about democracy, period.

The other point I wanted to bring up was the issue of parliamentary immunity. Mr. Speaker, you should know. The day we allow a government to intimidate witnesses and to prohibit them from testifying before committees will be a sad day. Committees can certainly summon witnesses with a subpoena, but when they are summoned by subpoena, what position are they in then? Their government is telling them that they will violate sections 37 and 38 of the Evidence Act and charges could be filed against them. However, if they do not testify they could also face charges for contempt. The witnesses are in an absolutely untenable situation.

Parliamentary immunity has always been important here in the House. There is a reason that the government keeps telling people to say what they have to say outside of the chamber. Here, we are immune to prosecution. But we should not get carried away. That is not what I am saying. I believe that immunity is important and that what is being said here should be said on the other side too.

If we are not allowed to hear from witnesses, if they are prevented from appearing or reappearing before us, and if we are not granted access to documents, there is clearly a problem. If legal issues are more important to the government than parliamentary issues, It will be up to you, Mr. Speaker, to decide. You have a very interesting case on your hands, and I have faith in the forthcoming ruling. As a committee member who has observed this whole matter take its course so far, I felt it was important to say that witnesses are being intimidated, our rights violated and our privilege breached. If we let this slide, the government will take charge of all decisions and committees will no longer have a say.

I would like to remind the parliamentary secretary and all governing party members on the committee that the matter before you was passed by a majority in committee. The committee passed it, and these issues were discussed. Now that we have reached an impasse, it will be up to you, Mr. Speaker, to decide. You have the wisdom of Solomon, and I am quite sure that the ruling will be favourable.

Committee Witness Testimony and Supporting DocumentsPrivilegeRoutine Proceedings

3:50 p.m.


Bob Rae Liberal Toronto Centre, ON

Mr. Speaker, I know we all engage in a great deal of partisan banter and that it is impossible to keep politics out of the House of Commons but I want to make a couple of comments about why I think this matter is of significance and why it is a matter of privilege for members of the House and the committee.

Under any norm of natural justice, in any proceeding, when a witness refers to a document, the people who are questioning the witness need to be able to see the document in order to know whether the witness is quoting from the whole document, whether the witness is quoting from the document fairly or whether the witness is omitting some things that should be referred to as well. This is an absolute precondition of anything that would amount to a fair process as it relates to getting to the heart of an issue.

The Afghanistan committee was established by the House. The question of the treatment of detainees was one of the issues that was contained in the parliamentary resolution which was referred to and passed by the House. We have had the prospect in the last week of witnesses appearing in front of the committee who not only had full access to information to which we did not have access but had access to documents in a completely non-redacted form, to all of the information in terms of memoranda and whatever briefing notes were provided to them or by them to others. Frankly, we do not know exactly what documents they thought they had and we were not able to have access to those.

The second thing that happened, which my colleague from Ottawa Centre has referred to, is that there was a first witness, Mr. Colvin, whose name is well-known to members of the House, who offered to share information with members of the committee and was then told that he could not share it.

We now have the situation where the legal advisor to the committee has advised the committee that we can hear evidence that the government might consider to be confidential or affecting national security and that sections 37 and 38 of the Evidence Act are not a barrier to members of the committee hearing this information. The Department of Justice has said that it does not accept that interpretation and refuses to allow it to go forward to the committee.

The hard part is that the government says that it wants to get to the truth and that it does not want to put barriers in the way of members doing their job, but that is exactly what it is doing. In preventing members from having access to exactly the same information as the people who are giving testimony have access to, it is impossible for us to do our job in an adequate way.

If somebody says that this is just about politics and not really about anything of substance or that it is just one side saying something and the other side saying something else, just a matter of political argument, I do not think that is true.

Mr. Speaker, if you find that the way in which the government has allowed witnesses to appear in terms of receiving briefings from departmental officials before their appearance, being given access to documents which others did not have and then denying to members of Parliament access to those same documents in the same form in which they are being considered by witnesses, I really believe that is a direct obstacle to our ability to do our job.

Mr. Speaker, if you are looking for a precedent with respect to how else this could have been done, I am reliably informed that in 2004 the public accounts committee requested and received all cabinet documents directly related to the sponsorship program, including cabinet committee minutes of meetings and briefing notes of PCO and PMO to the prime minister. These documents were provided in an unredacted form to the public accounts committee in a timely fashion; that is, before the ministers, former minister and senior public servants were called to appear.

Mr. Speaker, In the unfortunate event that you decide there is no case of privilege here or that you cannot see one, I would put it to you that we on this side of the House are left in literally an impossible position. We have absolutely no choice in that circumstance other than to insist on a public inquiry because a public inquiry under the Inquiries Act and a judge, or anyone sitting as a hearing officer under the Inquiries Act, would absolutely be required to follow these principles.

Therefore, the real question for the House and for you, Mr. Speaker, is whether the committees of the House, in carrying out their work and investigation, are obliged to follow the simple rules of natural justice, yes or no. If you find that the answer is no, that they do not, then we are left with a very harsh conclusion, and that is that we in the House cannot or have not created a system of committees that actually allows them to function in a proper and appropriate way.

I think that is something of some significance when it comes to getting to the bottom of this question.

My question is quite simple: are the committees of the House obliged to follow the rules of natural justice?

I think the answer is clearly yes. We do not have a choice. We cannot leave members of Parliament in a position where they do not have access to the same information as the witnesses at the committee. That puts them in an impossible position and we cannot accept that.

Committee Witness Testimony and Supporting DocumentsPrivilegeRoutine Proceedings

4 p.m.


Jack Harris NDP St. John's East, NL

Mr. Speaker, I would like to add a few comments to this debate. I listened very carefully to the Parliamentary Secretary to the Minister of National Defence, but I would say, with respect, that the contribution of the parliamentary secretary was to emphasize form over substance here. The form of the motion was to bring this matter before you as Speaker and before the House and, effectively, to allow you and the House to consider what happened in the committee, to reach in as it were. The parliamentary secretary was very helpful in reading the minutes as well, which provided additional information, as well as the letter sent by the member for Ottawa Centre to you and the contributions of members here.

This is all a part of the issue as to whether or not there has been a prime facie case of interference with the rights of parliamentarians in the committee. The committee so found and offered this to you; and the various members' contributions have contributed to that. I think it is very clear that what we are dealing with is a situation where the privileges of members of Parliament were breached by the fact that the committee could not do its work effectively when a witness came forward at the request of the committee and made a statement that we found out afterwards was tainted by the fact he was told by his superiors that he was not to accept the ruling of the parliamentary legal advisor to the committee, that the government did not accept the latter's interpretation of sections 38 and 37 of the Canada Evidence Act, and told the witness to abide by their interpretation. Furthermore, they visited him and took away documents he was prepared to make available to the committee.

It was raised in the House today, so I do not think it is wrong to add that there are newspapers with copies of documents that the committee is being denied. As the member for Toronto Centre pointed out, we have the committee trying to do its work with witnesses appearing before it who are saying they have read all of these documents and there is nothing to them. How then can members of Parliament effectively do their job and listen to witnesses without being able to ask them questions about the material they are giving evidence about?

The committee of course would have to make reports to the House, so all parliamentarians' privileges are affected by what has happened in the committee. The substance of the failure of the government to respect the privileges of Parliament is overwhelming, and the committee has brought this question forward.

The motion itself has allowed you, sir, to reach into the committee's work and has brought it before the House. You are effectively able to rule on it based on the information presented to you this afternoon. I would urge you to do that, and I too would be disappointed if we cannot by this method see that breaches of parliamentarians' privileges have taken place. If you do not see the information brought to you thus far as constituting a prima facie case, please advise the House as to what needs to be done to bring this matter before you in such a way that you can hear it. But I would submit that we really should be dealing with substance here, not the form. I recognize that last week when I raised this as a question of privilege, I was not doing so as a member of the committee and that it did not come from the committee. This motion has come from the committee and is a finding of the committee that it believes that the privileges of its members have been breached, and this is offered to you for your consideration. I hope you will so find.

Committee Witness Testimony and Supporting DocumentsPrivilegeRoutine Proceedings

4:05 p.m.


Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC

Mr. Speaker, my colleagues who spoke before me made presentations based on the facts surrounding what happened at the committee. I believe, however, that you should certainly take into account jurisprudence and parliamentary law when you are making your ruling.

Again, as I did last week for the question of privilege of our colleague, the hon. member for Mount Royal, I refer to the House of Commons Procedure and Practice 2nd Edition, O'Brien-Bosc. I see that the authors are at the table and I am sure they will agree with my interpretation of their work. In any case, even if the authors agree, it is you who must agree. It is you we must convince, Mr. Speaker.

I refer you to chapter 3, entitled, “Privileges and Immunities”, page 111 in particular. In the middle of that page there are references to other examples of obstruction, interference and intimidation. We talked about prima facie cases of privilege in the case of members of Parliament. In the case of the hon. member for Mount Royal, we mentioned the damaging of a member's reputation. In the case before us, we are talking about “the intimidation of Members and their staff and of witnesses before committees”.

In matters of parliamentary law, it is generally agreed that witnesses who appear before parliamentary committees enjoy the same immunity as members. They cannot be the subject of civil action or criminal prosecution for anything they say during their testimony. In order to ensure that the witnesses tell the truth, they must have some kind of protection.

I clearly remember being a member of the Standing Committee on Public Accounts when it was examining the sponsorship scandal. When Charles Guité—I cannot call him Chuck Guité, because I do not know him well enough and I do not respect him enough to call him Chuck—testified before us, he asked the senior law clerk of the House of Commons if he had full protection, because he knew that the outcome could be somewhat compromising for him.

I would like to call the attention of the House to another quotation, still from the same source, but this time I am quoting from page 114. Just below the two quotations, the paragraph states:

Just as prima facie cases of privilege have been found for the intimidation of Members and their staff, the intimidation of a committee witness has also been found to be a prima facie breach of privilege.

That refers to a crown corporation employee who was a victim of intimidation in 1992. The matter was found to be prima facie contempt by Speaker Fraser and referred by the House to the Standing Committee on House Management, as it was known at the time, for consideration. The committee is now known as the Standing Committee on Procedure and House Affairs. I am the vice-chair, and you were once the chair of this committee before becoming Speaker of the House.

I will close with a quotation from the report of the Standing Committee on House Management. This is from page 115:

The protection of witnesses is a fundamental aspect of the privilege that extends to parliamentary proceedings and those persons who participate in them. It is well-established in the Parliament of Canada, as in the British Parliament, that witnesses before committees share the same privileges of freedom of speech as do Members. Witnesses before parliamentary committees are therefore automatically extended the same immunities from civil or criminal proceedings as Members for anything that they say before a committee. The protection of witnesses extends to threats made against them or intimidation with respect to their presentations before any parliamentary committee.

Mr. Speaker, I would refer you to footnote number 241, concerning a ruling by Speaker Fraser on February 18, 1993.

As my colleague from Saint-Jean said, I am certain that you will study the matter carefully, as you always do, taking into account the principles of parliamentary law that I have touched on.

These excerpts from O'Brien-Bosc support a favourable decision in the question of privilege raised by our NDP colleague.

Committee Witness Testimony and Supporting DocumentsPrivilegeRoutine Proceedings

4:10 p.m.


Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, the third report of the committee, I think, was misrepresented by the parliamentary secretary. He referred to it as being one line, but I think for certain that the member should be aware of exactly what it says. It is a little bit longer than one line.

It states:

On Thursday, November 26, 2009, the Special Committee agreed to report the following motion:

That the Committee believes a serious breach of privilege has occurred and members’ rights have been violated, that the Government of Canada, particularly the Department of Justice and the Department of Foreign Affairs and International Trade, have intimidated a witness of this Committee, and obstructed and interfered with the Committee's work and with the papers requested by this Committee.

Therefore this Committee reports the breach to the House so that it can consider the matter.

A copy of the relevant Minutes of Proceedings Meeting No. 17 is tabled.

Mr. Speaker, it is not one sentence. I think the parliamentary secretary may have misspoken by suggesting that somehow the motion made by the hon. member for Ottawa South has to make all arguments and stand on its own. In fact, Mr. Speaker, any member of that committee could come to this place now, I believe, under a matter of personal privilege because his or her own rights have been violated pursuant to O'Brien and Bosc. If the member would like to check page 89 of the latter under the rights and privileges of members, this argument has been made many times in this place with regard to a member's right to freedom of expression, which has to be informed. To be informed, the member must have access to information.

That is the thrust of the matter before us, that the information was withheld.

It has not been mentioned yet, but there are other parties in addition to the witnesses who had the information or documents. These included Amnesty International, which had a press conference and was showing a CD that the documents were on.

There was Christie Blatchford, who reportedly, and it is even in today's Hansard, has had the documents and is making judgments on the commentary of other parliamentarians with regard to the matter before us today.

If we are talking about delays due to translation, why is it out in the public domain?

The rights of members have been breached. There is no question about it in my mind, but that is why it has been brought here.

With regard to one last point about the committee's activity, I have been a chair of the Standing Committee on Access to Information, Privacy and Ethics and conducted the hearings with Messrs. Mulroney and Schreiber. Early in the proceedings there were a couple of cases where Mr. Karlheinz Schreiber in fact had documents and was reading from and referring to those documents. As chair, I asked for and in fact demanded on behalf of the committee that those documents be made available. They were released to us. We did have the consent of the Bloc to circulate them in the language in which they appeared, subject to the documents being translated as quickly as possible. This committee could have done that. Nonetheless, those documents were released to us.

Therefore, there are examples of committees being able to access the necessary information to do the jobs of committee properly.

Notwithstanding that the government members of the committee do not support what this report says, I believe that even an individual member coming before this place and making these arguments and claims has a substantive basis or prima facie case of privilege. I look forward to the Speaker's decision, particularly as it relates to the requirement of what must come from committees in order to address a matter before committees. It has been a point that has come here so often, where the Speaker has had to rule that it is committee business and to take it back to committee.

However, I hope that is not case with this. I hope that the committee's report and its motion and the minutes attached to the report substantively bring this matter to the House for full disposition.

Committee Witness Testimony and Supporting DocumentsPrivilegeRoutine Proceedings

4:15 p.m.


The Speaker Liberal Peter Milliken

The hon. member for Windsor—Tecumseh. I trust this will be brief. I think I have heard enough on this point.

Committee Witness Testimony and Supporting DocumentsPrivilegeRoutine Proceedings

4:15 p.m.


Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, I will be brief as well. I have just two points.

First, I was concerned by the comments from the member for Edmonton Centre. He seemed to be trying to lead you to believe there needed to be a list of all the documents required in the letter that was sent into you to put you on notice that the motion on privilege was going to be raised. That is clearly not the case.

In that regard, I would simply draw your attention to chapter 3, page 142, of O'Brien and Bosc and its third point regarding what needs to be contained in the information. It only has to be the substance of the matter. That is clear both from the third report from the committee and the letter you received from the member for Ottawa Centre.

Mr. Speaker, the second point to which I would draw your attention is really about the substance of what has gone on here, as I see it. I want to support the comments that we heard from the whip from the Bloc earlier this afternoon. This is about the attempt to intimidate this witness by legal counsel. I would again draw your attention to chapter 3 of O'Brien and Bosc, page 114. For time's sake, I will start reading at the second sentence, the third line, which states:

In 1992, a witness who had testified before a subcommittee was advised by a Crown corporation employee that the issue of her testimony was being referred to the corporation’s legal department.

They were just referring the testimony to that department. The Speaker found there to be a prima facie case in that situation, even before the witness had received any direction or an attempt to be directed by the legal department; just the very fact the witness was being warned that she was going to be put on notice at the legal department was sufficient to find a prima facie case. I think that is very relevant to the circumstances we have here.

Committee Witness Testimony and Supporting DocumentsPrivilegeRoutine Proceedings

4:15 p.m.


The Speaker Liberal Peter Milliken

I thank hon. members for their submissions on this point, but I think I have heard enough for the time being to deal with it.

I thank the hon. members from all parties who made submissions on this point. We have before us today the third report of the Special Committee on the Canadian Mission in Afghanistan. The report is very brief. I can read it again. It states:

That the Committee believes a serious breach of privilege has occurred and members’ rights have been violated, that the Government of Canada, particularly the Department of Justice and the Department of Foreign Affairs and International Trade, have intimidated a witness of this Committee, and obstructed and interfered with the Committee's work and with the papers requested by this Committee.

My ruling last week on the point raised by the hon. member for St. John's East was cited by the Parliamentary Secretary to the Minister of National Defence in his response to the request for a question of privilege to be dealt with. I will again cite the quotation that I used from the House of Commons Procedure and Practice, second edition, page 151, which is also from Chapter 3 that everyone has been referring to today. It states:

If, in the opinion of the Chair—

--and this is the chair of the committee--

—the issue raised relates to privilege (or if an appeal should overturn a Chair’s decision that it does not touch on privilege), the committee can proceed to the consideration of a report on the matter to the House. The Chair will entertain a motion which will form the text of the report. It should clearly describe the situation, summarize the events, name any individuals involved, indicate that privilege may be involved or that a contempt may have occurred, and request the House to take some action. The motion is debatable and amendable--

--and so on.

The point is that this report, in my view, is inadequate. It does not provide the details on which the House can make a decision on privilege. One may be forthcoming from the committee. The committee is free to do this at another meeting and come in with a detailed report that meets the requirements of our practice, but in my view it has failed to do so in the report that we have received today.

There are no names of any individuals involved. I understand the committee is receiving more material as we are discussing this. I do not know when the committee is meeting, but undertakings have been given that more material will be filed. The committee is calling other witnesses.

It seems to me that we should have a report from the committee that outlines in detail the alleged breach, what has or has not been tabled, which witnesses have been intimidated and which have not, and those sorts of things. These are not here in this report and, in my view, they ought to be. Until they are, I do not think I can make a finding that there has been a breach of privilege.

I need the details provided to the House in a report. The Speaker then makes a finding on that report. That is the practice outlined in the House of Commons Procedure and Practice. Then a motion can be moved.

Otherwise, as the parliamentary secretary pointed out, any committee can pass a motion like this, send something back here saying that it looks as though there has been a breach of privilege and ask the Speaker to make a finding and therefore in effect order an emergency debate that takes priority over other business of the House. It is important that if the Speaker is going to make a finding of a breach of privilege of members of the House, there be a detailed report from the committee indicating what the alleged breach is. We do not have that at the moment.

By saying no today, I am not saying there will not be a finding later if material is brought to the House, but in my view the committee report as it stands is inadequate for this purpose. It needs to have considerable further detail in it. I would hope that the committee, in its deliberations, will come up with a list of things that it needs or that it feels are inappropriate and that it will get those in testimony from the witnesses whom it calls.

Therefore, when the information is available, I trust that the hon. member for Ottawa Centre or other hon. members who are members of the committee will be back in the House with a report asking the Chair to make a ruling in respect of privilege with regard to that report. I believe the Chair requires further information in accordance with our practice to make such a finding and cannot make it just because the committee majority thinks there has been a breach without then providing some information on which the Speaker can base a finding of a breach of privilege of hon. members.

I will leave the matter at that for the time being.

Electronic Commerce Protection ActGovernment Orders

4:20 p.m.


Brian Masse NDP Windsor West, ON

Mr. Speaker, I am pleased to rise on Bill C-27. I will read the precursor to the bill so that the public knows what we are talking about.

This is known as the anti-spam bill, but in particular it is An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.

This is about limiting electronic messaging that is unsolicited and unwanted which is coming across the Internet to many people in their homes and businesses. It is affecting the economy and the productivity of Canada and. in my opinion, is also a breach of consumer rights in many respects.

This is the reference in terms of the informal notation of spam. We all have received it in our mailboxes, whether it is an account at work or at home where we have received unsolicited electronic messaging.

I was pleased to support the government when it brought forward Bill C-27. It had interesting dynamics on the political front because during this process, it appeared the government would cave to a number of different initiatives from the Bloc and the Liberals to weaken the bill, but that was prevented at committee. We do have, I believe, all party support right now to bring a piece of legislation in line, which we can all be proud of and that will benefit consumers and the Canadian economy.

I would like to note that I am a bit worried about where the government is going with this legislation in terms of prioritization. We made an effort in the committee to work through this really quickly and I gave my personal word to move through this really quickly. We did get that done at committee and we did ensure that we preserved the fundamentals of the bill. There was some weakening of it, which I did not agree with, but at least it still meets the test at the end of the day.

It then took literally weeks before it appeared back here in the House of Commons and is finally coming back here again. It needs to be voted on again here in the House of Commons before it can move to the other place, the Senate. Unfortunately, some other bills have been stalling in the Senate. I do not know the politics between the Liberal and the Conservative Parties with regard to some of the legislation, but one of them I would note is Bill C-6, which is critical because it relates once again to consumer product safety for recall.

I would point out more recent examples. There was the one with the baby cribs, but there was also the one with regard to Toyota products where four million Americans received a recall notice related to brake and acceleration issues caused by the floor mats. Meanwhile, the 200,000 Canadians who had the same problem over here only got a public announcement on a website posting at their expense really.

I do not know why. I have written Toyota and asked why it has not done this for Canadians. It is ridiculous. Our public safety and a number of things are at risk.

However, that is an example of a bill that is stalled and we do not know where it is going to go.

The bill enjoys strong public support and it has the support of the New Democratic Party. This is part of our electoral platform in moving a number of consumer issues forward that we really want to see implemented as law. The other place will have to do some work on this bill and there will be some lobby efforts on this bill. That happened at our committee. I could be wrong but if I am not mistaken, some members of the other parties were accepting questions literally from the lobbyists in the meetings.

I think there will be a push to weaken the bill. However, some elements in the bill make it really strong and make it a good bill for Canadians and Canadian businesses because it affects our economy.

When we look at the issue of spam and electronic messaging, we need to recognize that Canada is in the top 10 and one of the few countries in the G8 that do not have this type of legislation. We are behind. We can catch up with this bill quite significantly and have one of the better models to deal with the issue.

Approximately 5% of the spam in the world comes from Canada. We are actually known as a harbour of some of the actual big spammers out there. I think we stand fourth in the world in terms of spamming, behind Russia and just ahead of Brazil.

We heard this before and it was important that we change it in terms of some of our workings with the United States. In the past, movies playing in Canadian theatres could be taped and that technically was not illegal. We were able to solve that problem over a year ago, giving credit to the way the Canadian market worked in terms of being fair to consumers and the industry. I see the same with this bill.

The model that is being proposed in this bill is a bit different than the United States. The United States passed a law in 2003 called controlling the assault of non-solicited pornography and marketing act. The U.S. calls this bill the can the spam bill because there is an opt out clause. An individual must opt out from receiving information.

Canada would have a much more proficient system with this bill. If an individual does not have an existing business relationship or does not have permission, then he or she should not be sending unsolicited emails. This would be a better system because it would clean things up more profoundly.

Some good things have taken place with regard to the United States system. There have been some charges related to it and there has been a reduction in spam. However, nothing will solve this problem outright. There is no doubt that no matter what law we put in place, there will be some challenges. There will be those who will always break the law. It does not matter what law we actually set in this chamber because there are always those who will take advantage of other people despite their economic and personal issues.

Electronic commerce activity is increasingly important in a competitive world. It is also important for us to meet our needs on the telecommunications run as we learn about the world and the use the Internet. Harboured down with approximately 87% of activity being electronic messaging undermines the Internet.

It is important to note that some good electronic commerce does take place. Businesses can effectively use it for advertising their services. Consumers want to use electronic commerce and that will continue, but there will be some regulation under this bill. This bill would take away some of the most offensive and egregious issues. Individuals would be penalized. Private action could take place as well, which is another strong point of the bill. I will get into this later in my speech.

As I mentioned, spam represents about 87% of email activity around the world. Last year it was estimated that 62 trillion spam emails were sent out and it is done in a variety of ways. This bill would identify some of those ways and eliminate them. I will get into a few of those as well.

An Ipsos Reid poll found that approximately 130 spam messages are received by Canadians each week, and that is troubling because that is up 51% from the year before. It is not just the irritation of removing unwanted messages and solicitations but it is also time-consuming. Employers are worried about the time this takes and the cost.

I do want to make a point that we in the NDP have been really strong on in terms of consumer rights. It is not a right to send these messages, it is actually a privilege. Let us think about that. When people purchase a computer or other electronic equipment that receives messages, they pay for that out of their own pocket. They also pay to maintain that equipment as well as paying for continual upgrades to software and so forth to ensure it is working efficiently. They also pay for the Internet service, the actual conductor of the information. Those who are sending spam need to understand that.

It should not just be an absolute right that we get inundated by activity, especially when we have some in the marketplace who are using malware and other types of spy software to try to gain more information about us by surfing the Internet to find out what our habits might be as consumers on the Internet. That also undermines the our ability to have confidence in it as a vehicle for doing commerce and legitimate business. It is important that those people who behave in that activity would be punished for offences under this new act.

This bill would create laws based on the federal trade and commerce power. That is important, because it will provide an opt-in approach. So there will be existing business relationships that we have and there is a timeframe for the sign-up.

One of the things that the bill would provide is windows of opportunity for businesses with current existing relationships to make that connection with their customers. One of them is for 18 months in terms of a previous existing business relationship. The Bloc moved a motion to extend it to 24 months, which I opposed. I believe that 18 months is plenty of time for someone to get information from us. It is a long time period, being over a year and a half, but now it is two years and I think that is unfortunate.

However, once we have this law in place, there will be a process for those to be punished who are actually doing it. The way it will need to be done is through three regulatory agencies. The first is the CRTC, which will be involved in terms of investigating complaints.

We then have the Competition Bureau which will be responsible for the administrative monetary penalties, if there is an actual breach that has been confirmed by the CRTC. The fines can be up to $1 million for individuals and $10 million in all other cases. So there will be a recourse to show to those spamming powers out there that are doing this that there will be punishments, that it will be more than just a fine, that it will be significant for them to deal with and, hopefully, it will curb that behaviour.

The Privacy Commissioner will also be involved because sometimes our privacy rights are affected by spam. There have been a number of cases where spammers have used headliners that look like many banks' headliners and then, for example, people click thinking it is their own bank, but it turns out that it is a spammer collecting data and information from them. Sometimes that can be quite perilous. There have been cases where people have lost money thinking it was their own financial institution or a legitimate financial institution and they have provided access to some of their monetary resources. Unfortunately, that is why the Privacy Commissioner needs to be involved because it also will protect our personal privacy. A lot of people are concerned about that.

I think one of the reasons the bill will be strong is it would have those three regulatory agencies actively involved in maintaining the accountability of the actual bill.

Interestingly enough, there was a bit of a debate about whether this bill should deal with the telephone solicitation issue. It does not but at the same time it would give the minister a bit more ability to work on the do-not-call list. I hope the minister takes this up to fix some of the do-not-call list problems. One of the ones that is in there that this bill would prohibit is the issue of surveys. The government almost capitulated on this. I would like to thank those in the industry, Michael Geist and a number of other different individuals, who pointed out this giant loophole that we could drive a truck through, whereas if someone proposed or sent a survey to somebody it did not count as solicitation or spam and, hence, it would have actually avoided the whole regime. The government, at one point, looked like it had actually tabled an amendment on this but it ended up not tabling it. It backed down from that amendment.

Ironically, the Liberal Party picked it up and actually tried to move it but it was defeated when the chair overruled that. We were lucky that we did not have that. The one thing I hope will be cleaned up with the do-not-call list is the survey loophole that everybody knows about and which is hindering the capability of the bill. We did not actually have a section on that, so that gives the minister some flexibility to fix it and I hope that he takes me up on that suggestion.

It is also important to note that there was another issue in the bill that was defeated. It is important to recognize that because it is an issue that people are concerned about. In the original manifestations of the bill there was a provision that would have allowed companies to go onto our computers and seek information from that computer. If we had agreed to them being part of our Internet relationship, we would be consenting or allowing them to go onto our computer and access information and documents, and basically surf through our computer unknown to us.

That issue was taken off the table as well. There was great Internet discussion and blogging about this offensive piece of the legislation. I was happy to see that backed out as well. It is important because had that provision been there as well as the other provisions I have mentioned that were taken out, I do not know whether I could have supported this legislation because it would have weakened it so much. It would have become far weaker than even the do not call registry. It is very fortunate that we were able to get consensus and push that back.

As well, there were a couple of amendments that were interesting and I was rather curious as to how they came forward. We will see whether or not in the Senate they will be pushed forward again. One of them came from the Bloc and that was the extension of the time to actually opt out of an email subscription. The way it works is if I, for example, agree to receive an email and I have a relationship with a company or if someone is sending me that information, then I can opt out of that later on, by just sending an email that I do not want to continue this relationship. The way the legislation was written I would be taken off the list in 10 days. The Bloc moved a motion for it to be 30 days. The final part of the bill is 10 business days.

If we agree to an email through our bank or somewhere else, they will instantly start spamming or sending information. Once we agree, they start flying in. I have Aeroplan points, for example, from Air Canada and boy, that thing rings all the time with all kinds of stuff. I have agreed to that relationship and sometimes it is helpful, sometimes it is irritating, but I make that choice. To suggest that I want out of that and that it would take 30 days to get out of that is absolute nonsense, especially with the sophistication of some of the programs. Ten business days is a sufficient time to end that relationship. It is not burdensome at all especially when they have the capability of adding us in instantaneously when we agree to get on these lists.

I was puzzled about this and when it gets to the Senate we will see whether or not there is going to be another lobby effort either to kill the bill or to weaken it some more. If it is weakened even more, Canadians will be upset because they are seeking a solution to this. As well, it is important to reinforce the issues of how serious spam is. Spam is used in crime. Spam is also used in an organized way that affects the whole Internet capacity of the system. We just have to look at some of the botnets. These are zombie computers where specific programs are written to go in and then turn our computers into a generator off spam or email spam for someone else who controls a whole grid of them.

I am going to wrap up by saying that I will be supporting the bill. We want to see this happen as soon as possible. I am glad it has finally come to this chamber. I was disappointed it took so long because we worked really hard at committee to get it here faster. I am concerned it will have some impact in the Senate. We will see whether the senators are going to stand hard on the bill and make it happen quickly for Canadians to ensure we get some real results.

Electronic Commerce Protection ActGovernment Orders

4:40 p.m.


The Deputy Speaker Conservative Andrew Scheer

Order. It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Malpeque, Agriculture and Agri-Food; the hon. member for Mississauga South, Natural Resources; and the hon. member for Yukon, Canada-U.S. Relations.

Electronic Commerce Protection ActGovernment Orders

4:40 p.m.


Bill Siksay NDP Burnaby—Douglas, BC

Mr. Speaker, toward the end of my colleague's speech in this debate on Bill C-27 he was getting to the whole discussion of how spam is used in crime. That is a very important piece of what we need to be addressing with legislation.

We have all experienced the concerns and panics about computer viruses. We have heard the words Trojan horses and other malicious attempts to interfere with people's computers and corporate computers. We know it is sometimes directed toward identify theft and other types of fraud. There are other issues that come up. The member was talking about zombie computers, where off-site computers can try to take over other people's computers, and the whole question of phishing.

I wonder if the member might address a little more about how the bill tries to take on the whole issue of how spam connects with criminal activity.

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4:45 p.m.


Brian Masse NDP Windsor West, ON

Mr. Speaker, one of the interesting results of the American legislation that was passed was the conviction of Robert Alan Soloway, who was arrested in the United States. He was one of the world's largest spammers.

The member is quite right when he refers to the issue and its connection to crime. It was not only identity theft and fraud, but money laundering was also part of the 35 criminal counts he was charged with. I am not exactly sure where it is. I think it was 2007 when he was arrested and some of the cases may be going through the courts. Those were the types of things with which he was charged.

That is important because it is not only about privacy but whether people's money can be taken. Government information and a great deal of personal information can be stolen and used for other types of illegal activity. The issue is related to money laundering. That can make it very harmful to citizens but also companies.

I want to touch on companies, too, because some of the market they invest in gets lost or hurt because of spamming. Some of the spamming is very particular, very clean in imaging, and induces people to think it is something it is not, such as, for example, the banking industry. It costs that industry because it loses customers. People then do not want to trust that company because others have abused it. That is why we do not want to lose sight of the criminal aspect of this as well.

Electronic Commerce Protection ActGovernment Orders

4:45 p.m.


Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, I had the opportunity to speak to this bill earlier and there was one issue I dealt with that maybe the member would like to comment on. It has to do with directing some of the attention on the ways in which small- and medium-sized businesses themselves can help to protect their own information by having best practices, et cetera.

I would refer him to the Canadian Privacy and Data Security Toolkit for Small- and Medium-Sized Enterprises, which was produced by the Canadian Institute for Chartered Accountants and issued at the beginning of last summer. There are, in fact, audit checklists in there for businesses because if they are not part of the solution, they are part of the problem.

With regard to this bill, it is one thing to look at the problem and how we might deal with those who abuse the situation, but businesses themselves have to be proactive in protecting their own information. I wonder if the member would like to comment on the need for businesses to be part of the solution.

Electronic Commerce Protection ActGovernment Orders

4:45 p.m.


Brian Masse NDP Windsor West, ON

Mr. Speaker, this issue really needs to be taken seriously. This is a privilege, not a right, especially given that businesses and people have invested in their own computers. They are the ones paying for the maintenance, as I noted. They are also paying for the Internet service being provided.

It is very much a privilege, not a right, to interchange in such a relationship. Otherwise, what should happen is that maybe consumers should get 5¢ for every ad or some type of remuneration for doing it. That really should be what is happening if this type of behaviour is seen as a right, not a privilege.

I would argue that there are some really good models, as the member has noted. Organizations are trying to create some best practices, so that they can keep their areas lined up correctly. With the three government agencies, the CRTC, the Competition Bureau and the Privacy Commissioner, there will be a really good, strong regime to set some good examples right away rather than those that are terribly abusive. That will hopefully bring in line those who are kind of on the fringes of doing this activity.

Electronic Commerce Protection ActGovernment Orders

4:50 p.m.


Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, my question is a bit of a follow-up from the question by the member for Mississauga South, but it has to do with the whole role of businesses. Businesses have privacy officers now, and I am talking about little businesses here. A lot of them will not even know that the legislation has passed the Senate, even when it does pass the Senate.

The question I have is whether the member thought that the government should have a roll-out plan to let small businesses know about the bill and its regulations. Perhaps that would go a long way to avoiding all of the problems that will come up as a result of the bill in terms of non-compliance and perhaps people doing things inadvertently that they would not have done if they had known what the rules are.

Electronic Commerce Protection ActGovernment Orders

4:50 p.m.


Brian Masse NDP Windsor West, ON

Mr. Speaker, there have been a couple of good examples in the past. But when I think about what will happen right now, if we are lucky, the bill will go to the Senate and be passed some time in 2010. I am hopeful there will be no election and the bill will become law.

I was watching a video today about some of the crime bills that were lost when the Prime Minister called the election, despite elections being set for ourselves in the future. We hope we will not see that happen again.

Businesses will have an additional two years before it comes into full implementation, when they will have that existing business relationship that can be struck with their current client base.

I am hoping the government does roll out a program right away at the beginning so that we can get to those businesses, not wait till the last minute and then have those types of problems.

There will be flexibility with the CRTC and the Competition Bureau to determine if there are accidental breaches or whether there are habitual problems that are happening in particular companies. There are all kinds of wonderful ways that we can connect electronically, with the Government of Canada's own infrastructure system, and as well, even connecting into, for example, the chambers of commerce across this country.

There will be a lot of opportunity to engage the public with a two year period before full implementation. So we are really not looking at it immediately. It depends when it gets through the Senate. It might be 2012 or 2013 before the law would be fully implemented and protecting consumers and the Canadian economy, and that is a long time.

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4:50 p.m.


Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, my brief supplementary question is whether or not the member is satisfied with the penalties under the act. I notice that there is a right to private action. I would have liked to have seen some sort of examination of the possibility of class action because there are class action provinces in Canada. If the government does not enforce the act to its fullest, does the member think that the right of private action will actually step in as the tough enforcement mechanism?

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4:50 p.m.


Brian Masse NDP Windsor West, ON

I think it will, Mr. Speaker, but the member raises a really good point with regard to class action. That is one of the things on which we could probably have spent more time to see whether that could have evolved into part of the final structure of the bill.

We did not have much discussion on that at all, but it might be one of those things that we could look to add to the bill. I am hopeful that perhaps that would be a strengthening of the bill and that it could happen at the Senate. If not, I am hopeful that the bill stays in its current format, at least as a starting point, and then from there we could look at massaging the bill if it is not meeting the needs.

Once again, this is critical. This is not just about inconveniences and annoyances. This is a massive use of technology and the abuse that is taking place with customers. It affects the Canadian economy and it is also giving Canada a black eye right now.

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4:50 p.m.


Siobhan Coady Liberal St. John's South—Mount Pearl, NL

Mr. Speaker, I am pleased to rise today to speak to Bill C-27, the electronic commerce protection act. This legislation enacts important restrictions to the volume and frequency of spam in business transactions. I was pleased to have the opportunity to work with other members of the industry, science and technology committee to review this legislation and respond to some of the concerns brought forward by stakeholders.

Spam, or in essence, unwanted commercial emails, is a significant problem for Canadians. Spam currently represents 60% to 80% of all email traffic around the world. The sheer volume of messages challenges the capacity of Internet service providers and legitimate businesses that conduct their activities over the Internet and by email. Most important, it has a significant negative impact on consumers. Spam is a large source of computer viruses, phishing programs designed for identity theft, deception and fraudulent business practices that target the vulnerable.

A 2003 report estimated that fighting spam cost businesses and consumers $27 billion annually in information technology spending, including increased expenditure in Internet bandwidth, storage costs, anti-spam software and user support. In May 2004 the Liberal government established a task force to lead the anti-spam action plan for Canada. The task force held public consultations and led round tables with key stakeholders in the industry.

In 2005 this anti-spam task force tabled its final report outlining 22 major recommendations, including a key recommendation to strengthen federal legislation in this area. Specifically, the task force recommended that Canada implement legislation that would prohibit the sending of spam without the prior consent of recipients, prohibit the use of false or misleading statements that would disguise the origins or true intent of the email, prohibit the installation of unauthorized programs and prohibit the unauthorized collection of personal information or email addresses.

Bill C-27 looks to implement those recommendations. The electronic commerce protection act would introduce fines for violations up to a maximum of $1 million for individuals and $10 million for businesses. It would establish rules governing warrants for information during investigation and injunctions on spam activity while investigations are ongoing.

Bill C-27 would also establish the private right of action, allowing individuals and businesses the ability to seek damages from the perpetrators of spam. It looks to prohibit the sending of commercial electronic messages or, in other words, spam email without the prior consent of recipients. The bill also looks to prohibit the use of false or misleading statements that disguise the origins and true intent of the email, the installation of unauthorized programs and the unauthorized collection of personal information or email addresses.

Bill C-27 would introduce legislation to enact all of these recommendations. We are pleased that the Conservative government has finally decided to act on the recommendations of our task force.

However, upon more detailed review of the provisions included in Bill C-27 at committee stage, there were flaws exposed in the bill and several changes were made that looked to improve and ensure that the productivity of businesses activities dependent on electronic commerce would not be impacted.

While the Liberal Party believes the bill remains unnecessarily restrictive to legitimate business in its approach in many regards, we will support the bill at third reading as action must be taken against spam. We will monitor the legislation closely going forward to ensure that it does not stifle legitimate electronic commerce in Canada.

However, the Liberal Party further notes that the fight against spam is much more than just legislation. The Liberal task force also recommended resources to be put toward coordinated enforcement of the law. As it stands, this legislation will only go as far as the willingness to enforce the law. Without additional resources toward enforcement and toward working with other nations to stamp out spam, the gains intended through this legislation will not be made.

We have yet to see how the government will put appropriate resources into enforcement. Dedicated resources should be put in place to work with Internet service providers and Canadian businesses to establish the best methods of enforcing these important regulations.

As I mentioned previously, through close review and testimony provided by witnesses at committee stage, flaws were discovered within the bill. Specifically clause 6 was found to have been written too broadly and could have suppressed legitimate business communications over the Internet. Clause 8 also defined “computer program” very broadly and could have suppressed legitimate businesses, software development and impeded legitimate Internet functions.

After considerable work, many amendments were made to improve the bill, refining measures for electronic messages, computer programs and the protection of privacy rights.

The bill, however, retains a very strict philosophy. Bill C-27 takes a very broad approach to defining a rather wide definition of electronic messages that puts the onus on individual businesses to seek exemptions if they believe their activities to be legitimate.

The proposed Liberal approach was to define known spam irritants and define them as illegal, with the flexibility to add further definition as electronic messages on the Internet evolved.

The concern with the Conservative approach is that an overly heavy-handed approach could stifle electronic commerce in Canada and negatively impact the productivity of the business community.

Overall, however, many good changes were made to the bill at committee stage. As such, the Liberal Party will support the bill at third reading.

When it was first tabled, it appeared that while stakeholders supported the concept of the bill, they were quite concerned about the details of Bill C-27. Business groups, including the Canadian Chamber of Commerce, the Electronic Software Association, various interests in the technology sector all felt that Bill C-27 was too restrictive and could hamper legitimate commerce.

With significant amendments at committee stage, these stakeholder groups now feel the legislation has better balance. However, they maintain the legislation is still heavy-handed and could suppress legitimate electronic commerce activity. Many, however, have indicated that they will look to see further amendments as the bill passes through the Senate.

The following issues in no particular order of priority present the outstanding concerns heard during the review of this legislation, but were not amended under the clause-by-clause consideration of C-27.

First, in hearings before the committee, the Canadian Bankers Association raised concerns dealing with Bill C-27 and confidentiality. In its testimony to the industry, science and technology committee the Canadian Bankers Association recommended that the electronic commerce protection act be amended to specifically protect information produced under the act from disclosure by CRTC in respect to an access to information request.

The amendment proposed by the Liberal members was under clause 29 of Bill C-27. This amendment sufficiently addressed concerns that a document produced for and then kept by the CRTC would not be available to be made public under the Access to Information Act. It also served to specifically protect the information from disclosure by CRTC in response to access to information requests that could be important for proprietary reasons.

Our ability to make this change was limited by the need for a consequential amendment to the Access to Information Act, which we were unable to move as it fell outside the jurisdiction of Bill C-27.

The next issue the Liberal members of the committee felt important to bring to the attention of the committee under its review of the bill dealt with materiality. We believed it was important to retain the standard of materiality in respect to electronic sender information and subject matter information and brought amendments to clauses 71 and 73 to include the words “in a material respect”.

The main reasons for these amendments are as follows. The first is the chilling effect on individuals and businesses doing business. Without this change, concerns remain that individuals and companies doing business in Canada will automatically face potential criminal prosecution or civil action under the Competition Act every time someone asserts that the subject matter information in a business email is somewhat misleading, whether by understatement, by overstatement or otherwise or is in some other aspect false.

The addition of “in a material respect” is consistent with the language used in the Competition Act. Without this amendment, even trivial or immaterial misstatements or representations that are false or misleading will be subject to the serious consequences in the Competition Act.

The second effect could be felt in the Competition Bureau, including materiality, which would provide the Competition Bureau with the necessary discretion to brush aside complaints raised about purported misstatements that were trivial. Given the thousands of complaints made annually to the Competition Bureau, this change would allow the immaterial or trivial representations to be automatically filtered.

Third, materiality would impact double consequence. Due to an amendment brought in by government members to clause 51, the sender of a misleading email would be held accountable twice, once under the serious consequences in the Competition Act and again under penalties to Bill C-27, by heavy penalties for a misrepresentation that may not be material.

Unfortunately, the Liberal amendments to make these important changes concerning materiality were not supported by other members of the committee, so Bill C-27 retains these potentially problematic sections.

The next major area of concern dealt with referrals for legitimate professionals. We received interventions from several organizations concerning the need for certain professionals to make and follow up on third party referrals by email. Referrals are key to many professionals' success, for example, financial advisers and realtors to name a few, and initial changes brought forward by government for discussion at committee included changes allowing clients to pass along the electronic address of a contact, family member or friend to the professional.

The amendment originally proposed by the government does include a number of conditions that must be met, which we feel will prevent abuse.

First, the sender needs to be in an existing business relationship with the referrer. The referrer needs to have a personal or family relationship with the recipient. The sender has to name the referrer and the sender is limited to sending a single message to the recipient. Unfortunately, the government decided not to present this amendment at the clause-by-clause review of the bill and did not support the Liberal amendment to include these important exemptions in the legislation.

Another area of concern for stakeholders centred around the definition of a computer program. The Liberal members presented an amendment suggesting changes to the definition of a computer program. The goal of this amendment was to ensure that a computer code meant to be compiled by a web browser, such as Flash, JavaScript or HTML, along with popular web technologies such as Java code, Flash programs, et cetera, would no longer fall under the ambit of the anti-spyware provisions.

The most effective way to exclude legitimate website codes from the anti-spyware provisions seems to be to propose a comprehensive definition, which is subject to amendment by regulation to ensure it is kept current against new and emerging online threats. The amendment proposed by the Liberal members of the committee was defeated and officials pointed to the changes made to clauses 8 and 10 of the bill to address some issues dealing with consent around computer software.

Finally, concerns surrounding the communication between regulators of self-regulated professions and their members under the electronic commerce protection bill were raised during the committee review, and Liberal members brought forth an amendment to address this issue.

As currently drafted, Bill C-27 prevents professional regulators from sending legitimate communications to their members for innocuous purposes, such as continuing legal education opportunities. In many cases, these regulatory groups are required by statute to make members aware of such opportunities.

This could be a simple oversight and could be remedied by introducing an amendment to provide an explicit exemption for self-regulated professions under clause 6. This amendment was initially contained in the draft changes brought forward by government officials for discussion at the early October meeting of the committee, but was not brought forward as an amendment by the government during the clause-by-clause review of the bill. A Liberal motion on this issue was presented at a later date, but was ruled out of order, so this oversight remains an unfortunate component of Bill C-27.

While there remains room for improvement to the bill, the Liberal Party will support the electronic commerce protection bill at third reading in the interests of taking necessary action against spam in Canada.

The concerns that I and my Liberal colleagues have articulated throughout our study of this legislation will hopefully be given some thought by the government for inclusion within regulations. The Liberal Party would have approached this bill from a different philosophy than the government has, but we also recognize it is important for the bill to move forward for the sake of Canadians. It is important that we continue to monitor technological advances throughout the progress and implementation of this legislation and any changes that are enacted to increase the productivity of Canadian business.

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5:10 p.m.


Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, what sort of advertising program does the member think the government should embark upon if we ever get to the point that this legislation passes? It has to go through the Senate. We have to avoid an election or else we will be back here discussing the same thing a year or two from now. If we do get to the point where the Senate approves the bill, what does the member think the government should do in terms of advertising to the public, advertising to small business and trying to make certain the bill actually has teeth and proper enforcement?

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5:10 p.m.


Siobhan Coady Liberal St. John's South—Mount Pearl, NL

Mr. Speaker, we look forward to the bill moving forward. It is intended to deter spam and protect the integrity of data transmission. We would like the bill to move forward rather expeditiously. We must ensure that legitimate business is not hampered in any way. We are a society that does a lot of commerce over the Internet.

I would ask the government to embark upon discussions with the Canadian Chamber of Commerce and the networks of chambers of commerce and boards of trade and other industry associations to widely spread the information about the provisions of the bill so that it can be implemented as quickly as possible.